Arbitrator John Wilson has released a decision casting doubt on the appropriateness of the prevalent use of the material contribution test for causation in accident benefit matters.
In Kofi Agyapong v. Jevco Insurance Company, FSCO A11-003445, among numerous other issues, Arbitrator Wilson was asked to determine whether the claimant was entitled to a non earner benefit and a housekeeping benefit as a result of his involvement in a July 12, 2005 accident wherein he was struck as a pedestrian by a pick-up truck.
Arbitrator Wilson found that while Agyapong's involvement in the accident likely contributed to post accident complaints, there was no credible evidence led on his behalf that would satisfy either the "but for" causation analysis or the "material contribution" test due to his extensive pre-accident complaints, which remained quite similar following the accident.
More importantly, for our purposes, Arbitrator Wilson reviews the history of causation analysis in accident benefit matters, citing Monks v. ING (90 O.R. (3d) 689) for the proposition that the material contribution test is an alternative to the traditional "but for" analysis when the latter is unworkable. He then reviews subsequent case law including the Supreme Court's decision in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. and more specific to accident benefit claims, Blake v. Dominion of Canada General Insurance Co. [2015] O.J. No. 1218, both of which indicate that the "but for" test remains the default causation analysis in negligence and accident benefit matters.
While the "material contribution" test has been widely regarded as the go to analysis for causation in accident benefit matters, it appears that utilizing it as the default test may be misguided, especially in light of the Court of Appeal's decision in Blake v. Dominion of Canada General Insurance Co., supra. In that case, the Court of Appeal upheld the decision of Brown, J.A. which utilized the "but for" analysis as the default causation test in the absence of a request of the trial judge to depart from it. The implication is clear, without a request and reason to depart from the "but for" test, it should remain the default causation analysis, even in accident benefit matters.
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