Volume. 6 Issue. 45 – November 30, 2022

This week the Tribunal weighs in on two “accident” cases. In Applicant Trying to “Cash In”? a determination was made concerning whether the Applicant herself was involved in a fairly significant accident.

Then, in ‘Oil Spill Not “Accidental”’ the Applicant indicates that he lost control of his e-bike after sliding on a patch of oil that he contends was left by a passing vehicle.

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Applicant Not trying to “Cash In” on Accident

Applicant Trying to “Cash In”? – In 20-012429 v TD Insurance, the Tribunal was tasked with determining whether the Applicant Alizadeh was involved in a confirmed accident. In the accident itself, a vehicle lost control, struck two pedestrians and crashed through a restaurant window, Alizadeh submitted that she was in the restaurant at the time.

TD relied upon the fact that there is no mention of Alizadeh in the police motor vehicle collision report or the ambulance call log, nor were there records confirming an alleged attendance at a hospital emergency department. TD concluded that Alizadeh “was injured in some other manner during the weekend, read about the accident in the news, and decided to cash in by claiming she had been involved in it.”

The Tribunal agreed with Alizadeh that she was in the restaurant and was injured as a result of ensuing damage from the vehicle entering said restaurant. TD was said to have “formed an opinion early in the process that she was not and, appears to have discounted new evidence as it was produced if it did not corroborate its theory of the case.” It was noted that Alizadeh’s “dealings with Ontario’s healthcare services were somewhat conditioned by the fact that, as an international student on a student visa, she did not have OHIP coverage.” Upon ultimately attending hospital. “she was told it would cost her $1,000 to be seen and a less expensive option was for her to go to a walk-in clinic. She went to a walk-in clinic on Monday and her injuries were noted. It is not surprising there is no hospital record as Ms. Alizadeh did not complete the triage process.”

The Tribunal further relied upon pictures from Alizadeh’s phone of the scene of the accident, and it was found obvious that they were taken in close temporal proximity to the accident. Were the Tribunal to accept the position of TD, “news of the accident must have been available and read by Ms. Alizadeh within minutes of it happening, she must also have sustained her injuries in an around that time and rushed to the accident scene to take photos and “cash in.” The injuries sustained were consistent with evidence regarding the mechanism of the accident, and any alternate theories of causation were “mere speculation”.

Origin of Oil Spill Determinative re “Accident”

Oil Spill Not “Accidental” – In 20-010860 v MVACF, the Applicant Reeves submitted that he rode his e-bike over a path of oil on the road, and therefore as a result he lost control of the e-bike and fell off, resulting in numerous injuries, including a fractured knee. He further submitted that the motor oil that “was spilled during the ordinary use or operation of an automobile and that motor oil directly caused his injuries.

The applicant submitted that the purpose and causation test has been satisfied on a balance of probabilities and as a result, the applicant was involved in an “accident” as defined in section 3(1) of the Schedule”. MVACF contended that the only references to the source of the spill were strictly based upon Reeve’s self reporting more than a week following the accident.

MVACF further relied upon the fact that the cause of the spill is not addressed in the report provided by the City of Richmond Hill. The report also confirms that whereas the spill covered an approximate area of 20 feet as reported by Reeves, that when the City attended it had spanned to an entire block, suggesting that the spill continued for some time and was not simply the result of a passing truck. The Tribunal found that the evidence relied upon by Reeves were all based upon his own self-reporting, commenting as well that he did not report the incident to the police until a week post loss.

Ultimately, there was determined to be “nothing that ties the spill to the use or operation of an automobile.” As a result, given the inability to establish the spill as emanating from a vehicle, the purpose test was not met, and he was therefore not involved in an “accident”.

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