How Involved Do You Need to Be to be Involved in Accident Under the SABS? Arijana B. Schrauwen
Apr 19, 2021
In March 5, 2021, Vice-Chair Theresa McGee issued a decision in the case of Miller v. Motor Vehicle Accident Claims Fund (MVACF), 2021 ONLAT 20-001029/AABS that spoke to who is considered involved in an accident as defined by the SABs.
The applicant’s spouse was involved in an automobile accident on June 25, 2015, when he, a pedestrian, was struck by a vehicle. The applicant observed her spouse’s serious injuries later that day in hospital and claims to have suffered psychological impairments as a result. Neither the applicant nor her spouse was a named insured at the time of the accident.
She sought $400.00 per week in income replacement benefits from the Motor Vehicle Accident Claims Fund (MVACF) as a result of this accident. The MVACF sought a preliminary decision to determine whether the Applicant was involved in the accident as defined by the SABs, which was the main thrust of Vice-Chair McGee’s decision.
An “accident” is defined in s. 3 of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
The facts of the accident and the Applicant’s psychological injuries were not in dispute. The parties disagree on whether the applicant was involved in an incident in which the use or operation of an automobile directly caused her impairment. Put another way, the dispute turns on the causation of the applicant’s impairment.
The respondent argued that the applicant’s injuries were indirectly caused by the accident. The applicant, on the other hand, submitted that there is a direct and proximate relationship between the injuries and the accident.
The Ontario Court of Appeal set out the test for determining whether there has been an “accident” under the Schedule in Greenhalgh v. ING Halifax Insurance Co (“Greenhalgh”).2 The test has two parts:
1. Did the incident arise out of the use or operation of an automobile? [“the purpose test”]; and if so,
2. Did such use or operation of an automobile directly cause the impairment? [“the causation test”]
Both the purpose test and the causation test must be met for an incident to be considered an “accident”.
In looking at the facts of the case, Vice-Chair McGee found that the moment the applicant observed her spouse’s injuries must also form part of the incident because, as the applicant has submitted, it was the trauma of witnessing her spouse in an injured state that resulted in her psychological injuries. In Vice-Chair McGee’s view, casting the collision in which the applicant’s spouse was injured and her encounter with him later in hospital as a single “incident” expands the scope of the term beyond what was reasonable.
Additionally, Vice-Chair McGee found that the “incident” from which the applicant’s psychological injuries arose was observing her spouse’s traumatic injuries in hospital some time after the accident. The impairment did not arise out of the use or operation of an automobile. It did not result from the ordinary and well-known activities to which automobiles are put.
There was an element of causation embedded in the purpose test. In determining that the relevant incident was separate from the accident in which the applicant’s spouse was injured, Vice-Chair McGee considered the proximity between the events. The circumstances giving rise to the applicant’s impairment are simply too remote from the automobile striking her spouse to conclude that the applicant herself was involved in an accident.
The second branch of the Greenhalgh test was also not met because the use or operation of an automobile did not directly cause the applicant’s impairment. The relevant incident was found not to be the automobile striking the applicant’s spouse, but rather the scene that unfolded later at the hospital. It is clear on the facts that the applicant’s impairment was not directly caused by the use or operation of an automobile.
Vice-Chair McGee found the incident in which the applicant was involved did not arise out of the use or operation of an automobile. Nor was the applicant’s impairment directly caused by the use or operation of an automobile. On the facts of this case, the test in Greenhalgh is not met. The incident causing the applicant’s impairment does not fall within the definition of an “accident” under the Schedule.
The “but for” test was also examined, with the applicant arguing “but for” the automobile striking her spouse, she would not have sustained an impairment. She submits that there were no intervening acts, and that the dominant feature of the accident that caused her injuries was the use and operation of an automobile.
Vice-Chair McGee did not find this argument persuasive. The “but for” consideration can be helpful in weeding out irrelevant causes, but it is not, on its own, determinative. This chain of events, from the accident to the applicant being advise of the injuries, to seeing the injuries in the hospital, makes apparent how remote the accident was to the applicant’s impairment. Even if the automobile striking the applicant’s spouse is wrapped into the relevant “incident,” which Vice-Chair did not accept, and the intervening acts were ignored, the “dominant feature” consideration fails to save the applicant’s claim, as the automobile played a role that was secondary or peripheral to the applicant’s psychological trauma.
As such, Vice-Chair McGee concluded that the applicant’s impairment arose from an incident that is entirely separate from any “accident” as defined in the Schedule: namely, her impairment arose from learning of the accident, attending the scene and not finding her spouse there, traveling to the hospital, observing her spouse’s serious injuries, and suffering psychological trauma. The applicant was not involved in an “accident” as defined in the Schedule and is not entitled to claim statutory accident benefits.