It’s all Relative – Were They Really Involved in the Accident? by Kimberly To

In the recent case of Amiri and Mireskandari v. The Co-Operators[1], the License Appeal Tribunal (LAT) dealt with the notion of what it meant to be an insured person involved in an accident in the context of nervous shock claims. In order to qualify for Statutory Accident Benefits (SABS), a person must meet the definition of an insured person. According to Section 3 of the Schedule, “insured person” means:

1. the named insured, any person specified in the policy as a driver of the insured auto, and, if the named insured is an individual, the spouse of the named insured and a dependent of the named insured or his or her spouse
   1. ) if the named insured, specified driver, spouse or dependant is involved in an accident in or outside ON that involves the insured auto or another auto, or
   2. II) if the named insured, specified driver, spouse or dependant is not invoved in an accident but suffers psychological or mental in injury as a result of an accident in or outside ON that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant
2. a person who is involved in an accident involving the insured auto, if the accident occurs in ON, or
3. a person who is an occupant of the insured auto and who is a resident of ON at any time during the 60 days prior to the accident, if the accident occurs outside ON.

In this case, four family members were out for a walk together on a December evening when the spouse of one of the applicants was struck by a car and seriously injured.  When the accident happened, the two applicants were a mere few feet from where their loved one was struck and, as a result, they witnessed the immediate aftermath of the accident. The applicants put forth nervous shock claims, saying that they suffered psychological injuries as a result of their involvement in the accident. Since they had no policy of their own, the applicants then attempted to claim SABS on the policy of the driver who struck their relative.

The applicants took the position that the term “involved in an accident” was not one which was defined by the Schedule which ultimately left it as a vague term dependent upon the facts of each case. In their situation, they claimed that involvement depended on proximity in place and time and also the participation between a person and an event. Turning to Janousek v. Halifax Insurance Company, the applicant noted that the plan ordinary meaning or the word involved was quite broad and may not require contact between the insured person and the automobile that caused the accident. Further, they submitted that the plain and ordinary meaning of involvement included witnessing the accident or its immediate aftermath. Section 3 of the Schedule, they submitted, was there to protect people who may not have been involved in the accident, but suffered from mental health issues caused by it.

The insurer took the position that the applicants were not entitled to SABS because they were not involved in the accident and, therefore, did not meet the definition of an insured person pursuant to Section 3 of the Schedule. The Co-Operators submitted that neither applicant had a part in nor actively participated in the collision between the insured automobile and the injured person. Further, relying on Boyle v. Travelers Canada, The Co-operators submitted that the applicants would have to submit nervous shock claims under their own automobile insurance policies, which the applicants did not have. Finally, The Co-Operators argued that the Schedule did not provide unlimited benefits to everyone; that witnessing an accident does not constitute involvement and if it did, it would inappropriately broaden the scope of Accident Benefits claims.

Adjudicator Norris agreed with The Co-Operators’ finding that neither of the applicants were involved in the accident and, therefore, failed to qualify for the benefits for which they had applied. Involvement is limited to proximity to the event and relationship to the injured party. Here, the applicants were not struck by the insured vehicle, nor were they in another vehicle involved in the accident. Simply put, the applicants were not part of a sequence of events stemming from the accident. Adjudicator Norris pointed out that the case at bar differed from the cases that the applicants had relied upon in their submissions, in that those cases involved physical injuries which had resulted from the chain of events directly stemming from the accident. In this case, it was psychological injuries that the applicants had sustained. Adjudicator Norris agreed with The Co-Operators that Boyle was the most relevant jurisprudence on the issue and, as such, nervous shock claims are limited to the named insured and their family members. Because the applicants were neither a named insured nor a relative of the named insured, they were not entitled to make a nervous shock claim.