Volume. 7 Issue. 1 – January 11, 2023

In the first edition of 2023, the Court rendered a decision, setting aside a Tribunal decision that the act of falling from atop a trailer was not an “accident”. It is presumed that this decision will provide needed clarity for the Tribunal in considering the ongoing deliberations at the LAT in determining what constitutes an “accident” under the Schedule.

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Fall From Trailer Constitutes “Accident”

Court Sets Aside Decision Regarding “Accident” – The Appellant Clayton Madore, in Madore v. Intact, 2023 ONSC 11, appealed the Tribunal’s determination that his fall from his camper trailer was not an “accident”. The Tribunal had ruled there to be no evidence that Madore’s injuries were “directly caused” by the trailer, and further that there had been an intervening act, being “the loss of footing due to misfortune” which he concluded was not part of the “ordinary course of things”.

The Court found that the Tribunal had “introduced a requirement…(that) he must also prove that his fall was caused by “tripping on some part of the trailer” and “that the injuries were directly caused by the trailer” to establish the direct causation”. As a result, the Tribunal had “inserted this need for Madore to prove that the trailer caused his injuries, as opposed to its use or operation”.

The Court reasoned that the “test only requires that the Adjudicator consider whether Madore was injured in the course of cleaning and inspecting the roof of the trailer. In fact, the Adjudicator found that Madore was injured in the course of cleaning and inspecting the roof of the trailer. Madore’s injuries flow directly from that purpose. Further, the “link to be drawn therefore is between the “use and operation” of the automobile and the “impairment”. Madore did not need to prove a direct physical connection between the cause of the injury and an automobile.” In addition, it was “clear that ‘direct cause’ need not be the only cause, that physical contact with an automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is ‘part of the ordinary course of things.”

The Court also found that the Tribunal had “erred in holding that Madore’s “loss of footing, due to misfortune” was an intervening act. It is speculative to conclude that Madore fell due to “loss of footing, due to misfortune”, and that “misfortune” was an intervening act that broke the chain of causation.” The Court of Appeal has previously observed that “factors that are reasonably foreseeable risks of operating an automobile will not break the chain of causation… intervening acts that can fairly be considered a normal incident of the risk created by the use or operation of the vehicle may not absolve an insurer of liability for benefits under the Schedule.”

Finally, the Court referenced that fact that the “SABS are remedial and constitute consumer protection legislation”. Noting that the facts of the incident in question were not entirely clear, the “only reasons Madore cannot say exactly what caused his fall are that he sustained a life-changing brain injury and that there were no witnesses to his fall. It is inconsistent with the purpose of the regulation to defeat Madore’s application on such rigid evidentiary grounds. Further, requiring an evidentiary basis for an element of the interpretation of “accident” not specifically provided for in the definition under the Schedule is not in keeping with the remedial nature of this no-fault accident benefits legislation or its consumer protection mandate, and is an error of law.”

Concluding, the appeal was granted, and “the decisions appealed from are set aside and are replaced by the determination that the incident in which Madore was involved qualifies as an “accident” under the Schedule.” Costs in the amount of $10,000 were payable to Madore.

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