The definition of “accident” under the Statutory Accident Benefits Schedule is any incident where the use or operation of an automobile directly causes an injury.
What is an automobile?
Section 1 of the Highway Traffic Act defines “motor vehicle” as follows: “Includes an automobile, motorcycle, motor assisted bicycle…and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car, or other motor vehicles running upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine.”
The following are examples of motor vehicles not defined as “automobiles”:
- farm tractors (including trailers);
- street cars;
- motorized wheelchairs/scooters;
- road-building machinery;
There have been many cases where insurers denied Statutory Accident Benefits and claimed that the activity did not fall within a definition of “accident”.
A number of cases were brought to court on this issue and here is the review of some of the decisions:
Is assault an “accident” within the meaning of the SABS?
In an Ontario Court of Appeal decision in Martin v. 2064324, while in the parking lot of his nightclub workplace, Mr. Martin was accosted by two men who viciously assaulted him. They pepper sprayed him, beat and kicked him, slammed his head onto the surface of his car and forced him into the trunk of his own car and drove to another parking lot where the assaults continued. They broke two of his fingers and left him on the ground. The thugs then got back into Martin’s car and drove over his right foot. After pepper spraying Martin again, they fled the scene in Martin’s vehicle. Martin was able to crawl his way to his abandoned car and drove himself to a nearby hotel where he sought help.
Mr. Martin sustained a variety of injuries as a result of this incident. He claimed accident benefits as well as uninsured/unidentified/ underinsured motorist coverage from his automobile insurer, Certas. All of these claims were denied by the insurer. Certas brought a summary judgment motion to have all of the claims dismissed. The motions judge dismissed the insurer’s motion and permitted all of the claims to proceed to trial. Certas appealed.
The Court was required to address two issues: (1) whether Martin met the definition of “accident” for entitlement to accident benefits (“an incident in which the use or operation of an automobile directly causes an impairment”) and (2) whether Martin’s injuries arose “directly or indirectly from the use or operation of [an] automobile” so as to trigger coverage under s. 239(1) of the Insurance Act and, therefore, entitlement to uninsured/unidentified/ underinsured motorist coverage.
Justice Gray of the Ontario Superior Court ruled that Martin’s injuries were directly connected to the use and operation of his vehicle because they were caused by attackers whose purpose was to seize his motor-vehicle. The Court of Appeal disagreed and concluded that most of Martin’s injuries did not arise in the ordinary course of things that are normally associated with the use or operation of a vehicle. The Court of Appeal concluded that his vehicle was nothing more than the venue where many of the assaults occurred.
Does tripping over a motorcycle constitute an “accident”?
In Economical Mutual Insurance Co. v. Caughy, Patrick Caughy tripped over a motorcycle parked on a pedestrian pathway at a campsite, while playing tag in the dark with his daughter. That ruling had found that Patrick Caughy was involved in an “accident”. The Court found that motorcycle was the direct cause of the injuries suffered by Caughy.
The Court relied on the Supreme Court of Canada case in Citadel General Assurance Co. v. Vytlingam. In that case, the court offered examples where “a vehicle is not being used as a vehicle but for some other purpose,” including the use of an automobile as a diving platform, permanent building prop or storage facility. “A vehicle is designed to be parked. Indeed, it is safe to say that most vehicles are parked the most of the time,” he wrote. “I would conclude, therefore, that parking a vehicle is an ordinary and well-known activity to which vehicles are put.”
The plaintiff got stuck on a country road and suffered frostbite. Does this fall within a definition of an “accident”?
In Greenhalgh v. ING Halifax Insurance Co., the insured’s vehicle became stuck on a country road on a cold winter night. She set out with the intention of walking back the way she had come, towards one of the houses she had seen earlier, but became disoriented in the darkness and strayed off the road. She walked for about nine or ten hours. Along the way, she fell into an ice-covered river and lost her boots. As a result of exposure to the cold, she suffered severe frostbite, which required the amputation of her fingers and her legs below the knees. She submitted a claim to her automobile insurer for accident benefits. The insurer refused coverage, and litigation ensued.
The motion judge initially concluded that she was involved in the “accident” within the meaning of the SABS. The Court of Appeal allowed the appeal.
The Court of Appeal concluded that the insured had physically left the car. No automobile contributed physically to the insured’s injuries. There was the temporal distance between the end of the use of the car and the injuries. The problem with the car could be said to have led to the injuries, but one could not say that it caused the injuries. The factor that physically caused the injuries, the weather, was unrelated to the use or operation of the automobile. There were numerous intervening occurrences between the time the car became stuck and the time the insured suffered her injuries. None of those intervening acts could be considered a normal incident of the risk caused by the use or operation of the car.
Injury while attempting to pole dance? Is it an “accident” within the meaning of the SABS?
In Economical Mutual Insurance Company v. Whipple, the Financial Services Commission of Ontario (FSCO) determined that attempting to pole dance in a limo bus is considered an “accident” within the meaning of the SABS.
A group of businessman went to golf in New York State, and Mr. Whipple was one of them. They rented a 24-passenger luxury limousine coach for the trip. The limo bus was advertised as a party bus and included several amenities, including a stripper pole.
During the return trip, the men began playing with the stripper pole, experimenting with a “rudimentary form of pole dancing”. After one man slid down the stripper pole upside down, Mr. Whipple tried to top that antic with a headstand. Unfortunately, when Mr. Whipple flipped his legs up in the air he missed the pole, his arms gave out, and his neck snapped. As a result, Mr. Whipple was rendered an incomplete quadriplegic and is now confined to a wheelchair.
Economical, took the position that this was not an accident under section 2(1) of the SABS, which defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment.”
It was concluded that the limo bus was advertised as a party vehicle that included a stripper pole. Advertising, FSCO held, could alone make for a well-known use. Moreover, the inclusion of the stripper pole in the limo was an invitation to the very type of behavior engaged in by Mr. Whipple. Accordingly, this case involved the ordinary and well-known use of a stripper pole in a limo bus, and Mr. Whipple’s injuries were the result of an accident.
Is car surfing an “accident” within the meaning of the SABS?
On July 14, 2014, Ms. Charbonneau and a friend stood on the rear bumper of a minivan, holding onto the roof rack and each other for support, while the driver videotaped the action from the van. Ms. Charbonneau fell off during a sharp turn and struck her head on the pavement. Intact denied coverage when she applied for treatment, which led to this dispute.
The case, Charbonneau v. Intact Insurance Company, proceeded to the License Appeal Tribunal claiming that the claimant, Ms. Charbonneau had not been injured in an “accident” and did not qualify for accident benefits coverage.
The LAT adjudicator applied the two-part test set out above and made a determination that Ms. Charbonneau had suffered an “accident” under the SABS and was entitled to coverage. Intact appealed the decision, claiming that the adjudicator had misapplied the test.
The Divisional Court reviewed the LAT decision and found that the adjudicator had reached a reasonable conclusion. It noted that the purpose test is designed to exclude claims based on purposes outside of the “normal” uses for a vehicle – namely, transportation of people and things. The Court identified excluded uses including using a parked car as a diving board or a permanent prop to support a building.
The Court rejected Intact’s argument that car-surfing and other forms of “hitching a ride” fall out side the normal uses for a vehicle. The Court concluded that car-surfing is no more “abnormal” than other dangerous and reckless use of a vehicle for transportation like “texting and driving” and upheld the LAT decision.
Assault with the car door and punches to the face? Is it an “accident”?
In recent case, Intact Insurance v. Lanziner-Brackett, the Respondent was at work for a television show production company. She was responsible for supervising three reserved parking spots and ensuring that the spots were available for production vehicles. Trucks occupied two of the spots at the time. An individual pulled into the third parking spot and the Respondent approached the car and told the driver that he was not allowed to park there.
The individual proceeded to open the car door, bumping the Respondent. He opened the door a second time, hitting the Respondent more forcefully and hitting her forearms and left knee. The Respondent retreated from the car and the individual got out of the car, shut the door and punched the Respondent in the face three times. He was later convicted of assault.
He indicated that on the facts before him, he could not neatly divide the Respondent’s impairments into separate categories. He held as follows: “There is no evidence on this preliminary motion that all of the long term impairments suffered by the applicant were caused solely by the assailant’s actions outside of the vehicle.”
The Adjudicator concluded that the whole process constituted a continuous affront to the applicant’s well-being from which she appeared to have emerged with psychological impairments, finding that the whole incident was an “accident” under the SABS.
Have you or your loved ones been involved in an unusual accident where injuries were sustained? Are you unsure whether the case qualifies? Please contact us for a free consultation.
2 Citadel General Assurance Co. v. Vytlingam 2007 SCC 46 (CanLII),  3 S.C.R. 373
3 Greenhalgh v. ING Halifax Insurance Co.,  O.J. No. 3485 4 Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546