Citation: Surendran v. Unifund Assurance Company, 2025 ONLAT 24-004995/AABS

Licence Appeal Tribunal File Number: 24-004995/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:

Srivathani Surendran

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Warren Whiteknight, Counsel

Samuel Davies, Counsel

For the Respondent:

Shivani Mehta, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Srivathani Surendran, the applicant, claims entitlement to accident benefits from the respondent, Unifund Assurance Company, arising out of an accident that occurred on May 15, 2020. The respondent refused to accept that the applicant was an “insured person” as defined in s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

i. Is the applicant an “insured person” as defined by section 3(1) of the Schedule and therefore eligible for benefits?

SUBSTANTIVE ISSUE

3The issue in dispute is:

i. Is the applicant entitled to $2,219.75 for psychological services, proposed by Ricci Psychology Professional Corporation in a treatment plan submitted April 14, 2023?

RESULT

4I find that the applicant was not “involved in” the accident on May 15, 2020. Thus, she is not entitled to claim benefits under an automobile insurance policy.

ANALYSIS

Background

5On May 15, 2020, the applicant was a passenger in her husband’s vehicle. While driving they observed a Buick lose control and strike a hydro pole. The impact caused the hydro pole to break and there were wires across the roadway. The applicant’s husband pulled over and they both exited the vehicle and called 911. The applicant’s husband stood beside their vehicle while the applicant crossed the road toward the other vehicle in order to check on the Buick. A police cruiser approaching the scene failed to avoid the overhanging wires and drove into them, causing the wires and the hydro pole to hit the applicant’s husband who was killed.

6The applicant claims that she suffers from psychological injuries as a result of her involvement in the accident and seeks entitlement to accident benefits. The applicant submits that at the time of the accident, she was not aware that her family’s insurance on their vehicle had lapsed. As a result, she claims entitlement to benefits from the respondent, the police cruiser’s insurer, on the basis that she was a person involved in an accident with the respondent’s insured automobile thus fitting under the (b) definition of an “insured person” in s. 3(1) of the Schedule.

7The respondent’s position is that the applicant is not entitled to accident benefits because she was not “involved” in the accident and thus, fails to meet the (b) definition of an “insured person”, found in s. 3(1) of the Schedule.

The applicant is not an “insured” person pursuant to s. 3(1) of the Schedule

8I find that the applicant does not meet the (b) definition of an “insured person” found in s. 3(1) of the Schedule.

9The Schedule provides that insurers are liable to pay certain benefits to, or on behalf of, an insured person who sustains an impairment as a result of an accident involving the use or operation of an automobile.

10Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor liability policy,

a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependent of the named insured or of his or her spouse;

i. if the named insured, specified driver, spouse or dependent is involved in or outside Ontario that involves the insured automobile or another automobile; or

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

b) a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario, or

c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident if the accident occurs outside Ontario.

11The applicant submits that she qualifies as an insured person under the respondent’s policy pursuant to s. 3(1)(b), as she was “involved in an accident involving the insured automobile in Ontario.” She submits that “involved” is not a defined term in the Schedule or the Insurance Act, R.S.O. 1990, c. I.8. She relies upon the decision in Seetal et al. v. Quiroz et al., 2009 CanLII 92114 (ON SC) (“Quiroz”), where the Court provided a number of salient observations and findings as to what it means to be “involved in an accident”. She submits that the term “involved” in an accident is vague and dependent on the facts of the particular case. She submits that involvement depends upon some proximity in place and time and participation between a person and an event or activity. She submits that the term “involved” does not require contact and does not import any element of cause or contribution. A person can be involved without causing or contributing to the cause.

12The applicant submits that she was clearly involved in the accident based on her close proximity in time and place to the police cruiser as it almost struck her on the roadway and subsequently collided with the hydro pole and wires that killed her husband. She claims that this is exemplified by her husband’s insistence that she run for cover as the police cruiser sped into the scene. The applicant submits that she was both an active participant, as she exited her vehicle and began to cross the road in order to render assistance to the driver of the Buick. When her husband shouted at her to run to avoid being hit by the police cruiser, she narrowly avoided being hit and got to the opposite shoulder of the road. After the police cruiser’s collision with the hydro wires, she ran back across the road to see her husband’s dead body. As a passive participant, she saw the Buick strike the hydro pole, she heard the police cruiser strike the wires, and she was the first person to see her husband’s dead body.

13The applicant submits that her affidavit, dated September 23, 2024, supports that she has ongoing psychological impairments which were caused from “having to run to avoid being hit by the PT cruiser (sic) and the hydro pole and wire, and then hearing the crash just feet from (her), and thereafter finding (her) husband dead.” She submits that she suffers from impairments that arise from the entire accident and her involvement in it and her personal danger at the scene. This includes her immediate apprehension of harm from the police cruiser as it drove toward her and finding her husband’s dead body seconds later.

14The applicant relies upon the clinical notes and records (“CNRs”) of her family physician, Dr. Cervenko, where it is noted that she suffers from poor sleep and intrusive thoughts of the accident, moderate depression and possible post-traumatic stress disorder (“PTSD”). She further relies upon the Psychiatric Assessment report of Dr. Emily Gavett-Liu, dated March 28, 2025, who diagnosed her with impairments including PTSD, further to reports including flashbacks to the accident and hypervigilance like worrying about the possibility of getting hurt.

15The respondent submits that the applicant’s evidence confirms that she was a bystander to a tragic sequence of events, but not a participant in the incident involving the insured automobile, as required by s. 3(1)(b) of the Schedule. The respondent relies on the decisions in Jazayeri v. Economical Insurance Company, 2024 CanLII 30722 (ON LAT) (“Jazayeri”) and Amiri and Mireskandari v. The Co-Operators, 2021 CanLII 45657 (ON LAT) (“Amiri”), where the Tribunal confirmed that witnessing an accident or being in proximity to it does not constitute being “involved” in the accident under s. 3(1)(b) of the Schedule. The respondent submits the Tribunal in Jazayeri found that witnessing a tragedy combined with a belief one might be struck does not meet the definition of being “involved” in an accident. The respondent submits the Tribunal in the Reconsideration decision in Jazayeri v. Economical Insurance Company, 2024 CanLII 88883 (ON LAT), reviewed the psychological evidence and found that the applicant’s PTSD was based on witnessing the fatality, as there was no evidence linking the applicant’s psychological impairment to an apprehension or fear of being struck.

16The respondent submits that at the time of the accident, the applicant was not directly engaged in the use or operation of any automobile or injured by the direct use or operation of any automobile. The respondent submits that the applicant was already removed from the scene of danger, as she was already at the ditch when the police cruiser struck the wires. It argues that she did not experience an apprehension of being struck, nor was she a participant in any chain of events initiated by the police cruiser.

17The respondent submits that the applicant’s cross-examination testimony demonstrates that she was not in the path of the police cruiser; she did not witness the impact of the police cruiser with the wires, and the wires subsequent impact with her husband; and her psychological harm stems from witnessing the aftermath, not from being “involved in” the accident or being in apprehension of being struck.

18The respondent submits that the CNRs of the applicant’s family physician do not reference any psychological impairment arising out of her apprehension of fear of being struck by the police cruiser. Rather her symptoms relate to grief, insomnia, fatigue and intrusive thoughts about her husband. The respondent further submits that the report of Dr. Gavett-Liu dated March 28, 2025, confirms that the applicant’s psychological impairments are grounded in mourning and grief, and not a fear for her own safety.

19I agree with the respondent and find that the applicant was not involved in the accident and thus, she fails to qualify for the benefits claimed.

20I find that the crux of the dispute before me is whether witnessing an accident, and believing that you may be hit, meets the definition of being “involved in” under s. 3(1)(b) of the Schedule. I find that it does not.

21I agree with the applicant that the decision in Quiroz is binding on me and that the factors set out in the decision apply in determining whether the applicant is “involved in an accident”. However, I do not find that the applicant meets the test in Quiroz, for the following reasons.

22I find that 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. I concur with the Tribunal in the decisions in Amiri and Jazayeri, that proximity to an accident alone is insufficient. While I am not bound by either decision, I find that the fact scenarios in both decisions are similar to the matter before me and deal with a similar analysis as to whether witnessing an accident and its immediate aftermath constitutes being “involved in” and accident.

23In Amiri, the Tribunal determined that the applicants were not involved in an accident, despite one of the applicant’s witnessing it first-hand, and the other applicant hearing it and witnessing the aftermath. The applicant’s involvement in the accident was limited to their proximity to the accident scene and relationship to 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 part of a sequence of events stemming from the accident.

24In Jazayeri, the Tribunal determined that the applicant witnessed the accident claiming the life of her boyfriend and the immediate aftermath, just like one of the applicants in Amiri. The Tribunal concluded that that the applicant was not struck by the vehicle involved in the accident, nor was she an occupant of the vehicle at any time during the incident.

25In the matter before me, while this was a very traumatic event, the applicant’s involvement in the accident is limited to her proximity to the accident and her relationship with her husband. The applicant was not struck by the vehicle, and she was not in a vehicle that was part of the accident. The applicant witnessed the accident at close range and the immediate aftermath and sustained psychological injuries as a result. I find that witnessing an event is not the same as being involved in an event.

26I find that the applicant’s claim that her apprehension of being struck by the police cruiser caused a psychological impairment, is not supported by the evidence. In the reconsideration decision in Jayazeri, the Tribunal considered the psychological evidence submitted by the applicant and concluded that the evidence tendered by the applicant did not support her position that she sustained psychological injuries flowing from her apprehension of being hit by the vehicle.

27In this matter, the applicant submits in her Affidavit that her impairments are caused from “having to run to avoid being hit by the PT cruiser and the hydro pole and wire, and then hearing the crash just feet from me, and thereafter finding my husband dead.” However, I find that there is no reference in either the CNRs of her family physician or the report of Dr. Gavett-Liu, that the applicant sustained psychological injuries flowing from her apprehension of being hit by the police cruiser. Notably, the CNRs of her family physician note that she has poor sleep and intrusive thoughts of the accident, moderate depression and possible PTSD. I find that there are no details of the accident in the notes provided. While the applicant submits that the report of Dr. Gavett-Liu diagnosed the applicant with impairments including PTSD further to reports including flashbacks to the accident and hypervigilance like worrying about the possibility of getting hurt, and that the applicant stated she has nightmares almost every day and during her dreams she feels like a vehicle is coming and she is running away from it, Dr. Gavett-Liu does not make any comments or findings in her report that link the applicant’s psychological impairments to her fear of being hit by the police cruiser. Rather Dr. Gavett-Liu concludes that the applicant’s psychological impairments are grounded in mourning and grief, and not a fear for her own safety. I therefore find that the applicant has not proven that she sustained a psychological injury as a result of her fear of being hit by the vehicle.

28As I have found that the applicant was not “involved in” an accident, an analysis of whether the accident meets the purpose and causation tests is unnecessary. The purpose and causation tests are used to determine if an incident involving an insured person, was an accident. The tests are unnecessary in this case because the applicant was not “involved in” an accident.

CONCLUSION AND ORDER

29I find that the applicant was not “involved in” the accident on May 15, 2020. Thus, she is not entitled to claim benefits under an automobile insurance policy. The application is dismissed.