Roberts v. Intact, FSCO A-14-002957

Released January 4, 2016 | Read the full decision [OTLA Document Bank]

This recent FSCO Arbitration decision dealt with the definition of “accident” under the SABS. The 19-year-old applicant suffered a complete (ASIA A) cervical spinal cord injury C5-C6, secondary to traumatic C5-C6 fracture-dislocation, rendering her a quadriplegic. The parties proceeded to arbitration with an agreed-upon statement of facts. The applicant attended a lake near Manitouwadge, Ontario on August 13, 2011 after a night of socializing and drinking at a bar with friends. When the applicant arrived at the lake, one of her friends reversed his pick-up truck onto the beach at the edge of the lake such that the truck’s tailgate extended over the water of the lake. The applicant’s friends then jumped into the lake numerous times from the truck’s tailgate and box. At a certain point, the applicant was seen standing up in the box of the truck bed. The applicant was then seen floating face down in the lake approximately 10 to 20 feet from shore. It was considered within the balance of probabilities that the applicant had jumped into the water from the tailgate in a similar manner to her friends. It was subsequently determined that after jumping from the truck, the applicant had landed in water that was approximately a foot in depth.

The applicant’s insurer, Intact, disputed that the incident qualified as an “accident” pursuant to the SABS. It argued that the definition of “accident” had narrowed since September 1, 2010 and that the applicant was not covered under the pick-up truck’s insurance policy. The arbitrator reviewed the two-part Purpose Test and Causation Test outlined in Amos v. Insurance Corp. of British Columbia to determine if an accident occurred. The arbitrator also looked at the definition of accident contained in section 3(1) of the SABS.

In applying the test in Amos, the arbitrator reviewed the relevant case law and found that the ordinary use of a vehicle extended beyond the act of driving and included getting in and out of a vehicle (embarking and disembarking), loading, unloading, delivery of cargo, fuel delivery, changing a tire, and repair and maintenance. He found that a reasonable inference could be drawn that the applicant jumped into the lake from the tailgate of the pick-up truck. He found that disembarking from a vehicle could occur on multiple occasions and could include an individual stepping out, rolling out, or jumping out of a vehicle. He found that there were no intervening occurrences between the applicant disembarking from the tailgate of the pick-up truck and landing in the water. He further found that the disembarking from the pick-up truck was a direct cause of the applicant’s injuries. He ultimately concluded that the applicant was involved in an “accident” as defined in section 3(1) of the SABS and as such, was entitled to submit a claim for benefits against the pick-up truck’s automotive insurance policy.

Read the full decision on the OTLA Document Bank

Veronica Marson
Written by

Veronica Marson joined the team at Singer Kwinter in January 2013. Veronica’s practice is centred on assisting those who have sustained personal injuries or find themselves involved in a compensation dispute with an insurance company. Veronica is fluent in Spanish and is happy to provide her legal services in the language most comfortable to you and your family.