Dale Cox and Aviva Canada Inc., FSCO A13-012588

Released July 3, 2015 | Full Decision

The Applicant was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. The vehicle did not stop and there were no known witnesses.

The Applicant’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash. The Applicant was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence. Additionally, the incident was not reported to police, as the Applicant did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.

He went home, scraped and bruised, but otherwise felt fine. The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma which necessitated a full craniotomy.

An accident benefits claim was started with the Applicant’s insurer, Aviva Canada. Aviva accepted the accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits. However, once some benefits were denied and were then disputed, Aviva took the position that the Applicant was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule.

The Applicant, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle. Based on their description, a forensic engineer was hired, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.

At the Arbitration hearing, based on the testimony of the witnesses, the arbitrator ruled in favour of the Applicant. In the decision, the Arbitrator noted that no other explanation was provided by the insurer other than the Applicant simply fell off of his bicycle. The Arbitrator rejected this theory and agreed that the injuries sustained by the Applicant were a direct result of the use of operation of a motor vehicle.

Full Decision available on the OTLA Document Bank

Peter Cho
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