January 01, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Carr and TD General
Date of Decision: November 17, 2016
Heard Before: Adjudicator Richard Feldman,
Appellant ELEANOR CARR
Respondent TD GENERAL INSURANCE COMPANY
The June 18, 2011 incident is an “accident” within the meaning of the Schedule.
TD shall pay to the Appellant her expenses of this appeal, fixed in the amount of $2,000.00.
The facts in this case are not in dispute. On June 18, 2011, Eleanor Carr, five years old, attended a classmate’s birthday party. A fire truck had been brought to the party for the entertainment and education of the children. Children, including Ms. Carr, were invited inside the passenger compartment of the truck. In the process of exiting the vehicle, Ms. Carr fell down the interior stairs of the fire truck and struck her head on the asphalt below, and she sustained impairments. A first-party claim for accident benefits was made on her behalf to her father’s auto insurer, TD, who denied the claim for accident benefits on the basis that Ms. Carr had not been involved in an “accident” within the meaning of the SABS.
The Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…” The Supreme Court of Canada established two elements that must be satisfied by an insured person for an incident involving a motor vehicle to be an “accident” within the meaning of no-fault insurance:
The incident resulted from the ordinary and well-known activities to which motor vehicles are put (the “purpose test”); and
There is a direct causal relationship between the insured person’s impairments and the use or operation of the vehicle in question (the “chain of causation test” or, simply, the “causation test”).
In this case, TD does not dispute that Ms. Carr sustained impairments when she fell from the fire truck on June 18, 2011, thus the causation test had been met. TD disputed that this was not an “accident” because at the time of the incident, the fire truck was not being used as a motor vehicle. The Arbitrator at first instance agreed.
In a decision issued October 30, 2015, Arbitrator Fry found that the ordinary and well-known uses of fire trucks include using them for entertainment and educational purposes, especially for children. Thus, she held that the way the fire truck was used by Ms. Carr on June 18, 2011 was ordinary and well-known. The Arbitrator nevertheless held that, at the relevant time, the fire truck was being used as a display and not as a motor vehicle and, therefore, Ms. Carr had failed to meet the “purpose” test. Arbitrator Fry held that this was not an “accident” and awarded TD its expenses of the preliminary issue hearing (in an amount to be determined).
Eleanor Carr appeals from that decision on a question of law. In the context of proceedings at the FSCO, errors of law include the erroneous interpretation or application of provisions of the Insurance Act and/or regulations thereunder. Ms. Carr argues that Arbitrator Fry erred in her application of the “purpose test” to the facts of this case and, thereby, erred in law in concluding that the June 18, 2011 incident was not an “accident” within the meaning of the Schedule.
The Supreme Court of Canada has established a well-known two-part test for determining whether am incident involving a motor vehicle constitutes an “accident”. Arbitrator Felman then reviewed the Supreme Court of Canada’s determination of the terms “use", as distinguished from "operation” as exemplified in the case of a bus. The undertaking in such a case includes the entrance and exit to and from the bus of passengers. If the steps are defective and a passenger is injured, could it be said that injury did not arise out of the "use"? The expression "use or operation" would or should, in Arbitrator Feldman’s opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service. The Supreme Court also ended its decision with the following cautionary note that Each case must be decided on its own facts, applying the two-part test.
The case law establishes that to satisfy the purpose test, the activity to which the person is putting the vehicle at the time of the incident (the way the motor vehicle is being used or operated) must simply be a well-known, ordinary use for that vehicle.
After reviewing the law, the case law, and the original decision, Arbitrator Feldman determined that at the time of the accident the fire truck was being used as a motor vehicle. He made this determination on the basis that to decide the issue before her, Arbitrator Fry in the original case had to interpret the purpose test and apply it to the undisputed facts of this case. That involved a question of law or of mixed fact and law. It was not a pure question of fact.
Secondly, Arbitrator Feldman found that Arbitrator Fry erred in her analysis of the law and her application of the law to the facts of this case. She erred in law in finding that the incident of June 18, 2011 was not an accident with the meaning of the Schedule.
On this basis, the appeal is allowed.
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