Pedestrian-Motor Vehicle Accidents: Tort & Accident Benefits Law to Know

I was consulted this year by the family of someone who had been walking in a pedestrian crossover when she was struck by a motor vehicle.  The family made a point of telling me that there was little information on-line for injured victims and their families to learn about the rights and/or legal issues applicable to pedestrian-motor vehicle accidents, specifically.  This was surprising to me considering the number of such accidents.  According to the Ontario Government’s Preliminary 2016 Ontario Road Safety Annual Report Selected Statistics[1], 20.7% of fatal collisions involved pedestrian fatalities.  Further, in the City of Toronto, 2018 saw a rise in pedestrian fatalities.[2]

Consequently, the purpose of this paper is to provide an overview of the tort and accident benefits law that injured victims seeking to advance personal injury claims (which individuals are also known as “Plaintiffs”) and/or accident benefits claims may wish to know.

TORT LAW

Overview & Relationship to Other Judicial Systems

A “tort” case is the civil lawsuit that the injured Plaintiff advances against the driver and/or owner of the vehicle by whom the Plaintiff was hit (also known as the “Defendant”).  Often, the Defendant not only faces a civil lawsuit but may have also had driving-related charges laid against him or her.  For example, imagine the scenario where a drunk driver hits a pedestrian who was walking through a designated crossover and causes injury to the pedestrian.  While that driver may be sued, the driver could also be charged with a number of offences including, but not limited to: impaired driving causing bodily harm under section 320.14(2) of the Criminal Code[3] and failing to yield to a pedestrian under section 144 of the Highway Traffic Act[4].

The Crown must prove charges against an accused driver brought under the Criminal Code or Highway Traffic Act beyond a reasonable doubt.  Conversely, the Plaintiff must prove allegations against a Defendant driver in the civil lawsuit on the basis of a balance of probabilities (i.e. a 51% or more likelihood of fault).  In other words, the civil burden is a lesser one but it is generally one that must still be borne by the Plaintiff.

The different judicial systems are not dependent upon one another for proof.  In fact, under civil law, the mere fact that a Defendant driver was charged with a criminal or Highway Traffic Act offence is not admissible into evidence.  A conviction is admissible into evidence but, while certainly helpful, is not determinative of the issue of fault in the civil case.  Conversely, the absence of a criminal conviction does not necessarily mean that a Defendant will not be bear civil responsibility.  Again, this is owing to the different burdens of proof.

Reverse-Onus for “Pedestrians”

Emphasis was put above on the word “generally”, when stating that a Plaintiff bears the civil burden of proof.  This is due to the fact that an exception exists for Plaintiffs who were “pedestrians” struck by motor vehicles, as defined in the Highway Traffic Act.

Importantly, under the Highway Traffic Act, a “pedestrian” includes not only a person walking but also someone riding a bicycle/tricycle/unicycle or an electric or power-assisted (but non-motorized) bicycle[5] and, for the sections particularly relevant to personal injury, a wheelchair[6].

Pursuant to section 193 of the Highway Traffic Act, there is a reverse-onus applicable to “pedestrians” (as defined above); meaning that instead of the Plaintiff having to prove that the Defendant was at-fault, the Defendant has to disprove his or her presumed fault.  The provision states:

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

The caveat to this reverse-onus provision is that it applies to accidents that occur “on a highway”.  That term is also defined in the Highway Traffic Act as:

…a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

According to the case law, the following areas do not fall within the definition of a “highway” such that a pedestrian Plaintiff would bear the onus for proving a Defendant driver’s fault for accidents that occur on or in:

• a parking lot adjacent to a shopping centre[7], apartment building[8], or strip mall[9]; or
• a public park[10].

The reverse onus has evidentiary implications.  Typically, in a civil trial, since the Plaintiff would ordinarily bear the onus of proof, the Plaintiff would have to put forward his or her evidence first and then the Defendant would have the opportunity to respond.  In the authoritative text Ontario Courtroom Procedure[11], the authors explain the order of presentation of evidence in a reverse-onus case:

If the burden of proof is on the defendant (e.g. where the defendant driver strikes a pedestrian) the trial judge usually reverses the order of presentation on the issue on which the defendant bears the burden: Civil Rule 52.07(2).

This evidentiary shift is not only important for the presentation of evidence at trial, but also for the service of expert reports before trial.  Sometimes in contested pedestrian-motor vehicle accident cases, one or both parties wishes to deliver an expert engineering report to establish the fault (also known as “liability”) of the other party.  Pursuant to rule 53.03 of the Rules of Civil Procedure[12], a party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference, serve a report signed by that expert.  A party who intends to call an expert witness to respond to the expert witness of another party must deliver a report from that expert not less than 60 days before the pre-trial conference.  Consequently, in a reverse onus case, if the Defendant intends to rely upon an engineer, the Defendant ought to be serving his or her engineering report first and then the Plaintiff serves a responding report (if he or she wishes to do so).

Contributory Negligence

 i.     The Concept

In a pedestrian motor vehicle case, one way that a Defendant driver may seek to defend the case is to allege that the Plaintiff was liable, in whole or in part, for the accident or for the severity of the injuries sustained by the Plaintiff.  This highlights another difference between the criminal and civil justice systems.  The criminal system is generally binary: the accused is guilty or not guilty[13].  By contrast, the civil system is not binary at all.  A single Defendant need not be 100% vs. 0% liable, but rather multiple parties may be at-fault to differing degrees, including the Plaintiff.  “Contributory negligence” is the term used to describe the degree of fault, if any, attributed to the Plaintiff.  The significance of being found contributorily negligent is that the value of the Plaintiff’s compensation (also known as “damages”) will be reduced by the same degree to which the Plaintiff is found to be at-fault.

For example, in a case where the Plaintiff’s damages are assessed to be worth $100,000.00 but the Plaintiff is determined to be 25% at-fault, then Plaintiff only recovers $75,000.00 ($100,000.00 less 25%), subject to collateral deductions.  The degree of fault, if any, ascribed to the Plaintiff is a matter to be determined by the judge or jury at trial or, in the case of a settlement, a matter to be negotiated between the parties (and their counsel).

In the matter of Zsoldos v. Canadian Pacific Railway Company[14], the Ontario Court of Appeal explained the ways, generally speaking, in which contributory negligence can arise:

Contributory negligence can arise in three ways. First, the plaintiff’s negligence may have been a cause of the accident in the sense that his acts or omissions contributed to the sequence of events leading to the accident. Second, although the plaintiff’s negligence is not a cause of the accident, the plaintiff has put himself in a position of foreseeable harm. Third, as in seatbelt cases, the plaintiff may fail to take precautionary measures in the face of foreseeable danger…[15]

…A plaintiff will be found contributorily negligent only where his or her negligence caused the accident or contributed to the severity of his injury. It is not necessary that the plaintiff’s negligence be the only cause, but it must have been a proximate or effective cause…[16]

ii.     Contribution to the Cause of the Accident & Foreseeable Harm

With respect to the obligations and expectations of motorists, in the matter of Lloyd v. Rutter[17], Robertson J. provided a good summary of the law which included, but was not limited to, the following principles:

• In a motor vehicle accident involving a pedestrian, the driver of the motor vehicle is presumed to be negligent unless it can be proven otherwise.  The Courts have repeatedly indicated that “the defendant cannot discharge the onus on him by showing that the plaintiff’s loss or damage was caused in part by the negligence of the plaintiff.  That can only be done by the defendant showing that there was no negligence or misconduct on his part.”[18]
• Although a higher duty is owed to pedestrians crossing at regular street crossing, motorists are under an obligation to maintain a sharp look out at such points knowing it is the place where pedestrians cross from curb to curb.[19]
• In the absence of an indication to the contrary, motorists are entitled to assume that pedestrians will behave rationally and responsibly.[20]
• The Courts have found that the duty owed by the driver is to “take proper precautions to guard against risks that might reasonably be anticipated to arise.”[21]
• The standard of care owed to children on the highway is the same as that owed to adults, but there may be circumstances that should put motorists on their guard.  In a school or playground area or in a built-up residential district, a motorist should drive slowly and carefully keep a lookout for children running out into the street.[22]
• The duty owed by drivers to child pedestrians includes[23]:

• • Drivers must reduce speed to a point to allow for sudden stops.
  • Drivers must keep a proper lookout for children.
• The Courts have recognized that the actions of children are unpredictable and as a result, a driver has ability to take reasonable precautions for the safety of child.[24]

Pedestrians also have certain obligations and expectations when crossing the highway. The right to proceed on a “go”, whether a green light or a pedestrian “walk” signal, is not an absolute right.  It is qualified by the overriding common law duty to exercise due care.[25]    Circumstances where a Plaintiff may be found contributory negligent and, therefore, partially responsible for the cause of the accident may include, but not be limited to, where the Plaintiff:

• “darted out” from the sidewalk onto the highway[26];
• crossed the highway somewhere other than a designated intersection/crosswalk[27];
• crossed the highway at night wearing dark clothing[28];
• stumbled onto the highway as a result of being in a physical altercation on the side of the road[29];
• crossed on a “walk” sign at a crossover, but without acting with due care by keeping a lookout for any traffic.[30]

It must be remembered that each case is decided on its specific facts and evidence.  A Plaintiff who “darts out” onto the highway may be ascribed 10% fault in one case and 75% fault in another.  There is no such thing as a set or default percentage for contributory negligence.

iii.     Contribution to the Severity of the Injury

As noted in Zsaldos, a Plaintiff may also be held contributorily negligent when the Plaintiff may not have contributed to the cause of the accident, itself, but contributed to the severity of the injuries sustained.  In pedestrian-motor vehicle cases, this issue most often arises in the context of cyclists (who, remember, are considered pedestrians) who have neglected to wear a helmet.  As noted by the Court of Appeal, there must still be a proximate cause between the Plaintiff’s action (or omission) and the severity of the injury.  In other words, a Plaintiff who failed to wear a helmet but who only suffered an ankle fracture is not likely going to face an allegation of contributory negligence; conversely, a Plaintiff who suffered a brain injury likely will.

Contributory negligence is an allegation raised by a Defendant as part of the defence.  It must, therefore, be proved by the Defendant.  While there is no formal rule, the Court will generally require expert evidence on the issue of whether the Plaintiff’s injuries could have been less severe had the Plaintiff worn a helmet.

By way of example, in the matter of Labanowicz v. Fort Erie (Town)[31], the Defendant was unsuccessful in its argument regarding a Plaintiff who had been riding a bicycle without a helmet.  Gans J. stated[32]:

The lack of expert evidence on the last issue applies equally to the fact that the defendant did not adduce any biomechanical evidence to allow me to conclude that the plaintiff’s lack of a helmet, while not causing the accident per se, had any impact on the severity of the injury she suffered. While viscerally, I would have thought that the lack of a helmet worn properly would be relevant to the matters in issue, I was not provided with any admissible evidence on the issue. Furthermore, the principle of judicial notice cannot be applied to the facts of the instant case.

iv.     Tender Years Doctrine

One exception to the general concept of contributory negligence, which most commonly arises in the context of “dart out” pedestrian-motor vehicle cases, is the tender years doctrine.  The basic idea of this doctrine is that some Plaintiffs may simply be too young to be found to have contributed to their own accident or injury.

In the matter of McErlean v. Sarel, [1987] CanLII 4313 (O.C.A.), the Ontario Court of Appeal stated:

It is well-established that, as a general rule in determining negligence, children are not required to conform to the standard of conduct which may reasonably be expected of adults. Their conduct is judged by the standard to be expected of children of like age, intelligence and experience…

The Court of Appeal further explained the doctrine in Saumur v. Antoniak[33]:

…That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context…

In Acadia Coal Co. Ltd. v. MacNeil[34], the Supreme Court of Canada stated:

Children aged seven and nine years have by the common law the benefit of something in the nature of a presumption that they have not sufficient capacity to know that they are doing wrong.

Generally, cases in which children have been held partially at fault for their own actions have involved children aged 13 or older.[35]

 v.     Negligent Supervision

Although a Plaintiff of tender years may not be found contributory negligent for the accident, if that minor was or ought to have been accompanied by an adult when crossing the highway, the responsible adult(s) may be found liable for “negligent supervision”.  The involvement of these other allegedly responsible adults may come by way of three forms:

1. The Plaintiff may sue not only the driver but also the other responsible adults, such that the responsible adults are also Defendants.
2. The responsible adults, if immediate family members (most often parents) of the injured minor Plaintiff, may also be Plaintiffs in the action by reason of the Family Law Act.[36] If that is the case, the Defendant driver may advance what is called a “Counterclaim” against the parents; meaning that the Defendant is essentially saying: “You are suing me, but I am going to sue you too as I believe you were part of the cause of this accident.”
3. If the Plaintiff did not sue the responsible adults and they are not Plaintiffs themselves, then the Defendant may issue a separate lawsuit against the allegedly responsible adults (also known as a “Third Party Claim”).  A Third Party Claim is a claim for contribution and indemnity; meaning that the Defendant is essentially saying: “If I have to pay the Plaintiff for this accident, then I want the Third Party to reimburse me for some of that money as I believe the Third Party also bears responsibility for what happened.”

Some examples as to how these allegations may be raised and disposed of are offered below.

In the matter of Arnold v. Teno,[37] a 4 ½ year old girl and her 6 year old brother received permission and money from their mother to walk across the street to purchase ice cream from an ice cream truck.  The children were served from the service window on the curb of the road; however, once the little girl had purchased her ice cream she walked in front of the ice cream truck and began crossing the street.  She was struck by a motor vehicle.  The injured girl and her parents sued the driver and the ice cream truck driver.  The Defendants counter-claimed against the parents, alleging negligent supervision.  Given her young age, the little girl was not found at-fault; however, the mother was.  The Supreme Court of Canada granted the mother’s appeal and held that she was not at fault.  Spence J. stated:[38]

The standard of care put on the mother is, I think, properly the standard of care of mothers in the immediate community of the approach of this ice cream truck which was designed to attract and actively operate so that even children of tender years were enticed to purchase its wares. Yvonne Teno and the other mothers were entitled to rely on the vendor of the ice cream from such a vehicle to exercise some care toward the children which it attracted. I, therefore, am of the opinion that the appeal of Yvonne Teno should be allowed and that no contribution should be assessed against her.

In the matter of Taggart v. Heuchert[39], a ten year old girl was attempting to cross the street with some friends after school had been let out for the day.  She was struck by a motor vehicle.  The Defendant driver issued a Third Party Claim against the Plaintiff’s mother, alleging that the mother was responsible for[40]:

1.  allowing the plaintiff to cross at the location of the unmarked crosswalk;
2. neglecting to require the plaintiff to cross at Hillcrest Avenue, the nearby controlled crosswalk;
3. assuming she crossed within unmarked crosswalk, failing to show that the plaintiff had sufficient ability to safely cross such a busy road on her own;
4. failing to recognize the plaintiff’s lack of sufficient judgment in light of her arguing that she wished to rollerblade home; and
5. failing adequately to supervise the crossing, and to ensure the plaintiff across all lines safely by waiting for traffic to stop in each and every lane before allowing the children to proceed.

 The Court dismissed the Third Party Claim against the mother.  Brown J. provided a summary of the law applicable to allegations of negligent supervision against parents[41]:

An error of judgment standing alone does not prove negligence if the parent’s actions are those a reasonably careful parent might have taken, viewed by the standard of care generally accepted in the community. The standard of care is not one of perfection. It does not require a parent to take every possible step to ensure the safety of the child. It includes both an objective and subjective aspect.

The objective aspect requires a determination of the community standard at the time generally expected of a reasonably prudent parent. The subjective aspect places the reasonably prudent parent in circumstances identical to those Ms. Taggart faced at time, and knowing only what she believed and understood…

The “community” is the community where the accident occurred.

When drivers know children may be present, they must take special precautions….

In the matter of Hoang v. Vincenti[42], a father let his six year old off at the side of the street while he went to park his car.  While the boy began crossing the street, his hat blew off so he went chasing after it.  He was struck by a motor vehicle.  Given his young age, the boy was not found at fault.  His father, however, was.

Hit and Run Accidents

Unfortunately, sometimes drivers hit pedestrians, flee the scene, and are never identified or located by the police.  These circumstances cause more challenging tort cases, but they do not preclude a Plaintiff from advancing a tort case per se.

i.     Where the Plaintiff is Insured

If the Plaintiff is insured under an automobile insurance policy, then there may be recourse for the accident under that policy.

Pursuant to section 265(1)(a) of the Insurance Act[43], every motor vehicle policy in Ontario is supposed to have coverage for accidents caused by unidentified drivers:

Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile…subject to the terms, conditions, provisions, exclusions and limits as are prescribed by the regulation.

In other words, a Plaintiff can sue his or her own insurer for damages that would have otherwise been payable by the unidentified driver.  This coverage comes through two levels.

The first level is through the O.A.P. 1 – Ontario Automobile Policy, which is the standard form of automobile policy.  In keeping with the requirement under section 265(1)(a) of the Insurance Act, the O.A.P. 1 includes coverage for accidents caused by unidentified automobiles.

To be clear, a Plaintiff need not be the named insured on the policy in order to be covered under that policy.  Pursuant to section 5.3 of the O.A.P. 1 “insured persons” include, but are not limited to: “you, your spouse, and any dependent relative of you or your spouse…when not in an automobile, streetcar or railway vehicle if hit by an unidentified or uninsured automobile.”

Coverage under the O.A.P. 1 is, however, limited to the minimum automobile insurance limits in Ontario, which are $200,000.00[44].

The second level of potential insurance coverage for accidents caused by unidentified drivers is through the OPCF-44R Family Protection Endorsement.  Again, this Endorsement is not solely limited to the named insured under the policy.  Section 1.6(a)(iii) of the OPCF-44R defines an “insured person” as: “the named insured and his or her spouse and any dependent relative of the named insured and his or her spouse, while not an occupant of an automobile who is struck by an automobile”.

The OPCF-44R provides excess insurance (i.e. over-and-above the $200,000.00 payable via the O.A.P. 1), up to the full limits under the policy[45].

In the matter of Lewis v. Economical Insurance Group[46], the Ontario Court of Appeal considered the words “hit by” in the O.A.P. 1 and “struck by” in the OPCF-44R.  The Plaintiff in that case had suffered a serious brain injury when she walked into a pole that was protruding from a parked truck.  She lost consciousness and the truck could not later be located or identified.  She pursued a tort case against her own insurer; however, the insurer argued that the Plaintiff was not entitled to coverage under the policy in these circumstances since she had walked into as opposed to having been hit or struck by an unidentified vehicle.  The Ontario Court of Appeal rejected the insurance company’s argument; stated (for a number of reasons) that the words “hit by” and “struck by” should be given a broad interpretation; and held that the Plaintiff was entitled to coverage.

In order to advance a tort case against the Plaintiff’s own insurer pursuant to the OPCF-44R Endorsement, where it is being alleged that the involved motorist is unidentified, there is an evidentiary hurdle found in section 1.5(C) of the OPCF-44R.  This section requires that the Plaintiff’s own evidence about the accident having occurred be “corroborated by other material evidence.”  Pursuant to section 1.5(D) of the OPCF-44R, “other material evidence” means:

1. independent witness evidence, other than evidence of a spouse or a dependent relative; or
2. physical evidence indicating the involvement of an unidentified automobile.

With respect to section 1.5(D)(i), “independent witness evidence”, in the matter of Pepe v. State Farm Mutual Automobile Insurance Company[47], the Ontario Court of Appeal considered the meaning of “independent” witness.  This was not a pedestrian-motor vehicle accident, but rather a single vehicle accident that the Plaintiff alleged occurred when he had to suddenly swerve to avoid being struck by an unidentified driver.  The Plaintiff produced his passenger, who also happened to be his girlfriend and who was also suing for personal injuries sustained, as the “independent witness” to corroborate the accident.  The insurer argued that the girlfriend could not be seen as “independent” given her close relationship to the Plaintiff and her own financial interest in proving that an accident occurred.   The Court of Appeal rejected the insurer’s argument and concluded that the girlfriend met the criteria of independent witness evidence. The Court stated[48]:

Where the submission of the appellant goes wrong is in the assertion that it is the witness who must be independent, in the sense of neutral to the outcome. Rather, it is the evidence of the witness that must be independent, in the sense of extrinsic to the testimony of the party to be corroborated. The independence requirement in the context of corroboration has always referred to the independence of the evidence and not to the neutrality of the witness. The witness’ neutrality or lack thereof is relevant to the ultimate credibility of the witness’ evidence.

With respect to 1.5(D) (ii), “physical evidence indicating” an accident, in the matter of Armstrong v. Dominion of Canada General Insurance Company[49], Sanderson J. considered what type of physical evidence may “indicate” an accident[50]:

The Canadian Oxford Dictionary defines “indicate” as follows: “be a sign or symptom of; express the presence of.”

…

Here, there are several types of physical evidence which, if accepted by the fact finder at trial, are capable of supporting the conclusion that the Plaintiff took evasive action to avoid an oncoming unidentified vehicle.

The physical evidence here that could be held to indicate the involvement of an unidentified driver includes: black box Sensor Diagnostic data evidence from the Armstrong vehicle [upon which a Court could conclude she was steering to the right and braking to avoid an oncoming vehicle]; tire tracks [that could be interpreted by a fact finder as indicating that north and southbound traffic was sharing a single lane, the Armstrong vehicle was braking and steered to the right to avoid something]; other physical evidence recorded in the notes of the investigation, including deer tracks south of tire marks.

Here, the physical evidence enumerated earlier, if interpreted in the manner suggested by Wilkinson, would in my view be capable of “being a sign of” the presence of an unidentified vehicle [especially given the content of Constable Shantz’s original field notes and the questionable nature of the conclusion of the Investigative Report that Armstrong swerved to avoid a deer.]

In other words, engineering evidence may be used to pass the “other material evidence” hurdle.

Another way to pass that hurdle is to demonstrate that the physical evidence of the Plaintiff’s injuries are consistent with an accident having occurred may qualify as “other material evidence”[51].

ii.     Where the Plaintiff is not Insured

Where a Plaintiff is not insured, the Plaintiff may be able advance a tort case against the Motor Vehicle Accident Claims Fund (the “Fund”).  The Fund is not a private insurance company; rather it is a public entity subsidized by the provincial government.  Claims against the Fund are governed by the Motor Vehicle Accident Claims Act[52].

Pursuant to section 12 of the MVACA, the Fund will respond to accidents caused by unidentified drivers:

Where the death of or personal injury to any person is occasioned in Ontario by a motor vehicle but the identity of the motor vehicle and of the driver and owner thereof cannot be established, any person who would have a cause of action against the owner or driver in respect of such death or personal injury may bring an action against the Director, either alone or as a co-defendant with others alleged to be responsible for the death or personal injury.

Similarly, pursuant to section 17 of the MVACA, a claim can be advanced against the Fund where the owner of the involved vehicle is known, but that owner did not consent to the vehicle being in the possession of the unknown driver.  This provision may be triggered, for example, when a stolen vehicle is involved in a hit and run.

There are some restrictions to recovering against the Fund including, but not limited to:

• The Plaintiff/claimant must “ordinarily reside” in Ontario at the time of the crash. subject to some restrictions/pre-conditions[53].  That term is not actually defined in the MVACA; however, it has been interpreted in the case law.  Generally speaking, the Plaintiff usually has to show that he or she was in Ontario legally and shown a demonstrated intent to stay on an indefinite basis but each case will be decided on its facts.
• Since the Fund is a government entity and is considered to be the “payor of last resort”, the Plaintiff must also make reasonable efforts to ascertain the identity of the owner and driver of the involved vehicle; failing which, Judgment against the Fund may not be available.[54]

Finally, it is important to be mindful that the most that a Plaintiff can recover for damages in a tort case against the Fund is $200,000.00 (plus a contribution to the legal bill, also known as “costs”).[55]

ACCIDENT BENEFIT LAW

Overview of Accident Benefits

Accident benefits or benefits are different categories of compensation that a person injured in a motor vehicle accident[56] can collect.  These are also known as no-fault benefits, since there need not be another party at fault for the accident.  In other words, a pedestrian (or any other type of) Plaintiff who may be found some degree at-fault for the accident in a tort case can nevertheless receive 100% of the value of his or her accident benefits.  In fact, a person who has been injured in an accident that was not caused whatsoever by someone else’s wrongdoing may not have a tort case at all (and, therefore, never be a “Plaintiff”) but may still collect accident benefits.

A full review of accident benefit law is beyond the scope of this paper but, briefly, the main categories of benefits[57] include:

• medical and rehabilitation benefits;
• attendant care benefits;
• income replacement, non-earner benefits, or caregiver benefits; and
• housekeeping and home maintenance benefits.

Many cases involve individuals who did not own their own vehicle or their name on an automobile insurance policy[58].  This can often be the case with pedestrian Plaintiffs, which may be why that individual was walking or bicycling at the time of the accident.  A common misconception that people have is that if they do not own a vehicle or are not otherwise insured under a policy of automobile insurance by way of their spouse or a relative upon whom they are dependent, then they must not have access to insurance coverage.  This is not true.

While the “natural” insurer to pay accident benefits would be the injured person’s own insurance company, where that person is not a named insured under an automobile policy, he or she may apply to any of the following insurers (as may be applicable, and in the order in which the application should be made):

• the insurer for a vehicle that the injured person has leased or for which she has a long-term rental contract of at least 30 days;
• the insurer for a company vehicle that was made available to the person for his or her regular use;
• the insurer for a vehicle under which the injured person may be a “listed driver”;
• the insurer for the vehicle in which the injured person had been an occupant (see the section below on pedestrian “accidents” which, subject to an intervening cause, can include a pedestrian Plaintiff who was injured getting in or out of a vehicle when the injury occurred);
• in the case of a pedestrian/cyclist, the insurer for the vehicle that struck the injured person;
• the insurer for any other vehicle that may have been involved in the accident (i.e. if there were multiple vehicles involved);
• the Fund.

If the person is confused as to which insurer he or she should apply, it is better to simply pick one and let that insurer sort it out if there is a problem.  That insurer may initiate what is called a “priority dispute” with another insurer that it says should be the rightful payor to the injured person.

Pedestrians “Accidents”

Entitlement to accident benefits depends upon the individual having been injured as a result of an “automobile accident”.  The term “accident” is defined in section 3(1) of the Statutory Accident Benefits Schedule[59] as:

..,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 or other medical or dental device.

A two-part test[60] has been established in the case law for determining whether an incident constitutes an “accident” as defined in the Schedule:

1. Did the incident arise out of the use or operation of an automobile (i.e. the purpose test)?
2. Did such use or operation of an automobile directly cause the impairment (i.e. the causation test)?

Clearly, a pedestrian who is struck by a motor vehicle would meet the definition of having been involved in an “accident” and be entitled to accident benefits.  There have been a number of cases, however, where a person has fallen getting out of, getting into, and/or around a vehicle.  These cases are more difficult to establish that an “accident” has occurred.  Some examples are provided below wherein, for ease, the insured person seeking to claim accident benefits will be referred to as “the insured.”

In the matter of I.S. v. Aviva Insurance Canada[61], the insured disembarked from a motor vehicle which was dropping her off in front of her apartment building.  She closed the vehicle door, took 3-4 steps towards her building, then tripped over an uneven curb and suffered injuries.  The curb had been in need of repair and, in fact, a “watch your step” sign and pylon were on the sidewalk in the area where the insured was dropped off.  Adjudicator Daoud held that the insured was not insured as a result of an “accident” as defined in the Schedule, stating[62]:

In my view, there was a broken chain of causation between the use and operation of the vehicle which the applicant disembarked, and the injuries she sustained in this case. The evidence shows that the applicant did not slip and fall immediately upon disembarking. There was an intervening act namely the tripping on an uneven curb, which resulted in the applicant’s injuries. There was a separation in distance and time from the disembarkation from the vehicle and the subsequent slip and fall. The location, use and operation of the vehicle were not the direct cause in this case.

In the matter of B.Y. v. TD Insurance Meloche Monnex[63], the insured gave differing accounts as to what exactly happened but the “gist” was that the insured was either getting out of his parked vehicle or had just gotten out of his parked vehicle when he slipped on black ice and fell.  One factual issue was whether the insured had still had his hand holding on to the door when he slipped or whether he had already begun taking steps away from the vehicle.  Vice Chair Kershaw found that the insured passed the purpose test, but not the causation test, such that the incident was not an “accident” for which there would be accident benefit entitlement.  The Vice Chair stated[64]:

I find that the applicant satisfies the purpose test. I agree with the applicant and the Court of Appeal that parking the car was an ordinary and well-known activity to which vehicles are put. This is further supported by the Tribunal’s finding that to be denied benefits the use had to be the result of the ordinary and well-known activities to which an automobile is put, which I find it was. I turn now to the second part of the test, which is the causation test.

…

I agree with the applicant that in this case, but for the use or operation of his vehicle, which includes parking it, this incident would not have occurred. Therefore, the applicant satisfies the first part of the causation test. I turn now to the second factor.

…

In this case, even if the applicant was touching the vehicle, I find that the black ice was an intervening cause. As the Tribunal held in K.B.,proximity to the vehicle is not enough. Similar to what the Tribunal held in K.B., I find that the ice was an intervening cause of the applicant’s injuries, and they were not caused by the use or operation of his vehicle.

In the matter of S.B. v. Aviva Insurance Company of Canada[65], the insured had arrived at a gas station, put gas in her car, retrieved her purse from the front passenger seat, closed the door, and as she turned and walked away she fell to the ground.  The insured acknowledged that she had slipped on something on the ground (though there was no evidence as to what it was) and that her legs had become tangled in her purse strap.  Adjudicator Fricot held that the insured failed both the purpose and the causation test, stating[66]:

I agree with the respondent that the applicant was not filling her car with gas when she fell but rather she was walking away from her car. The applicant’s fall occurred after she had retrieved her purse and closed her car door, and for that reason I reject that applicant’s submission that proximity in time to the ordinary use of a vehicle satisfies the purpose test where, as here, the use of the vehicle had ended prior to the fall.

I find that although the applicant’s fall was very close to her car, she did not come in contact with her car when she fell, nor did the car cause her to fall. At the time of her fall she had finished putting gas in her car and any use or operation of her car had ended. In these circumstances I find that the use of her car was neither a dominant feature in her fall nor did her car or the use or operation of that car cause her to fall. Proximity in time or location to a vehicle at the time of a fall is not sufficient to render the use or operation of that vehicle the dominant feature of the fall.

CONCLUSION & INVESTIGATION

Pedestrian-motor vehicle tort and accident benefits cases can have some nuances; some of which may make the claims easier to advance and some of which may make them more challenging.

It is important from the outset that these cases be investigated properly to identify any potential liability and/or insurance coverage issues.  This investigation may, as applicable, include, but not be limited to:

• obtaining the complete, unredacted police file;
• speaking directly with witnesses;
• going to the scene;
• taking photographs of the scene;
• reviewing Google Earth;
• reviewing online news articles and videos;
• obtaining 911 calls;
• seeing whether any private retail stores or homes in the area had surveillance that may have captured the area of the accident;
• obtaining the Defendant’s dash cam video;
• obtaining the Defendant’s automobile property damage file;
• downloading the data from the Defendant’s event data recorder (also known as the vehicle’s “black box”);
• retaining an engineer.

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Deanna Gilbert is a personal injury lawyer and a partner at Thomson Rogers. Her practice is devoted to representing Plaintiffs in personal injury litigation including cases arising from motor vehicle accidents, medical malpractice, slip and falls, product liability and assaults. Deanna can be reached at 416-868-3205 or by EMAIL.

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[1] http://www.mto.gov.on.ca/english/publications/pdfs/preliminary-2016-orsar-selected-statistics.pdf.

[2] https://www.cbc.ca/news/canada/toronto/38-pedestrians-killed-in-2018-1.4933237.

[3] R.S.C. 1985, c. C-46 [the Criminal Code].

[4] R.S.O. 1990, c. H.8 [the Highway Traffic Act].

[5] Ibid. at s. 1(1), by virtue of being excluded from the definition of “motor vehicle”.

[6] Ibid. at s. 144(1).

[7] Gill v. Elwood, [1969] CanLII 215 (O.C.A.) at paras. 59-60.

[8] R. v. Mansour, [1979] 2 S.C.R. 916 (CanLII) at 921.

[9] Shah v. Becamon, [2009] ONCA 113 (CanLII) at paras. 23-25.

[10] Persaud v. Bratanov and Unifund Assurance Co., [2012] ONSC 5232 (CanLII) at para. 28.

[11] Michelle Fuerst & Mary Anne Sanderson, Ontario Courtroom Procedure, 3^rd ed. (Markham: LexisNexis Canada Inc., 2012) at 830.

[12] R.R.O. 1990, Reg. 194.

[13] There are some relatively rare exceptions to this binary principle, such as being held “not criminally responsible” by reason of mental defect or disorder.

[14] [2009] ONCA 55 (CanLII) [Zsaldos].

[15] Ibid. at para. 54.

[16] Ibid. at para. 56.

[17] [2003] CanLII 49830 (Ont.Sup.Ct.) [Lloyd].

[18] Ibid. at para. 9.

[19] Ibid. at para. 11.

[20] Ibid. at para. 13.

[21] Ibid. at para. 14.

[22] Ibid. at para. 19.

[23] Ibid. at para. 20.

[24] Ibid. at para. 22.

[25] Walker v. Brownlee and Harmon, [1952] CanLII 328 (SCC) [Walker].

[26] Ibid.

[27] Ibid.; Pelletier v. Her Majesty the Queen, [2013] ONSC 6898 (CanLII) [Pelletier];

[28] Ibid., Pelletier.

[29] Cadieux v. Saywell, [2016] ONSC 7604 (CanLII).

[30] Walker, supra note 25.

[31] [2017] ONSC 630 (CanLII).

[32] Ibid. at para. 79.

[33] [2016] ONCA 851 (CanLII) at para. 29.

[34] [1927] 27 S.C.R. 497 (CanLII) at 504.

[35]McErlean v. Sarel (child age 15); Albion v. Chochrane (child age 13 ½); Patridge v. The Township of Etobicoke (child age 15); and Wessell v. Kinsmen Club of Sault Ste. Marie Ontario Inc. (child age 15).

[36] Whereby parents can advance their own claims for damages including, but not limited to, a loss of guidance, care, and companionship suffered as a result of the injury sustained by an immediate family member.

[37] [1987] 2 S.C.R. 287 (CanLII).

[38] Ibid. at 313.

[39] [2013] BCSC 1248 (CanLII).

[40] Ibid. at para. 171.

[41] Ibid. at paras. 189-192.

[42] This was a jury trial so there is no reported decision; however, the facts are summarized in a post-trial Endorsement on Costs at [2014] ONSC 5893 (CanLII).

[43] R.S.O. 1990, c. I. 8 [the Insurance Act].

[44] Ibid. at s. 251(1); O.A.P. 1 at s. 5.7.

[45] These days, most people are insured well beyond the $200,000.00 minimum limits.  Most people have at least $1 million in coverage.

[46] [2010] ONCA 528 (CanLII).

[47] [2011] ONCA 341 (CanLII).

[48] Ibid. at para. 17.

[49] [2013] ONSC 1949 (CanLII).

[50] Ibid. at paras. 31, 33-35.

[51] Lambert v. Khan, [2016] ONSC 103 (CanLII) at para. 68.

[52] R.S.O. 1990, c. M. 41 [the MVACA].

[53] Ibid. at s. 25(1).

[54] Ibid. at s. 17.

[55] Ibid. at s. 23(1).

[56] Snowmobile accidents provide accident benefits as well, but the topic of snowmobile accidents is beyond the scope of this paper.

[57] Not all categories are available to every injured person. Entitlement may depend upon the severity of injury sustained, whether optional benefits were purchased, whether the person meets the requisite test for entitlement to a particular benefit, and a number of other factors.

[58] Again, keeping in mind that a person may be insured under a policy even if that person is not the named insured, by virtue of being a spouse or dependent relative in the same household as a named insured.

[59] O. Reg. 403/10 at s. 3(1) [the Schedule].

[60] Greenhalgh v. ING Halifax Insurance Co., [2004] CanLII 21045 (ON CA) at para. 10.

[61] [2017] CanLII 62174 (ONLAT).

[62] Ibid. at para. 30.

[63] [2019] CanLII 27893 (ONLAT).

[64] Ibid. at paras. 13, 16, 23.

[65] [2019] CanLII 22211 (ONLAT).

[66] Ibid. at paras. 26, 39.