A Northern Ontario man who suffered serious injuries when he fell off his recreational vehicle has won a court battle over his insurance company, which had denied his claim.
Clayton Madore of St. Charles, Ontario, southeast of Sudbury, was cleaning the top of a fifth-wheel trailer in the driveway of his home in 2019, when the fall happened.
Madore said he heard his wife calling to him from inside the house. After that he doesn't remember much, he told the court.
Somehow Madore lost his footing. He fell 3.5 metres to the ground. He suffered a fractured skull, a brain injury, several broken bones, hearing loss and vision loss. Court was told there were no witnesses to the fall. He was hospitalized for several weeks.
Subsequently, Madore contacted Intact Insurance for benefits related to his injuries. Intact brands itself as Canada's "most trusted home and auto insurance brand.”
Intact denied the benefits to Madore. Intact argued that the incident did not meet the definition of “accident.” Madore appealed Intact's refusal and argued his case at the Ontario Licence Appeal Tribunal in June of 2021.
Among the arguments put forth by Intact is that the RV trailer did not fall within the coverage of automobile as outlined in the Ontario Accident Policy-1 (OAP-1). Intact also argued that the fall did not meet the definition of accident.
Long story short, the Licence Appeal Tribunal hearing in 2021 determined that Madore "was not involved in an accident.”
Madore appealed the decision, at a Reconsideration Hearing again before the Licence Appeal Tribunal in January of 2022.
His lawyers argued that the trailer, which was attached to his truck at the time, was indeed an automobile for insurance purposes.
They also argued that cleaning and inspecting the trailer was part of the “ordinary course of things.” Madore's lawyers also argued that his loss of footing was not an "intervening act" that would disqualify him for benefits.
In his tribunal decision, arbitrator Derek Grant stated:
"The incident was caused by Clayton Madore’s loss of footing on the roof of the trailer and the injuries were sustained as a result of landing several feet below on the ground. As I found previously, neither the truck nor the trailer directly caused the injuries. Further, the loss of footing, due to misfortune, is an intervening act and not at all directly caused by the trailer. This is confirmed in Clayton Madore’s statement and affidavit that he did not trip on any part of the trailer causing him to fall. Clayton Madore losing his footing on top of the trailer is not part of the ‘ordinary course of things’."
The reconsideration for Madore was turned down.
Madore pressed on, this time taking his arguments to the Ontario Superior Court of Justice.
In a decision posted in the first week of January, the court ruled in Madore’s favour.
The court ruled that the previous rulings were errors in law. It said there was nothing to indicate that anything happened between Madore cleaning the top of his trailer and his actual fall. The court said there was no "intervening act.”
"In Madore’s case, however, there is no significant lapse of time between when the appellant was in direct contact with the trailer and the occurrence of the fall, nor did the ordinary use or operation of the trailer cease before the fall occurred. While the precise way that Madore fell may be unknown, there was no evidence to suggest the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof. The causal link therefore was not broken," said the court.
The court further explained why the previous arbitrator decisions were flawed.
"The only reasons Madore cannot say exactly what caused his fall are that he sustained a life-changing brain injury and that there were no witnesses to his fall. It is inconsistent with the purpose of the regulation to defeat Madore’s application on such rigid evidentiary grounds. Further, requiring an evidentiary basis for an element of the interpretation of “accident” not specifically provided for in the definition under the schedule is not in keeping with the remedial nature of this no-fault accident benefits legislation or its consumer protection mandate, and is an error of law."
There is no word yet whether Intact will appeal the decision or decide to pay benefits to Madore.
The court further ruled that Intact insurance must pay Madore $10,000 in court costs within 30 days.
Len Gillis covers health care and mining for Sudbury.com.