Neutral Citation: 1996 ONICDRG 12

File No.: A-010990

BETWEEN:

CHRISTOPHER J. LYNAM

Applicant

and

FORMOSA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY ISSUE

The Applicant, Christopher J. Lynam, was injured on March 17, 1993. He applied for statutory accident benefits from the Insurer, Formosa Mutual Insurance Company ("Formosa"), payable under Ontario Regulation 672.¹ Formosa refused to pay statutory accident benefits on the basis that Mr. Lynam was not injured in an "accident".

The parties were unable to resolve their disputes through mediation and Mr. Lynam applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act").

The issue in this preliminary hearing is:

Was Mr. Lynam injured as a result of an "accident", as defined in section 2 of the Schedule?

Mr. Lynam was injured in an accident.

The hearing was held in Kincardine, Ontario, on March 28, 1995, before me, Shemin Manji, arbitrator.

Present at the Hearing:

Applicant:

Christopher J. Lynam

Applicant's

Daniel J. Fife

Representative:

Barrister and Solicitor

Insurer's

John Gilbert

Representative:

Barrister and Solicitor

Insurer's

Dennis Lange

Officer:

Witnesses:

Mr. Christopher J. Lynam

Ms. Julie Whitney

Mrs. Joy Lynam

Mr. Robert Scott

Mr. Dennis Lange

A list of exhibits and other documents on the record is attached as Schedule A. A list of authorities considered is attached as Schedule B.

Reasons for Decision:

1. Facts and issue:

Mr. Lynam is 52 years old and resides with his wife in Kincardine, Ontario. On March 17, 1993, Mr. Lynam owned and managed a cleaning business on a part-time basis. He was also employed full-time with Ontario Hydro, as a chemical operator. On that day, between 6:00 p.m. and 7:00 p.m., after finishing work at his cleaning business in downtown Kincardine, Mr. Lynam drove his 1987 full sized Ford van (1987 Ford Club Wagon) to his daughter's house, also in Kincardine. He was alone in his van. Mr. Lynam and his wife, Mrs. Joy Mary Lynam, were going to visit with their daughter, Mrs. Julie Whitney, and their grandson. Mrs. Lynam was going to meet Mr. Lynam at their daughter's house.

When Mr. Lynam arrived at his daughter's house, he noted that there were two vehicles already parked in his daughter's driveway - his daughter's and his wife's. He parked his van at the end of his daughter's driveway, on the street in front of her house (the driver's door facing away from his daughter's house).

The weather on March 17, 1993 was very cold. There had been snow and freezing rain that day and the street on which Mr. Lynam parked his van was very icy. Mr. Lynam testified that the ice on the ground where he parked his van was 4" thick.

After parking his van, Mr. Lynam shut the engine off and exited from the van. Because of the height of the van from the ground, the driver's side door is provided with two step boards, one inside the door, and one outside. Mr. Lynam is 6'2" tall. He testified that because of his height, he does not use the inside step board when exiting his van.

Mr. Lynam gave two versions of what happened next. In a written and signed statement to Formosa on July 13, 1993² Mr. Lynam stated:

As I got out of the vehicle, there is a step board on the side of my truck. I normally swing around in the seat and put my left leg on the ground & my right on the step board. As my left foot was on the ground it slipped on the ice. It slid out and I went down on my right side. I tried to grab the arm rest on the door of the van but I missed it.

At the hearing, Mr. Lynam testified that when exiting the vehicle he swung around in the seat and placed both of his feet on the outside step board. There was ice on the outside step board and both of his feet slipped on the ice on the step board. His right foot slipped more than his left. His right foot slipped before it touched the ground. He testified that he thinks he tried to grab onto the door handle with his left hand but missed and fell to the ground. After falling, he ended up on his left side.

Mr. Lynam's written statement indicates that he injured his right leg in the incident. It states that immediately after falling, he felt a lot of pain in his right knee. However, in his Application for Accident Benefits dated July 30, 1993³ and at the hearing, Mr. Lynam stated that he ruptured the quadricep tendons in his left knee in the incident.

Mr. Lynam testified that after he fell, he tried to get up but could not because of the pain. He tried to use the lower step board as leverage but was still not able to get up. Mr. Lynam testified that he started crawling over the road towards the front of his van and his wife's car at the end of his daughter's driveway. The rear end of his wife's car was between six to ten feet away from the front of his van. Once he got to the rear end of his wife's car, he got hold of the rear bumper and tried to get up again using the bumper (he did not think to use the front bumper of his van). One of his legs could not bear weight. When he stood up, he almost fell. He managed to stand by locking his knees together. He was 15 to 20' from his daughter's front door. Mr. Lynam testified that somehow he managed to reach his daughter's front door.

No one observed Mr. Lynam exit from his van. A neighbour of his daughter, Mr. Robert Scott, saw Mr. Lynam drive down the street and a little later observed that he was down on the ground on his hands and knees trying to get up and crawling from his van towards his daughter's house. Mr. Scott watched Mr. Lynam and may have asked him if he was alright. He did not ask Mr. Lynam what had happened or offer any assistance.

When Mr. Lynam got to his daughter's house, he advised his daughter and wife that he had fallen from the van.⁴ They decided that he should go to the hospital. Mr. Lynam was seen in the emergency department of Kincardine Hospital.

Mr. Lynam testified that at the time of the incident, he was not aware that he could claim statutory accident benefits from Formosa as a result of the injury he sustained in the incident. He first became aware that he could do so in July 1993, after speaking to a friend who asked him if he had submitted a claim for benefits to his insurer. Subsequently, Mr. Lynam called Formosa and met with Mr. Dennis Lange, a claims representative for Formosa, on July 13, 1993. On that day, Mr. Lange obtained the written statement from Mr. Lynam.⁵ On July 30, 1993, Mr. Lynam submitted an Application for Accident Benefits to Formosa.

Formosa denied Mr. Lynam's claim for statutory accident benefits on the basis that the injury(ies) that he sustained on March 17, 1993 were not a result of an "accident" as defined in section 2 of the Schedule. "Accident" is defined in section 2 of the Schedule as follows:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;

2. Position of the parties

Formosa does not dispute that Mr. Lynam was injured as a result of an "incident", or discrete event, on March 17, 1993. The dispute is over whether the incident involved the use or operation of an automobile, and if so, whether there was a causal link between the use or operation of the automobile and the injury. Formosa takes the position that the incident did not involve the use or operation of an automobile and the use or operation of an automobile did not cause Mr. Lynam's injury directly or indirectly.

Formosa points out that the discrepancy between Mr. Lynam's statement to Formosa of July 13, 1993 and his testimony at the hearing about the incident on March 17, 1993 raises a question about whether he slipped on the ice on the ground or on the ice on the step board attached to his van. Formosa submits that I should accept the statement over Mr. Lynam's testimony because the statement more accurately sets out what occurred on March 17, 1993. Mr. Lynam's memory was clearer in July 1993 than at the hearing.

Formosa submits that Mr. Lynam's statement indicates that, on March 17, 1993, Mr. Lynam fell as a result of the ice on the ground and not as a result of any use or operation of his van, directly or indirectly. It submits that the van did not contribute in any way to the fall - the ice was not caused by the van. Regardless of the van, the ice would have been there. Formosa submits that the relationship between the use or operation of the van and the injury was merely fortuitous.

Mr. Lynam disagrees with Formosa's position. With respect to the discrepancy between his statement to Formosa and his testimony, Mr. Lynam submits that his evidence under oath was that while exiting the van, he fell because of the ice on the step board and not because of the ice on the ground, as set out in the statement to Formosa. In any event, Mr. Lynam submits that he was alighting from the van when he fell. It should not matter for the purposes of my decision whether he slipped on the ice on the ground or on the step board. Getting into or out of an automobile is part of the use of an automobile. Mr. Lynam submits his injury was caused because he was alighting from the van and the ice on the ground or step board did not sever the relationship between this use and the injury. Mr. Lynam relied on various court decisions including Fraser v. Peckham et al. (1983), 1983 CanLII 1948 (ON HCJ), 42 O.R. (2d) 354 (H.C.) and Whitehead v. Whitehead et al., [1984] I.L.R. 1-1820 6998 (S.C.B.C.) in support of his submission.

3. Analysis and Conclusion

The inconsistencies in Mr. Lynam's evidence (between his statement to Formosa, his Application for Accident Benefits and his testimony) about whether he slipped on the ice on the ground or on the step board and whether he injured his right or left leg in the incident cause me to question the reliability of his testimony. However, because of my interpretation of "accident" in section 2 of the Schedule (infra) and because Formosa does not dispute that Mr. Lynam was injured when exiting from his van, I need not make any findings in regard to his credibility and in regard to the nature of the injury(ies) he sustained in the incident on March 17, 1993.

The Schedule requires that, for an incident to be covered, it must be an incident in which "the use or operation of an automobile causes directly or indirectly" injury. Phrases similar to this phrase have been subjected to much judicial consideration. The courts have interpreted these phrases broadly in the context of private policies of insurance in determining whether the automobile insurer is required to indemnify its negligent policyholder. The courts have also interpreted these phrases broadly in the context of an insured person's right to receive statutory no-fault automobile benefits. The meaning of the phrase "arises out of the ownership, use or operation of an automobile" was most recently considered by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] S.C.J. No. 74, in connection with an insured person's right to receive no-fault benefits under section 79(1) (in Part VII) of the Revised Regulations (1984) under the Insurance (Motor Vehicle) Act of British Columbia, British Columbia Reg. 447/83, as amended. Section 79(1) entitles insured persons to no-fault benefits from the Insurance Corporation of British Columbia in respect of death or injury "...caused by an accident that arises out of the ownership, use or operation of a vehicle...".

In Amos, the appellant was driving his van when he was attacked without provocation by six men. He was shot and suffered serious disabling and permanent injuries. The Supreme Court of Canada applied a two-part test to determine whether the injury was caused by an accident that arises out of the ownership, use or operation of a vehicle:⁶

Did the accident result from ordinary and well-known activities to which vehicles are put?
Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the injury (ies) and the ownership, use or operation of the vehicle, or is the connection between the injury and the ownership, use or operation of the vehicle merely incidental or fortuitous?

The Supreme Court held that the accident resulted "from the ordinary and well-known activities to which automobiles are put." The appellant was driving his van down a street. The Supreme Court also held that the requisite nexus or causal link existed between the shooting and the appellant's ownership, use or operation of the van. The attack had not been merely random, but was the direct result of the assailants' failed attempt to gain entry to the appellant's van. It was not important whether the shooting was accidental or deliberate while entry to the vehicle was being attempted. Although the appeal did not present a typical motor vehicle accident - a bullet, rather than a motor vehicle was the cause of the injuries the Court stated that a motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement. Injuries which do not arise from negligent use of a motor vehicle may be covered. Where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the insured person is entitled to coverage.

The two-part test applied by the Supreme Court in Amos encompasses the two tests previously developed by the Court for deciding if a person's injuries arise out of the use or operation of an automobile - the "purpose test"⁷ and the "causation test."⁸ The "purpose test" and the "causation test" were developed prior to the enactment of no-fault legislation. However, the Supreme Court felt that these tests were equally useful in the no-fault context and the words "arises out of the use or operation of an automobile" should continue to be interpreted liberally:

The no-fault character of the benefits in question does not change the interpretation of s. 79(1). No-fault means that the respondent's liability to pay benefits occurs when injury arises out of ownership, use or operation of a vehicle, regardless of the presence or absence of fault. The injury must still arise out of the ownership, use or operation. However, this does not mean that a narrow, technical interpretation is dictated.

..., while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage.

The words in s. 79(1) chosen by the legislature are broad and should be interpreted to give meaning to the legislative intention that extends coverage where some connection is found between ownership, use or operation of a vehicle and the injuries sustained as a result of an accident.⁹

Section 2 of the Schedule uses the word "causes" rather than the words "arises out of" in the definition of "accident." In Amos the Supreme Court of Canada indicated that the phrase "arises out of" was broader than "caused by", and must be interpreted in a more liberal manner. It indicated that although the phrase "arises out of" required some causal connection between the injuries suffered and ownership, use or operation of a vehicle, it did not require the direct or proximate causal connection which would be necessary to conclude that the injuries were "caused by the ownership, use or operation of the vehicle."¹⁰

Notwithstanding the use of the word "causes" in the definition of "accident" in section 2 of the Schedule, in my view, the broad approach taken by the Supreme Court in Amos, is applicable to the interpretation of the definition of "accident" in section 2 of the Schedule for two reasons. First, although the definition of "accident" in section 2 of the Schedule uses the word "causes", this word is followed by the words "directly or indirectly". I agree with the comment of Arbitrator Julaine Palmer in Nasib S. Mander and Wellington Insurance Company, September 23, 1993, OIC File No. A-002057(under appeal), that the inclusion of the words "directly or indirectly" after "causes" denotes that a direct or proximate causal connection is not required. Second, sections 266, 267.1 and 268 of the Act limit an injured person's right to maintain an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile in exchange for statutory accident benefits, regardless of fault, from his or her own insurer. Sections 266, 267.1 and 268 of the Act and the Schedule are closely meshed and meant to work together. The definition of "accident"in section 2 of the Schedule, therefore, must be read or interpreted in the context of both the Schedule and sections 266, 267.1 and 268 of the Act. The words "arising directly or indirectly from the use or operation of an automobile" in sections 266, 267.1 and 268 of the Act, which appear to be even broader than the words considered by the Supreme Court of Canada in Amos, also suggest that the definition of "accident" in section 2 of the Schedule must be interpreted broadly.

I accept the broad approach to the interpretation of "accident" in section 2 of the Schedule suggested by the Supreme Court in Amos. Accordingly, I agree with Mr. Lynam that it does not matter whether I accept the version of the incident as set out in his statement to Formosa or the version of the incident he gave in his testimony at the hearing. Under both versions, Mr. Lynam was alighting from his van when he slipped and fell. In my view, entering into and exiting from an automobile is an integral part of any ordinary and well-known activity to which the automobile can be put. I note that under Part VI of the Act dealing with Automobile Insurance, an "occupant" in respect of an automobile is defined as including a person getting into or on or getting out of or off the automobile.¹¹ I conclude therefore that the incident in which Mr. Lynam was injured on March 17, 1993 involved the use or operation of an automobile.

I also find that there was some nexus or causal relationship between Mr. Lynam's use or operation of his van and his injury. The causal connection was not merely incidental or fortuitous. Formosa argues that it was the ice on the ground which was the cause of the injury and not any use or operation of his van. However, Mr. Lynam lost his balance and fell while he was in the process of shifting his weight from the seat of the van to his feet on the ground or step board. The ice in combination with his act of exiting from the van caused the incident. In my view, the use or operation of the van in some manner contributed to the injury (ies).

My findings in this case are consistent with findings of courts faced with similar facts and interpreting similar provisions. In Fraser v. Peckham et al (supra), the plaintiff was injured while alighting from a taxi through a defective door. The door flew open and she fell from the taxi and seriously injured her right hip. The Ontario High Court of Justice held that the process of operating and using a taxi included, as far as a passenger is concerned, being carried in the taxi, entering the taxi and alighting from it.¹² In Whitehead v. Whitehead et al (supra), the plaintiff, a passenger in an automobile, got out of the automobile. She had taken no more than a step or two when she tripped over a block of wood in the driveway and fell suffering a broken hip and other injuries. The Supreme Court of British Columbia had no difficulty in accepting the proposition that "loading and unloading" of passengers was part of the use of a passenger vehicle. It found that the plaintiff was alighting from the vehicle at the instant she tripped on the block and that the purpose test was satisfied, i.e., the injuries suffered by the plaintiff arose from an ordinary activity to which an automobile is put. In both Fraser and Whitehead, the courts also held that the plaintiffs' injuries were caused by the automobile.

In this case, I conclude that Mr. Lynam was injured as a result of an accident, as defined in section 2 of the Schedule. Therefore, he is eligible for benefits under the Schedule as a result of the injury(ies) he sustained in the accident.

The issue of expenses was not addressed by the parties at the hearing of this preliminary issue. Accordingly, the issue of expenses will be determined in the arbitration hearing.

Order:

Mr. Lynam was injured in an "accident" as defined in section 2 of the Schedule. Therefore, he is eligible for benefits under the Schedule as a result of the injury(ies) he sustained in the accident.

January 18, 1996

Shemin Manji

Arbitrator

Date

SCHEDULE A - RECORD

Exhibits:

Exhibit 1

Statement of Mr. Lynam dated July 13, 1993

Exhibit 2

Application for Accident Benefits dated July 30, 1993

SCHEDULE B - AUTHORITIES

OIC decisions:

Jimmie Joe Hunt and Royal Insurance Company of Canada, October 15, 1992, OIC File No. A-000370
Gordon McAllister and Dominion of Canada General Insurance Company, December 3, 1992, OIC File No. A-000926
Nasib S. Mander and Wellington Insurance Company, September 24, 1993, OIC File No. A-002057(under appeal)
Brian C. Portch and Markel Insurance Company of Canada; Brian C. Portch and Royal Insurance Company of Canada, March 20, 1995, OIC File Nos. A-007701 and A-008360

Court decisions:

Stevenson v. Reliance Petroleum, 1956 CanLII 27 (SCC), [1956] S.C.R. 936 (S.C.C.)
Law, Union & Rock Insurance Co. Ltd. v. Moore's Taxi Ltd. (1959), D.L.R. (2d) 264 (S.C.C.)
Fraser v. Peckham et al. (1983), 1983 CanLII 1948 (ON HCJ), 42 O.R. (2d) 354 (O.H.C.)
Whitehead v. Whitehead et al, [1984] I.L.R. 1-1820 6998 (B.C.S.C.)
Omand et al. v. Disabled & Aged Regional Transit Systems (1993), 1993 CanLII 8456 (ON CTGD), 14 O.R. (3d) 52 (O.C.)(Gen.Div.)
Amos v. Insurance Corp. of British Columbia, 1993 CanLII 2787 (BC SC), [1993] I.L.R. 1-2942 2345 (B.C.S.C.)
Amos v. Insurance Corp. of British Columbia (1984), 1994 CanLII 2442 (BC CA), 3 M.V.R. (3d) 87 (B.C.C.A.)
Amos v. Insurance Corp. Of British Columbia, 1995 CanLII 66 (SCC), [1995] S.C.J. No. 74 (S.C.C.)

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term '"Schedule' will be used to refer to Regulation 672.
Exhibit 1
Exhibit 2
Testimony of Mrs. Whitney and Mrs. Lynam
Exhibit 1
See page 24 of the decision
Stevenson v. Reliance Petroleum Limited; Reliance Petroleum Limited v. Canadian General Insurance Company, 1956 CanLII 27 (SCC), [1956] S.C.R. 936
Law, Union & Rock Insurance Co. Ltd. v. Moore's Taxi Ltd. (1959), 1959 CanLII 81 (SCC), 22 D.L.R. (2d) 264 (S.C.C.)
At page 23 of the decision
At page 29 of the decision
Section 224
At page 358 of the decision

Christopher J. Lynam v. Formosa Mutual Insurance Company, 1996 ONICDRG 12

Case Summary