The appellant was a 45-year-old woman who suffered a spinal cord hemorrhage resulting in paraplegia while travelling as a passenger in a motor vehicle on October 10, 2020. The appellant brought an application for accident benefits and her insurer denied her application on the basis that she was not involved in an “accident.”
The main issue between the parties was causation. There was no collision. The appellant’s position was that the rupture was caused by a sudden increase in her blood pressure due to stress which was triggered by an incident that occurred while travelling in the vehicle. While on Highway 400, her vehicle became surrounded by a group of motorcyclists who were weaving in and out of traffic. The driver of her vehicle became agitated and responded to this situation by driving aggressively and trying to prevent the motorcyclists from getting in front of him. It caused the appellant (whose 5-year-old daughter was also in the back seat) to feel trapped and scared. The respondent’s position was that the rupture was not caused by the incident and the vehicle was simply the location where the rupture occurred.
The appellant, unbeknownst to her at the time, had a congenital medical condition called an arteriovenous malformation (AVM) in her spine, which is an abnormal tangle of blood vessels. Imaging performed after the rupture occurred revealed the AVM and that it was associated with a suspected aneurysm (bulging of a blood vessel). The rupture occurred during or shortly after the incident of stress in the vehicle and within a half an hour she became paralyzed.
Both parties retained expert neurosurgeons to provide an opinion on causation. The appellant’s neurosurgeon concluded that the hemorrhage in her spine was the result of the aneurysm (not the AVM), which he confirmed was present on the imaging, and that it ruptured as a result of the severe stress the appellant experienced in the vehicle. The respondent’s neurosurgeon, leading up to the hearing at the Licence Appeal Tribunal (LAT), concluded it was the AVM that ruptured, not the aneurysm, because the aneurysm was only suspected. Concluding it was the AVM that ruptured ended the analysis as AVMs do not rupture due to an increase in blood pressure and therefore a rupture of the AVM would have been coincidental and not caused by the incident.
However, at the hearing, the respondent’s expert conceded the presence of the aneurysm yet maintained it was the AVM that ruptured. His opinion was now based on the progression of the appellant’s symptoms once the rupture occurred, which he indicated was more consistent with an AVM rupture. The appellant argued this was a new opinion that had not been previously disclosed in his numerous reports.
The LAT preferred the respondent’s expert and found it was the AVM that ruptured. The LAT also found that even if it was the aneurysm that ruptured, causation was not established, because the hemorrhage and paraplegia were not reasonably foreseeable. Finally, the LAT found that the driver’s aggressive driving was an intervening cause as was the “feeling of being in an altercation” (as the appellant described the incident at the hearing), which made it akin to assault. The adjudicators upheld their decision on reconsideration.
The appellant brought an appeal and application for judicial review before the Divisional Court. Given the LAT’s findings on the cause of the hemorrhage, reasonable foreseeability, and intervening cause, the appellant had to be successful on both the appeal and judicial review. With respect to the appeal, the appellant argued that the LAT misapplied the causation test – the LAT misunderstood reasonable foreseeability, erred in finding driving style an intervening cause, and erred in finding the incident akin to assault. With respect to the application for judicial review, the appellant argued the LAT unfairly and unreasonably weighed the expert evidence in finding it was the AVM that ruptured – the LAT discounted the appellant’s expert by relying on irrelevant and incorrect facts while it ignored critical concessions made by the respondent’s expert.
The Court agreed and granted the appeal and judicial review. The Court found that the LAT erred in its application of the causation test. Specifically, the Court stated that aggressive driving is not an intervening cause and this incident was not akin to assault as there was no evidence of intent to cause the appellant harm. The Court also found that the LAT preferred the respondent’s expert for reasons that were misplaced or not borne out by the record. The Court stated that the LAT’s analysis of the competing expert opinions was unsound and unreasonable. The matter was sent back to the LAT to be heard by a differently constituted tribunal of the LAT.
