There is ample support in the case law submitted on behalf of Madore’s position to demonstrate that […] contact with an automobile is not a required part of the definition of “accident - Justice Steward at para. 29 Madore v. Intact, 2023 ONSC 11 (Div Crt).
On August 14, 2023, our cyclist client was travelling in the Yonge St. Bike Lane when a Tesla Driver began turning left into her path. The cyclist attempted an evasive maneuver to avoid an imminent collision. In the process, she lost control and crashed her bicycle. The cyclist sustained serious injury, requiring surgery. Toronto Police attended and investigated (there was a video).
TPS confirmed the following in an email to our client on August 18, but would not provide her with a Motor Vehicle Collision Report or necessary insurance information for her to access medical supports/lost wages (our client is entitled to no fault Accident Benefits that provide at home rehab supports and lost wages she desperately needed post-surgery):
Cyclist travelling in bike lane northbound on Yonge St.
Motorist driving southbound on Yonge turns left across northbound motor vehicle lane stopping just before the bike lane.
Cyclist reacts to anticipated turning maneuver and crashes.
Contrary to statute and case law, TPS erroneously stated that since there was no contact, this was not a motor vehicle "accident".
On August 21, 2023, our office appealed to TPS to at least provide our client with the driver’s name and insurance information pursuant to s. 200 of the Highway Traffic Act.
The investigating officer refused and sought the advice of TPS’ legal services team.
10 days later, legal counsel for TPS denied our client's request for the driver’s insurance information that she was statutorily entitled to. They denied that this incident was a motor vehicle collision:
Based on the information available to me s.200 of the HTA does not apply, Even, if I am incorrect and the underlying facts make out that the unknown vehicle was “directly or indirectly involved in the accident”, s.200 places an obligation on the “person in charge of a vehicle” to provide their information. This provision does not give the record holder the legal authority to release the information.
Having said that there are other ways to get that information, such as a 30.10 order.
Not only did legal counsel for TPS deny that this was a motor vehicle "accident" (though he admitted he could be 'incorrect'), he said police did not have to provide the driver's insurance information and our client should get a court order for it. Wrong again counsel.
In Ontario, the Insurance Act - Statutory Accident Benefits Schedule defines a motor vehicle accident as:
An incident in which the direct use or operation of an automobile causes an impairment, with an impairment meaning a loss or abnormality of a psychological, physiological or anatomical structure or function.”[1]
The Insurance Act further confirms in multiple provisions that:
“Bodily injury can arise directly or indirectly from the use or operation of an automobile”.
Ontario Courts and those across the country have confirmed there need not be direct contact for a motor vehicle accident to occur.
In Madore v. Intact, cited above Mr. Madore was cleaning the roof of his truck trailer when he fell from it. The court found this was part of the normal use and operation of a motor vehicle and so he was entitled to accident benefits.
Saad v. Federation Insurance Co. of Canada, 2003 ONFSCDRS 66, the applicant injured his foot while filling up his car tires, slipping and falling on ice in the area. Despite making no contact wit the automobile his injuries were covered by accident benefits and flowed from the use and operation of the vehicle in an unbroken chain of events.
Our client's case, is far more directly related to the use and operation of a motor vehicle than Madore or Saad. “But for” the sharp turn of the motorist, she would not have taken evasive maneuvers and as a result sustained both physical and psychological injury.
We have shared with TPS several analogous persuasive cycling cases out of British Columbia where no contact collisions were still deemed "motor vehicle accidents":
In Bern v. Jung 2010 BCSC 730, the Plaintiff security guard patrolled a parking garage on his bicycle. The Defendant motorist proceeded the wrong way on a garage ramp. The Plaintiff saw lights of Defendant's car reflecting off concrete road surface and realized that vehicle was coming in wrong direction. He immediately applied his brakes, losing control of his bicycle and fell over the handlebars.
The Court found that the sole cause of accident was Defendant's decision to take a shortcut and travel against the direction in which traffic was supposed to flow. The Plaintiff lost control of his bicycle and fell because of sudden and unexpected presence of Defendant's vehicle travelling in the wrong direction.
Liability in the absence of a physical collision is discussed at length in Owen v. Folster 2018 BCSC 143. In Owen, a cyclist fell as a result of a motorist turning left into his path. Though no contact occurred between the vehicles, Justice Watchuk did find that the actions of the motorist caused the accident.
Unfortunately for our cyclist client, the impact of TPS’ decision has been profound. She has twice now experienced significant mental health episodes. The stress of not having access to lost wage supports or PSW services post-surgery that she would be able to access through Accident Benefits has been jarring.
Our cyclist client is a new Canadian, with limited supports. She was working two jobs she can now no longer perform due to her injuries. She is a contributing member of society and we owe it to her to support her in her time of need.
Despite our pleas for compassion to TPS, a 7 page legal letter and multiple correspondence, they have refused to help our client. The result being is seriously delayed treatment (harmful) and our client having to access support through the provincial Motor Vehicle Accident Claims Fund. In turn, the taxpayer will be picking up this bill, and not the insurance company of the Tesla driver.
It's critical that if you can, gather driver and plate information at the scene of a crash. Read our Crash Guide and get our Crash Card. Empower yourself so you are not left to the whims of bloated, ineffective, and dispassionate police services.
This is the second time we've had to explain the law to TPS where their actions harm cyclists.
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