Learning about the Law in Ontario, Jurisprudence, Motor Vehicle Accidents

A Car Accident or not a Car Accident?

thinker-1294493_960_720If you’ve been injured in Ontario and a car was involved, it is not always clear whether or not it was a “motor vehicle accident” for the purposes of collecting no-fault accident benefits or suing for financial compensation for your injuries and other damages. Under the no-fault benefits legislation, an “accident” is generally defined as “an incident in which the use or operation of an automobile directly causes an impairment.”[1]

On the one hand, if it is deemed a motor vehicle accident, no-faults benefits are available.  On the other hand, if the injuries are considered minor, so are the benefits (i.e. with a maximum of $3,500 available for medical and rehabilitation benefits).

To add insult to injury, if you were hoping to seek compensation in a civil lawsuit, in Ontario, the statutory deductible under section 267.5(5) of the Insurance Act[2] dictates that injuries suffered in a car accident must be of sufficient severity to merit compensation in a lawsuit.  The deductible was introduced to prohibit non-meritorious lawsuits from clogging the justice system.  Presently (for 2016), that deductible is $36,905.40. That means that if your injuries are “worth” less than that amount, you have no cause of action and you would collect nothing for your injuries.

It may be in cases where the injuries are less serious that it would be preferable to be relieved of the barriers imposed by the Insurance Act so that some compensation can be sought from the offending party.  The downside is that once you remove the insurance company, enforcing any judgment that is obtained may become more difficult (if not impossible).

That said, if your injuries appear relatively minor (at least initially), you may find the benefits available under the Accident Benefits regime to be very limited, and the statutory deductible a complete barrier to compensation otherwise.  In some rare instances, however, it is possible that injuries incurred where a car was involved is not actually a “car accident” for the purposes of the Insurance Act at all.

question-mark-1232263_960_720.jpgSo, you may ask: in what cases are injuries incurred where a car was involved, not a car accident?  There must be an intervening event such that the injury did not occur from the “use or operation of a motor vehicle”.  This intervening factor is considered after a two-part test established by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia[3], and recently applied in Economical Mutual Insurance Company v. Caughy[4] is satisfied.   In Caughy, the Plaintiff was playing tag when he tripped over a parked motorcycle and suffered serious injuries when he subsequently fell into his own parked vehicle.  In that case, Ontario Court of Appeal Justice Hourigan wrote, at paragraph 14, that there was no intervening factor “that resulted in the injuries that cannot be said to be part of the course of the ‘ordinary course of things.'”   The Court of Appeal determined that a parked vehicle is an ordinary use of a vehicle.  Therefore, an accident involving a parked vehicle may still be considered a motor vehicle accident.  Contrast this, however, to the case where someone is dismantling a shell of a car for scrap metal when it falls injuring him: this is not an ordinary use of a vehicle and therefore not a motor vehicle accident.

These are Not Motor Vehicle Accidents

To provide a few examples of intervening acts that can remove an incident involving a car from being defined as a motor vehicle accident for the purposes of the Insurance Act, consider the Supreme Court decision of Citadel General Assurance Co. v. Vytlingam[5] where a car was used to transport boulders to a bridge, where they were thrown off the bridge causing a serious motor vehicle accident below.  Or, in Russo v. John Doe,[6] where shooting from a moving vehicle was determined not to be an accident caused directly or indirectly by the use or operation of a motor vehicle.  In both those cases, unfortunately, catastrophic injuries resulted and the injured parties would have benefited from a finding that they were involved in motor vehicle accidents.

Similarly, in Lumbermens Mutual Casualty Co. v. Herbison the Supreme Court found, deciding on a case where a hunter got out of his vehicle and shot at what he thought was a deer, but was another hunter:

The insured was using his vehicle for transportation, its ordinary use, but committed an act independent of the ownership, use or operation of his truck, when he interrupted his motoring to start hunting. The chain of causation was broken. The injury cannot be said to have arisen “directly or indirectly from the use or operation” of the insured truck within the meaning of s. 239(1). The use of the vehicle merely created an opportunity for the damage to be caused, without any causal connection, direct or indirect, to the legal basis of the insured’s tortious liability.[7]

These are Motor Vehicle Accidents

Now, take a look at the kinds of cases that were deemed to be motor vehicle accidents.  In Tucci et al. v. Pugliese et al. a woman was sitting in her kitchen when her house was struck by an uninsured motor vehicle.  In that case, the woman was not even struck by anything (“nothing that the vehicle hit came into contact with her”).  The insurers moved for summary judgment arguing unsuccessfully that the woman was not involved in a motor vehicle accident given that she was not even struck.  In that case, Justice Langdon, while not making a final determination, suggested that the interpretation of whether a person sitting inside their house, is “struck” by a vehicle that crashes into their house (although not actually physically struck by anything), should be broad.

Justice Langdon quotes Fleury J:

“struck [by an automobile]” should be taken to include any immediate sensory invasion. The visual impact on Smith is such a sensory invasion and should be included in the meaning of ‘struck’.[8]

Therefore, even though she was not struck by the vehicle, or by anything at all, it was suggested that the woman was in fact “struck” with an unexpected “sensory invasion”, otherwise referred to as the “notional equivalent of being struck”.[9]

In Talbot v. Gan General Insurance Co., cited in Tucci, the Court similarly determined that a motor vehicle accident occurred without any physical “striking” by the offending vehicle, when a cyclist took evasive action to avoid being struck by a vehicle and as a result suffered serious injuries.[10]  Justice Langon in Tucci goes on to state:

[41] Let us assume that this plaintiff had not simply been seated at her kitchen table. Let us assume, rather, that she had been standing at the top of her basement stairs when the Pugliese automobile struck her dwelling, “right behind where she was standing”. If the sudden loud bang had startled her, and had caused her to lose her balance, and tumble down the stairs, resulting in catastrophic injuries, it would be difficult for me to conclude that she had not undergone an “immediate sensory invasion”, i.e., a notional touching. There was a degree of proximity. She had no opportunity to take evasive action, because she did not see the automobile. So her injuries did not result from the fact of her having taken evasive action. But the injuries arguably resulted from the proximate, sensory invasion, the notional equivalent of being struck.[11]

In contrast to being “notionally struck”, it is also possible to be struck by something that was propelled into motion by a vehicle, in which case the accident is a motor vehicle accident.  This was the case in Re Strum and Co-Operators Insurance Association, where the victim was struck by a street sign that had been struck by a motor vehicle (and killed).  It was deemed that the claimant was struck by the automobile.[12]

Similarly, in Shepard v. Sanderson[13], a PEI case, snow from a snow plough struck and injured the claimant who was deemed to have been struck by the plough.

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If you have been injured in an accident, with or without the involvement of a motor vehicle, and you are interested in finding out if you are eligible to pursue financial compensation for your loss, contact a lawyer who can help you determine your rights.

Bibliography

[1] Statutory Accident Benefits Schedule, O. Reg. 34/10, s. 3(1) under Insurance Act, R.S.O. 1990, c. I.8

[2] Insurance Act, R.S.O. 1990, c. I.8

[3] Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405.

[4] Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.

[5] Citadel General Assurance Co. v. Vytlingam 2007 SCC 46

[6] Russo v. John Doe, [2009] O.J. No. 1481, 2009 ONCA 305

[7] Lumbermens Mutual Casualty Co. v. Herbison 2007 SCC 47, [2007] S.C.J. No. 47, [2007] A.C.S. no 47 at

[8] Tucci et al. v. Pugliese et al., 98 O.R. (3d) 151 quoting  Smith v. Advocate General Insurance Co. of Canada unreported (August 21, 1998) (S.C.J.)

[9] Tucci et al. v. Pugliese et al., 98 O.R. (3d) 151 at para 41.

[10] Talbot v. Gan General Insurance Co., (1999), 44 O.R. (3d) 252, [1999] O.J. No. 1741, 1999 CanLII 14796 (S.C.J.), per Fleury J., application for leave to appeal to the Divisional Court dismissed by Taliano J., August 20, 1999, at para 8.

[11] Tucci et al. v. Pugliese et al., 98 O.R. (3d) 151 at para 41.

[12] Re Strum and Co-Operators Insurance Association (1974), 2 O.R. (2d) 70 (H.C.J.)

[13] Shepard v. Sanderson, [2012] I.L.R. I-5216

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