December 1, 2021 by Greg Meckbach
A Toronto firefighter who suffered psychological injury after responding to the deadly 2018 van attack is not entitled to auto accident benefits, the Ontario Licence Appeal Tribunal has ruled.
In Travis v Aviva Insurance Company, released Nov. 25, LAT adjudicator Cezary Paluch found that Aviva can deny the firefighter’s claim because he was not involved in an “accident” as defined in the province’s statutory accident benefits schedule.
The use of the rental van April 23, 2018 – to kill 10 pedestrians and seriously injure more than a dozen others – is not “within the scope and course of its ordinary functions or how that particular vehicle was to be used,” wrote Paluch. Instead, the van is “used normally for commercial type activities such as moving or transporting or such common uses”
The 2018 tragedy on Yonge Street north of Sheppard Avenue “left 10 people dead, 16 injured and forever changed the lives of many innocent families, bystanders and first responders including [the claimant], a fire fighter, who rushed to the scene to tend to the injured and comfort the dying,” wrote Paluch.
The firefighter made two arguments as to why he is entitled to AB: he was responding to the attacker’s use and operation of a motor vehicle (the van), and was himself using and operating a motor vehicle, which was a fire truck.
The firefighter stopped working later in 2018 and got psychological therapy through the Workplace Safety and Insurance Board. He later got modified duties.
Aviva agreed that the claimant has psychological impairment but disagreed that the firefighter was eligible for auto accident benefits.
Under the SABS, an accident is “an incident in which the use or operation of an automobile directly causes an impairment.”
On April 23, 2018, the firefighter boarded and drove one of two fire trucks from his station to attend the scene. He did not see the van strike pedestrians but he stopped the fire truck, he saw multiple police officers with firearms, as well as victims on the ground. At the scene, he assisted with the medical equipment.
But a key question on accident benefits entitlement is whether the incident arose “out of the ordinary and well-known activities for which automobiles are used.”
The claimant argued that since the fire truck was in use and operation while he was attending the scene of the accident, his psychological impairments stemmed from the use of that vehicle and therefore should qualify as an accident.
The LAT disagreed.
“The use and operation of the fire truck was not the cause of the injuries. If you remove the fire truck from the equation, the applicant would still have been exposed to the aftermath of the terrorist attack. Looked another way, if he had cycled/walked to the scene of the accident, he would have sustained the injuries that he did,” wrote Paluch.
Feature Image: THE CANADIAN PRESS/Aaron Vincent Elkaim