Neutral Citation: 1997 ONICDRG 213

OIC A96-001588

ONTARIO INSURANCE COMMISSION

BETWEEN:

SLOBODAN GLIGORIC

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

The Applicant, Slobodan Gligoric, was injured on February 15, 1994 when he fell as he approached his motor vehicle. He was subsequently contacted by a representative of the Insurer, who provided him with an application for accident benefits. He was advised on March 15, 1994 that he did not qualify for benefits. He did not complete the application for benefits, but filed an application for mediation on June 6, 1996. He subsequently made an application for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The Insurer submits that the application for arbitration cannot proceed as no application for accident benefits was received within the ninety days of Mr. Gligoric receiving the application form.

In addition, the Insurer submits that Mr. Gligoric was not injured as a result of an "accident" as defined in the Schedule.¹

The issues in this preliminary hearing are:

1. Is Mr. Gligoric precluded from proceeding to arbitration because of his failure to submit an application for accident benefits within ninety days of receiving the application forms?

2. Was Mr. Gligoric injured in an "accident" as defined in section 1 of the Schedule?

Result:

1. Mr. Gligoric is entitled to proceed to arbitration.

2. Mr. Gligoric was injured as a result of an "accident".

Hearing:

The hearing was held in Kitchener, Ontario, on September 4, 1997, before me, M. Guy Jones, Arbitrator.

Present at the Hearing:

Mr. Gligoric's Representative:

Peter Haney

Barrister and Solicitor

Economical Mutual's Representative:

Gordon L. Robson

Barrister and Solicitor

Witnesses:

Slobodan Gligoric Santo Carbone

Exhibits:

Four exhibits were filed.

Facts:

On February 15, 1994, the Applicant, Mr. Slobodan Gligoric, was approaching his motor vehicle in a parking lot. As he reached out with his key to unlock the door of the car with his left hand, he apparently slipped and fell on some ice, thereby injuring himself. Prior to falling, Mr. Gligoric had not yet touched the car. While he was unable to testify as to specifically how far he was from the car, he did state that he attempted to grab the side of the car to stop from falling.

Mr. Gligoric contacted his insurance broker on February 19, 1994 and met with Mr. Santo Carbone, the Branch Manager of Adjusters Canada in Kitchener on February 19, 1994. Mr. Carbone had been retained by Mr. Gligoric's Insurer, the Economical Mutual Insurance Company (the "Company") to investigate the matter.

At the meeting with Mr. Gligoric, Mr. Carbone reviewed the details of the accident with Mr. Gligoric and obtained a signed statement from him. At the hearing, Mr. Gligoric testified he did not recall if Mr. Carbone left an application for accident benefits, but concedes that Mr. Carbone might have done so. Mr. Carbone, on the other hand, distinctly recalls leaving an application for accident benefits with Mr. Gligoric. I accept Mr. Carbone's evidence in this regard and find that Mr. Gligoric was provided with an application for accident benefits on February 19, 1994.

During the meeting, Mr. Gligoric and Mr. Carbone discussed the issue as to whether or not the fall was covered by the insurance policy. It was agreed that Mr. Carbone would write the Company and determine what its position was regarding coverage and that if Mr. Gligoric did not agree with the Company's decision, he could contest the decision. The filling out of the application for accident benefits was deferred pending the outcome of the Company's decision. Mr. Carbone testified that he advised Mr. Gligoric that after the Company made a decision, if Mr. Gligoric wished, Mr. Carbone would assist him in filling out the application for accident benefits, in light of the fact that Mr. Gligoric had injured his writing hand in the accident. Mr. Gligoric, in his testimony, acknowledged that this occurred. The parties agree, however, that Mr. Carbone did not alert Mr. Gligoric to the ninety day filing period.

On March 15, 1994, Mr. Carbone wrote to Mr. Gligoric and advised him that the Company had taken the position that there was no coverage under his automobile insurance policy.

Nothing further took place with regard to the claim for accident benefits until June 6, 1996 when Mr. Gligoric filed his application for mediation regarding accident benefits.

Analysis:

Subsection 59(3) of the Schedule requires that the injured party shall submit an application for benefits to the insurer within ninety days of receiving the application forms. While it is clear from the evidence that Mr. Gligoric received the application forms on February 19, 1994, it is equally clear that Mr. Gligoric and Mr. Carbone, acting on behalf of the Company, agreed that it would not be necessary to submit the application for accident benefits until after the Company decided if there was coverage. On March 15, 1994, the Company, through Mr. Carbone, advised Mr. Gligoric that they were taking the position that Mr. Gligoric was not entitled to accident benefits. Accordingly, I find that the ninety day period did not start to run until the letter was received by Mr. Gligoric on approximately March 15, 1994.

It is clear that no application for accident benefits was received within the ninety days; indeed it was not until June 1996 when the application for mediation was filed, that the Company was aware that Mr. Gligoric was going to pursue a claim for accident benefits.

Subsection 59(4) states that a failure to comply with the ninety day provision set out in subsection 59(3) "does not disentitle a person to benefits if the person has a reasonable excuse." The Applicant has raised several factors which, he believes, offer a reasonable excuse for not complying.

First, Mr. Gligoric states that Company's reason for refusing coverage, namely that Mr. Gligoric was "not an occupant" of his motor vehicle at the time of the incident, was invalid and therefore Mr. Gligoric ought to be allowed to submit a late application. In essence, as I understand the argument, Mr. Gligoric was provided with a legally incorrect reason for denial of coverage, which he apparently accepted and this is a "reasonable excuse" for not submitting the application within ninety days.

I am unable to accept this argument. The mere fact that the Company may have misinterpreted the law does not allow the Applicant to simply ignore the notice requirement. Whether the Company's reasoning was right or wrong, the Applicant had ninety days to submit an application form and he did not.

Counsel also argued that Mr. Gligoric relied upon Mr. Carbone's advice as to whether there was policy coverage and that Mr. Gligoric held himself out as representing Mr. Gligoric's interests in this regard. Counsel pointed out that in the letter of March 15, 1994, when Mr. Carbone advised Mr. Gligoric that the Company was denying coverage, Mr. Carbone started off the letter by stating: "as you are aware we are the Insurance Adjusters representing yourself on behalf of the Economical Mutual Insurance Company."² Counsel argued that this reasonably led Mr. Gligoric to believe that he had no claim and he relied upon this document to his detriment.

While I agree that the wording of the letter is confusing, the evidence is clear that Mr. Gligoric and Mr. Carbone agreed to await the Company's decision before Mr. Gligoric would decide whether to make an application. It is also evident that Mr. Carbone made it clear to Mr. Gligoric that he could challenge the Company's decision if he wished to do so. I do not believe that the wording of the letter induced Mr. Gligoric to delay making a decision regarding the submitting of an application beyond March 15, 1994, and certainly did not delay him until June, 1996. I also note that Mr. Gligoric had a lawyer acting for him as early as April 1995 in a tort action arising from this incident, and accordingly, I am not convinced that the wording of the letter provided a reasonable excuse for the failure to submit the application for arbitration within ninety days.

Counsel for Mr. Gligoric also argued that even though Mr. Gligoric was provided with an application for accident benefits, he was not provided with any written information to assist him in applying for benefits, as required by subsection 59(2) of the Schedule which states:

The insurer shall promptly provide the person with,

(a) The appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and

(c) written information to assist the person in applying for benefits, including information to assist the person in making any possible elections.

As Mr. Carbone testified, the new accident benefits schedule had just come into effect a few months earlier, and apparently the Company had not yet prepared a written information package. Nonetheless, the evidence of both Mr. Gligoric and Mr. Carbone was that Mr. Carbone explained that the Company would make a decision regarding coverage and that Mr. Gligoric could then challenge the Company's decision, and make an application for accident benefits. It is also clear that Mr. Carbone offered assistance to Mr. Gligoric in filling out the form subsequent to the Company's decision.

I am concerned that the Company did not provide written information to assist Mr. Carbone in applying for benefits as required by paragraph 59(2)(c). The fact that the Company did not yet have a written package is not, in my view, a sufficient reason for not providing the written material. Mr. Gligoric should not be prejudiced by the Company's failure to assemble the materials in a timely manner.

While the Company did not provide the written information, it is clear, as stated above, that Mr. Carbone did attempt to explain the accident benefits schedule to Mr. Gligoric and offered to help him complete an application. He also advised Mr. Gligoric that he could contest the Company's decision. He did not, however, advise Mr. Gligoric of the requirement to submit his application for arbitration within ninety days.

While providing written information to Mr. Gligoric to assist him in applying for benefits would not have guaranteed that he would have applied within the required ninety days, it might have resulted in him complying with the time requirements. Accordingly, I find that in light of the Company's failure to provide the written information, Mr. Gligoric is entitled to submit his application despite having failed to do so within the ninety days as set out in the Schedule.

Were the injuries as a result of an "accident"?

In order to receive accident benefits, Mr. Gligoric must establish that he was injured as a result of an "accident," which is defined in section 1 of the Schedule as:

an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

The Supreme Court of Canada, in Amos vs. Insurance Corporation of British Columbia, (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618, set up a two part test to determine whether an injury was caused by an accident arising out of the ownership, use or operation of a vehicle:

1. Did the accident result from the ordinary and well-known activities to which vehicles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the injuries 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?

It is to be noted that the wording in issue in the Amos decision was somewhat different than that used in the definition of "accident" in this case. In Amos, the Supreme Court dealt with the phrase "arises out of the ownership, use or operation of an automobile." In this case, section 1.1 of the Schedule states that an accident "means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment..."

The difference in the wording has been examined by numerous arbitrators.³ I agree with Arbitrator Manji's comments in Lynam and Formosa Mutual Insurance Company (January 18, 1996), OIC A-010990, wherein she states:

not withstanding 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....

Arbitrator Manji dealt with an incident which occurred under an earlier Schedule, where the definition of "accident" is somewhat different. Nonetheless I find her reasoning compelling and applicable to this case, and I also adopt the test set out in Amos.

Turning then to the first question raised in Amos, did this accident result from an ordinary and well-known activity of a vehicle? Other arbitrators have examined similar fact situations.

In Lynam, the Applicant was exiting his motor vehicle when his feet slipped on ice which was either on his sideboard or on the ground. Arbitrator Manji held that the Applicant was entitled to benefits, and noted that:

in my view entering into and exiting from an automobile is an integral part of any ordinary and well-known activity to which an automobile can be put.

In Ribeiro and Guarantee Company of North America (October 24, 1996), OIC A95-000369, the arbitrator awarded benefits where the Applicant fell on ice while getting off a bus.

In this case, I find that Mr. Gligoric fell while approaching the driver's door of his car. While Mr. Gligoric could not specify his distance from the door at the moment he fell, he stated that he had extended his arm, key in hand, and was about to insert the key into the lock.

I find that attempting to unlock a car door is an ordinary and well-known activity to which an automobile can be put. I therefore conclude that Mr. Gligoric has satisfied the first part of the Amos test.

Turning to the second part of the test, the question is whether there was some nexus or causal relationship between Mr. Gligoric's use or operation of his vehicle and the injury. Counsel for the Insurer argued that since there was no evidence that Mr. Gligoric was leaning over and thereby slipped on the ice, he did not meet the second part of the test.

I disagree. Mr. Gligoric had to cross over the ice to approach the driver's door, and he fell while attempting to open the lock. Though there is no evidence that he actually shifted his weight as he slipped, there is evidence that he was putting out his arm and thereby moving his body to open the vehicle. The ice, in combination with Mr. Gligoric attempting to enter his vehicle caused the incident which directly or indirectly caused his injuries.

In light of the above, I find that Mr. Gligoric was injured as a result of an "accident" as defined in the Schedule.

Expenses:

In the circumstances, I exercise my discretion and award the Applicant his expenses of the arbitration proceeding.

Order:

1. Mr. Gligoric is not precluded from claiming statutory accident benefits because he failed to submit an application for benefits within ninety days of receiving the application forms.

2. Mr. Gligoric was injured in an "accident" as defined in section 1 of the Schedule. Accordingly, he is eligible for benefits under the Schedule.

December 19, 1997

M. Guy Jones Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 781/94.
2. 2See Exhibit 2
3. 3See: Ekunah and Simcoe & Erie Insurance Company (April 22, 1996), OIC P-007550; Vineski and Federation Insurance Company (October 18, 1996), OIC P96-000034.