A recent decision by the Financial Services Commission of
Ontario further widens the net of what is considered an
"accident" for the purposes of the Statutory Accident
Benefits Schedule ("SABS").
In Kasman and Security National, (FSCO A12-007175,
October 2, 2014), on a Preliminary Issue Hearing, Arbitrator Rogers
found that the Applicant was injured as a result of an
"accident" as that word is defined in section 2(1)
of the Schedule, when the security arm that regulates
entry into an underground parking garage struck him on the head.
Mr. Kasman was on his way into the garage to retrieve his parked
car and he walked under the arm, following a car that triggered the
lifting of the arm. The arm then came down as the car Mr. Kasman
was following continued into the garage, triggering the sensor that
causes the arm to lower.
The facts were not in dispute. What was in dispute was whether
or not it could be said that Mr. Kasman's injury was directly
caused by the use or operation of an automobile, as that phrase has
been interpreted in the case law.
Security National argued that the incident failed the
"causation test" because the lowering of the control arm
broke the chain of events between the use or operation of the car
and the injury. Security National relied on the line of decisions
with respect to "assault cases" where Courts and
Arbitrators have found that an automobile can in some instances,
merely be the location in which a criminal act takes
place. In such a case, causation cannot be
However, Arbitrator Rogers did not accept this argument.
In addition, Arbitrator Rogers did not accept the argument that the
arm was an "intervening act" between the injury and the
use or operation of the automobile that effectively broke the chain
Arbitrator Rogers concluded that the use or operation of the car
that Mr. Kasman followed into the parking garage set into motion
"a chain of events that directly led to his injury". As
such, Mr. Kasman was injured in an "accident" as defined
in the Schedule.
Arbitrator Rogers held that Mr. Kasman's injury was not
independent of the use or operation of the automobile. He ruled
that the arm was part of the sequence of events at all times. It
lifted because of the car and it descended because the car
triggered it to do so:
I find that the entry of the car that Mr. Kasman followed into
the parking garage directly caused his injury. I find no act
between the use or operation of the car and his injury. I reject
Security National's submission that the lowering of the arm is
an independent act because the arm is operated by a mechanism
separate from the car. Had the car hit the arm, which in turn hit
Mr. Kasman causing injury, there would be no doubt regarding
causation. I see no qualitative difference because the arm is
As Mr. Kasman had established the direct connection between the
lowering of the arm and the car he followed into the garage,
Arbitrator Rogers concluded that he was injured as a result of an
"accident" as defined in section 2(1) of the
The defining criteria in this case appears to be that the
"motor vehicle" was the triggering event for the
injury. The vehicle entered the garage and triggered the arm.
Mr. Kasman was entering the garage to get his own car. There was
not a separate and unrelated hazard that contributed to the injury
such as black ice on the ground or uneven pavement.
Overall, the decision still appears to be in line with the
recent case law concerning what is an "accident" for the
purposes of the SABS although the decisions are increasingly taking
an expansive approach in deciding this issue.
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