Madore v. Intact Insurance Company 2023 ONSC 11

Full Decision

This matter is related to an appeal brought before the Divisional Court regarding a Licence Appeal Tribunal (LAT) decision denying Mr. Madore eligibility for benefits under the Statutory Accident Benefits Schedule (SABS), on the basis that the incident at issue did not constitute an “accident” as defined under the SABS. The initial tribunal decision of June 16, 2021 was upheld at the reconsideration stage on January 21, 2022, before it was appealed to the Divisional Court.

The appellant, Clayton Madore, was injured on June 25, 2019, while cleaning and inspecting the roof of his camper trailer. The trailer was hitched to his pick-up truck at the time of the injury. Madore’s injuries occurred when he fell from the roof of the camper trailer, and included a fractured skull, broken left ankle, double wrist fractures as well as an injury to his right ear resulting in hearing loss to both ears for which he now requires a hearing aid. Madore applied for benefits through his auto insurer, Intact. The application was denied by Intact, with the insurer stating that the incident did not meet the definition of an “accident” pursuant to section 3(1) of the SABS. Madore filed a LAT application disputing the determination. A written hearing took place and a decision was rendered on June 16, 2021. The adjudicator agreed with Intact and found that the incident did not meet the definition of an “accident” under the SABS and therefore Madore was not entitled to receive benefits. Madore requested reconsideration of the decision, which was dismissed on January 21, 2022.

Madore appealed these decisions. The Court granted the appeal, set aside the LAT decisions and made a determination that the incident in which Madore was involved does in fact meet the definition of an “accident” under the SABS.

In coming to this decision, Justice Stewart identified that the adjudicator applied the appropriate two-part test as set out in Greenhalgh v. ING Halifax Insurance Co. 2004, CanLII 21045 (ON CA). Specifically:

(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)?

However, Justice Stewart disagreed with the adjudicator’s determination that the incident did not meet the causation test. At paragraph 25 of the decision, she stated:

“[25] 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.”

Going further, Justice Stewart noted that the adjudicator did find that Madore’s injuries were the result of the use or operation of a motor vehicle (the purpose test), but that he introduced a further requirement to the causation test, that Madore must not only prove that the use or operation directly caused the impairment but also that the injuries he sustained were as a result of him “tripping on some part of the trailer”. The insertion of this requirement was noted to be “contrary to the definition of ‘accident’” and not found to be consistent with the Court of Appeal’s earlier decision in Greenhalgh (supra). 

Justice Stewart also noted that the legal authorities on this issue are “ample” and do not support the adjudicator’s conclusion that Madore must prove that contact with an automobile is a required part of the definition of “accident” (i.e., tripping). Justice Stewart restated that the test required that the adjudicator consider only “whether Madore was injured in the course of cleaning and inspecting the roof of the trailer.” Which the adjudicator had conceded in his decision. After reviewing a number of cases finding that certain ‘incidents’ constituted an ‘accident’ entitling the claimant to benefits under the SABS, notwithstanding in several of those cases there was no contact by the claimant with the vehicle, the Court went on to grant the appeal, confirming that the “incident in which Madore was involved qualifies as an ‘accident’ under the Schedule” and he

Written by

Jennifer Schmidtz is a licensed Paralegal at Ross & McBride LLP. She is a former Co-Chair of the OTLA Law Clerk Section.