Having served as an Adjudicator at the Ontario License Appeal Tribunal (LAT) for five years, I’ve heard all types of accident benefits cases.

The most challenging ones inquire whether or not an incident was an ‘accident.’ That’s not because the facts of a case were contentious. Nor was it difficult to understand the definition of an accident. The complexity arose from the question, ‘Did the use or operation of the automobile directly cause the impairment?’

To be entitled to accident benefits under Ontario’s Statutory Accident Benefits Schedule (SABS) legislation, an injured claimant must first prove the case was an accident as defined by the inquiry.

To make this determination, Ontario courts and the LAT apply a two-part test comprised of purpose and causation. Both parts must be met for it to be an accident.

The purpose test requires an insured to prove the automobile accident resulted from the automobile’s ordinary and well-known activities. This is usually easy to prove, except in abnormal incidents or unusual facts.

In one 2019 example — P.F. v Economical Mutual Insurance Company — the applicant was not driving, parking, entering, exiting, loading or unloading the vehicle. Instead, he attended the scene after the accident had occurred, so he did not meet the purpose test because he wasn’t doing those typical activities involving the use of an automobile.

 

Accident tests

To date, Ontario’s LAT has addressed the accident issue about 170 times, with only about one-in-four cases not meeting the purpose test. This means in most cases the real issue is the direct causation test: ‘Did the use or operation of an automobile directly cause the impairment?’ Meeting this test is far more difficult.

Courts have introduced three guiding principles (essentially tests) to help answer the direct cause question: the ‘but for’ consideration, the ‘intervening act’ consideration, and the ‘dominant feature’ consideration.

While intended to simplify the law of causation, these tests can have the opposite effect. Conceptions of causation in accident benefits remain muddled and require rethinking either by the legislature or an appeal court.

The ‘but for’ test is broad, allowing adjudicators to proceed with their analyses once it’s accepted the injury would not have resulted without the use and operation of a vehicle.

The ‘intervening cause’ test excludes situations where a chain of events was broken by some intervening cause. For example, a person drives to a gas station and is injured during a robbery inside the gas station’s convenience store.

Some will argue entering the convenience store is an intervening event, when the injured person was no longer operating the vehicle.

Finally, the ‘dominant cause’ test requires a choice among various causes to determine the primary event.

 

Encouraging abstractions

Adding complexity, the Divisional Court requires adjudicators to apply a broad, flexible approach that’s consistent with consumer protections in the Insurance Act. This can invite varying interpretations and lead to a lack of consensus and inconsistent decisions.

The SABS uses the words ‘directly causes injury,’ so they must be at the forefront of any causation analysis rather than the three subtests. Yet, this definition and the focus on the words ‘directly causes’ is rarely cited. The focus remains almost entirely on the three guiding principles.

Applying the three guiding principles and combining that with the flexible/purposive approach means decision-makers may inadvertently apply a causation standard that’s not focused on SABS but is instead an abstract common-law creation vulnerable to disagreements.

Some will view a slip and fall on ice while walking toward a car as an intervening act; others will disagree. The same could be said for a spilled coffee inside a car with an improperly secured lid. Lastly, someone being physically assaulted while sitting inside a car is an accident to some but not others.

I have always wondered which of the three direct causation tests must be given more weight and whether all three must be addressed in a decision or submission. Some case law tells us ‘some’ of these considerations ‘may’ provide useful guidance, so the language does not appear mandatory. However, LAT decisions typically address all three.

This injects uncertainty and inconsistency into the decision-making process because it’s difficult to define an ‘intervening act’ or a ‘dominant feature.’ Interpretations can be subjective. We do not have a reliable framework for how the SABS wording achieves that purpose.

 

Seeking clarity

Requiring a claimant to prove the use and operation of an automobile directly caused their injuries is fundamental to accident benefits law. The three subtests are easily stated, but difficult to apply.

Insurers and adjusters need greater certainty to assess early on in a claim whether an incident qualifies as an accident.

Failing to do so can lead to special awards, allegations of bad faith and delayed treatment for claimants.

It is high time for an appeal court to revisit this issue to re-examine the definition of ‘accident’ and provide a more predictable methodology and reliable framework.

 

Cezary Paluch is a senior counsel at Aviva Trial Lawyers’ Oakville, Ont. office.

Feature image by iStock/Marvin Samuel Tolentino Pineda