Written by Peter Pietraszek.
What is the current test for causation in accident benefit matters?
The Applicant must show on the balance of probabilities that the accident materially or significantly contributed to his mental or behavioural disorders. He is not required to prove that the accident was the only cause of his mental or behavioural disorders; rather, the Applicant is required to show only that the accident was a cause of the mental or behavioural disorders and not the sole cause. The burden of proof rests with the Applicant, and the threshold to meet causation is extremely low in the AB caselaw.
If the Applicant can, on a balance of probabilities, show that the accident materially or significantly contributed to his post-accident mental or behavioural disorders, this will meet the current legal AB test for causation.
Caselaw
The legal test for causation in AB vs. tort matters is different.
In tort matters, the test was established by Superior Court of Canada Chief Justice McLachlin in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at paras 8-9:
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
The “but for” causation test is applied in most tort cases, and must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090, per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.
However, in AB matters, the less onerous “material contribution” is the proper test for causation. The material contribution test is if “a cause of the disability – injuries arising from a motor vehicle accident – is materially contributing to the disability despite other causes, whether they arose before or after the accident.”[3]
The Ontario Court of Appeal in Monks v. ING Insurance Co. of Canada,[4] noted that there has been “a long line of arbitral decisions in which this [material contribution] test has been utilized to resolve causation issues in accident benefits disputes, including in cases where the benefits claimant suffered from a pre-existing condition prior to the accident in question.”
In Mujku and State Farm, (A10-002979, January 14, 2013), Arbitrator Rogers was asked to consider the dispute about “whether the accident caused [the Applicant] to suffer a mental or behavioural disorder. This analysis must be conducted, bearing in mind that [the Applicant] is not required to prove that the accident was the only cause of her mental or behavioural disorder. She must prove that the accident materially contributed to it.”[5]
In Kump and Economical, (A09-002712, May 14, 2014), Arbitrator Kominar confirmed that an Applicant is only required to prove causality on a material contribution basis.
[The Applicant] has no obligation to prove that there was a “substantial” connection between the motor vehicle accident and his disability. The question before me then is whether the admitted rapid decline in Mr. Kump’s physical condition after the accident flowed from his motor vehicle accident in some meaningful way, or was merely that it was randomly coincidental that his medical status significantly declined shortly after this collision? The legal issue here is often discussed in terms of the “crumbling skull” test as opposed to the “thin skull” test.
[3] Arunasalam and State Farm Mutual Automobile Insurance Company, P09-00025, Director’s Delegate Evans, March 2, 2011, para 30; Followed recently in T.(M.) v. RBC General Insurance Co. A11-001877 Arbitrator Lloyd (J.R.) Richards, February 28, 2014, para 9, and M.(D.) v. Portage La Prarie Mutual Insurance Comp. A12-005533, Arbitrator Huberman, August 15, 2014, see paras 65-83.
[4] 2008 ONCA 269 (Ont. C.A.)
[5] para 49.
