Mind the Gap Between What is and is Not an “Accident” – P.H. v. Aviva

By Alexander Dos Reis Aug 04, 2020

In P.H. v. Aviva Insurance Company of Canada, 2020 CanLII 45493 (ON LAT), the LAT was faced with a claim where an employee of a rental car company was vacuuming one of the company’s vehicles when it began to move forward. He entered the vehicle and, as it picked up speed, attempted to hit the brake pedal. Unfortunately, his foot missed its mark, landing on the gas pedal instead. It might have been easy to determine whether the employee of the rental car company was involved in an accident. Alas, that was not the situation confronting the LAT.

The rental vehicle made contact with an unoccupied, parked vehicle before ultimately colliding with the back patio of the Applicant’s house, causing the patio to detach from the house. Shortly after hearing the noise and feeling her house shake, the Applicant opened her patio’s doors and, not realizing what had happened, stepped into the space where her patio used to be. She thus fell into the newly-formed gap between her house and patio, injuring herself in the fall. At no point did she come into contact with either the rental vehicle or the unoccupied, parked vehicle.

Adjudicator Rupinder Hans of the Licence Appeal Tribunal found the Applicant’s fall constituted an “accident” as defined by section 3(1) of the SABS because it met both the purpose test and causation test.

The Purpose Test

The Adjudicator referenced Amos v. Insurance Corporation of British Columbia, (1995) 3 S.C.R. 405, in finding the proper question in the purpose test to be “did the accident result from the ordinary and well-known activities to which automobiles are put?” She found that, while the man in the rental vehicle was perhaps operating the vehicle in a negligent manner, he was “operating” it, nonetheless. She continued that operating a vehicle is an ordinary and well-known activity to which vehicles are put, and the incident thus passed the purpose test.

The Causation Test

The Adjudicator cited Greenhalgh v. ING Halifax Insurance Co., 72 O.R. (3d) 338 in holding that, when conducting the causation test analysis, the following considerations apply: (i) the “but for” test; (ii) the “intervening act” consideration; and (iii) the “dominant feature” consideration.

(i) The “But For” Test

Aviva conceded that this case satisfied the “but for” test.

(ii) The “Intervening Act” Consideration

Adjudicator Hans found the intervening act consideration was satisfied, as the automobile was the direct cause of the Applicant’s injuries and there was no intervening act. She explained that the Applicant’s injuries directly resulted from the use of the vehicle, which impacted the Applicant’s patio, which led the Applicant to hear a loud noise and feel her house shake, which led the Applicant to investigate and ultimately fall into the newly-formed gap between her  house and her patio. According to the Adjudicator, this constituted an unbroken chain of events.

She also noted that, to satisfy the intervening act consideration, there is no requirement that the injury occur while the vehicle is in active use or during physical contact with the vehicle.   While the Adjudicator did not find that the Applicant had slipped or tripped, she held that, in this case, due to the unbroken chain of events, even a slip or trip would not have constituted an “intervening act”.  She was also not convinced that a significant amount of time had lapsed between the collision and fall, as the parties had agreed that the Applicant went to the back patio “shortly after” hearing and feeling the collision.

The Adjudicator distinguished this case from Shah v. Primmum Insurance Co., [2015] O.F.S.C.D. No. 250, where the Applicant was found not to have been involved in an “accident” when he fell down the stairs in his haste to get to his son, who was laying in the street after being hit by a car. Adjudicator Hans distinguished the case at hand from Shah on the basis that, in Shah, unlike the case at hand, the Applicant did not hear or feel the impact and knew nothing of his son’s accident until his son told him about it.

(iii) The “Dominant Feature” Consideration

Adjudicator Hans found that the vehicle was the dominant feature of the incident as it caused the unbroken chain of events that led to the Applicant’s fall and injuries. As such, the incident satisfied the causation test and was an “accident”.

Conclusion

The gap between what does and does not constitute an “accident” seems quite narrow in cases such as these, where the eventual injury appears, at least on its face, somewhat remote from the original vehicle collision. Consider how Adjudicator Hans’ analysis may have drastically changed had even one of the numerous key facts been slightly different. She may not have found that this was an “accident” if, for instance, the Applicant had waited a little longer to investigate the source of the commotion, or as in Shah, the Applicant was only indirectly notified of the initial collision or perhaps never notified at all.  Would the outcome have been different if the Applicant had not felt her house shake or heard a noise, and some time later chose to go onto her back deck?

Alexander Dos Reis is a member of the Licence Appeal Tribunal practice group and author of this blog. If you have a question about this decision or a similar file, please contact Alex at 416-777-5239.

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