Cassandra Seale v. Belair Insurance Company Inc., 2002 ONFSCDRS 24

Financial Services Commission of Ontario

Neutral Citation: 2002 ONFSCDRS 24 FSCO A01-000635

Between: Cassandra Seale, Applicant and Belair Insurance Company Inc., Insurer

Decision on a Preliminary Issue

Before: William J. Renahan Heard: December 12, 2001, in Kitchener, Ontario.

Appearances: James E. Pitcher for Mrs. Seale Eric K. Grossman for Belair Insurance Company Inc.

Issues:

The Applicant, Cassandra Seale, broke her arm when she slipped and fell on an icy road on November 21, 2000. She applied for statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Belair refused to pay benefits on the grounds that Mrs. Seale's claims were not covered under the Schedule because the incident was not an "accident" within the meaning of section 2 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mrs. Seale applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Was the incident an "accident" within the meaning of subsection 2(1) of the Schedule?

Result:

1. The incident was an "accident" within the meaning of subsection 2 of the Schedule.

EVIDENCE AND ANALYSIS:

Mrs. Seale left her job at the Wellington Detention Centre in Guelph at 7:00 a.m. on November 21, 2000. She intended to drive her Chevrolet Astro van home to the town of Drayton. It had snowed the night before and crews were in the process of clearing the snow. Some sections of highway were still slick with snow and ice. Crews had not cleared the roads in Drayton. In Drayton, Mrs. Seale intended to turn right at an intersection and travel uphill towards her home. She could not get traction on the ice and she remained stuck in the middle of the intersection, facing straight ahead. She turned off the engine and called an automobile association and was told that she would have to wait 45 minutes for help. A couple of vehicles passed her stalled vehicle when a Mrs. Harwood appeared and offered to help. The two agreed that it was safer to turn the vehicle left and drive downhill so that Mrs. Seale could avoid the hill and take a longer but more level route home. Mrs. Seale got out of the vehicle and went to the rear of the vehicle with the intention of pushing if she thought it would help. Mrs. Harwood got in to drive. Mrs. Seale testified that she started the engine. In her statement to the adjuster, given two months after the incident, the adjuster wrote that Mrs. Harwood started the van. In cross-examination Mrs. Seale said she could not remember if she or Mrs. Harwood started the van. I find it likely that Mrs. Seale would have started her own van. She then got out of the van and walked to the back. She stood behind the van at the mid-point of the bumper. Before she carried through with her intention to push the van, the van moved and slowly slid sideways down the hill towards the main street of Drayton.

The sidewalk was snow-covered. Mrs. Seale testified that she walked downhill on the road as her vehicle slid. She testified that she wanted Mrs. Harwood to stop the vehicle, but that Mrs. Harwood probably did not hear her because the windows were up. She also testified that she did not remember if she was walking when the vehicle slid into a snow bank, about half way down the hill. In her signed statement, the adjuster wrote that "the van started sliding sideways down the hill and ended up sliding into a snowbank. I watched this from the top of the hill. Then I started walking towards the van when I slipped and fell...." Mrs. Seale admitted that the statement she signed indicates that she read it and that it was true, however, she testified that she only skimmed over the statement before signing it. Mrs. Seale attempted to read the handwritten version of the statement at the hearing and she had great difficulty. I accept that she skimmed over it before signing it. I also find it likely that Mrs. Seale would not have stood in the middle of the intersection and watch her vehicle slide. She was in a position of danger. The sidewalks were snow-covered and impassable. Mrs. Seale intended to get back into her vehicle and it was safer for her to follow it rather than remain in the centre of the intersection. I accept Mrs. Seale's initial testimony and find that she started to walk as her vehicle slid down the hill and that she slipped and fell on the ice after the vehicle slid into the snow bank. The vehicle slid for about 30 seconds and Mrs. Seale was outside of the vehicle before she fell for less than one minute. She did not know how far she was from her vehicle when she fell.

Under the Schedule, the insurer shall pay certain benefits to "an insured person who sustains an impairment as a result of an accident." "Accident" is defined in subsection 2(1) as follows:

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

The modern approach to statutory interpretation calls on adjudicators to interpret a legislative provision in its total context. The adjudicator's interpretation should satisfy three criteria, namely comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning.²

In Vigeyekumar v. State Farm Mutual Automobile Insurance Company, 1998 CanLII 14669 (ON CTGD), 38 O.R. (3d) 590, Molloy J. considered the definition of "accident" under the previous Bill 164³ accident benefits regime. He wrote:

The primary source for the interpretation of words used in a statute is the definition section of that statute. The purpose of a definition section is to clarify the meaning that a particular word or phrase should be given whenever it is used in the legislation. Typically, words which are specifically defined in legislation bear meanings which are, and which are meant to be different from their everyday usage. It would defeat the purpose of definition sections if the words specifically defined therein are nevertheless given their plain and ordinary meaning. That is not to say that the ordinary meaning of a defined term is wholly irrelevant or judicial interpretations of the term in other contexts should be ignored once the term is specifically defined. Such meanings and interpretations may be useful from an historical perspective to provide context for the provision or to clarify an ambiguity. However, where a term has been specifically defined in legislation, the starting point for its interpretation must be the definition section.

However, principles of interpretation do not supply easy answers as to whether Mrs. Seale was injured as a result of an "accident". As noted in Thornton v. Allstate,⁴ a leading American case, the clause "arising out of the ownership, operation, maintenance or use of a motor vehicle" has been the subject of an enormous amount of litigation.

Prior to November 1, 1996, "accident" was defined in Bill 164 as:

an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment

The removal of the word "indirectly" in Bill 59, the current Schedule, narrows the scope of coverage. However, the fact that the legislature has narrowed coverage does not by itself mean that coverage is to be construed narrowly. As stated by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia⁵ the no-fault character of benefits:

. . . . does not mean that a narrow, technical interpretation is dictated. Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer.

The starting point in considering what is an "accident" is the Amos case. The clause under consideration in that case provided benefits in respect of injury caused by an accident that "arises out of the ownership, use or operation of a vehicle." In that case, the driver was shot during the attempted highjacking of his vehicle. The Court applied a two-part test, which has become known as the purpose test and the causation test. The Ontario Court of Appeal adopted the test in the interpretation and application of the Bill 164 definition of "accident."⁶

In Saharkhiz v. Underwriters, Members of Lloyd's, London, England, 2000 CanLII 5719 (ON CA), 49 O.R. (3d) 255 the Ontario Court of Appeal considered the Bill 164 definition of "accident" but in passing noted that the current definition of "accident" significantly narrows the causation link.

In its written submissions, Belair argued that the definition of "accident" raises two questions: whether the use or operation of an automobile was involved in the incident, and if so, whether such use was the direct cause of the Applicant’s injuries.

In Amos the Court found that the purpose test was satisfied by stating:

The appellant here was driving his van down a street; the accident clearly resulted "from the ordinary well-know activities to which automobiles are put."

It seems to me that I should take care that I do not suggest the answer to the causation test by the way I phrase the question for the purpose test. The purpose test was first enunciated in Stevenson v. Reliance Petroleum Ltd. 1956 CanLII 27 (SCC), [1956] S.C.R. 936. That case involved the negligence of the driver of an insured company engaged in the distribution of oil and gas by tank truck. The driver delivered gasoline to a service station and left the faucet unattended while filling the service station tank. The gasoline overflowed, ignited and destroyed the service station. The Court found that delivery of fuel was part of the "use" of the truck.

In applying the purpose and causation tests, it seems to me that the Supreme Court has first asked whether the ordinary use or operation of a vehicle was involved in the loss and then examined the causal connection between the involvement and the loss.

This is the approach that Belair has suggested and it is an approach Arbitrator Novick has used in Petrosoniak⁷, Elensky⁸ and Waters.⁹ I agree with this approach.

Purpose test:

In oral submissions, Belair argued that the use of the vehicle had ended when Mrs. Seale fell. In my view, this argument does not address the proper question because it involves a consideration of the causation question. The only question is whether a vehicle was involved in the loss. Mrs. Seale used and operated the van at least until it became stuck on the ice and she got out of it.

Mrs. Harwood used and operated the van from at least the time she got into the van until she parked it and got out. The use or operation of the van was involved in the injury.

Causation test:

The question is, did Mrs. Seale’s or Mrs. Harwood’s use or operation of the van directly cause Mrs. Seale’s injury?

In TTC Insurance v. Correia,¹⁰ Director's Delegate Naylor considered the current Bill 59 definition of "accident" and noted direct cause does not mean the only cause or the most immediate cause. In that case, the insured suffered injuries while getting off a bus. She recovered from her injuries and was ready to return to work, but her employer required medical clearance that she was fit to return to work. In order to obtain the clearance, she underwent a functional capacities evaluation at a clinic. She was injured during the course of the evaluation and claimed further income replacement benefits. The Director’s Delegate concluded:

The arbitrator did not conclude that anything done at the clinic represented an intervening cause. She made no clear finding that the assessment involved impropriety, but even assuming a finding that clinic staff did something that ought not to have been done or should have been done differently, the evidence does not compel the conclusion that the conduct necessarily amounted to a level of mis-treatment which would interrupt the causal connection. In short, I am not satisfied that the arbitrator was wrong in law in concluding that Ms. Correia’s assessment-related injuries were sustained as a result of an accident.

In Karshe,¹¹ Arbitrator Blackman agreed with the approach of Arbitrator Novick in Petrosoniak. He quoted the following definition of "direct cause" from Black's Law Dictionary:

the active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.

Other cases dealing with definitions of "accident" which do not include loss "indirectly" caused by the involvement of a motor vehicle consider the foreseeability of the loss and whether the loss was a risk of motoring.

In Thornton,¹² the insured taxi driver was assaulted and robbed while driving his taxi cab. He had coverage for injuries "arising out of the use of a motor vehicle as a motor vehicle." In finding that his injuries were not covered, the Supreme Court of Michigan considered whether the injury was a natural and reasonable incident or consequence of the use of the vehicle and a risk associated with motoring.

In Chisolm v. Liberty Mutual Group,¹³ the insured was sitting in his vehicle when he was shot by an unknown assailant. The Ontario Superior Court of Justice considered the definition of "accident" in the current Schedule and held:

It appears to me that a criminal assault which does not take place within the context of the vehicle's ordinary and well-known use is not a risk that is sought to be protected by a motor vehicle liability policy.

The factual situation most similar to the one in this case is that of Sklar v. Saskatchewan Government Insurance Office, 1965 CanLII 388 (SK QB), 54 D.L.R. (2d) 455. The clause under consideration insured the person "against loss resulting from bodily injuries sustained by him directly, and independently of all other causes, through accidental means . . . as a result of driving, riding in or on, or operating a motor vehicle. . ."

In that case, the front end of the insured’s vehicle became stuck in a snow bank in a rural area. The insured and a passerby were unable to dig it out. The passerby left while the vehicle engine was still running and the insured returned to his vehicle. The following day the insured was found dead from carbon monoxide poisoning.

In finding that the death satisfied the definition, the Court said this:

A result is something which follows as an actual consequence. If one has a chain of causation starting with the accident, each cause the result of a preceding cause, leading up to the death, then death can be said to result solely from the primary cause. Of course, if one has intervening a cause which is not also a result of a previous cause forming part of this chain, then it is not so because one has then a new act intervening, an act which is independent of the chain of causation set up by the accident and then one could properly say that death was not the result solely of the bodily injury.

In The Language of Judges,¹⁴ the author quotes from the American jurist, Benjamin Cardozo, who wrote: "There are few rules; there are chiefly standards and degrees."

My review of the authorities leads me to the following conclusions. The question of whether the use or operation of the vehicle directly caused Mrs. Seale’s broken arm involves standards and degrees and questions of reasonableness. It involves consideration of independent intervening acts or forces. Coverage is also a question of whether the loss was a normal and reasonable risk of motoring. The definition of "accident" does not require that the injury occur while the insured has physical contact with the vehicle. The question is where to draw the line.

Mrs. Seale’s vehicle got stuck on ice. She left her vehicle to go to the back and push it if Mrs. Harwood could not move it. Before she could push, the vehicle slid down the hill into a snow bank. While returning to her vehicle so that she could continue her trip home, Mrs. Seale slipped and fell on the ice and broke her arm. Throughout this incident, Mrs. Seale maintained her intention to use her vehicle to continue her trip home. She did not abandon her vehicle. When Mrs. Seale got out of the vehicle, she expected that her trip home by vehicle was interrupted. The ice on the road was the operative force which caused Mrs. Seale to both lose control of her vehicle and to fall. The use of the vehicle and the fall occurred in the same vicinity. Mrs. Seale fell within a minute of leaving the vehicle. In my view, the injury was reasonably foreseeable in these circumstances and was not caused by an intervening act. In my view, the slip and fall in these circumstances was a normal and reasonably foreseeable risk of motoring.

The question of whether Mrs. Seale's injury was directly caused by the use or operation of her vehicle is a question of standards and degrees. In the circumstances as I have described them, I am of the view that Mrs. Seale's injury was directly caused by the use or operation of her vehicle.

EXPENSES:

I exercise my discretion to award Mrs. Seale her expenses incurred in this preliminary issue hearing.

January 31, 2002

William J. Renahan Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 24 FSCO A01-000635

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CASSANDRA SEALE Applicant

and

BELAIR INSURANCE COMPANY INC. Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Seale was injured as a result of an "accident" as defined in subsection 2(1) of the Schedule.

2. Belair Insurance Company Inc. shall pay Mrs. Seale her expenses of the hearing of the preliminary issue.

January 31, 2002

William J. Renahan Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Abdul Bapoo v. Co-operators General Insurance Company (1997), 1997 CanLII 6320 (ON CA), 36 OR (3d) 616 (CA), leave to appeal to SCC refused (1998), 1998 CanLII 3715 (ON CA), 39 OR (3d) 1.
3. 3The Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93 as amended by Ontario Regulations 781/94 and 304/98.
4. 4(1986) 391 N.W.2d (Michigan SC)
5. 5[1995] S.C.R. 405
6. 6Vijeyekumar v. State Farm Mutual Automobile Insurance Company (1999), 1999 CanLII 1640 (ON CA), 44 O.R. (3d) 545
7. 7Petrosoniak and Security National Insurance Company, (FSCO A98-000198, November 2, 1998)
8. 8Elensky and Royal and SunAlliance Insurance Company of Canada, (FSCO A00-000720, May 31, 2001)
9. 9Waters and Royal and SunAlliance Insurance Company of Canada, (FSCO A00-001143, October 18, 2001)
10. 10TTC Insurance Company Limited and Correia, (FSCO P00-00061, July 16, 2001)
11. 11Karshe and Non-Marine Underwriters,Members of Lloyd's, (FSCO A99-0008555, December 15, 2000)
12. 12Supra, see note 4.
13. 13[2001] O.J. No. 3294
14. 14Lawrence Solan, The Language of Judges (Chicago: University of Chicago Press, 1993)