Complimentary Issue Volume. 8 Issue. 22 – June 19, 2024

This week a detailed review of the Court ruling, on Appeal where the consideration is whether Applicant was in fact involved in an ‘accident’ as defined under the Schedule. Ultimately the Court set aside the decision of the Tribunal and opted to exercise its authority on appeal to make any order or decision that ought to have been made by the tribunal appealed from.

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Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Court Reverses Tribunal Decision on Appeal – The Applicant Davis, in Davis v. Aviva, appealed to the court with respect to the Tribunal’s decision (upheld on reconsideration) that her claims were denied as she was not involved in an “accident” within the meaning of s. 3(1) of the Schedule.

Davis raised two questions of law, firstly whether the LAT applied procedural fairness properly when it permitted Aviva to raise the preliminary issue regarding “accident”, after three and half years of accepting the claim, with the accident occurring in November 2017. Secondly, whether the LAT correctly found that she was not injured in an “accident” within the statutory meaning of that term. Davis was injured when she slipped and fell on black ice in a parking lot. At the time, she was walking towards her car with her key fob in her hand to open the door and to drive herself home. The court noted that Davis “was so proximate to completing that entry that her leg came to rest under the front wheel on the driver’s side.”

After Davis filed the application with the Tribunal in July 2020, Aviva filed a Case Conference Form in December 2020, with no preliminary issues being sought. Ultimately, the Case Conference proceeded in March 2021, with no preliminary issue being raised. It was not until July 13, 2021 that Aviva for the first time brought a motion for a determination as to whether Davis had in fact been involved in an “accident”. In September 2021, Vice Chair Maedel released his Motion Order, granting Aviva’s request for the preliminary issue to be heard. In a May 2022 decision, Adjudicator Kaur found that Davis had not demonstrated that her fall constituted an “accident” as defined in s. 3(1) of the SABS, and dismissed her application entirely. Subsequently Kaur also dismissed Davis’s reconsideration request. The court noted that as of July 2021, Aviva had paid $26,593.37 in medical and rehabilitation benefits, with a further $48,476.42 of further benefits currently in dispute.

Granting Motion for Preliminary Issue Hearing

The court referenced the decision of Vice Chair Maedel to allow the Motion for a preliminary hearing. Maedel had remarked that the timing of the motion was somewhat concerning, being 14 months after the initial filing with the Tribunal, just prior to the deadline for Davis to file written submissions on the substantive issues. However, Maedel was “not persuaded that the timing of this preliminary issue rises to the level of an abuse of process as submitted by Davis.” He also indicated that “it would be procedurally unfair to deprive the respondent of raising the issue.”

Original Tribunal Decision

Adjudicator Kaur had determined that the injuries sustained by Davis “had been caused by an intervening cause, being the ice on the ground. It was the ice that initiated the slip and fall that led to her injuries; it was not the use or operation of the car that caused the fall. The adjudicator found that the ice on the ground was therefore an independent intervening event that broke the chain of events.” The adjudicator “did not find that the proximity of Ms. Davis to the car or the use of her key fob to unlock it demonstrates that she was engaged in the use or operation of the car. While Adjudicator Kaur agreed that Ms. Davis was in the parking lot for the sole purpose of entering the car to drive it, the direct cause of her injuries was not related to the intended entry of it. Her injuries were caused by the ice on the parking lot, and it was the ice that was the dominant feature of this incident.”

Tribunal Reconsideration

Adjudicator Kaur, noting that the threshold for reconsideration is high, opined that Davis was essentially asking the Tribunal to “re-weigh or to reconsider evidence, or to relitigate its position”, rejecting the suggestion as well that the Tribunal had “violated the rules of natural justice and procedural fairness by allowing the motion for the hearing of the preliminary issue.”

Analysis of the Court


Davis took the position that “Aviva’s acceptance of her application for benefits and conferencing those benefits that had been denied over two years later without reference to whether she had been injured in an “accident” raised a form of estoppel… the LAT has equitable powers it should have used to deny Aviva’s motion, and that its failure to use those powers was an error of law.” The court did not accept this reasoning, confirming that the Tribunal “has jurisdiction to determine whether a claim properly qualifies for an applicant to require an insurer to pay accident benefits under the SABS at any time… How the Vice Chair Maedel would have decided had he turned his mind to an estoppel argument is not known.”

“Equitable Relief”

Secondly, the court noted that “Traditionally, the LAT has been reticent to wield equitable powers to fulfill its mandate… That may have changed with the decision of the LAT in Botbyl v. Heartland Farm Mutual Inc.” In that decision, Adjudicator Norris made the determination that the Tribunal “could, and should, grant relief from forfeiture because the applicant failed to file an application for enhanced accident benefits coverage as he believed he had. Adjudicator Norris reached this conclusion on the basis that the SABS does not prohibit or preclude the LAT from exercising this power”.

Having said that, the court however found that “Vice Chair Maedel did not exercise his discretion unreasonably. He put his mind to the timing of Aviva’s motion to raise the preliminary issue while the parties were exchanging materials on the substantive hearing, calling it “concerning.” However, he determined that doing so did not rise to the point of being an abuse of process… Vice Chair Maedel conducted a balancing of interests to allow Aviva to raise the preliminary issue… he made the decision using the powers available to him at law. It just was not the conclusion Ms. Davis wanted him to reach.”

Error of Law – Black Ice “Fortuitous”

The court found that “Adjudicator Kaur’s conclusion on the application of the law to the facts was an error of law because she failed to find on the most recent authorities that Ms. Davis was injured during the direct use of her automobile. It is undisputed that she was holding the electronic key fob to open the car door, if she had not already done so, to enter the car and to operate it. This is an ordinary and well-known use to which an automobile is put. The black ice Ms. Davis slipped on was fortuitous, but not an intervening cause or event.”

“Accident” Confirmed

The court then agreed with the Tribunal in Seung, “that “slipped on ice” cases are divided into two camps. However, where there is a distinguishing fact from a slip and a fall like the injury in Porter and a series of events that connects the direct use of the car to the injury, ice will not have played the dominant role or served as an intervening event.” Further referring to the reasoning in Seung “the presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of her fall, not the ice beneath her feet.” Accordingly, “On a correct application of the law, I would determine on this record that Ms. Davis sustained the impairment for which she applied for accident benefits from Aviva in an “accident” within the meaning of the SABS.”

Court’s Authority to Make a Determination on the Facts

For the within matter, the court “would be exercising its authority on appeal to make any order or decision that ought to have been made by the tribunal appealed from”, noting that generally such matters are remitted back to the Tribunal for a rehearing. However in this case, “I consider it appropriate for this court to determine this limited issue. I am satisfied that the record before this court is sufficient to permit this determination to be made. The fact that Aviva first raised the accident issue more than two years after accepting Ms. Davis’ claim is an important consideration in favour of doing so. I see no special advantage in remitting this issue back to the LAT for determination.”

Decision Set Aside

Concluding, “The decisions of Adjudicator Kaur dated May 18, 2022 and August 2, 2022 are set aside, and the application made by Ms. Davis to the LAT is reinstated. This court further orders that the application of Carrie-Anne Davis is remitted back to the LAT for the determination of the substantive issues conferenced by Adjudicator Hine. I would further order and that the balance of the time remaining for her to claim accident benefits for the five years following the accident is restored, effective July 13, 2021.”

$17,500 Costs

Given that the “The parties entered a costs agreement in which Aviva agreed to pay the costs of the appeal, if Ms. Davis was successful, in the amount of $17,500 inclusive of HST and disbursements. I would so order.”

**Of note, in an earlier April 5, 2024 reconsideration, the Tribunal rescinded the decision considered by the court of Adjudicator Norris, finding in part that:

I find that the Tribunal erred when it found that the Tribunal has jurisdiction to grant equitable remedies because the Schedule does not prohibit it. Although I am alive to the unfortunate situation the applicant finds herself in, the Tribunal cannot try to fill a gap in the legislation if one is found to exist. The original decision did just that. In my view, that was an error, the Tribunal cannot confer powers to itself that are not clearly bestowed on it by statute. To do so, likely would be creating a patchwork of the rule of law…The Tribunal attempted to craft a remedy in the Schedule where one does not exist. The Tribunal’s role is to apply the legislation as it reads. There was no ambiguity which required an analysis of the principles of statutory interpretation. Section 129 specifically refers to “court” and as acknowledged by the Tribunal “one can reasonably assume it excludes administrative tribunals”. However, despite mentioning that, the Tribunal went on to read into the Schedule a remedy that does not exist by granting itself the authority to do what was not explicitly set out for a Tribunal.

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