Mahdiehsadat Jazayeri v. Economical Insurance Company, 2024 CanLII 88883

Citation: Jazayeri v. Economical Insurance Company, 2024 ONLAT 23-007687/AABS-R

RECONSIDERATION DECISION

Before: Tanjoyt Deol

Licence Appeal Tribunal File Number: 23-007687/AABS

Case Name: Mahdiehsadat Jazayeri v. Economical Insurance Company

Written Submissions by:

For the Applicant: Kaitlyn MacDonell, Counsel

For the Respondent: Pina Carusone, Counsel

OVERVIEW

1On May 1, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue hearing decision, released on April 10, 2024 (“decision”).

2In the decision, I found that the applicant was not “involved in” an accident on July 19, 2021, therefore she was not eligible to claim benefits under an automobile insurance policy. As I found that the applicant was not “involved in” an accident, I did not make a determination with respect to whether the applicant was an insured person under iteration (a) of the definition of “insured person” found in s. 3(1) or a deemed named insured under s. 3(7)(f)(i) of the Schedule, as this issue was immaterial. Likewise, I did not conduct an analysis of whether the accident met the purpose and causation tests.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The applicant is seeking a reconsideration pursuant to Rule 18.2(b). The applicant submits that she should be found to be an “insured person” under the policy of insurance with the respondent by operation of either iteration (a)(i) or (1)(b) of the definition of “insured person” found in s. 3(1) of the Schedule. The respondent argues that the applicant has not met her onus, as she has not established an error of law such that the Tribunal would have reached a different result had the error not been made. Thus, it submits that the request for reconsideration should be dismissed.

RESULT

5The applicant’s request for reconsideration is granted, in part. Pursuant to Rule 18.4, the decision of April 10, 2024 is confirmed with respect to the findings that witnessing an accident does not meet the definition of “involved in” under either iteration of (a)(i) or (b) of “insured person”, and that the applicant sustained psychological injuries from witnessing the accident and its aftermath. Thus, the applicant was not “involved in” the accident on July 19, 2021. The remainder of the applicant’s request for reconsideration is dismissed.

ANALYSIS

6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(b) Errors of Law or Fact have been established

7The applicant submits that I made the following errors of law or fact in the decision, and I would have likely reached a different result, had these errors not been made. These are:

a. An error in law that “involved in” an accident requires physical contact with a car.

b. An error in law in not applying the appropriate facts to the correct tests to determine whether the applicant was “involved in” an accident.

c. An error in law and fact that the apprehension of being hit by a vehicle was not properly considered for the assessment of “involved in” an accident.

8I will address each of these arguments in turn.

i. No misapprehension of the law

9The applicant submits that in her initial hearing submissions, she argued that she can be “involved in” an accident under iterations (a)(i) or (1)(b) of the Schedule's definition of “insured person”. She argues that I erroneously relied on Amiri and Mireskandari v. The Co-operators, 20-003296/AABS & 20-003319/AABS, 2021 CanLII 45657 (ON LAT) (“Amiri”) which I found the most persuasive. She argues that Amiri related to an analysis of iteration (a)(ii) only, which is a section that was not argued by her, and therefore I misapprehended the law.

10Meanwhile, the respondent argues that I did not commit an error of law by applying Amiri and determining that the applicant was not “involved in” an accident. It further submits that Amiri has been cited with approval by another Tribunal decision of Bustin v. Economical Insurance Company, 2022 CanLII 87718 (ON LAT) (“Bustin”).

11I find that I did not misapprehend the law in my decision. At paragraph 18 of the decision, I referenced Amiri because I found it had a similar factual matrix to the matter before me, and agreed with Adjudicator Norris’s reasoning that proximity to an accident alone is insufficient. Moreover, at paragraph 19 of the decision, I noted:

In Amiri it was determined that the applicants were not involved in an accident, despite one of the applicant’s witnessing it first-hand, and the other hearing it and witnessing the aftermath. The applicants’ involvement in the accident was limited to their proximity to the accident scene and relationship with the injured party. They were not struck by the vehicle, not in a vehicle that was part of the accident and were not physically injured as a part of a sequence of events stemming from the accident. Amiri addressed the application of “nervous shock” claims and noted that they are limited to accidents involving family members.

12I find that I did not misapprehend the law by applying Amiri to the factual scenario before me, as here, the applicant witnessed the accident claiming the life of her boyfriend and the immediate aftermath, just like one of the applicants in Amiri. Furthermore, Amiri does not deal with an analysis of iteration (a)(ii) only. In Amiri, the issue before Adjudicator Norris was whether the applicant was “involved in” an accident as it appears in iteration (b); the same issue arises here.

13Notably, the applicant consistently submits that she was ”involved in” the accident within the meaning of iterations (a)(i) and (b) of “insured person”. Thus, I disagree that I misapprehended the law. First, Amiri pertained to whether the applicant was “involved in” an accident under iteration (b), which grappled with the same phrase as used in iteration (a)(i). Second, the applicant argued that she was “involved in” an accident under iteration (b), which Amiri expressly pertains to.

14In any event, at paragraph 20 of Amiri, Adjudicator Norris discussed the application of “nervous shock” claims and noted that they are limited to accidents involving family members. If the claimants in Amiri had their own insurance policy, they would qualify pursuant to iteration (a)(ii), because they were related to the accident victim. In other words, while Adjudicator Norris referred to iteration (a)(ii), this was to explain that sustaining nervous shock (psychological or mental injury) from witnessing an accident does not fall within the definition of being “involved in” an accident under iteration (b). Instead, Adjudicator Norris determined that “nervous shock” claims could fall under iteration (a)(ii); however, this is limited to certain familial relationships: a spouse, child, grandchild, parent, grandparent, brother, sister, dependent, or spouse’s dependent. In contrast to these specified familial relationships, the applicant is consistent in saying her relationship with the deceased was that of a boyfriend and girlfriend.

15I also find that I did not err in my decision because the Tribunal has also held in Boyle v. Travelers Canada, 2020 CanLII 103481 (ON LAT) (“Boyle”), that the Schedule contemplates nervous shock claims, but that iteration (a)(ii) limits entitlement for those claims to accidents involving family members.

16In Boyle, the applicant heard an accident involving a vehicle and pedestrian and rushed towards the scene to help the pedestrian, who died of accident-related injuries. There, coverage was denied because the applicant was not involved in the accident and because his psychological impairment was not as a result of the accident. The applicant was not an occupant of the vehicle, not entering or exiting the vehicle, not struck by the vehicle, and did not witness the initial impact of the accident. Thus, the applicant’s involvement with the accident was after it occurred, when he saw the accident victim and attempted to provide aid. The Tribunal determined that the applicant’s psychological injuries were not as a result of the accident, but due to witnessing the victim’s suffering. Boyle also briefly addressed “nervous shock” claims and noted that they were contemplated by the legislation but limited to accidents involving family members.

17I see no misapprehension of law by applying the authority of Amiri, which pertains to a similar analysis and fact pattern to the matter before me, which is whether witnessing an accident and its immediate aftermath constitutes as being “involved in”.

18Next, the applicant argues that I misapprehended the analysis required to decide whether she is entitled to benefits under the Schedule, because I referenced “nervous shock” claims in paragraphs 19 and 21 but I did not establish what this is or provide an explanation of what my interpretation of this is.

19I agree that my reasons could have been expanded to define what a nervous shock claim is and my interpretation of same; however, I do not find this rises to a misapprehension of the law. The respondent in its hearing submissions argued that in Amiri, the Tribunal held that “nervous shock” claims are contemplated under iteration (a)(ii) but limits entitlement to certain familial relationships. As such at paragraphs 19 and 21 of the decision, I agreed with Adjudicator Norris that “nervous shock” claims are contemplated in the Schedule but are limited to either individuals involved in an accident or have certain familial relationships with the policy holder. In my interpretation, “nervous shock” injuries are a psychological or mental injury sustained by witnessing a traumatic event. This is why I discussed the application of “nervous shock” claims as addressed in Amiri, and that these claims are contemplated under iteration (a)(ii), but the applicant had conceded that she was not claiming to be an insured person under this iteration of “insured person.”

20Finally, the applicant argues that I misinterpreted the legislation to narrowly apply to family members only. The applicant’s reconsideration submissions do not clearly outline which section of the Schedule that I misconstrued, however, it is presumably iteration (a)(ii), as she referenced this section at the top of her paragraph in her reconsideration submissions, when discussing this error.

21I disagree. As noted at paragraph 14 of the decision, under section 3(1), an “insured person” means, in respect of a particular motor vehicle liability policy, and in particular iteration (a)(ii) states:

i. if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant,

22A plain reading of this section indicates that a named insured, specified driver, spouse or dependent who is not involved in an accident can claim benefits for their psychological or mental injury if a person fitting one of the specified relationships sustains a physical injury from that accident. As such, I disagree that I misconstrued the law to narrowly apply to family members only, when a plain reading of (a)(ii) supports this interpretation. Again, the applicant specifically disclaimed reliance on (a)(ii).

23To summarize, I find that the applicant has not established that I misapprehended the law, and thus no error was committed here, and the applicant has not established grounds for reconsideration on this ground.

ii. Error about requiring physical contact was made and I would have likely reached a different result, if the error had not been committed

24I find that I made an error of law in the decision, when I determined that physical contact with a vehicle is required to be “involved in” an accident. I also find that I made an error of law and fact when I did not conduct a clear analysis of whether having psychological injuries from the apprehension of being struck on two separate occasions, would meet the definition of being “involved in” an accident. I agree with the applicant that if these errors had not been made, I would have likely reached a different result. As such, I find that the applicant has established grounds for reconsideration under Rule 18.2(b).

25To begin with the first error, the applicant argues that the Schedule is consumer protection and remedial legislation, and that any interpretation of inclusion must be construed broadly, and any restriction of the legislation must be construed narrowly. She argues that I committed an error of law at paragraph 20 of the decision, when I determined that in order to be “involved in” an accident, physical contact with a vehicle is required. In order to support this position, the applicant relied on a long line of case law, from this Tribunal, the Financial Services Commission of Ontario (“FSCO”), and the Divisional Court which determined that physical contact with the vehicle is not required to be in an “accident” within the meaning of s. 3(1).

26In response, the respondent argues that the applicant relies on case law not previously relied upon, which are distinguishable from the issue here, because they pertained to the interpretation of an “accident” and are fact specific. Also, it argues that the applicant did not sustain any physical injuries from the use or operation of the vehicle, unlike the applicants in the cited authorities.

27I agree with the applicant that I committed an error of law at paragraph 20 of the decision, when I determined that in order to be “involved in” an accident, physical contact is required. While I acknowledge that the authorities cited by the applicant refer to s. 3(1) of the Schedule, and whether the incident meets the definition of an “accident”, the Schedule is consumer protection legislation, and should be interpreted accordingly.

28In the Divisional Court case of Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”) the Court emphasized that in determining direct causation, it is the use and operation of the automobile that is the relevant cause, not the vehicle itself. Tripping and falling from the top of a camper trailer was an accident, as there is no requirement for physical contact with the vehicle for direct causation to be established.

29Significantly, the court in Madore determined at paragraph 49 that:

Further, requiring an evidentiary basis for an element of the interpretation of “accident” not specifically provided for in the definition under the Schedule is not in keeping with the remedial nature of this no-fault accident benefits legislation or its consumer protection mandate, and is an error of law.

30I acknowledge that the court in Madore was not asked to determine whether being “involved in” an accident requires physical contact with the vehicle. However, in my view, my interpretation of “involved in” is contrary to the binding authority of Madore. Under iteration (a)(i), there is no requirement for physical contact with the vehicle to be “involved in” an accident. As the court in Madore noted at paragraph 49, it is an error of law to introduce a requirement in the Schedule that is not specifically provided for in the definition.

31I also agree with the applicant that to give two different requirements to definitions contained within s. 3(1) of the Schedule would lead to an unjust and absurd result and would not be consistent with the consumer protection nature of the Schedule as recently reaffirmed by the Divisional Court in both Madore and Davis v. Aviva General Insurance Co., 2024 ONSC 3054.

32Lastly, I acknowledge the respondent’s position that the applicant did not sustain any physical injuries from the use or operation of the vehicle, meanwhile the applicants in the cited authorities did. It is unclear from the respondent’s submissions whether it is arguing that in order to be an “accident”, one has to have physical injuries only or whether its argument pertains to the definition of being “involved in”. In any event, in the binding authority of Downer v. The Personal Insurance Company, 2012 ONCA 302 (“Downer”), the Court of Appeal determined that when the applicant thought he ran over one of his assailants with the vehicle, and sustained psychological injuries as a result, this met the definition of an “accident” under s. 3(1).

33In short, I made an error of law by introducing a requirement of physical contact with the vehicle in order to be “involved in” an accident, and I would have likely reached a different result, if this error had not been made. Thus, the applicant has established grounds for reconsideration pursuant to Rule 18.2(b).

34I now turn to the second error.

35The applicant also argues that I erred by leaving a lack of analysis in the decision of whether having apprehension of being struck by a car on two separate occasions, and having psychological injuries as a direct result, amounts to being “involved in” an accident. She argues that the fact pattern requires two hypotheses. The first being, that she could have been “involved in” an accident by witnessing her boyfriend being killed, and the second, whether she was “involved in” an accident having regard to the psychological injuries that flow from her apprehension of being struck by the vehicle, which was not done in my decision.

36At paragraph 17 of the decision, I noted that the crux of the dispute before me was whether witnessing an accident, and believing you may be hit, meets the definition of “involved in” under either iteration (a)(i) or (b) of “insured person,” which I found that it did not.

37I disagree with the respondent that the applicant is re-litigating her position, as she is correct that I never dealt with the issue of whether her having an apprehension of being struck by the car on two separate occasions as the accident unfolded, would amount to being “involved in” an accident. Instead, I conflated her arguments and did not deal with her argument of having psychological injuries flowing from her apprehension of being struck by the vehicle. Thus, I committed an error and find that if I had not made this error, I would have likely reached a different result.

38In conclusion, I made two errors, that would have likely reached a different result of the decision if I had not made these errors. As such, I find the applicant has established grounds for reconsideration under Rule 18.2(b) on this point.

Rule 18.4 – Outcome of Reconsideration

39Rule 18.4 provides that upon reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary or cancel the decision or order, or order a rehearing on all or part of the matter. Having found that the applicant has established grounds for reconsideration, I will now turn to the outcome.

40The applicant submits that she could have been “involved in” an accident based on two separate theories. The first one being that she witnessed her boyfriend being killed, and the second one being the psychological injuries that flowed from her apprehension of being struck by the vehicle on two separate occasions.

41Meanwhile, the respondent argues that the applicant’s proposed interpretation of “involved in” would greatly broaden the potential scope of claimants and open the door to countless claims from witnesses of an accident.

42For the reasons that follow, I am confirming the decision that the applicant was not “involved in” an accident.

Witnessing an event is not the same as being involved in the event

43As noted at paragraph 18 of the decision, I confirm that witnessing an event is not the same as being involved in an event.

44I am persuaded by the authorities cited by the respondent, which include Amiri, Bustin, and Boyle, where the Tribunal has held for matters with a similar fact pattern, that the applicants were not “involved in” an accident.

45In Amiri, it was determined that the applicants were not involved in an accident, despite one of the applicants witnessing it first-hand, and the other hearing it and witnessing the aftermath. The applicant’s involvement in the accident was limited to their proximity to the accident scene and relationship with the injured party.

46In Bustin, the applicant witnessed an accident and developed psychological injuries thereafter. The Tribunal found that someone who sees or hears an accident and suffers psychological issues as a result is not a person who is involved in an accident under (a)(i).

47In Boyle, the Tribunal found that although the applicant may have heard the accident take place, there is no suggestion that this caused his psychological impairment. Further, the applicant was not found to be “involved in” an accident.

48Here, in the matter before me, the applicant witnessed her boyfriend being killed by the vehicle, which is similar to the applicants in Amiri, Bustin, and Boyle. I also concur with Adjudicator Norris that proximity to an accident alone is insufficient to be “involved in” an accident, and that being a witness to an event is not the same as being “involved in” an event.

49In both her initial and reconsideration submissions, the applicant has neither cited an authority or made submissions on why I should depart from the Tribunal’s reasoning in Amiri, Bustin, and Boyle. I acknowledge that the applicant made submissions that Amiri dealt with an analysis of (a)(ii) only; however, as noted above, I disagree. In Amiri, Adjudicator Norris determined that one of the applicants who witnessed the event first-hand did not meet the definition of “involved in”. I see no reason to depart from this reasoning in the matter before me.

50Next, I agree with the respondent that if the applicant was found to be “involved in” an accident based on witnessing the event, this would greatly broaden the potential scope of claimants. To support this position, the respondent referred me to the reconsideration decision of Amiri.

51Significantly, in Amiri, at paragraph 16, Adjudicator Norris determined:

The purpose of definition (a)(ii) of “insured person” is to address, and limit, claims like those made by the Applicants to the named insured, a specified driver, or family members of the named insured. The Applicants fall in neither category. Definition (a)(ii) would hold no purpose if definition (b) is applied so broadly as to include the Applicants’ nervous shock claims. It is principle of statutory interpretation that the legislature is presumed not to legislate in vain. Further, as submitted by the Respondent, such a broad interpretation would open the door to countless onlooker claims. Instead, such claims are restricted by operation of definition (a)(ii). [Emphasis Added.]

52In 18-001020 v. Wawanesa Mutual Insurance Company, 2018 CanLII 83527 (ON LAT), at paragraph 39, the Tribunal noted that:

While I recognize there may be a perceived unfairness to a potential applicant not fitting within the definition of an insured person, the Insurance Act and the Schedule do not provide unlimited benefits to everyone. A plain reading of the Schedule makes it clear that, while it is established that the Schedule is consumer protection legislation, the legislature specifically opted to provide an entitlement to benefits to some and not to others.

53In my view, I find Adjudicator Norris’s reasoning to be logical and am persuaded to apply it here.

54It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. If the legislature intended for (a)(i) to cover individuals who witnessed an event, and sustained psychological injuries as a result, then there would have been no need for (a)(ii).

55I further agree with Amiri, Bustin, and Boyle that the legislation contemplated “nervous shock” claims, but they are limited to accidents involving certain family members.

56As the Tribunal has determined in Amiri and Bustin, witnessing an event is not the same as being involved in an event. In other words, the applicant is not “involved in” an accident just because she witnessed it. Moreover, in my view, the applicant sustained “nervous shock” injuries, which are psychological injuries from witnessing the accident and the immediate aftermath. This finding is supported by the evidence tendered by the applicant.

57For instance, in the s. 25 psychological assessment report, dated August 31, 2021, and completed by Dr. Sedi Naisi, psychologist, the applicant self-reported, that she witnessed the incident and had flashbacks, nightmares, and symptoms of anxiety and depression. However, there is no indication that these psychological impairments arose from anything other than witnessing the incident.

58Likewise, in the applicant’s sworn affidavit, dated February 7, 2024, there is a heading at page 6 titled “injuries resulting from witnessing accident” following several paragraphs where the applicant provides a description of all the psychological injuries sustained as a result. Once again, there is no indication, that the applicant sustained psychological impairments for any other reason, other than witnessing the incident.

59Similarly, Dr. Robin Cardan, psychiatrist, completed an assessment on June 2, 2022. Once again, the applicant advised Dr. Cardan about her boyfriend being run over; however, there is no mention of any psychological injuries from her apprehension of being struck by the vehicle. Moreover, Dr. Cardan noted in her report that the applicant’s chief concern was that she was traumatized by the passing of her partner. As such, Dr. Cardan diagnosed her with an Adjustment Disorder; however, there is no indication this was from her fear of being struck by the vehicle.

60In conclusion, I confirm the Tribunal’s decision that witnessing an event is not the same as being involved in an event.

The applicant has not established that she sustained psychological injuries from her apprehension of being struck on two separate occasions

61I find that the applicant has not established that she sustained psychological injuries from her apprehension of being struck by a vehicle.

62The applicant argues that as outlined in her sworn affidavit, dated February 7, 2024, there are psychological injuries that flowed from her belief that she was going to be struck by the vehicle herself on two separate occasions. The first occasion was after the first roll over, when she ran towards her deceased boyfriend, and the second was when the vehicle was driven over the deceased’s body, and she was beside the body at that point.

63It is unclear from the respondent’s arguments whether it is disputing that in order to be an “accident”, one has to have physical injuries only or whether its argument pertains to the definition of being “involved in” under iteration (a)(i) of “insured person”. Nevertheless, the respondent did not refer me to case law to support such a proposition.

64Moreover, a plain reading of (a)(i) indicates that there is no requirement of a physical injury in order to be considered “involved in” an accident. Additionally, as noted above, the Schedule is consumer protection legislation and should be interpreted accordingly. Therefore, I disagree that the applicant has to demonstrate physical injuries to be considered to be “involved in” an accident.

65Critically, as noted above, the evidence tendered by the applicant does not support her position that she sustained psychological injuries flowing from her apprehension of being hit by the vehicle on two separate occasions. Here, the applicant relies on the s. 25 psychological assessment report of Dr. Naisi, an assessment by Dr. Cardan, and her affidavit as evidence of the psychological injuries sustained from the incident. However, as noted above, neither the s. 25 psychological assessment report or the report of Dr. Cardan, nor the affidavit discuss whether the applicant sustained psychological injuries from her fear of being hit by the vehicle on two separate occasions.

66Notably, both the s. 25 psychological assessment and report of Dr. Cardan are silent with respect to this and only mentioned that the applicant witnessed the incident. Meanwhile, the affidavit refers to the two separate occasions that the applicant feared that she might be hit by the vehicle, however, there is no mention in the affidavit of what psychological injuries she sustained as a result. As a result, the psychological injuries that the applicant sustained were from witnessing the accident and its aftermath, which are “nervous shock” injuries.

67The Tribunal has consistently held in Amiri, Bustin, and Boyle, that “nervous shock” claims are contemplated by the Schedule; however, these are limited to certain familial relationships covered under (a)(ii). The applicant in both her initial hearing and reconsideration submissions has conceded that she does not qualify for benefits under this iteration of “insured person”. As the applicant was neither “involved in” an accident, nor the spouse of the deceased, she is not entitled to claim benefits under the Schedule as a result of the accident that claimed the life of her boyfriend.

68Finally, I acknowledge that the applicant argues that I misapprehended the intended use of Downer by referring to it so narrowly in my decision. The applicant submits that Downer was referenced for the proposition that one can have a psychological injury based on a fear of something occurring, and that this could cause one to be “involved in” an accident, and thus suffering psychological injury from those events. However, based on my finding above, I find that this is moot, because the applicant has not demonstrated that she sustained a psychological injury as a result of her fear of being hit by the vehicle.

69Accordingly, I confirm the Tribunal’s decision that the applicant sustained psychological injuries from witnessing the accident and its aftermath.

CONCLUSION

72The applicant’s request for reconsideration is granted, in part. Pursuant to Rule 18.4, the decision of April 10, 2024, is confirmed with respect to the findings of witnessing an accident does not meet the definition of “involved in” under either iteration (a)(i) or (b) of “insured person” and that the applicant sustained psychological injuries from witnessing the accident and its aftermath. Thus, the applicant was not “involved in” the accident on July 19, 2021. The remainder of the applicant’s request for reconsideration is dismissed.

Tanjoyt Deol Adjudicator Tribunals Ontario – Licence Appeal Tribunal