Canada: Meeting The Definition Of "Accident" As Defined In The SABS

Last Updated: August 2 2016
Article by Leanne A. Zawadzki

The recent appeal decision of Director's Delegate Evans in Salamone and Aviva (Appeal Order P15-00072, June 16, 2016) considered whether or not a heart attack, while driving, which resulted in a car accident and injuries, qualified as an "accident" for the purposes of claiming accident benefits under the Statutory Accident Benefits Schedule.

On February 2, 2013, while driving his van, Mr. Salamone had a heart attack and lost consciousness. The van he was in hit one guardrail and slid along it until it hit a second guardrail, causing the van to leave the road and angle over a ditch. The damage to the van prevented a CPR-trained bystander from immediately treating Mr. Salamone. Thereafter, Mr. Salamone claimed that the delayed treatment caused severe neurological impairments.

A Preliminary Issue Hearing was held in front of Arbitrator Arbus to determine whether the Claimant was involved in an accident as defined by Section 3(1) of the Statutory Accident Benefits Schedule ("SABS"):

3. (1) In this Regulation, "accident" means 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.

At first instance, Arbitrator Arbus found that the incident failed to meet the definition of "accident" as defined in the SABS.

Arbitrator Arbus referred to the Court of Appeal's decision in Greenhalgh v. ING Halifax Insurance Co. (2004), 72 OR (3d) 338, for the two part test in determining whether or not an incident qualifies as an accident under the SABS; the purpose test and the causation test:

  1. Did the incident arise out of the ordinary and well-known activities to which automobiles are put? (the "Purpose Test"); and
  2. Did the use or operation of the automobile directly cause the injuries and if so, was there an intervening act(s) that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In other words, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? (the "Causation Test")

Arbitrator Arbus agreed that the claimant met the "purpose" test as he was driving his van when the heart attack occurred.

However, for the "causation" test, Arbitrator Arbus held that the claimant failed to meet all three prongs of the test.

With respect to the causation test, Arbitrator Arbus noted "Greenhalgh provided three bases or prongs under which the causation could be met," namely the "but for" test, an intervening act, and the dominant feature inquiry.

With respect to the "but for" test, the Arbitrator was not "satisfied that the Applicant would satisfy that 'but for' driving his van, CPR would have been available any more quickly than the 14 minutes that it took from the time of the incident for EMS to arrive."

With respect to the "intervening act" test, the Arbitrator found that the heart attack was an intervening act that broke the chain of causation with no later intervening act that brought the use and operation of the van back into play. Accordingly, he found that "the fact that earlier intervention would likely have resulted in a more positive result" was not relevant.

With respect to the "dominant feature" test, the Arbitrator found that the dominant feature was the heart attack, which "was the triggering event. The heart attack caused the crash which led to the vehicle ending up in the ditch."

Accordingly, the Arbitrator found that Mr. Salamone had not been in an accident, as defined in the Schedule.

On Appeal, Director's Delegate Evans disagreed with the Arbitrator's decision and found that Mr. Salamone was involved in an accident as defined by s. 3(1) of the Schedule.

First, Director's Delegate Evans noted that the "dominant feature" inquiry was not required in every case. In any event, Director's Delegate Evans did not believe it was necessary to consider it here given that the "use of the vehicle was not remote or ancillary".

Secondly, he found that the Arbitrator erred in focusing on the heart attack as the "triggering event" that "caused the crash." Director's Delegate Evans noted that causation in that sense was irrelevant in the no-fault system. What was relevant was what caused the impairment:

What is more, the Arbitrator appears to be suggesting that whether an incident is an accident depends on how the majority of the impairments arose. That is the only way I can understand his saying that "the heart attack was the dominant feature of the Applicant's brain injury and impairment. Although it might be a material contribution, this is not sufficient to make any of the other injuries, other than the heart attack, the dominant feature." This is an error, since any impairment directly caused by the use or operation of the vehicle is enough to make the incident an accident, at least with respect to that impairment. That was set out in Downer v. The Personal Insurance Company, 2012 ONCA 302 (CanLII).

Thirdly, Director's Delegate Evans found that Aviva's entire argument with respect to material contribution was wrong, as it was based on a misreading of the case law.

Instead, Director's Delegate Evans applied the decision in Monks v. ING Insurance Company of Canada, 2008 ONCA 269 and came to the following conclusion:

Mr. Salamone suffered a heart attack, which was one direct cause of impairment. However, he continued to use the vehicle, which increased the level of his impairment, so the use of the motor vehicle was another direct cause of impairment, as found by the Arbitrator. Mr. Salamone therefore meets the test for an "accident" under the SABS, and the Arbitrator erred in finding otherwise.

Furthermore, pursuant to Monks, there is no apportionment between the two direct causes, so Mr. Salamone is entitled to all benefits related to the impairment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Leanne A. Zawadzki
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