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Sterling v Heartland Farm Mutual Inc.
On May 13, 2021, the Licence Appeal Tribunal (“Tribunal”) released its decision in Sterling v Heartland Farm Mutual Inc., 2021 ONLAT 20-000672/AABS – PI (“Sterling”). The Respondent (“Heartland”) then requested a reconsideration of the Tribunal’s decision, which was dismissed on October 7, 2021. The decisions together consider the often contentious definition of “accident” under Section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). Accident is defined under 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.”
Ultimately, the Sterling decision, upheld on reconsideration, has broadened this definition by expanding what may be considered “use and operation” of an automobile. As a result, incidents such as this that would not have been defined as accidents in the past may now be deemed as such. This decision will help support similar future Applicants get access and entitlement to Accident Benefits.
The dispute arose out of an incident which took place on February 13, 2019. The Applicant lifted her young son into his car seat in the back of her vehicle, walked around the vehicle to the driver side door, got into the vehicle, fastened her seatbelt, started the car and drove away. The Applicant first experienced pain in her back upon lifting her son and then again, more excruciatingly, after pressing her foot down on the vehicle’s accelerator. She required back surgery two months later.
As a result, she sought accident benefits from her insurer pursuant to the Schedule. The insurer denied the Applicant’s claim for benefits and took the position that the incident did not constitute an accident under Section 3(1) of the Schedule. The Applicant applied to the Tribunal for resolution.
First Instance Decision
In Greenhalgh v ING Halifax Insurance Company, the Court determined that in order for an incident to meet the definition of an accident under the Schedule, the insured must satisfy both the “purpose” test and the “causation” test, as outlined below:
(a) The purpose test: did the incident arise out of the ordinary and well known activities for which automobiles are used?
(b) The causation test:
i. Did such use and operation of the automobile directly cause the impairment?
ii. Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
At the Tribunal, the Applicant submitted that the incident constituted an accident as she was engaged in an activity normally associated with the use and operation of a vehicle, thereby meeting the purpose test. She further submitted the causation test was met as her injury was caused by a combination of lifting her son into his car seat and pressing her foot on the vehicle’s accelerator, both of which are part of the “ordinary course of things”.
In response, the insurer submitted that no incident could be established by medical evidence, that it could not be said that “but for” the incident her impairment would not have occurred and that there was not an actual connection between the Applicant’s use or operation of her vehicle and her impairment.
The Tribunal found in the Applicant’s favour.
While Vice Chair Boyce acknowledged that the incident did not have the conventional “feel” of an accident, both the purpose and causation tests, as outlined above, were met. The incident therefore met the definition of an accident under Section 3(1) of the Schedule.
Of importance, Vice Chair Boyce noted, in agreement with the Applicant, that there is no active use component to the purpose test, and lifting as well as securing a child into a car seat are ordinary and well known tasks for which automobiles are used. After securing her son, the Applicant then proceeded to get into the vehicle and drive away. Vice Chair Boyce determined there could be no dispute that this chain of events was uninterrupted and that the Applicant’s actions certainly fell within the “use or operation of a vehicle”.
To that end, it was determined that the incident arose out of an ordinary and well known activity associated with the use of automobiles. The incident therefore constituted an accident.
On reconsideration, Vice Chair Boyce asserted that “the reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence”, stating that the Respondent’s request was precisely that.
The Respondent’s assertions essentially expressed disagreement with the weight assigned to the evidence at first instance. Vice Chair Boyce expressed that it is, in fact, the function of an adjudicator to assess and assign weight to the evidence before them and to arrive at a determination on the basis of such evidence. On reassessment, he found that the evidence presented by the Applicant continued to support her claim and no error was made in the Tribunal’s reliance on hearsay or Examination Under Oath evidence.
The Respondent’s reconsideration request was dismissed.
The decisions in this matter mark a clear expansion of the definition of accident under the Schedule. Taken together, the decisions will help similarly situated Applicants get access to Accident Benefits required for treatment and recovery.
It will be interesting to see how jurisprudence at the Tribunal evolves following these decisions.
If you have any questions about this matter, please contact Louis J. DelSignore.