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Was it an Accident involving the use or operation of an automobile; or not? It’s important to know this for your personal injury case

Some fact patterns regarding car accident cases can’t be made up. I suppose that you could try; but the reality of what actually happened often exceeds the bounds of your imagination. They are often unthinkable scenarios fit for a law school exam.

To be eligible for accident benefits in Ontario, an injured accident victim must prove the incident meets the definition of an accident under subsection 3(1) of the the Statutory Accident Benefits Schedule. An accident is defined as:

an incident in which the use or operation of an automobile directly causes an impairment …

The key words here are “the use or operation of an automobile”. Those words have been defined rather broadly. They are largely fact specific.

If the Plaintiff can establish that the incident arose out of the use or operation of an automobile; then the Plaintiff will be eligible to claim accident benefits. Things like an income replacement benefit; an attendant care benefit; and medical/rehabilitation benefits which are not covered by OHIP. These benefits can really help make ends meet; and can go a long way on the road to recovery following a serious accident. If the accident is deemed as “catastrophic”, these accident benefits will exceed $1,000,000 in value. Being eligible for accident benefits is also important because they will be paid out irrespective of fault. That means where the accident is an “act of G-d”, or some strange fluke; or a single vehicle accident with nobody to sue; then the Plaintiff regardless of fault will be eligible for benefits which is very important.

These cases about defining what is an accident; and what is not; are zero sum. Meaning, that it’s either an accident as defined by the SABS make the Plaintiff eligible for accident benefits; or it’s not an accident as defined by the SABS and the Plaintiff is not eligible. There is no middle ground.

In Amos v. Insurance Corporation of British Columbia, 1995 3 R.C.S. the test for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:

  1. The Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
  2. 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 incidental or fortuitous?
  3. The applicant bears the onus to satisfy both the purpose and causation tests.

In Kopylets v. Primmum Insurance Company, 2023 ONLAT 21-015682/AABS – A, the Applicant was described as an avid cyclist since 2019 and had been riding with a group of other cyclists since approximately that same time.On Saturday, September 11, 2021, the group ride started between 9:00 and 9:30 a.m. with an intended route near Milton.  There were seven riders present, including the Applicant.

On the ride, the another rider lost control of his bicycle and started to “wiggle.”  The Applicant was riding approximately one to one and a half meters behind him.  She became frightened and applied her brakes.  She saw something black and shiny on the surface of the road and realized that it was slippery. As her tires crossed over the substance, she lost control of her bicycle and she fell.  Two other cyclists behind her also fell.

Another rider who fell on the substance, took photographs of the intersection. These images showed a lengthy dark stain in the middle of the eastbound lane.

The Applicant later testified that the substance on the road which caused her to fall had a smell similar to petroleum.  She did not know what the substance was or how it came to be deposited on the road.  She never engaged in any investigation regarding the source of the strip, or pursued any analysis of its chemical composition.linkedin-2-300x300

The applicant was transported by ambulance to Halton Health Care hospital in Milton, where she was diagnosed with five fractures, including her collarbone, pelvis and various parts of her shoulder blade, as well as a collapsed lung.  When she applied for accident benefits, the respondent refused her claim on the basis that she was not involved in an accident within the meaning of subsection 3(1) of the Schedule.

A witness, who happened to be a retired police officer agreed that the wet and slippery substance likely came from a vehicle. It was likely oil, gas, or some other lubricant from a car.

In making their finding in support of the Applicant, the LAT noted a similar fact case (can you believe it!), or another cyclist losing control of their bike on what appeared to be oil from a car (John Petrosoniak v. Security National Insurance Company FSCO A98-000198):

On the basis of the evidence before me, I find that the fluid that caused the Applicant’s bicycle to slide and him to fall to the ground originated from a motor vehicle. While there is no direct evidence of where that fluid came from, in my view it is reasonable to conclude that it was emitted from a motor vehicle that drove southbound on Warden Avenue in the curb lane and then proceeded westward at the intersection. In arriving at this conclusion I have considered the fact that the substance in question lay exclusively on the roadway and not on the curb, that it was approximately the width of one lane and that it continued in a westward direction for some 200 feet beyond the intersection before fading away. Although it would have been preferable to have more conclusive evidence on this point, I am persuaded by the factors set out above that, on a balance of probabilities, the liquid in question did emanate from a truck.”

The LAT ruled in favour of the Applicant, that the accident arose out of the use or operation of an automobile. The Applicant was allowed to claim accident benefits, and the Applicant had won their case. But, did they really win? The accident took place on September 11, 2021. The LAT decision was on June 13, 2023. For just under 2 years post accident, the Applicant had no access to any accident benefits whatsoever! That means that physio, massage, chiro, OT, etc. all needed be paid out of pocket. There were no income replacement benefits and no attendant care benefits until his issues was decided almost 2 years later. Unless the insurer agreed to pay the benefits on a without prejudice basis and sought a reversionary interest to get back what they paid out…That’s a hard pill to swallow either way you look at it.


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