In Jones v Security National Insurance Company, the LAT considered whether a slip and fall near a vehicle qualified as an “accident” under the SABS. While the Tribunal found that it did, the claim ultimately failed due to late notice and missed accident benefits deadlines.
The insured, Ms. Jones, drove to her father’s house to pick him up and take him to the pharmacy. When she arrived at his home, she exited her vehicle and walked around the back of it, intending to get her father from the porch, open the passenger door and help him into the vehicle. As she walked around the back of her vehicle, she fell. Ms. Jones applied to her insurer, Security National, for accident benefits, but was denied on the basis that the incident was not an “accident” within the meaning of the SABS.
When Is a Slip and Fall an “Accident” Under the SABS?
Accident benefits are only available to insured persons who are involved in an “accident.” An “accident” is defined in s. 3(1) of the Statutory Accident Benefits Schedule as “an incident in which the use or operation of an automobile directly causes an impairment.” To be entitled to accident benefits, an insured person must establish, on a balance of probabilities, that the use or operation of an automobile directly caused their impairments.
The purpose test examines whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” The adjudicator found that active use of a vehicle is not required and that picking up a person and transporting them to an appointment is an ordinary and well-known activity for which vehicles are put.
The causation test then considers whether the ordinary use or operation of the automobile directly caused the insured’s impairment. This analysis involves three inquiries: (1) whether the incident would not have occurred “but for” the use or operator of the vehicle, (2) whether there was an intervening cause outside the ordinary course of the use or operation of the vehicle and (3) whether the use or operation of the vehicle was the dominant feature of the incident.
At the LAT, the adjudicator found that the incident was an “accident”, after applying both the purpose test and the causation test.
There was no dispute that Ms. Jones’ injuries would not have occurred but for her use or operation of the vehicle, satisfying the first branch of the causation test. With respect to the second branch, Security National argued that Ms. Jones slipped on ice and possibly hit her head on the bumper or driveway, which constituted an intervening event. The adjudicator rejected this argument, finding that ice, if present, was not an intervening event but a normal risk created by the use or operation of the vehicle. Finally, regarding the third branch, the adjudicator found that Ms. Jones was in the proximity of the vehicle when she fell, to the extent that there was a dispute as to whether she hit her head on the bumper or the driveway. As such, the adjudicator concluded that the activity of picking up her father and transporting him to his appointment, rather than the presence of ice, was the dominant feature of the incident. Satisfying both the purpose and causation tests, the incident was found to be an “accident” under the SABS.
Late Notice of Accident Benefits Claims
Section 32 of the SABS requires an insured who intends to apply for benefits to notify their insurer within seven days of the accident, or as soon as practicable thereafter, and to submit a completed and signed application for accident benefits within 30 days after receiving the application forms. Thus, even where an insured is involved in an “accident”, they might not be entitled to benefits if they fail to comply with these prescribed timelines.
However, s. 34 of the SABS provides that an insured who fails to meet the deadlines prescribed will not be disentitled from benefits if they establish a “reasonable explanation” for the delay. In assessing whether an explanation is reasonable, the adjudicator will consider the personal characteristics of the insured and the objective reasonable person standard.
No Reasonable Explanation for Missing SABS Deadlines
In this case, the accident occurred on January 25, 2019. Ms. Jones did not notify her insurer of her intention to seek accident benefits until April 3, 2023, and did not submit her application for accident benefits until April 16, 2023, more than four years after the accident. Ms. Jones argued that her mistaken belief that her prior counsel had notified her insurer of the accident and submitted her claim constituted a reasonable explanation. The adjudicator disagreed, finding that there was no reliable evidence confirming that prior counsel was retained or took steps in relation to the subject accident, no evidence that prior counsel was removed as solicitors of record, no evidence of discussions with her prior counsel about the subject accident, and no explanation as to why Ms. Jones waited more than two years to retain current counsel or what steps she took to follow up on the claim in the interim. As such, the adjudicator found that Ms. Jones did not have a reasonable explanation for the delay.
Relief from Forfeiture Was Denied
Section 129 of the Insurance Act permits relief from forfeiture where there has been imperfect compliance with a statutory condition, such as late notice to an insurer. The test for relief from forfeiture, as set out in Saskatchewan Rivers Bungalows Ltd v Maritime Life Assurance Co, requires an adjudicator to consider: (1) the conduct of the applicant, (2) the gravity of the breach and (3) the disparity of the property forfeited and the damage caused by the breach.
Ms. Jones argued that even if she lacked a “reasonable explanation” for the delay, she should be granted relief from forfeiture, because she immediately remedied the lapse by notifying Security National upon becoming aware of her non-compliance, and there was no evidence of unreasonable behaviour. The adjudicator disagreed, finding that Ms. Jones was willfully blind and negligent, as there was no evidence that she relied on her prior counsel to notify her insurer and submit her application, no evidence that she took steps to move the application forward, and she waited over two years to retain her current counsel.
Ms. Jones further argued that late submission of an application for benefits cannot be grave where the insurer is contractually required to pay. The adjudicator rejected this assertion, finding no evidence to support that the respondent was contractually required to pay benefits until the LAT determined the merits of the claim.
Finally, Ms. Jones submitted that Security National must provide concrete evidence of the prejudice it sustained. The adjudicator clarified that the onus rests with the applicant to show that the respondent will not be prejudiced by an extension of time. As such, the adjudicator found that the disparity between the value forfeited and the damaged caused weighed in favour of Security National, and Ms. Jones was denied relief from forfeiture.
Missed SABS Deadlines Can Bar LAT Proceedings
Section 55(1) of the SABS precludes an insured from applying to the LAT under s. 280(2) of the Insurance Act where they failed to timely notify their insurer of the accident or submit an application for accident benefits within the prescribed time. Since Ms. Jones failed to meet both deadlines, did not have a reasonable explanation for such delays, and was denied relief from forfeiture, she was barred from pursuing her claim before the LAT.
Key Takeaways for Accident Benefits Claims
Accident benefits are only available where an insured is involved in an “accident,” as defined in the SABS. However, even if that threshold is met, entitlement is not automatic. Failure to comply with the strict deadlines prescribed in the SABS may jeopardize an insured’s entitlement to benefits. While certain statutory mechanisms, like a “reasonable explanation” for the delay or an award for relief from forfeiture, might excuse late compliance, a missed deadline could bar an insured’s ability to have their proceeding adjudicated at the LAT.
As such, insurers should be mindful of the SABS deadlines, including the seven-day deadline to notify the insurer of an claim and the 30-day deadline to submit a completed and signed application for accident benefits after receiving the required forms. If a claim is reported or submitted late, an otherwise meritorious claim for accident benefits might not be payable.
See Jones v Security National Insurance Company, 2026 CanLII 2240 (ON LAT)
