Ontario Accident Benefits …Liberal Interpretation of “Accident” under SABS
By: Brent Meadows
Accidents in Ontario
In Ontario, if you are injured in a motor vehicle accident, you may apply for benefits under the Statutory Accident Benefits Schedule (SABS) regardless of fault. You may also seek compensation in tort by commencing a lawsuit against any person(s) at fault.
What is an accident ?
The Financial Services Commission of Ontario has recently dissected the term ‘accident’ in relation to the SABS. If an injured party can establish that they were injured as a result of an ‘accident’, they may apply for SABS benefits.
What accidents will be covered under accident benefits?
In Kasman and Security National, (FSCO A12-007175, October 2, 2014), Mr. Kasman, the applicant, alleged that he was injured in a motor vehicle accident and was therefore entitled to certain statutory accident benefits. He applied for benefits but was refused by Security National on the basis that he was not injured in an ‘accident’ as defined in section 2(1) of the Schedule.
By way of background, Mr. Kasman was struck on the head by the arm/gate that regulates entry into an underground parking garage. He walked and followed a car that triggered the arm to lift. The arm then lowered on his head as the car that Mr. Kasman was following continued into the garage triggering the sensor that causes the arm to lower.
Arbitrator Rogers had to decide whether or not Mr. Kasman’s injury was directly caused by the use or operation of an automobile. Security National relied on cases where individuals were not entitled to accident benefits and where their injuries were caused by an assault that occurred in or around a vehicle. In the ‘assault’ type of cases, Swaby v. Allstate Insurance for example, it was decided that the injuries did not arise out of the use of an automobile.
Arbitrator Rogers further differentiated the case at hand from Mahadan and Co-operators General Insurance Co (FSCO A00-000489, March 15, 2001) where an individual was injured after he placed groceries in the trunk of his car and soon after tripped on a pothole. The pothole broke the chain of causation and the claimant was not entitled to the accident benefits.
However in Kasman, the injury was directly caused by the car as it triggered the arm/gate to go up and down. Specifically, arbitrator Rogers noted that “Had the car hit the arm, which in turn hit Mr. Kasman causing injury, there would be no doubt regarding causation. I see no qualitative difference because the arm is remotely triggered.”
Arbitrator Rogers ultimately held that Mr. Kasman was injured as a result of an “accident” as defined in section 2(1) of the Schedule as the incident arose out of the use or operation of an automobile, and the use or operation of the automobile directly caused the impairment.
If you have been injured and aren’t sure of your rights, contact an experienced Ottawa personal injury lawyer. Most lawyers offer a free consultation and can walk you through your options and help you determine what’s best for you and your family moving forward. For more information, visit www.ottawainjury.ca/insurance-claims