This was the appeal of an award under a disability insurance policy. At issue was a disability policy covering “bodily injury caused by an accident”, and whether the trial judge made an error by finding that the Plaintiff’s arterial dissection and stroke were caused by trauma when he turned his neck while playing basketball. The majority of the Court of Appeal upheld the trial decision on the basis that ordinary acts of living, such as playing basketball in this case, can constitute an accident. The majority declined to find that there was no evidence upon which the trial judge could hold for the Plaintiff on the issue of causation. Borins J.A. dissented, favouring the ordinary interpretation of “accidental”, and finding that the judge erred in his understanding of the expert medical evidence concerning the length of time before arterial dissection would normally result in neurologic symptoms. Mr. Justice Borins held that the trial judge made a palpable and overriding error in finding for the Plaintiff on causation.

Guillet v. American Home Assurance Co., [2004] O.J. No. 4330, Ontario Court of Appeal

The Plaintiff was a 33-year-old schoolteacher who collapsed during a basketball game. After he fell he could not speak or move his right side. It was later determined that he suffered an ischemic stroke in which blood stopped flowing through the left internal carotid artery. His right upper and lower limbs were permanently affected. At trial, the expert evidence was that the stroke originated with the dissection of the artery; however, “no non-medical person would reasonably expect the turning of the neck to cause injury to the wall of the artery”. The trial judge accordingly found that the injury was caused by accident within the meaning of the policy provision which set out that injury meant “bodily injury caused by an accident and resulting in directly and independently of all other causes”.

The insurer appealed on two grounds: first, that there was an overriding error in finding that the stroke was caused by trauma as opposed to being of spontaneous origin and second, it was submitted that there was no coverage under the policy for injuries with no known cause. The majority of the court rejected the submission that there was no coverage for injuries with no known cause, and found that the evidence adduced at trial supported the trial judge’s findings on causation.

The majority of the Court of Appeal gave detailed reasons as to why the court did not accept the insurer’s submission that the decision in Martin v. American International Assurance Life Co., [2003] 1 S.C.R. 158 did not apply. That decision involved a physician who died from a drug overdose caused by a self-inflicted intravenous injection of Demerol, and the Supreme Court of Canada confirmed that the death was covered by the accidental benefit provisions of the deceased’s policy. The court held that the term “accidental” did not mean that the incident was not foreseeable. The pivotal question was whether the insured expected the outcome suffered. The Court of Appeal held that the Martin decision did apply to the facts at bar, because while the activity in question was deliberate and was an ordinary act of living, its outcome was not foreseeable, thus bringing it within the interpretation of “accident” in Martin.

The court went on to review the evidence presented at trial, and held that it was open to the court to find that the stroke was caused by a simple turning of the neck. The expert evidence revealed that dissections are described in the literature as “spontaneous” simply because doctors are unable to determine their precise cause, not because they have no cause.

In the dissenting judgment, Borins J.A. found that the stroke was not caused by an “accident” as it was defined in the policy. On his review of the evidence, he found that there was no direct evidence of trauma to the Plaintiff’s neck, yet the trial judge found that he turned his neck during a basketball game. He found, erroneously, that it was arterial dissection that caused the insured loss, while Borins J.A. held that the evidence revealed that a stroke caused the loss. A stroke is not an injury caused by an accident in the common interpretation of the term “accident”.

Mr. Justice Borins also held that the trial judge made a palpable error in his interpretation of the medical evidence, specifically the neurology evidence which was uncontradicted. That evidence was that neurologic damage would not be seen until several hours after a dissection. As the Plaintiff suffered symptoms immediately, Mr. Justice Borins found that the trial judge made an overriding error of fact in finding causation.

To stay current with the new case law and emerging legal issues in this area, subscribe here.