In the recent LAT decision of S.B. and Aviva, a woman who sustained injuries after retrieving her purse from her car, closing the door, and then falling to ground did NOT meet the definition of “accident” as defined in the SABS. Instead the applicant’s fall in this case was considered to be an “intervening act”, which in turn was the “direct” cause of her injuries and not the use or operation of her automobile.
On November 28, 2017 the applicant arrived at a gas station, put gas in her car, went to retrieve her purse from the front passenger seat of her car in order to pay. She closed the door, turned to walk away, and fell to the ground sustaining injuries. Her body did not come into contact with the car. In determining whether an accident had occurred for the purposes of the SABS, Adjudicator Fricot implemented the well-established two-part “Purpose” and “Causation” test from the Ontario Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co.
The applicant relied on the Davis case which held that routine maintenance (checking and topping up fluid levels, checking tire pressure, filling the gas tank) satisfies the purpose test. She further relied on Caughy for the proposition that there was no requirement that the vehicle be in active use to satisfy the purpose test.
Adjudicator Fricot found that Davis was distinguishable because the applicant in that case was injured when the hood of the car collapsed on her while she was refilling her windshield washer fluid, unlike in the case at bar where the applicant had completed refueling and was walking away at the time she was injured. Further, Adjudicator Fricot found Caughy was distinguishable because in the case at bar the applicant had no contact with any parked vehicle when she fell, nor had contact with a parked vehicle caused her to fall.
The Adjudicator agreed with the Insurer that the purpose test was not met because the applicant’s use of the vehicle had ended prior to the fall when she retrieved her purse, closed her car door and walked away.
Of note, neither party made submissions on the applicability of the “but for” test but instead focused on the intervening causes analysis and the dominant feature test. In her intervening cause analysis, Adjudicator Fricot referred to a number of cases where a person had fallen outside a parked car, including Banos, where the arbitrator had concluded that “a common sense view of the facts in this case militates against a parked car that has already been refuelled as constituting a “use” in terms of the two-fold test” and held that the slip and fall on ice was the sole cause of injury, not the use and operation of the vehicle. With respect to the dominant feature test, Adjudicator Fricot found that although the applicant’s fall was very close to her car, she did not come in contact with her car when she fell, nor did the car cause her to fall. Accordingly, the use of her car was neither a dominant feature in her fall nor did her car or the use or operation of that car cause her to fall.
Having not met the purpose and causation test, the application be dismissed.
A copy of the decision in S.B. and Aviva can be found here.
Getting Paid to Sleep? Professionally Designated Spouses Can Now Be Paid for Overnight Supervisory Care.
The decision in E.E v Aviva Insurance Company, 2018 CanLII 76415 (ON LAT) deals with a request for reconsideration by the respondent of parts of the decision issued by the Tribunal, including the finding that the applicant was entitled to attendant care benefit (including 24 hour supervisory care) alleged to have been provided by his wife, a registered PSW and RPN. At reconsideration, Associate Chair Stephen Jovanovich, agreed with the Tribunals analysis of “incurred”, and found that the test was satisfied under section 3 (7)(e) of the Schedule.
With regard to whether the care was provided during “the course of the employment, occupation or profession in which he or she would ordinarily have been engaged”, Associate Chair Jovanovich found that despite the fact that the applicant’s wife did not contract with private clients and was employed by a healthcare agency, it was not necessary for the applicant to tender his wife’s services through her employer.
With regard to “but for the accident” the respondent submitted if the evidence of the applicant’s spouse were taken at face value, then “but for the accident” the only periods she would have been working as a nurse was from January 2013 to June 2014 and from June 2015 to December 2016. The remainder of the time, the applicant’s spouse was on maternity leave, and according to the respondent she would not have been actively working during those time frames in any event. Associate Chair Jovanovich disagreed with the respondent and found that if this position were correct, then any time a spouse who is providing needed services is on any type of leave, the ACBs would not be payable. In Associate Chair Jovanovich’s view, this was not the correct interpretation of the relevant sections of the Schedule.
With regard to whether the applicant had paid “the expense, had promised to pay the expense or was otherwise legally obligated to pay the expense”, Associate Chair Jovanovich agreed with the adjudicator’s conclusion that, based on the evidence of the applicant, his spouse and the Attendant Care Confirmation of Expenses for Services Provided, in which the applicant certified that he promised to pay his spouse for the service, the condition in section 3(7)(e)(ii) of the Schedule was satisfied.
With regard to whether the adjudicator erred in allowing payment for overnight supervision, the respondent submitted that there was no evidence that such overnight supervision was part of the applicant’s spouse duties at her place of employment. The respondent relied on the decision in Y.D. and Aviva Insurance, 2017 CanLII 43883 (ON LAT), where certain personal services were provided by the insured’s spouse who was a physician practising as a fertility specialist. In the Y.D. and Aviva Insurance decision, the adjudicator wrote that the test to be applied was whether the spouse/physician was providing services to his wife in the same manner as he was providing in his normal employment, not what he may have been otherwise qualified to do.
However, in Associate Chair Jovanovich’s view, the case involved very different circumstances that could not be applied to the present matter. According to him, the applicant’s spouse was qualified to provide attendant care, a component of which is providing basic supervisory care. The fact that she may not have actually done so on an overnight basis in the course of working for her employer was irrelevant. He further found that it was reasonable for the adjudicator to find that 24 hour supervisory care was necessary based on the evidence presented.
Overall, Associate Chair Jovanovich upheld the original decision supporting the attendant care claim and indicated that it would “… seem odd, as a matter of public policy, to mandate that insureds with a trained professional in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable”.
After having articled at Samis + Company, Gurpreet was honoured to join the firm as an Associate in July of 2018. During her time with Samis, Gurpreet has gained valuable experience in various areas of ligation work including: tort law, statutory accident benefit claims, subrogation, priority disputes, and estates law. One of the things Gurpreet enjoys most about being a part of the Samis team is the opportunity to have a diverse and dynamic practice that allows her to continually build on her strengths as a litigator. Gurpreet regularly speaks to matters at the Small Claim Court and the Superior Court of Justice level.