Director’s Delegate Evans recently released the appeal decision in Intact Insurance Company v. Roberts (FSCO Appeal PO16-00009). The claim arose following an incident whereby the claimant was partying with friends when she dove off the back of a pick-up truck into a shallow lake, completely severing her spinal cord. She applied to Intact for accident benefits, however, Intact denied the claim on the basis that the claimant was not involved in an “accident”.

The arbitrator initially found that the claimant’s injuries arose from an “accident” as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS). He determined that the evidence established that the claimant jumped off the tailgate of the truck into the lake. The arbitrator also considered the “purpose” and “causation” tests and made the following findings: (1) He found that the truck was being used in a manner consistent with its design ie. the claimant and her friends were “tailgating”; (2) he determined that parking and disembarking from a truck was an ordinary use; (3) it made no difference what type of surface the claimant was disembarking onto (ie. water, ice etc.); and (4) he found that there were no intervening acts between the act of “disembarking” and landing in the lake. As such, the arbitrator found that the purpose and causation tests had been met and, therefore, the claimant was involved in an “accident”.

Director’s Delegate Evans disagreed that this was an “accident”. He did agree with some of the arbitrator’s findings, including (1) trucks can be used for recreation, (2) the evidence indicated that the claimant had jumped from the truck into the lake; and (3) it did not matter what type of surface one was disembarking onto nor how one went about disembarking. However, Director’s Delegate Evans relied on the finding of the Supreme Court in Citadel General Assurance Co. v. Vytilngam, whereby the Court stated that using a car as a diving platform was the very type of aberrant use of a vehicle that would be excluded from the “purpose” test. Director’s Delegate Evans noted that the arbitrator had considered this case, but rejected it in “too cavalier a fashion”. He also noted that this case had also been cited with approval by the Ontario Court of Appeal. In applying the reasoning of the Supreme Court in Vytilingam, Director’s Delegate Evans found that the truck was not being used as a vehicle, but for some other purpose. As such, the claimant was not involved in an “accident” and, accordingly, was not entitled to accident benefits.