May 15, 2023, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Justice Stewart
Date of Decision: January 3, 2023
Read the full decision here
CM was injured in June 2019 he fell from the roof of his camper trailer. He was cleaning and inspecting the roof of the trailer which was hitched to his pickup truck at the time of the fall. His injuries were serious and included a skull fracture, wrist fractures, broken ankle, and hearing loss to both ears.
As a result of these injuries, he applied for accident benefits to his insurer Intact Insurance pursuant to the SABs. His application to Intact was denied by Intact on the basis that his incident was not considered an accident pursuant to the schedule. CM filed a Licence Appeal Tribunal (LAT) application disputing the decision. A written hearing and decision followed on June 16, 2021. The Adjudicator agreed that Intact made the correct decision – this incident was not an ‘accident’ pursuant to the Statutory Accident Benefits Schedule (SABS) and therefore MS was left without benefits.
MS requested the decision be reconsidered. The request was dismissed in January 2022.
MS then appealed the LAT decision to Divisional Court. He claims that the incident and injuries were in fact and accident as defined in the SABS. The Court granted the appeal and set aside the LAT decisions and made the determination that the incident was indeed an “accident” as defined in the SABS.
Justice Stewart determined that the LAT arbitrator applied the correct two-part test set out in in Greenhalgh v. ING Halifax Insurance Co. 2004, CanLII 21045 (ON CA) but he disagreed with the adjudicator’s conclusion that the incident is not an accident.
The two part test:
- Did the incident arise out of the use or operation of an automobile (purpose test)?
- Did such use or operation of an automobile directly cause the impairment (causation test)?
Justice Stewart said that the Adjudicator erred in law and went on to say in their decision:
In my opinion the undisputed facts before the Adjudicator satisfy the statutory requirements that he has sustained injuries in an “accident” and is entitled to claim and receive benefits under the Schedule. The Adjudicator erred in law.
 The Adjudicator did find that Madore was injured in the course of his use or operation of the trailer. However, the Adjudicator introduced a requirement that, in addition to proving the injury arose out of the use or operation of the trailer, he must also prove that his fall was caused by “tripping on some part of the trailer” and “that the injuries were directly caused by the trailer” to establish the direct causation of his injuries.
 In the Adjudicator’s decision of July 7, 2021, he inserted this need for Madore to prove that the trailer caused his injuries, as opposed to its use or operation. As framed by the Adjudicator (at paras. 18 and 19):
 The mere location on or near a vehicle at the time of an incident does not automatically meet the requirements of the causation test. Direct cause requires evidence that Clayton Madore's fall was as a result of tripping on some part of the trailer and the injuries were directly caused by the trailer. In this matter, there is no evidence of either circumstance being the case.
 The incident was caused by Clayton Madore's loss of footing on the roof of the trailer and the injuries were sustained as a result of landing several feet below on the ground. …
 In his reconsideration decision, the Adjudicator repeated this approach, as follows:
“Directly caused” is the crux of the argument in this case. The evidence and case law supports that “directly caused” requires that contact with an automobile has been made and maintained (no intervening act) and resulted in injuries. The evidence before me was there was no contact with the trailer causing the fall, and no contact with the trailer at any point during the fall that resulted in injuries. The injuries were sustained as a result of (Clayton Madore) falling to the ground, the trailer happened to be the location that he fell from.
 There is ample support in the case law submitted on behalf of Madore’s position to demonstrate that the preponderance of legal authority on this issue and its application by the Licence Appeal Tribunal in many cases before it has resulted in the consistent conclusion that contact with an automobile is not a required part of the definition of “accident” under the Schedule.
 The insertion by the Adjudicator of a requirement for evidence that Madore’s fall “was as a result of tripping on some part of the trailer” is contrary to the definition of “accident” in the Schedule as well as inconsistent with the decision of the Court of Appeal for Ontario in Greenhalgh (supra).
 In Greenhalgh, the correct approach to the test to be applied in determining whether an incident is an accident for the purposes of claiming and receiving benefits was set out as follows:
1. Did the incident arise out of the use or operation of an automobile (purpose test)?
2. Did such use or operation of an automobile directly cause the impairment (causation test)?
 Section 3(1) defines “accident” as an “incident” where there is a direct connection between the use and operation of the automobile and the impairment. The question to be determined is whether use or operation of the trailer caused the impairment, not whether Madore had adduced evidence to prove that he tripped on the trailer.
 The test only requires that the Adjudicator consider whether Madore was injured in the course of cleaning and inspecting the roof of the trailer. In fact, the Adjudicator found that Madore was injured in the course of cleaning and inspecting the roof of the trailer. Madore’s injuries flow directly from that purpose.
 The link to be drawn therefore is between the “use and operation” of the automobile and the “impairment”. Madore did not need to prove a direct physical connection between the cause of the injury and an automobile.
Justice Stewart indicated there was ample case law supporting the correct interpretation of the SABS and Two-Part Test which support the decision that the incident was in fact and accident.