January 23, 2019

ACCIDENT BENEFITS UPDATE: Car-surfing injury is an “Accident” -Divisional Court upholds LAT decision

In order to receive accident benefits under an auto insurance policy, a claimant must prove that they have been injured in an “Accident” as defined in the Statutory Accident Benefits Schedule (SABS). Under the two-part test set out by the Supreme Court of Canada, the claimant must how that the injuries were a) caused by or as a result of b) the ordinary and well-known use and operation of a motor vehicle.

In Charbonneau v. Intact Insurance Company, Intact appealed a decision of the Licence Appeal Tribunal (LAT), claiming that the claimant, Ms. Charbonneau had not been injured in an “Accident” and did not qualify for accident benefits coverage.

On July 14, 2014 Ms. Charbonneau and a friend stood on the rear bumper of a minivan, holding onto the roof rack and each other for support, while the driver videotaped the action from the van. Ms. Charbonneau fell off during a sharp turn and struck her head on the pavement. Intact denied coverage when she applied for treatment, which led to this dispute.

The LAT adjudicator applied the two-part test set out above. She determined that Ms. Charbonneau had suffered an “Accident” under the SABS and was entitled to coverage. Intact appealed the decision, claiming that the adjudicator had misapplied the test.

The Divisional Court reviewed the LAT decision and found that the adjudicator had reached a reasonable conclusion. It noted that the purpose test is designed to exclude claims based on purposes outside of the “normal” uses for a vehicle – namely, transportation of people and things. The Court identified excluded uses including using a parked car as a diving board or a permanent prop to support a building.

The Court recognized that this test must not be expanded unreasonably because insurance companies need to be able to understand potential exposure in order to set premiums. However, it rejected Intact’s argument that car-surfing and other forms of “hitching a ride” fall out side the normal uses for a vehicle. Such activity, while dangerous and reckless, is common enough that it is criminalized under the Highway Traffic Act. Therefore, the Court concluded that car-surfing is no more “abnormal” than other dangerous and reckless use of a vehicle for transportation like “texting and driving” and upheld the LAT decision.

If you or a loved one has been injured in an uncommon or questionable situation involving a motor vehicle and are either unsure whether you will be entitled to accident benefits from your insurance company, or have had an Application for Benefits denied, we are pleased to offer a free consultation. At Campisi LLP. We are experts at Accident Benefits law and take pride in our “Clients First, Excellence Always” philosophy. Put us to work for you.

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