In Ontario, the standard auto insurance policy provides certain benefits to persons injured in a car accident regardless of who is at fault. The Statutory Accident Benefits Schedule, (SABS), O Reg 34/10S.3(1), defines an accident for the purpose of determining who is eligible for these benefits 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” (“accident”)
In Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226 it was confirmed that there is no requirement that the vehicle be in “active” use for a set of facts to constitute an “accident” for SABS purposes.
The approach used by the Courts and the License Appeal Tribunal (LAT) to differentiate between what is and is not an “accident” for the purpose of receiving accident benefits can be found in Greenhalgh v ING Halifax Insurance Co.  OJ No. 3485 (QL), where Justice Labrosse provided the following factors to be taken into account:
1) Was the use or operation of the vehicle a cause of the injuries? There can be more than one direct cause of injury; and
2) If the use of or operation of a vehicle was a cause of the injuries, as there an intervening act or intervenient acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
In the recent case of L.L v. Intact Insurance, 17-003125/AABS, March 4,2019, Adjudicator Flude confirmed that these factors have been applied on a case by case basis, based on the nature and sequence of events.
In L.L., the applicant was working in a parking lot on a movie set when she approached an individual sitting in a vehicle who was parked in the wrong spot. The individual opened his door and bumped the applicant lightly and then banged his car door into the applicant a second time injuring her knee and her forearm. The applicant backed away and the individual left his car and proceeded to punch the applicant three times in the face. He was arrested and convicted of assault. Following the event, the Applicant reported panic attacks, fear, anxiety, dizziness and memory issues.
The insurance company took the position that only the injuries to the Applicant’s knee and forearm were covered under the SABS and any further injuries were not part of same. However, Adjudicator Flude found that while an assault cannot be said to be part of the “ordinary course of things”, the assault in this case was not the initiating cause leading to injury and impairment. He further held that it was not possible to divide the impairments into separate categories between involvement with the vehicle and without, and most importantly, he found that that the use or operation of a motor vehicle was a direct cause of the applicant’s impairments. Adjudicator Flude held that the applicant should have access to accident benefits for all of the above-mentioned injuries and impairments.
Adjudicator Flude differentiated this case with cases where the bulk of the applicant’s injuries were sustained before the use of the vehicle became an issue, or where there is a clear way to look at two distinct and discrete sources of impairment and determine the impact of each source.
What the above means in practice is that it may not always be clear to individuals as to whether one will or will not have access to accident benefits when a vehicle is involved in an injury, and it will always be important to seek legal advice to determine what benefits may be available to you. If you or a loved one have been involved in an accident, call Reybroek Law today for a free consultation.