Wednesday, 1 February 2012

If the Shafia Family Lived in Ontario Would They Qualify for SABS Benefits?

The Montreal Gazette reports that despite some media reports the Shafia family, who resided in Montreal before they were convicted of first-degree murder, might receive payouts under Quebec's no-fault auto insurance system, there will be no payout, the board says.

The three Shafia family members convicted of four counts of first-degree murder made no request for auto insurance compensation for their four relatives found dead in a car in an Ontario canal, said Gino Desrosiers, a spokesperson for the Société de l'assurance automobile du Québec (SAAQ).

In any case, they would not be eligible, he said, because the Shafia case does not meet the criteria for compensation.

SAAQ rules state that the car involved must have been in an accident on a public roadway; that the vehicle must not have been used for anything other than its intended purpose (to transport people from A to B under its own power); and that the injuries or deaths that resulted were due to a car accident.

So if the Shafia family resided in Ontario, would they be able to claim death and funeral benefits under the Statutory Accident Benefits Schedule (SABS)?

Subsection 3(1) of the SABS defines an “accident” as “incident in which the use or operation of an automobile directly causes an impairment.” The Crown in this case contends that the four passengers in the vehicle were likely killed before it went into the lock. If that is the case then clearly there is no entitlement because the use or operation of an automobile did not directly cause their death.

Even if the four passengers had drowned in the lock, the evidence presented at trial was that the vehicle was not driven into the lock. The key in the ignition was on the off position and the front seats were reclined in a position that would have made it impossible to operate the automobile. The evidence suggested that the automobile had been pushed in by another vehicle owned by the family. Again, their death was not directly caused by the use or operation of an automobile.

This is consistent with Ontario Court of Appeal decision Chisholm v. Liberty Mutual Group. In that case the plaintiff had become a paraplegic while driving his wife’s car as a result of wounds from gun shots fired by an unknown assailant. Liberty Mutual denied SABS benefits because the use or operation of the automobile did not directly cause the impairment. The Court agreed and indicated that the provision in the SABS provided a restrictive causation requirement.

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