Travis v Aviva Insurance Company is a recent decision from the Ontario License Appeals Tribunal from adjudicator Cesary Paluch. Notably, it addressed the meaning of “accident” as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and applied the two-part test developed at common law to aid in determining whether the unique, factual matrix in this case could be considered an accident according to the Schedule. The decision arguably makes it much harder for a first responder or a passerby to advance an accident benefits claim based on psychological injuries garnered from attending a traumatic event. It also provides further guidance on when the use or operation of a motor vehicle has in fact directly caused an impairment under the Schedule.
The Applicant is a fire fighter first responder. He alleged that he sustained psychological impairments after responding to the high-profile terrorist van attack perpetrated in Toronto on April 23, 2018 and sought accident benefits. Aviva denied him on the basis that he was neither an insured person nor was he involved in an accident as defined under s.3(1) of the “Schedule”. According to Adjudicator Paluch, the issue was whether the Applicant was involved in an “accident” as the term is defined in s.3(1) of the Schedule.
Adjudicator Paluch ruled that the applicant was not an insured person involved in an accident as defined under s.3(1) of the Schedule. His analysis focused on the facts of the situation, how the case law has interpreted the word accident to mean or include, and whether the facts fit that interpretation. Under s.3(1) of the Schedule, an accident is defined as “an incident in which the use of an automobile directly causes an impairment…”. This is notably stricter than the one in the older iterations of the Schedule as it used to include cases where the use indirectly causes an impairment as well.
Adjudicator Paluch and both parties then adverted to Chisholm v Liberty Mutual Group and Greenhalgh v. ING Halifax Insurance Co. – two decisions from the Ontario Court of Appeal – for the two-part test that adjudicators must consider when interpreting the definition of “accident” within the meaning of s.3(1) of the Schedule. These two questions are:
- Did the incident arise out of the ordinary and well-known activities for which automobiles are used? (also known as the “Purpose Test”); and
- Did such use and operation of the automobile directly cause the impairment? (“Causation Test”)
Furthermore, the Causation Test is to be determined via the following factors: the “but for” consideration; the “intervening act” consideration; and the “dominant feature” consideration. The Ontario Court of Appeal in Downer v Personal Insurance Company also noted that proximity and location are not enough to satisfy the Causation Test, nor was it enough to show that an automobile was the location of an injury inflicted by tortfeasors or that the automobile was somehow involved in the incident giving rise to the injury. To meet the causation test, the use of operation of the automobile must have directly caused the injury. Finally, the onus of satisfying the two-part test lies on the Applicant.
There was no dispute on which laws and tests were applicable. What was in dispute was how they were to be applied given the unique circumstances in this case. There were no cases with a completely analogous factual matrix that could provide guidance. One other notable difficulty was that only psychological injuries were sustained – injuries that resulted from only witnessing the aftermath as a first responder and not from directly witnessing the van strike the pedestrians.
The Applicant argued, broadly stated, that his overall involvement in the Toronto van attack and seeing the resulting carnage could have been considered an accident, as could his use of a fire truck in connection to the attack.
Adjudicator Paluch applied the two-part test to the two proposed accidents and found as follows:
The applicant’s first proposed accident – his overall involvement in the Toronto van attack and witnessing the aftermath – failed to meet the Purpose Test. The van was a rental van, and it was being used to primarily injure people. This in Adjudicator Paluch’s view was outside of that specific vehicle’s ordinary use and not within the scope and course of its specific function, which ought to be transportation or moving objects. Notably, the adjudicator distinguished this case from another case where an insured had been injured in strange fashion (e.g., Whipple v Economical where an insured attempted a headstand inside a party bus on a highway against a stripper pole) by concurring that that vehicle in was being used in the course of ordinary and well-known activities of that particular vehicle, which in that case was a party limo.
The key here is that when considering whether the Purpose Test is met in a particular incident, the type of vehicle and what its typical uses are is instrumental in delineating the ordinary and well-known activities for which the automobiles is used for. Further referring to the Divisional Court case of Charbonneau v. Intact Insurance Company, the adjudicator highlighted that the Purpose test is designed to exclude a person from receiving accident benefits where a vehicle is being used for abnormal and aberrant purposes disassociated from the normal purposes of the vehicle.
It should also be noted that the adjudicator opined that even if his analysis on the Purpose Test was wrong, he would have found that the Causation test was not met either, as to find so might be to open the floodgates on claims from first responders or those not directly involved.
With regards to the second proposed accident – the use of a fire truck to respond to the attack – the adjudicator found that the Purpose Test was easily met. However, the Causation Test was not met here as the adjudicator could not conclude that the use and operation directly caused the injuries – only that it may have contributed to them.
The Court of Appeal in Greenhalgh sets out two questions to ask when analyzing the Causation Test.
- Was the use or operation of the vehicle a cause of the injuries?
- If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or acts that cannot be said to be part of the “ordinary course of things” that results in the injures? In that sense, could it be said that the use or operation of the vehicle was a “direct cause” of the injuries.
Here, the adjudicator reasoned that the use and operation of the fire truck was not the cause of the injuries. It was moreso the exposure to the accident scene than the use of the fire truck itself. Put in another way, the Applicant could have attended the aftermath of the terrorist attack using a variety of different mediums and would have likely still sustained the psychological trauma he did. He could have not driven the fire truck at all after attending the attack and likely still would have been traumatized. The fire truck was incidental to all of it. It could not have been said that but for the use of the fire truck the Applicant would not have been injured. The dominant feature of the entire incident was the aftermath of the attack. The language of s. 3(1) of the Schedule specifically states that an accident is an incident wherein the use of the automobile directly causes the impairment. This shapes the Causation Test so as to require a direct link of causation, with the direct link to be determined on the individual circumstances of each case.
Taken all together, the Adjudicator decided that the applicant was not involved in an “accident” as defined by the Schedule.
In this case, the firefighter never witnessed the attack itself. He witnessed victims on the ground and the majority of his involvement revolved around guarding the bodies of the victims, helping the injured, and moving his firetruck at the direction of law enforcement.
Finally, it should be stated that one of the main cases relied upon (P.F v. Economical Mutual Insurance Company) was the subject of an application for judicial review to the Divisional Court. Should that decision ever be released and its contents counter to the analysis of Adjudicator Paluch here, it may very well open the door to a reconsideration of this case. That will be one to watch for!