Citation: Samarzija v. The Dominion of Canada General Insurance Company, 2025 ONLAT 24-001231/AABS

Licence Appeal Tribunal File Number: 24-001231/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Jennifer Samarzija

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Nick Todorovic, Counsel

For the Respondent:

Christopher McCormack, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Antonio Colavita passed away following a snowmobile accident on February 25, 2021. Mr. Colavita’s wife, Jennifer Samarzija, the applicant, sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a death benefit in the amount of $25,000.00?

ii. Is the applicant entitled to a funeral benefit in the amount of $6,000.00?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is entitled to a death benefit in the amount of $25,000.00 and a funeral benefit in the amount of $6,000.00, plus interest. I find that no award is payable.

ANALYSIS

Background

4On February 25, 2021, Mr. Colavita was snowmobiling on a trail near Wasaga Beach and collided with another snowmobile. His right leg was crushed between two snowmobiles, resulting in a mid-shaft tibial fracture.

5Mr. Colavita presented to the emergency department of Collingwood General and Marine Hospital, where his main complaint was of pain, redness, and swelling of the right lower leg with an inability to weight bear. The Emergency Department physician, Dr. Joseph Di Stefano, diagnosed Mr. Colavita with an undisplaced mid-shaft tibial fracture and he was placed in a posterior slab. He was provided with an above the knee cast and advised that it would take eight weeks to heal. He was discharged home with pain medication and asked to follow-up in one week with Dr. Nick Yardley, orthopaedic surgeon.

6On March 2, 2021, Mr. Colavita was assessed by Dr. Yardley who placed him in a circumferential cast. Dr. Yardley noted that Mr. Colavita “continues to show anatomic alignment of his midshaft transverse tibia fracture”. Dr. Yardley stated that Mr. Colavita required close monitoring due to “an elevated or increased chance of delayed and non-union” of his tibia. Imaging showed no appreciable healing response to his fractured tibia, and trace effusion (swelling) at the right knee.

7The applicant submits that in the days that followed, Mr. Colavita continued to have significant bruising of his lower right leg and much difficulty putting pressure/weight on his right toes. He was reliant on crutches at home to ambulate and the cast developed an indentation. Dr. Yardley’s office was called and advised of the development, but no action was taken. On March 6, 2021, the applicant submits that Mr. Colavita was complaining of on and off swelling of the right lower leg, a feeling of “heat” around the broken area, and reddish/purple discolouration of the right toes.

8On March 7, 2021, Mr. Colavita experienced significant pain, burning and heat in his right leg that woke him up from 2:00 a.m. to 5:00 a.m. He fell back asleep and woke up again at around 8:00 a.m. At approximately 11:50 a.m., the applicant witnessed Mr. Colavita’s eyes roll back in his head twice in a row. At 12:13 p.m., 911 was called. Mr. Colavita complained of shortness of breath and claimed he could not breathe. When emergency services arrived at 12:24 p.m. Mr. Colavita was laying on the floor cyanotic (bluish or purple discolouration due to deficient oxygenation of the blood) with agonal respiration with a faint pulse for 30-60 seconds, followed by no pulse. A total of 40 minutes of CPR was administered by the time Mr. Colavita arrived at Headwaters Health Care Centre.

9Dr. Eric Clendinning, Emergency Department physician, noted that with Mr. Colavita’s “history of recent fracture and sudden onset of shortness of breath that there was concern about a saddle embolus type picture causing his arrest”. In response, at 1:23 p.m., Mr. Colavita was administered Tenecteplase (“TNK”), a thrombolytic drug intended to initiate the process of breaking down the proteins that form clots. Mr. Colavita was declared deceased on March 7, 2021, at 1:29 p.m.

10Mr. Colavita’s wife, the applicant, filed an Application for Accident Benefits (“OCF-1”), dated May 6, 2021, together with a Death and Funeral Benefits Application (“OCF-4”), dated April 14, 2021.

11By letter dated March 1, 2023, the respondent denied the applicant’s entitlement to Death and Funeral Benefits. The respondent relied upon the Coroner’s Investigation Statement prepared by Dr. William John Ewan, dated March 7, 2021, and the Report of Postmortem Examination, prepared by Dr. Alex MacNeil, pathologist, dated October 28, 2021, which confirmed that the medical cause of death is “hypertensive and atherosclerotic heart disease”. The respondent also relied upon the amended report of Postmortem Examination by Dr. MacNeil, dated June 28, 2022.

12A report was prepared on behalf of the applicant by Dr. Kibar Yared, Director of Cardiac Imaging of Scarborough Health Network, and Medical Director of Cario-Oncology Program, dated April 28, 2023. Dr. Yared concluded that the cause of Mr. Colavita’s death was more likely than not due to a pulmonary embolism arising from the right tibial fracture sustained in the snowmobiling crash, which resulted in cardiac arrest and then death.

13By letter dated July 5, 2023, the respondent maintained its denial of Death and Funeral Benefits, despite the findings of Dr. Yared.

14While the issues before me pertain to Death and Funeral Benefits claimed by the applicant, the decision before me hinges on whether Mr. Colavita, the applicant’s husband, was in an “accident” as that term is defined in the Schedule.

The Law

15An “accident” is defined in s. 3(1) of the Schedule as an “incident in which the use or operation of an automobile directly causes an impairment”.

16In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and

2. The causation test: Did the use or operation of an automobile directly cause the impairment?

17The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put”. See: Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

18The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:

1. The “but for” consideration;

2. The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and

3. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what most directly caused the injury.

The Purpose Test

19The respondent concedes that the purpose test has been met. I agree with the parties that the incident in which Mr. Colavita sustained his tibia fracture arose out of the ordinary and well-known activities to which a snowmobile is put. I therefore find that the incident arose out of the use or operation of an automobile.

The Causation Test

The “but for” consideration

20Having considered the evidence before me, I find that Mr. Colavita would not have sustained his fractured tibia “but for” operating the snowmobile. However, the issue before me is whether or not Mr. Colavita would have died “but for” operating the snowmobile.

21The “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted in the Court of Appeal in Chisholm v. Liberty Mutual Group, 2022 CanLII 45020 (ON CA) (“Chisholm”), the purpose of the “but for” test is an exclusionary test which serves to “eliminate from consideration faulty irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation.” According to Chisholm, legal entitlement also “requires not just the use or operation of the car to be a cause of the injuries, but that it be the direct cause”.

22The applicant submits that “but for” Mr. Colavita’s ordinary and well-known activity of riding a snowmobile, wherein he suffered a right tibial fracture, Mr. Colavita would not have died on March 7, 2021.

23The applicant relies upon the report of Dr. Yared, dated April 28, 2023, who opined that the cause of Mr. Colavita’s death was more likely than not due to a pulmonary embolism arising from the right tibial fracture sustained in the snowmobiling crash. Dr. Yared explained that patients in Mr. Colavita’s circumstances, who sustain an injury to their lower extremity (such as a tibial fracture) that are treated conservatively, leaving their lower limb immobilized in a cast and their activity level reduced, can be at higher risk for venous thromboembolism (blood clots). Dr. Yared concluded that as a result of fracturing his tibia and being placed in a cast with limited mobility and activity, Mr. Colavita more likely than not developed deep vein thrombosis (“DVT”) – a blood clot that developed in the deep vein of his right leg. The DVT then caused a pulmonary embolism where part of the initial blood clot in his leg broke off and travelled to his lungs. Once the blood clot reached the arteries in Mr. Colavita’s lungs, his heart arrested and the attempts to resuscitate him were unsuccessful. Dr. Yared concluded that the prolonged immobilization of Mr. Colavita’s right lower extremity, the clinical presentation of ongoing heat/pain/discolouration of his right lower extremity, followed by a rapid onset of shortness of breath and then cardiac arrest, all point to a diagnosis of acute pulmonary embolism as the most probable cause of cardiac arrest and then death.

24Dr. Yared noted that further evidence of such clots was seen in Mr. Colavita’s injured right lower extremity and lung and noted by Dr. Ewan and Dr. MacNeil. Dr. MacNeil noted the presence of the pulmonary embolism and concluded that its most likely source was a DVT. While Dr. MacNeil noted that the presence of the pulmonary embolism was small and non-occlusive, meaning it did not fully block blood flow, Mr. Colavita was administered TNK prior to declaration of death. Dr. Yared concluded that the delivery of the TNK medication, intended to disperse the fatal embolism into smaller fragments, could explain why the pulmonary embolism appeared small upon postmortem examination.

25Dr. Yared further opined that the conclusion of Dr. MacNeil that the cause of death was hypertensive and atherosclerotic heart disease is not entirely supported by the autopsy findings. Dr. Yared submits that the autopsy did not display any of the properties typical of acute myocardial infarction as described in the numerous studies relied upon by Dr. Yared in reaching his conclusions. Dr. Yared further concluded that the mere presence of significant coronary artery disease does not invoke a diagnosis of myocardial ischemia, especially without typical evidence on autopsy which was not found by Dr. MacNeil.

26The applicant further relies upon the CNR arising from a telephone discussion between Dr. Yardley and Dr. David Engelberg, Mr. Colavita’s family physician, on March 9, 2023, which states that Mr. Colavita’s death was likely due to a “massive PE [pulmonary embolism] from leg”.

27The applicant submits that all of the medical professionals involved in this case recognize the presence of the clot in Mr. Colavita’s leg and lungs as caused by his broken tibia resulting from the accident. The applicant submits that Dr. Yared’s expert evidence and conclusion, that such clots did cause Mr. Colavita’s death, supported by recent scientific studies and the temporal CNRs of Mr. Colavita’s treating physicians, should be preferred over the findings of Dr. MacNeil. The applicant submits that there is sufficient evidence to prove that his tibial fracture and resulting death on March 7, 2021, would not have occurred but for Mr. Colavita’s use or operation of the snowmobile.

28The respondent denies that the right leg fracture or any accident-related impairment caused Mr. Colavita’s death. It submits that Mr. Colavita’s death was the result of previously undiagnosed hypertensive and atherosclerotic heart disease and that the heart disease-related death was not the result of the accident.

29The respondent relies upon the reports of Dr. Ewen and Dr. MacNeil. Dr. MacNeil concluded: “Overall, considering the history, circumstances, and findings on post-mortem examination, the most reasonable cause of death is hypertensive and atherosclerotic heart disease. While a small pulmonary thromboembolism was identified, it was not sufficient to have caused death…” Dr. Ewen reached a similar conclusion and specifically denied involvement of the accident in the death of Mr. Colavita. He stated, “Autopsy showed that he died from previously undiagnosed hypertensive and atherosclerotic heart disease and there was no indication that the accident and leg fracture had any involvement in his death.”

30The respondent submits that these reports should be given greater weight than the opinion of Dr. Yared because Dr. MacNeil and Dr. Ewan directly examined the body, they specialize in post-mortem examinations, and they specifically addressed the autopsy findings and concluded that the leg fracture had no involvement in the death. Conversely, Dr. Yared only examined documentary evidence, does not specialize in post-mortem examinations and glossed over the objective physical findings from the autopsy and instead relied on theoretical possibilities.

31The respondent further submits that Mr. Colavita had a pre-existing condition that is the direct cause of the death. It argues that the fact the pre-existing condition was undiagnosed does not mean it did not exist. The respondent states that the identification of significant pre-existing conditions through an autopsy is objective proof that the “healthy” pre-accident assessment relied on by the applicant was wrong.

32The applicant submitted the Acknowledgement of Expert’s Duty Form and recent Curriculum Vitae of Dr. Yared, wherein it is noted that he has been a certified member of the Royal College of Physicians and Surgeons of Canada with a speciality in cardiology and the American Board of Internal Medicine with a specialty in cardiovascular disease for 16 years and 13 years prior, had completed a Cardiac CT Imaging Level II course. The applicant submits that less weight should be given to the evidence of Dr. MacNeil who had only been certified as a Forensic Pathologist on October 7, 2020, five months before his post-mortem examination on March 7, 2021.

33I find that Mr. Colavita would not have died but for the use of the snowmobile, which caused his tibia fracture and subsequently resulted in his cardiac arrest.

34In this matter there are competing opinions as to the cause of Mr. Colavita’s death. I give more weight to the report of Dr. Yared where he concluded that Mr. Colavita’s death was more likely than not due to a pulmonary embolism arising from the right tibial fracture sustained in the snowmobiling crash. I find that Dr. Yared’s reliance on several scientific papers dealing specifically with the issues in this matter and his expertise as a cardiologist further reinforced the opinions in his report.

35I also find that both Dr. Yared and Dr. MacNeil recognized the presence of a clot in Mr. Colavita’s leg and lungs, as caused by his broken tibia resulting from the crash. The disagreement is whether the clot was severe enough to cause his death. I find that Dr. Yared’s expert evidence and conclusions that such clots did cause Mr. Colavita’s death, supported by scientific studies, and the temporal CNRs of his treating physicians, are to be preferred over the findings of Dr. MacNeil. While Dr. MacNeil concluded that it was too small to cause cardiac arrest, I accept Dr. Yared’s explanation that the TNK administered to the applicant could explain why the pulmonary embolism appeared small upon postmortem examination.

36I further find that Dr. Yared questioned the conclusions reached by Dr. MacNeil because the autopsy did not display any of the properties typical of acute myocardial infarction. While the respondent has made submissions that Dr. Yared’s findings are unsubstantiated, no medical evidence or expert report was provided by the respondent to refute the findings of Dr. Yared.

37The respondent submits that the opinions of Dr. MacNeil and Dr. Ewan should be preferred over Dr. Yared because they had the opportunity to directly examine the body and they specialize in post-mortem examinations. While I agree that Dr. Yared did not have the opportunity to directly examine the body, he was provided with all of the CNRs and the reports prepared by Dr. MacNeil and Dr. Ewan. While Dr. Yared does not specialize in post-mortem examinations, I give more weight to his opinion which is based on his years of experience and practice as a cardiologist. I find that his conclusion that the pulmonary embolism more likely than not caused Mr. Colavita’s death is supported by the evidence available on autopsy, the CNRs and the literature. I further find that the respondent has not provided the Tribunal with any particulars of Dr. MacNeil’s experience as a pathologist and therefore I rely on the applicant’s submissions that he had only been a pathologist for five months at the time of the incident.

38While I am not bound by previous Tribunal decisions, both parties have pointed the Tribunal to the decision in A.G. v. Allstate Canada, 2019 CanLII 63377 (ON LAT). In A.G., the applicant took the position that the accident triggered the death of the deceased by adding stress to his current medical problems, which resulted in his death. The respondent took the position that the deceased would have suffered from a cardiac event independent of the accident of his medical history. The Tribunal concluded that there was not enough evidence, on a balance of probabilities, to show that the death was a result of the stress of the accident. The respondent argues that A.G. is analogous to the facts in this matter because of Mr. Colavita’s undiagnosed pre-existing heart condition found by Dr. MacNeil. The applicant argues that the Tribunal in A.G. held that the existence of a pre-existing condition does not necessarily break the chain of causation. I agree with the applicant, that even if Mr. Colavita had pre-existing heart issues, this does not prevent his leg injury from being the catalyst of his death. A review of the medical evidence and the facts of each case must be considered.

39I find that the respondent is essentially arguing that Mr. Colavita would have suffered from a cardiac arrest independent of the accident because of his pre-existing heart condition. The respondent submits that the identification of significant pre-existing conditions through an autopsy is objective proof that Mr. Colavita was not healthy pre-accident. I find upon review of the pre-accident medical documentation provided in Dr. Engleberg’s CNRs, that Mr. Colavita was healthy at the time of the accident. I also find that the evidence supports a finding that he was at low risk for developing cardiac issues. The applicant was assessed and found to have a normal heart in the three months prior to his death and the objective testing showed that he only demonstrated a 7.9% risk of developing heart disease at the time of his death. I find that there is nothing in the recent pre-accident medical documentation that supports that Mr. Colavita complained or suffered from any impairment in the months leading up to the accident.

40For the reasons outlined above, I find that the applicant has proved on a balance of probabilities that “but for” Mr. Colavita’s ordinary and well-known activity of riding a snowmobile, wherein he suffered a right tibial fracture, Mr. Colavita would not have died on March 7, 2021.

Was there an intervening cause?

41The applicant submits that at no time did an intervening act serve to break the chain of causation. The applicant argues that as supported by the medical evidence and the report of Dr. Yared, that Mr. Colavita’s death had an unbroken chain starting with the snowmobile accident and ending with the pulmonary embolism and his death. The applicant further submits that there is no medical evidence to support that Mr. Colavita suffered from hypertension and atherosclerotic heart disease prior to the subject accident. Rather, Mr. Colavita was healthy prior to the crash.

42The applicant relies upon the CNR of Dr. Engelberg, dated November 23, 2020, where a complete medical assessment and electrocardiogram was performed for the purpose of obtaining a Driver’s Medical Form. The results indicated that his heart was within normal limits with only non-specific abnormalities. Dr. Engelberg stated that Mr. Colavita was a healthy 48-year-old male, fit for driving, with no family history of disease or heart disease. In the CNR, dated December 3, 2020, while Dr. Engleberg noted that Mr. Colavita’s blood pressure was a bit high, Dr. Engleberg noted that Mr. Colavita’s elevated scores were likely due to dehydration. Mr. Colavita had a Framingham risk score of 9, indicating that he had a low risk (7.9%) of developing heart disease in the next 10 years.

43The applicant relies upon the decision in Salamone v. Aviva Canada Inc., 2016 ONFSCDRS 173, where Director Delegate Evans assessed whether the heart attack suffered by the applicant while driving consisted of an intervening act. It was concluded that the heart attack was not an intervening act breaking the chain of causation, because the analysis is not, what was the “triggering event” of the incident, but rather, what caused the impairment. In applying this reasoning, the applicant submits that Mr. Colavita’s death was a natural and reasonable consequence of the use of a motor vehicle and a risk associated with its operation.

44The respondent did not provide specific submissions about whether an intervening cause served to break the link of causation. However, I can discern from its submissions that the respondent submits that as Dr. MacNeil concluded that the cause of death is hypertensive and atherosclerotic heart disease, that the applicant’s pre-existing medical condition was an intervening event that broke the chain of causation.

45Upon review of the medical evidence and reports discussed above, I find that there was no intervening event that broke the chain of causation. I find that the applicant has proven on a balance of probabilities that Mr. Colavita’s death had an unbroken causal chain starting with the snowmobile crash and ending with his death which is supported by the conclusions of Dr. Yared.

The “dominant feature” consideration

46The applicant submits that the snowmobile collision was the dominant feature causing the death of Mr. Colavita. The applicant argues that the evidence supports that Mr. Colavita was healthy at the time of the crash, and further, the crash was the cause of his tibial fracture, resulting in the DVT and pulmonary embolism. The applicant submits that the use and operation of the vehicle was more than ancillary to his death, but rather the direct cause, without any intervening acts breaking the chain of causation.

47I find that the respondent did not specifically address this prong of the causation test but has included its position on this question in their submissions on the other aspects of the causation test, which I have outlined above.

48I find based on my reasoning set out above for the but-for test, that the applicant has proven on a balance of probabilities that the snowmobile collision was more than ancillary to Mr. Colavita’s death, but rather the dominant feature causing his death. Had the applicant not suffered a fractured tibia in the snowmobile accident, he would not have died. Accordingly, he was involved in and died in an “accident” as defined by the Schedule.

Entitlement to Death and Funeral Benefits

49Section 26(1) of the Schedule provides that the “Insurer shall pay a death benefit in respect of an insured person who dies as a result of an accident”. Section 27(1) of the Schedule states that the “Insurer shall pay a funeral benefit in respect of an insured person who dies as a result of an accident”. The onus is on the applicant to prove, on a balance of probabilities, that she is entitled to the benefit.

50As I have found that the applicant has proven on a balance of probabilities that Mr. Colavita was involved in a snowmobiling crash that resulted in his death, I find that the applicant is entitled to a death benefit in the amount of $25,000.00 and a funeral benefit in the amount of $6,000.00, plus interest, as sections 26(1) and 27(1) are shall pay provisions.

Interest

51While interest was not listed as an issue in dispute, I find that as the applicant is entitled to a death benefit and a funeral benefit, and that these amounts are overdue, interest is payable pursuant to s. 51 of the Schedule.

Award

52The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant has not provided any submissions with respect to her entitlement to an award. I therefore find that no award is payable.

ORDER

53For the reasons outlined above, I find that the applicant’s spouse died in an accident and the applicant is therefore entitled to a death benefit in the amount of $25,000.00 and a funeral benefit in the amount of $6,000.00, plus interest pursuant to s. 51 of the Schedule. I find that no award is payable.