Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2004 ONFSCDRS 3

Appeal P03-00017

OFFICE OF THE DIRECTOR OF ARBITRATIONS

FEDERATION INSURANCE COMPANY OF CANADA

Appellant

and

BADREDDINE SAAD

Respondent

Before:

David R. Draper

Representatives:

Mark K. Habib for Mr. Saad

Pasquale Peloso for Federation

Hearing Date:

July 14, 2003, with additional written submissions filed in October 2003.

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitration order, dated April 24, 2003, is confirmed.
If the parties cannot agree on appeal expenses, they may request a determination of this issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.

January 8, 2004

David R. Draper Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal involves the definition of “accident” in the 1996 version of the SABS — “an incident in which the use or operation of an automobile directly causes an impairment . . .”¹ It is being released with three other decisions that consider this definition in different fact situations.² In this case, Badreddine Saad was injured when he fell as he approached his automobile after filling one of the tires with air. The Arbitrator concluded this was an accident. The Insurer, Federation Insurance Company of Canada (“Federation”), appeals. For reasons set out below, the appeal is dismissed.

II. BACKGROUND

The relevant facts, as found by the Arbitrator, can be stated briefly. On January 24, 2002, Mr. Saad was returning home at 3:00 a.m. after visiting his uncle. The driving conditions were good, but he was concerned that his car seemed unbalanced. He decided to stop for gas at a Petro-Canada station near his home and check his tires. After he filled his tank and paid for the gas, Mr. Saad moved his car over to the air hose. He parked three to four feet from the curb, leaving his car running. He walked five to seven feet on icy ground to get the air hose. After filling his tires, he returned the air hose and started to walk back to his car. When he got “very near to his car,” he fell. He was sufficiently close to the car, that his feet ended up under it.

Mr. Saad described such intense pain in his upper back and neck that he screamed. The attendant in the gas station kiosk heard the screams and came running. He gave Mr. Saad his jacket and called an ambulance. The ambulance report described Mr. Saad as being found lying partly on the elevated curb on his back with no loss of consciousness. He was taken to hospital, where x-rays were done. He could not move his left arm, left leg or neck. He was in hospital for about five days and was discharged with medication.

The preliminary issue before the Arbitrator was whether Mr. Saad was involved in an accident, as defined in the SABS-1996. To decide this issue, the Arbitrator asked “whether his [Mr. Saad’s] injuries resulted from an uninterrupted chain of events which began with the use and operation of his automobile, or whether they resulted from an intervening act, independent of the chain of causation created by the automobile.”

In considering the facts of the case before her, the Arbitrator found that this was an “interrupted journey” case, as discussed by Director’s Delegate Makepeace in Seale and Belair Insurance Company Inc., (FSCO P02-00005, January 28, 2003). While it did not present the kind of emergency situation seen in Seale and Shantz and Dominion of Canada General Insurance Company, (FSCO A01-001147, May 13, 2002), the Arbitrator concluded there was a sufficient nexus between Mr. Saad’s use or operation of his automobile and his impairment, uninterrupted by any new, intervening act, to satisfy the definition of accident. Her reasons follow:

As in the Seale and Shantz cases, Mr. Saad was not in his vehicle, alighting from it, or touching it when he fell. He was not struck by another vehicle. Federation submits that the ice was an “intervening cause”. While I agree that the ultimate question under the Schedule is whether the use or operation of an automobile directly caused damage or injury, in my view, Mr. Saad’s injuries were not independent of the chain of events.

In Seale, Director’s Delegate Makepeace offers useful guidance for this case. She stated that the factors of time, proximity, activityand risk are important in definingthe incident that resulted in the injury. She goes on to say: “It is clear that ‘direct cause’ need not be the only cause, that physical contact withan automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is ‘part of the ordinary course of things.’ “

Mr. Saad was travelling home and engaging in ordinary and well-known activities involving the use and operation of a motor vehicle which directly caused his accident. The time, proximity, activityand risk witha subsequent contributing cause have not broken the chain of causation. As has been held in the past, direct cause does not mean the only cause or the most immediate cause. There was a sufficient nexus in this case between the use and operation of a motor vehicle with an unbroken chain of events.

Mr. Saad’s fall occurred when he was engaged in an ordinary activityof filling his car with gasoline and then his tires with air. He did all of the usual things when he noticed that his tire had lost air. He fell because the pavement was icy, but the icy pavement, in my view, was a subsequent contributing cause whichdid not break the link in the chain of causation. I find that the use or operation of an automobile was the dominant feature of the incident. Therefore, Mr. Saad was injured as a result of an “accident” as defined in section 2(1) of the Schedule. (pp. 6-7)

Federation contends that the Arbitrator erred in her interpretation of “accident,” particularly the requirement of a direct causal connection between the use or operation of the automobile and the impairment. In its submission, this was a “slip and fall” case, with the use or operation of the automobile playing no more than an incidental role. Applying the analysis in Chisholm, Federation submits that:

a) Putting air into his tires did not knock over the “row of blocks” which led to the Insured’s injuries, without the assistance of any other act. The presence of the icy conditions was the start of the chain of events that led to the Insured’s injuries. Thus, it cannot be said that the use or operation of the car directly caused the Insured’s injuries;

b) An external force, the ice, came into active operation after the Insured replaced the air hose. The Insured’s left foot slipped as he placed it on the icy pavement;

c) Slipping on ice was a later intervening act, independent of putting air in his tire;

d) While bringing his vehicle to the air pump may have been a train of events, that train was interrupted by the icy conditions which were an intervening force that started and worked actively from a new and independent source. The icy conditions were completely unrelated to the use or operation of his vehicle; and

e) The presence of the motor vehicle was not a dominant feature of the insured’s claim. The dominant feature was the fact that he slipped and fell on ice and injured himself. The use or operation of his car was at best ancillary — it brought him to the icy pavement, but did not constitute the true nature of the Insured’s claim, which was a slip and fall on the occupier’s premises.

Mr. Saad relies on the Arbitrator’s decision. In his submission, she determined the relevant facts and properly applied the law to those facts. The ice, he argues, was not a new, intervening event, as Federation contends, but a passive factor that was present throughout his particular use of the automobile — filling the tire with air. Further, the presence of ice on a roadway or parking lot is a common occurrence in relation to the use or operation of an automobile that is part of the risk covered by automobile insurance.

III. ANALYSIS

The scope of “accident” continues to present difficult issues. The jurisprudence is extensive, with many court and arbitration decisions interpreting different definitions in different contexts. The definition in the SABS-1996 is used to determine entitlement. This distinguishes it from the cases dealing with policies that exclude coverage for automobile accidents. Also, accident benefits are paid on a no-fault basis. Consequently, the focus is on the connection between the use or operation of an automobile and the impairment, not whether there is a tortfeasor responsible for the injured person’s losses.

In Seale, Director’s Delegate Makepeace carefully reviewed the “accident” decisions in the context of the SABS-1996. I accept her analysis and, importantly, so did the Arbitrator. While the ultimate issue is whether the use or operation of the automobile directly caused the impairment, I am not persuaded the required connection can be read as narrowly as Federation suggests. Consider the driver who loses control of his vehicle and crashes. The insurer cannot avoid paying accident benefits by showing that the accident was caused by ice on the road, or some other road hazard. It is also irrelevant whether the hazard was due to negligence, or that the driver could have avoided it. To find otherwise would largely undermine the purpose of first-party accident benefits.³

The complication is that the SABS-1996 covers more than the risks created by moving vehicles.

The “use or operation” part of the definition is not new, and extends well beyond driving. As discussed in Seale, it has been interpreted to include getting in and out of a vehicle, loading, unloading and delivering cargo, fuel delivery, changing a tire, and repair and maintenance. Therefore, accident benefits are payable in respect of any impairment directly caused by these uses or operations. This means that the decision-maker must determine the use or operation of the automobile, identify the impairment, and decide whether that use or operation directly caused the impairment.

This test is easily stated, but difficult to apply. Causation is an elusive concept. Although Chisholm provides important guidance, each case will turn on its particular facts. I agree with Director’s Delegate Makepeace that the decisions, including Chisholm, reflect a common sense focus on the nature of the risk covered by automobile insurance, and that various factors are relevant in evaluating the connection between the use or operation of the automobile and the impairment — time, proximity, activity and risk.⁴

This case, as many others, involved a line drawing exercise — does this scenario fall within coverage or not? The Arbitrator found that Mr. Saad’s use or operation of the automobile continued throughout. He drove the car to the gas station, filled it with gas, and then drove to the air pump. He used the air hose to fill one of the tires with air, an activity that the Arbitrator found was a use or operation of the automobile. Finally, she found that Mr. Saad’s use or operation of the automobile did not end when he hung up the air hose and made the short walk back toward his car, intending to drive home. Although his impairment resulted when he slipped on the icy surface, the Arbitrator concluded this was not a new, intervening event that broke the chain of causation between Mr. Saad’s use or operation of the automobile and his injuries. This result, while it may have been close to the line, was within the Arbitrator’s authority. I find no error of law.

IV. APPEAL EXPENSES

The parties did not address the question of appeal expenses. If they are unable to reach an agreement, they may request a determination of this issue by writing to the Commission within 30 days of this order, as set out in Rule 79.1 of the Dispute Resolution Practice Code.