Let’s start with why you should care.
Our firm is frequently consulted by people injured in what are unquestionably motor vehicle accidents: rear-end, t-bone and pedestrian accidents being most common. However, I’m often consulted by clients involved in accidents that have a bit of a twist: hurt while riding an ATV or snowmobile, burning hot coffee spilled on themselves while driving, slipping on ice in a parking lot while getting out of the car or tripping in a pot hole and falling into their car. When these injured individuals come to me, they’re typically looking for compensation from the at fault party (the recreational trail, the coffee shop, parking lot or city in the examples above). This is what is called the “tort claim”. So why should they care whether their incident is classified as a motor vehicle accident or not?
The reason is simple and important. If your incident is considered an “accident” according to the definition in the Statutory Accident Benefits Schedule (SABS) you can access accident benefits through an auto insurer. These benefits can provide you with immediate funds for income replacement and medical and rehabilitation treatment, amongst other things, that are often crucial to your recovery while you await the outcome of your tort claim.
These benefits are particularly important to those who don’t have access to, or aren’t entitled to benefits through other sources such as work. They allow you to take the necessary time off to heal and to get the treatment you need right away rather than waiting for OHIP funded treatment that often means appointments 6-8 months away.
You may be surprised to hear that you can access accident benefits under all of the scenarios I’ve listed above.
So what do you need to show for your incident to be considered an “accident” according to the SABS?
According to the SABS, an accident is “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 other medical or dental device”. This obviously covers your typical rear-end, t-bone, pedestrian accidents and the like. But what about the other cases I mentioned?
Well, to address these less obvious types of “accidents”, the court has said that we must satisfy three things:
- does the incident involve an “automobile”? If yes,
- does the incident result from the ordinary and well known activities to which automobiles are put? If yes,
- would the incident have happened but for the use or operation of the vehicle, in other words is there some nexus or relationship (doesn’t have to be direct relationship) between the injuries and the ownership, use and operation of the vehicle?
The answer to these questions can become very technical, and I could go on for a while, so I think this is best illustrated with examples.
Step 1: Is it an automobile?
According to the SABS an automobile is any motorized vehicle that is required to be insured in Ontario. Cars and motorcycles are the obvious ones, but ATV’s and Snowmobiles are also required to be insured except when being driven on the owner’s property. Vehicles such as go-karts, golf carts and motorized scooters are not required to be insured and you cannot claim accident benefits for those accidents unless there is an automobile involved.
You can also make an accident benefit claim for an accident involving a school bus or motor coach, even if there is no other vehicle involved (ie you slip on the bus or the bus stops suddenly and you are hurt).
One exception of which to take note – if you are injured on a public transit vehicle (such as TTC streetcar or bus) but there was no collision with another vehicle or object, you cannot claim accident benefits according to our current laws. However, you would still be able to make a tort claim.
Step 2: What are some unconventional, but still “ordinary and well known activities” to which an automobile is put?
Driving your vehicle is not the only “ordinary” activity to which an automobile is put, and the courts have recognized this.
In numerous cases, the court has found that an automobile does not have to be in active use for an incident to be considered an “accident”. For example someone walking through a parking lot who tripped over a parked motorcycle was found to be entitled to accident benefits. Similarly, if you slip on ice while exiting your car, or slip and fall back in to a car, you would almost certainly be entitled to claim accident benefits.
In another recent example, a court found that someone who was changing the windshield washer fluid under the hood of their car when the hood came down and fractured their hand was entitled to benefits. The court found that performing maintenance is a well-known activity to which an automobile is put.
Car surfing is another example of an unusual activity in which the courts have allowed an accident benefits claim. This involves an individual riding on the outside portion of a vehicle or being pulled behind a moving car. Insurers have attempted to deny these claims by taking the position that this activity is not an ordinary and well known activity of automobile use. However, the courts have said that despite the activity being unsafe and ill advised, the car-surfer was being transported, which is a well-known activity of automobile use and they are entitled to accident benefits.
Our firm has also been successful in obtaining accident benefits for someone who spilled hot takeout coffee on themselves while driving.
Step 3: Is there a relationship between the injuries sustained and the ownership, use and operation of the vehicle.
For this final component, you are only required to show that the injury has some relationship or connection to the ownership, use and operation of the vehicle. In the parking lot examples above, accident benefits were provided on the basis that the person was in the process of exiting their vehicle, or where the individual made contact with the vehicle when they fell. There was an obvious connection between the vehicle and the injury. Other cases, where the individual had already walked several steps away from their vehicle and slipped or tripped were found not to be “accidents” for the purposes of qualifying for accident benefits.
The above examples are by far not an exhaustive list of all the scenarios in which your incident could be considered an “accident” that would allow you to access much needed accident benefits. What they are meant to show are the many situations in which people may not consider applying for benefits but actually do qualify, and your situation may as well. It never hurts to speak to a lawyer about your incident and make the application for benefits. Being able to access immediate funding for medical care and income replacement benefits are invaluable to your recovery and the possibility of applying for accident benefits should never be overlooked. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. Call the Jasmine Daya & Co. team at (416) 967-9100 or contact us online to schedule a free consultation.
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