Bogdan Miscevic of Dentons Canada LLP successfully argued this decision on July 4, 2019 before Vice-Chair Chloe Lester at the Licence Appeal Tribunal (LAT). It is expected that this decision will serve as one of the benchmarks going forward in LAT decisions dealing with the definition of “accident” as per Statutory Accident Benefits Schedule (Schedule).
The facts of this case are just as important as the Respondent’s legal argument. The full decision can be found here.
Facts of the case
In the early morning of August 1, 2017, a fatal motor vehicle accident occurred between a transport truck and a tractor-trailer on Highway 401 (fatal tractor-trailer collision). The transport truck was carrying flammable liquid, believed to be paint thinner, and tractor-trailer was carrying a chalk-like substance. As a result of the accident, both the flammable liquid and chalk-like substance were scattered all over the highway.
The applicant worked for a tow truck driving and environmental clean up company. On the day of the accident, the applicant was responsible for cleaning up the two substances that spilled onto the high-way. The applicant was also in charge of placing absorbal around the catch basins and operating a vac-truck to clean the flammable liquid from the basins. Lastly, the applicant physically descended into some basins using a ladder or hose to get himself about halfway down the catch basins. After about 12 hours at the scene of the fatal tractor-trailer collision, the applicant drove back to the office where he started feeling numb and tingly and was told he was slurring his speech. Someone from the office drove him home. The applicant fainted in his house and 911 was called and the paramedics took him to a hospital. At the hospital, the applicant was diagnosed with, among other things, a pneumothorax (collapsed lung). About a year later, the applicant had another collapsed lung which resulted in surgical removal of an inflamed part of his lung which will likely have lasting repercussions on physical activities. The Applicant applied for accident benefits pursuant to the Schedule.
Are the applicant’s injuries, sustained on August 1, 2017, from an “accident” as defined in section 3(1) of the Schedule?
Scenario 1: Does the fatal tractor-trailer collision qualify as an accident?
Scenario 2: Does the use and operation of the vac-truck qualify as an accident?
(i) The law
In order to be eligible for accident benefits, the applicant must prove the incident meets the definition of an “accident” under subsection 3(1) of the Schedule. An accident is defined as “an incident in which the use or operation of an automobile directly causes an impairment…”
The leading case in interpreting the meaning of an “accident” under the Schedule is Amos v Insurance Corporation of British Columbia (Amos). In Amos, the Supreme Court of Canada set out a two-part test for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to accident benefits:
- The purpose test: did the accident result from the ordinary and well-known activities to which automobiles are put?
- The causation test: was there some causal relationship between the Applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incident or fortuitous?
Since Amos the causation test has been modified to satisfy the strict wording of the Schedule that the injuries must be “directly” caused by the use or operation of a motor vehicle. As such, the decisions in Chisholm v Liberty Mutual Insurance Group (Chisholm) and Greenhalgh v ING Halifax Insurance Co. (Greenhalgh) amended the causation test to meet the Schedule’s current and narrower definition.
As such, the amended causation test should now be read as follows:
2. The causation test:
a. Was the use or operation of the vehicle a cause of the injuries?
b. If the use or operation of the vehicle was the cause of the injuries, was there an intervening acts or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the Applicant’s injuries?
Furthermore, in establishing the (amended) causation test, the case law now considers additional questions to aid in defining whether the incident was an accident. For instance, the “but for” test used to screen out inconsequential details that could not have accounted for the injuries and the “dominant feature” test used for determining the dominant cause of the injuries.
The Respondent argued that acts and regulations should be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Schedule and the intention of the Legislature. In addition, the Respondent argued that insurance policies ought to be interpreted in such a way that gives effect to the reasonable expectations to both the insured and the insurer.
a. Scenario 1: Does the fatal tractor-trailer collision qualify as an accident?
Vice-Chair Lester sided with the Respondent’s position when rendering her decision. She held that the Applicant did not meet the purpose test because he was not driving, parking, entering, exiting, loading or unloading any of the vehicles that were involved in the subject accident as he merely attended the accident scene after an accident had occurred.
With respect to the causation test, Vice-Chair Lester agreed with the Respondent’s position and stated as follows:
“I agree with the [R]espondent that if I was to accept the [A]pplicant’s position, then that could potentially open claims for anybody who was impaired by being on the accident scene, including first respondents, or anyone who was injured while passing by the accident to claim for accident benefits. This would not be the intention of the Schedule that over the years has narrowed the definition of an accident.”
b. Scenario 2: Does the use and operation of the vac-truck qualify as an accident?
Vice-Chair Lester ruled that the Applicant’s use and operation of the vac-truck did satisfy the purpose test as the ordinary and well-known activities of a vac-truck are to vacuum liquids into a basin and transport them to another location.
However, Vice-Chair concluded that the use of the vac-truck did not meet the (amended) causation test. As stated in Chisholm, the purpose of the “but for” test is to eliminate factually irrelevant causes for determining the root cause of the impairments. Under the (amended) causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury. As such, it was decided that the use and operation of the vehicle was not the cause of the injuries. In fact, it was exposure to the toxic flammable substance, the chalk-like substance and absorbal for an extended period of time. In addition, the use and operation of the vehicle was not the dominant feature of the accident. The substances did not flow from the use and operation of the vac-truck but from the aftermath of an accident and it was already determined that the aftermath of the fatal tractor-trailer collision cannot create another “accident”.
For an incident to be determined as an accident, the use and operation has to directly cause the impairment. It is not simply being in the vicinity of an accident, or a vehicle that deems an incident an accident, but the use and operation must have a direct causal connection to the impairments. In this case, the use and operation of the vac-truck would be considered ancillary to the impairments and it was the exposure to the three substances over a long period of time that were the dominant feature of the impairments, not the vehicle.
Therefore, it was concluded that the Applicant has not been able to prove on the balance of probabilities that he meets the purpose and causation test in the first or second scenario. The incident cannot be referred to as an accident and as such the applicant is not entitled to accident benefits.
For more information, please contact Bogdan Miscevic or another member of Dentons’ Insurance group.