Meeting The Definition Of 'Accident' As Defined In The SABS

The recent appeal decision of Director's Delegate Evans in Salamone and Aviva (Appeal Order P15-00072, June 16, 2016) considered whether or not a heart attack, while driving, which resulted in a car accident and injuries, qualified as an "accident" for the purposes of claiming accident benefits under the Statutory Accident Benefits Schedule.

On February 2, 2013, while driving his van, Mr. Salamone had a heart attack and lost consciousness. The van he was in hit one guardrail and slid along it until it hit a second guardrail, causing the van to leave the road and angle over a ditch. The damage to the van prevented a CPR-trained bystander from immediately treating Mr. Salamone. Thereafter, Mr. Salamone claimed that the delayed treatment caused severe neurological impairments.

A Preliminary Issue Hearing was held in front of Arbitrator Arbus to determine whether the Claimant was involved in an accident as defined by Section 3(1) of the Statutory Accident Benefits Schedule ("SABS"):

3. (1) In this Regulation, "accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

At first instance, Arbitrator Arbus found that the incident failed to meet the definition of "accident" as defined in the SABS.

Arbitrator Arbus referred to the Court of Appeal's decision in Greenhalgh v. ING Halifax Insurance Co. (2004), 72 OR (3d) 338, for the two part test in determining whether or not an incident qualifies as an accident under the SABS; the purpose test and the causation test:

Did the incident arise out of the ordinary and well-known activities to which automobiles are put? (the "Purpose Test"); and Did the use or operation of the automobile directly cause the injuries and if so, was there an intervening act(s) that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In other words, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? (the "Causation Test") Arbitrator Arbus agreed that the claimant met the "purpose" test as he was driving his van when the heart attack occurred.

However, for the "causation" test, Arbitrator Arbus held that the claimant failed to meet all three prongs of the test.

With respect to the causation test, Arbitrator Arbus noted "Greenhalgh provided three bases or prongs under which the...