Volume. 6 Issue. 11 – March 23, 2022
In July 2021, we featured a case wherein an Applicant, having fallen off the roof of a truck while performing maintenance was deemed not to have been involved in an “accident” in accordance with the Schedule. The first case this week however involves a largely similar incident, with the Tribunal ruling in this instance that the fall was part and parcel of a series of events satisfying the definition of “accident” in accordance with the Schedule.
The second case this week is a Court decision, with the Court finding a Production Order was “fatally flawed”, the Tribunal having made 3 errors, therefore invoking the “exceptional circumstances” required in setting aside an Interlocutory Order.
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Falling from Roof of Truck Determined as “Accident”
A Fall is More Than Just a Fall – In 21-003866 v Intact, the Applicant Fehr sustained catastrophic injuries after falling to the ground from the roof of a transport truck. Specifically, Fehr climbed a 15-20 foot ladder he had leaned against the transport in order to perform routine maintenance. While inspecting the roof, the ladder began to slide out from under him, and he then grabbed the roof of the truck or top part of the window and was left hanging. Ultimately Fehr fell or dropped 8-10 feet from the truck, struck a curb below and fell backwards, striking his head on the ground.
Intact for their part argued that Fehr’s injuries were “triggered by the intervening act of the ladder slipping that forced the applicant to grab onto and then drop from the truck to the ground where he struck his head…(and) the ladder, the curb, and the ground can all be considered intervening acts that break the chain of causation and, specifically, that the ladder falling out from under the applicant is the dominant cause of his injuries.”
Fehr argued that “his impairments would not have occurred but for his performing routine maintenance on the truck and that there was no one dominant feature to the accident, but rather it was a series of continuous events with no intervening acts that led to his impairments.” The Tribunal found that the use of a ladder to inspect the roof of a transport truck was “akin to checking tire pressure or fluid levels on a sedan or SUV… inarguably part of the “ordinary course of things” a truck owner or operator must routinely do”.
The Tribunal agreed with Fehr that “there was not one dominant feature that was the direct cause of his impairments, but rather it was the series of events that started with climbing a ladder to inspect the roof of the truck, continued with the ladder sliding away, leading to him hanging from the top of the truck and, eventually, falling to the ground and sustaining his impairments. On these uncontested facts, I see a direct causal link between the use or operation of the truck and the applicant’s impairments.” Further, “I find the chain of events to be a clear line of dominoes that was tipped when the applicant began inspecting the roof of the truck, continued when he was hanging from the truck and ended when he fell to the ground and struck his head.”
The Tribunal reasoned that “The inspection of the truck was ongoing when the ladder gave way, necessitating the applicant hold onto the top of the truck, which led to his eventual fall to the ground and impairments. I see no break in the chain of causation… falling from a vehicle from a significant height and sustaining impairments as a result of same clearly flows from the initial use and operation, akin to hitting the pavement after being struck as a pedestrian.” Intact relied on prior Tribunal decisions, including Madore v. Intact, said to have stood for the proposition that an insured who fell from the roof of a trailer he was inspecting failed on causation because he did not contact the vehicle.
The Tribunal however found that Madore was “wrongly decided where the Tribunal placed too much emphasis on the purported fact that the applicant somehow did not come into direct contact with the roof or any part of his trailer before he fell from it, despite standing on its roof.” It is not entirely clear whether the Tribunal captured the entire essence of the Madore rationale, wherein it was stated “injuries were sustained as a result of C.M. falling to the ground, the trailer happened to be the location that he fell from.”
“Fatal Flaws” Lead to “Exceptional Circumstances” Court Finds
“Fatal Flaws” Constitute “Exceptional Circumstances” – In Micanovic v. Intact Insurance Micanovic sought appeal of a tribunal order that he was required to provide Intact the personal and corporate income and business records of the Appellant’s housekeeper, Lucic. Specifically at issue was whether Micanovic was entitled to housekeeping expenses of $30,000. In the submitted OCF6, Micanovic did not specify whether the expenses fell under 3(7)(e)(iii)(A) (provider was in the course of their ordinary employment), or s. 3(7)(e)(iii)(B) (provider sustained an economic loss) of the Schedule. However, the Court noted that “for reasons that are unclear” Intact proceeded on the basis that the expenses were sought in accordance with there having been an economic loss.
Intact had written to Micanovic indicating that it understood the services of Lucic were not performed in the course of her employment, occupation or profession. Micanovic, though, replied that in fact Lucic provided said services while in the course of her ordinary employment.
The issues as framed by the Court were whether the appeal was premature, and whether there was an error in law in the making of the order. Given that the Order was an interlocutory order it would therefore be deemed as premature in the absence of “exceptional circumstances”. The Court further noted that an interim order can be challenged if it is “fatally flawed, and in the within matter the Tribunal had made three errors, which collectively rendered the Order “fatally flawed”
The first error was the Tribunal having proceeded upon the basis that Lucic was the spouse of Micanovic, when in fact there was not only no evidence for such a finding and indeed evidence to the contrary. The Court found that absent this error, the Tribunal “would not have viewed the Production Motion through the lens of an economic loss claim if he had not made this erroneous finding. In the absence of a familial relationship of some kind, an economic loss claim in similar circumstances would be out of the ordinary.”
The second error was in requiring Micanovic to provide evidence of an economic loss, when the claim was not being asserted in accordance with s. 3(7)(e)(iii)(B) of the Schedule. The Tribunal “clearly disregarded the evidence before him that the Appellant was not claiming payment of the housekeeping expenses on the basis of economic loss…, a finding of fact made in complete disregard of the evidence constitutes an error of law. In this case, the evidence of the Appellant’s claim was unequivocal. The Adjudicator disregarded that evidence.”
The Third error was in “ordering production of personal and financial documentation of a third party in circumstances in which the Appellant had no control over, or possession of, the records and, accordingly, no ability to compel the third party to provide them.”
As a result, the Court found “the present circumstances are exceptional and justify judicial intervention at this stage.” First, the Order was “fatally flawed” and therefore cannot stand, and further there were “two particularly important consequences described below that flow from the Adjudicator’s errors of law that reinforce the conclusion that exceptional circumstances exist in this case because they result in unfairness”. The first of these being that Micanovic was required to provide evidence irrelevant to the basis upon which the claim was asserted. Second, Micanovic was ordered to provide records of a third party, when there was no available legal means of compelling Lucic to comply.
Concluding, “the appeal is granted and the Order was set aside, with costs of $5,800 payable to the Appellant.
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