Is That An “Accident”? Are You Sure?
In Sterling v. Heartland Farm Mutual Inc., 2021 ONLAT 20-000672/AABS-R,[1] Adjudicator Boyce dismissed the insurer’s request for reconsideration and upheld his preliminary issue decision that the applicant was involved in an “accident” pursuant to the Statutory Accident Benefits Schedule O. Reg. 34/10 (the “SABS”).
Background
On February 13, 2019, the applicant lifted her 30 pound son into his car seat in the back passenger seat of her vehicle which was parked in her driveway. She proceeded to the driver’s seat, put on her seatbelt and started her vehicle. After pressing the gas pedal and driving a short distance, she experienced intense neurological pain in her back and loss of sensation in her right leg and foot. Two months later, she underwent back surgery. The applicant sought accident benefits arising from the incident.
After conducting an examination under oath, the insurer denied the applicant’s entitlement to accident benefits on the basis that the incident did not constitute an “accident” pursuant to the SABS.
The “accident” issue was submitted to the LAT as a preliminary issue. In a decision released on May 13, 2021, Adjudicator Boyce found that the incident constituted an accident under s.3.(1) of the SABS.[2]
Preliminary Issues in Dispute
The following issue was adjudicated by the LAT:
Whether the incident that occurred on February 13, 2019 was an “accident” as defined by s. 3(1) of the SABS.
Section 3.(1) of the SABS defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
Vice Chair Boyce recognized that in order to qualify as an “accident” under the SABS, the insured must satisfy the two-part “purpose” and “causation” test:[3]
a. The Purpose Test:
Did the incident arise out of the ordinary and well-known activities for which automobiles are used?
b. The Causation Test:
I. Did such use and operation of the automobile directly cause the impairment?
II. Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?[4]
Positions of the Parties
The applicant argued that she was engaged in activities normally associated with the use and operation of a vehicle and met the purpose test. Further, she submitted that her injury was caused by a combination of lifting her son into his seat and extending her foot to depress the gas pedal, both of which were part of the “ordinary course of things” and not distinct acts.
The insurer submitted that there was no documentation to support that an incident occurred and furthermore, in the absence of expert evidence, the applicant failed to prove causation arguing that it could not be said that “but for” the incident her impairment would not have occurred. Finally, the insurer submitted that any actual connection between the applicant’s use or operation of her vehicle and her impairment was tenuous, if not non-existent.
Preliminary Decision Reasons
Adjudicator Boyce noted that the purpose test does not include an active use component, explaining that the vehicle can be parked, the applicant can be loading or unloading items, opening or closing a door, etc.
The adjudicator found that lifting and securing her son into his car seat in the back passenger seat and depressing the vehicle’s gas pedal fell within the ambit of the “use or operation of a vehicle”. He concluded that the incident arose out of the ordinary and well-known activities for which automobiles are used and, therefore, the applicant satisfied the purpose test.
Notwithstanding evidence that, prior to February 13, 2019, the applicant had “low back pain for 3-4 weeks, that she has a long-standing history of same, including a history of disc protrusion”, Adjudicator Boyce accepted that the applicant’s impairment was caused by a combination of lifting her child into the car seat and then pressing her foot on the pedal. Since both of these acts related to the use or operation of a vehicle and there was no “intervening” or “distinct” act that was not part of “the ordinary course of things”, the applicant satisfied the causation test.
Reconsideration Decision
The insurer sought reconsideration of the preliminary issue decision, pursuant to Rule 18.2(b) of the rules of practice, submitting that the Tribunal committed errors of law and fact such that the Tribunal would likely have reached a different decision had they not been made.[5]
Although Rule 18 indicates that reconsideration of interlocutory decisions (those in which there is no final decision on the matter) is not permitted, the adjudicator found the request “was proper at this stage in order to prevent the parties and the Tribunal from expending unnecessary time and resources on a substantive hearing that might later have been undone by a reconsideration request”.
As permitted by the LAT rules, Adjudicator Boyce reconsidered his own decision. Predictably, he did not change his decision, stating:
The test for reconsideration under Rule 18.2(b) involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. I find that the insurer’s request here is precisely that. While I am alive to the specifics outlined in its submissions, I find many of the assertions can be whittled down to a disagreement over the weight that I assigned to the evidence at first instance…it is well-settled that this is not the purpose of reconsideration. The function of an adjudicator is to assign weight to the evidence before them to arrive at a determination.
He maintained that the evidence supported the applicant’s claim that the incident constituted an “accident,” that the analysis was applied properly, and that there was no error that would have resulted in a different outcome. The request for reconsideration was dismissed.
Takeaways
When determining what constitutes an “accident”, the Tribunal applies the two-fold test established by the Court of Appeal in Chisholm v. Liberty Mutual Group. This test presents a relatively low threshold since the accepted definition of “ordinary and well-known activities” is expansive and the Tribunal seems lenient regarding proof of causation.
Careful consideration should be given to applying for reconsideration of a LAT decision, given that the original adjudicator will likely hear the reconsideration and the jurisprudence makes it clear that parties should not attempt to use the reconsideration process to re-litigate positions which failed at the hearing.
[1] https://www.canlii.org/en/on/onlat/doc/2021/2021canlii96829/2021canlii96829.html
[2] https://www.canlii.org/en/on/onlat/doc/2021/2021canlii40695/2021canlii40695.html
[3] Chisholm v. Liberty Mutual Group 2002 CanLII 45020 ONCA
[4] Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 ONCA
[5] Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017).