Janice A. Shantz v. Dominion of Canada General Insurance Company, 2002 ONFSCDRS 66

Neutral Citation: 2002 ONFSCDRS 66

FSCO A01-001147

BETWEEN:

JANICE A. SHANTZ

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Catherine Skinner

Heard: By written submissions. Written submissions were received on March 18, 2002. Additional submissions were received on April 12, 2002.

Appearances:

Eric D. Zeldin for Ms. Shantz

Christopher J. Schnarr for Dominion of Canada General Insurance Company

Issues:

Janice Shantz was injured in an incident on October 12, 2000 and applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion did not pay Ms. Shantz any accident benefits because it disagreed that she had been involved in an accident. The parties were unable to resolve their disputes through mediation, and Ms. Shantz 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:

Was Ms. Shantz injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Result:

Ms. Shantz was injured as a result of an "accident" as defined in section 2(1) of the Schedule.

EVIDENCE:

The facts in this case are found in Ms. Shantz's written statement, the police report and the disability certificate. The facts are undisputed.

This incident occurred near the entrance of the parking garage at Ms. Shantz's apartment building. The garage door is at the bottom of a sloped driveway. A person wishing to enter the garage must use the key box, located at the top of the slope, to open the garage door.

On October 12, 2000, at approximately 9:00 p.m., Ms. Shantz drove her car towards the parking garage. As she approached the key box, she found that she was too far away to reach it without stepping out of her car. Ms. Shantz shifted her car into park, took off her seat belt and stepped out of the car. Her car door remained open and the motor was left running.

As Ms. Shantz put her key in the key box, her car began to roll down the sloped driveway towards the garage door. She followed the car down the ramp in an effort to get back into it and stop it from rolling further. As the car hit the centre wall at the bottom of the driveway, Ms. Shantz tripped and fell forward onto the ground. She was beside the driver's side door of the car when she fell, but not in contact with the car. As a result of her fall, Ms. Shantz sustained injuries to her face, hands, shoulders, elbows and knees.

ANALYSIS:

As the applicant, Ms. Shantz bears the burden of proving that an "accident" occurred, as the term is defined in Section 2 of the Schedule. The definition reads in part as follows:

(1) In this regulation,

"accident" means an incident in which the use or operation of an automobile directly causes an impairment...

To conclude that Ms. Shantz was injured in an "accident" as defined, I must find the use or operation of her automobile directly caused her an impairment. There is no dispute that Ms. Shantz suffered an impairment as a result of the incident on October 12, 2000.

Ms. Shantz was using and operating her vehicle as she drove up to the key box at the top of the ramp. She stopped her automobile and stepped out. Ms. Shantz fell on the concrete pavement of the ramp as she pursued her car down the ramp in an effort to regain control. She sustained significant injuries. Dominion submits that it is impossible to characterize Ms. Shantz's pursuit of the automobile down the ramp as an ordinary and well known use of the vehicle. I find, however, that there is nothing extraordinary in a person attempting to stop her car as it is rolling away. Ms. Shantz was attempting to take action to prevent the automobile from colliding with the wall at the bottom of the ramp.

Driving, stopping and attempting to regain control of a vehicle are ordinary and well known activities to which automobiles are put. I find that the use and operation of the automobile were involved in this incident.

The issue is therefore whether there is a sufficient nexus between the use and operation of the automobile and Ms. Shantz's injuries to justify a conclusion that such use and operation of the automobile directly caused her impairment.

In Petrosoniak², Arbitrator Novick considered the definition of "accident" as set out in the current Schedule. Referring to the definitions of the words "direct" and "direct cause" in Black's Law Dictionary, Arbitrator Novick summarizes her conclusion with respect to direct causation in the following terms:

...a series of events can be the direct cause of an incident, as long as there is no intervening agency or act. Consequently, if an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly "caused by" the incident.

I agree with Arbitrator Novick's conclusions in this regard. Applying this reasoning to this case, I must examine the chain of events ending with Ms. Shantz's injuries and determine what set off the chain of events and whether there was an intervening force or event which interrupted that chain of events and caused her injuries.

In considering what constitutes an intervening force or event, I find the comments of the Saskatchewan Court of Queen's Bench in Sklar v. Saskatchewan³ to be instructive. In that case, the Court was considering whether an accidental death by carbon monoxide poisoning was "a loss resulting from bodily injuries sustained directly and independently of all other causes, through accidental means...as a result of driving, riding in or on, or operating a motor vehicle..." On the question of whether the chain of events had been interrupted by an intervening act, the Court commented as follows:

..if one has intervening a cause which is not also a result of a previous cause forming part of this chain, then...one has then a new act intervening, an act which is independent of the chain of causation set up by the accident...

The question before me therefore is whether Ms. Shantz's injuries resulted from an uninterrupted chain of events which began with the use and operation of her automobile, or whether they were the result of an intervening act, independent of the chain of causation set up by the automobile.

I find that the chain of events began with Ms. Shantz driving her car to the top of the ramp. The vehicle was too far from the key box so Ms. Shantz stopped the car and stepped out without turning off her engine. She left the car door open. As she put her key in the key box, the car began to roll down the ramp and Ms. Shantz followed it down the ramp. During her pursuit of the car, Ms. Shantz fell down onto the ground. It is undisputed that she was beside the driver's side door of the car when she fell.

Dominion submits that the use of the key box, the exit from the car, and the contact between Ms. Shantz's body and the concrete pavement of the ramp are all intervening factors which resulted in her injuries. I disagree. I find that these are not independent factors, but rather that each one of these steps results from the previous step in an uninterrupted chain of events beginning with Ms. Shantz driving her car to the top of the ramp and ending with her falling to the ground. I heard no evidence that Ms. Shantz fell because of an obstruction on the ramp or any other external object or force interfering with her movement. I infer from the facts that Ms. Shantz was pursuing her car down the ramp and concentrating her efforts on stopping the car. As a result, she lost her footing and tripped and fell.

I find that the movement of the automobile played an instrumental role in the chain of events leading to Ms. Shantz's injuries. I therefore find that the use and operation of the automobile directly caused her impairment.

In its submissions, the Insurer refers to Arbitrator Blackman's decision in Karshe and Non Marine Underwriters, Members of Lloyd's⁴", Arbitrator Sampliner's decision in Sarkisian and Cooperators⁵, and Arbitrator Sandomirsky's decision in Kumar and Coachman.⁶ In each of these cases, the arbitrators found that no accident occurred.

In Karshe, the applicant was struck in the face by a passenger after having exited his taxi-cab. In that case, Arbitrator Blackman concluded that:

Mr. Karshe's injuries were only sustained upon intervention of a force starting and working actively from a new and independent source other than an automobile, namely brass knuckles being applied by passenger #1 against the left side of Mr. Karshe's face...the use or operation of his taxi-cab was not the efficient, predominate or direct cause of his impairment.

In Sarkisian, the applicant had been found dead near his automobile. The cause of death was a single gunshot wound. Arbitrator Sampliner found that:

...the car did not play a direct instrumental role in the chain of events leading to Mr. Sarkisian's death. Mr. Sarkisian's replacement of windshield fluid put him at the site of his car, but his vehicle played no role in his death or in any force giving rise to his death. ...the direct and intervening instrument or cause of Mr. Sarkisian's death was the gunshot.

In Kumar, the applicant was injured while operating a taxi-cab. A passenger struck him on the head with a hard object. Arbitrator Sandomirsky concluded that:

...there was in intervening act in this case — the impact of the rock on Mr. Kumar's head and hand — and it was that intervening act that directly caused the impairment.

This case can be distinguished on its facts from the decisions in Karshe, Sarkisian and Kumar. In each of those cases, an assault perpetrated on the applicant was found to be the direct cause of impairment. In this case, Ms. Shantz was injured as she fell to the ground while trying to recover control of her vehicle. Although Ms. Shantz was not injured as a result of direct contact with her automobile, the use and operation of the automobile gave rise to a chain of events which directly resulted in her injuries. I do not accept Dominion’s submission that the concrete pavement on the ramp was an intervening cause. The presence of the concrete pavement on the ramp does not, in my view, represent an active intervening force which interrupted the chain of events precipitated by the use and operation of the automobile.

In his recent decision in Seale and Belair Insurance Company Inc.,⁷ Arbitrator Renahan found that there was an accident as defined in the Schedule in very similar circumstances to those in this case. In Seale, the applicant got out of her van with the intention of pushing it down a hill. Before she pushed the van, it began to roll down the hill. As she walked after the van, Mrs. Seale slipped on the icy road and broke her arm.

In concluding that Mrs. Seale’s injuries were not caused by an intervening act, Arbitrator Renahan emphasized, among other factors, the applicant’s intention to continue using her vehicle for the trip home and the fact that the use of the vehicle and the applicant's fall occurred in the same vicinity. In Ms. Shantz's case, it is apparent that she intended to proceed in her car into the garage. She left the car door open as she stepped out to use the key box. Ms. Shantz was following the automobile down the ramp in an effort to regain control of it when she fell. The location of her fall is noted as being "just beside the driver's door." I am persuaded that the use and operation of Ms. Shantz's automobile and her attempts to regain control of her automobile are integral to the sequence of events resulting in her injuries.

To conclude, I find that this incident involved the use and operation of an automobile which directly caused Ms. Shantz's impairment. Accordingly, Ms. Shantz was injured as a result of an "accident" as defined in Section 2 of the Schedule.

EXPENSES:

Ms. Shantz has succeeded in this preliminary issue hearing. I exercise my discretion to award Ms. Shantz her expenses in this preliminary issue hearing. If the parties are unable to agree on the amount of expenses, they may apply to re-open the hearing to make submissions on that issue.

May 13, 2002

Catherine Skinner

Arbitrator

Date