On July 19, 2021, the applicant witnessed her boyfriend being killed by a vehicle, and she claimed that she was almost struck herself during the course of events. She sought payment of accident benefits from Economical Insurance, which denied her claim. She then applied to the LAT for a determination, and LAT Adjudicator Deol denied her application on the preliminary issue of whether she was an “insured person” who was “involved in” and accident on the facts of the case. On May 1, 2024, the applicant requested reconsideration of the preliminary issue hearing decision, pursuant to Rule 18.2(b). In that decision, adjudicator Deol found that the applicant was not “involved in” an accident on July 19, 2021, and therefore was not eligible to claim benefits under an automobile insurance policy.
The applicant had submitted that she should be found to be an “insured person” by operation of either subsection (a)(i) or (b) of the definition of “insured person” in s. 3. (1) of the Schedule.
On reconsideration, Adjudicator Deol held that the applicant did not satisfy the test for reconsideration under Rule 18.2, as there was no misapprehension of the law. However, the applicant did satisfy the test under Rule 18.2(b) , and Adjudicator Deol acknowledged that she made an error of law in two instances the first arose from her determination that physical contact with a vehicle was required to be held to be “involved in” an accident. She determined that the second error occurred because she did not conduct a clear analysis of whether having psychological injuries from the apprehension of being struck on two separate occasions would meet the definition of being “involved in” an accident.
Adjudicator Deol applied the case of Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”) in which the Divisional Court had held that physical contact is not required to be found to be “involved in” an accident. In that case , the Court emphasized that in determining direct causation, it is the use and operation of the automobile that is the relevant cause, not the vehicle itself. Further, under subsection 3.(1)(a)(i), there is no requirement for physical contact with a vehicle to be “involved in” an accident. As the court in Madore noted at paragraph 49, it is an error of law to introduce a requirement in the Schedule that is not specifically provided for in the definition. Adjudicator Deol also cited Downer v. The Personal Insurance Company, 2012 ONCA 302 (“Downer”), where the Court of Appeal determined that when the applicant thought he ran over one of his assailants with a vehicle, and sustained psychological injuries as a result, this met the definition of an “accident.” Under s. 3. (1), physical injuries are not required to meet the definition of being “involved in.”
In the original decision, Adjudicator Deol found that witnessing an accident and believing you may be hit did not meet the definition of “involved in” under either subsections 3.1 (a)(i) or (b) of “insured person.” Further, Adjudicator Deol never dealt with the issue of whether having an apprehension of being struck by the car on two separate occasions as the accident unfolded, would amount to being “involved in” an accident. Rather these arguments were conflated, which amounted to an error of law.
On appeal, the applicant submitted that she could have been “involved in” an accident based on two separate theories, the first being that she witnessed her boyfriend being killed, and the second being the psychological injuries that flowed from her apprehension of being struck by the vehicle on two separate occasions. However, Adjudicator Deol found that while proximity to an accident alone is insufficient to be “involved in” an accident, witnessing an event is not the same as being “ involved in ” an event , and she cited the following cases where witnessing an event had been held not to amount to being “ involved in “ an accident to support this conclusion:
- Amiri, where witnessing an accident first-hand, and hearing it and witnessing the aftermath , did not amount to being involved in an accident;
- Bustin, where the applicant witnessed an accident , and developed psychological injuries thereafter , did not amount to being involved in an accident; and
- Boyle, where although the applicant heard the accident take place, there
iswas no suggestion that this caused psychological impairment.
The Applicant never cited any authority or made submissions on why the Tribunal’s reasoning in the decisions in Amiri, Bustin, and Boyle should not be applied. Further, in various expert reports submitted by the applicant, there was no indication that the applicant’s psychological impairments arose from her fear of being struck by the vehicle.
Adjudicator Deol classified the applicant’s psychological injuries as “nervous shock” injuries, which are contemplated by the Schedule. However,these claims are limited to accidents involving certain prescribed family members of the insured person who was injured or killed by the use or operation of an automobile. The applicant did not qualify for benefits under this condition precedent to be an “insured person.” Thus, the applicant was not “involved in” the accident on July 19, 2021. The remainder of the applicant’s request for reconsideration was dismissed.
While the Schedule is consumer protection legislation, and should be interpreted accordingly, this reconsideration decision reinforces the basic principle of statutory interpretation that every word found in a statute has been included there for a reason. If the legislature intended for subsection 3.1 (a)(i) to cover individuals who witnessed an event, and sustained psychological injuries as a result, then there would have been no need for subsection 3.1 (a)(ii). If the applicant in this case was found to be “involved in” an accident based on witnessing the event, this would open the floodgates to potential claimants and countless claims. This decision provides a reminder that the Insurance Act and the Schedule do not provide unlimited benefits to everyone.
Selina Ferenac is a member of the Licence Appeal Tribunal practice group at the firm, and author of this blog. If you have a question about this decision, or you have a similar file, please contact Selina at 416-777-2811 ext. 5295.
