Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 162

FSCO A04-001734

BETWEEN:

CLEMENTINA PINARRETA

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Rosemary Muzzi

Heard:

May 31, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tony Afecto for Mrs. Pinarreta

Fiona M. Brown for ING Insurance Company of Canada

Clementina Pinarreta, the Applicant, claims to have been injured when she stepped off a bus on April 10, 2003. She applied for statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ ING refused to pay her benefits, taking the position that her injuries were not directly caused by the use or operation of the bus, as required by the Schedule. The parties were unable to resolve their disputes through mediation, and Mrs. Pinarreta 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 Mrs. Pinarreta injured as a result of an "accident" as defined in section 2(1) of the Schedule?

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

In order for me to find that an accident occurred, I must believe Mrs. Pinarreta's account of the incident, and I must find that the incident meets the requirements for an accident as set out in the Schedule. The Schedule defines an accident as

an incident in which the use or operation of an automobile directly causes an impairment [emphasis mine] . . .

On the morning of the incident, Mrs. Pinarreta was using public transit to get to work. She left her home, close to Bathurst and Bloor streets, at approximately 7:30 a.m. and took the subway to Dufferin station to catch the Dufferin bus to take her to her place of work.

Mrs. Pinarreta contends that she fell as she was descending from the bus at her stop, at Tycos Drive, when she slipped on the snow heaped right at the bus stop. ING argues that Mrs. Pinarreta's account of the incident is not credible and that, instead, she fell while walking along the icy sidewalk some distance from where she had descended the bus. Further, and in the alternative, ING argues that even if she fell at the bus stop, because her journey on the bus had ended and her fall had been caused by the snow, her injuries were not directly caused by the use or operation of the bus and she cannot, therefore, qualify for benefits under the Schedule.

Credibility of Mrs. Pinarreta's account

Mrs. Pinarreta describes her exit from the bus in this way. When the bus stopped at the bus stop she proceeded to exit at the front doors. When the front doors opened, she noticed that there was snow in front of the doors and close to them, piled high, though she could not guess how high. In order to completely exit the bus, she had to step onto the snow. She stepped off first with her right foot and then followed with her left. Her left foot slipped sideways and she fell onto the snow. Her body fell forward and then she fell back on her behind and hit her head on the snowbank. She was adamant that she only took two steps off the bus before she slipped and fell.

She insists that there was no other place to step and that she had to step onto the snowbank in order to descend from the bus. She insists that she had not been walking on the sidewalk or road before she fell. She could not explain why the driver of the bus did not stop the bus to assist her but supposed that he did not see her. She said that the three or four passengers, who exited from the back door, did not stop to assist her. She said that they were holding on to each other and were laughing and did not stop for her.

In addition to Mrs. Pinarreta, two independent witnesses, Ms. Madalene Arruda and Mr. Cliff Claro, also provided testimony. These two witnesses spoke to the circumstances they observed when they came to offer Mrs. Pinarreta assistance after she had fallen. Ms. Arruda has worked with Mrs. Pinarreta for twenty years and was already at work when two young men came into the factory to inform her that one of the employees, i.e., Mrs. Pinarreta, had fallen and could not get off the ground. One of these young men was Mr. Claro. Ms. Arruda and other employees went to assist Mrs. Pinarreta.

ING asked me to conclude that Mrs. Pinarreta's account of the location and circumstances of her fall was not credible based on several inconsistencies or discrepancies between her testimony at this proceeding, the evidence she provided at her examination for discovery on January 30, 2004 (in a related tort action) and certain information recorded in other documents. ING argued that Mrs. Pinarreta had failed to remember certain details at her examination for discovery but had provided those same details at the arbitration hearing. The details concerned matters such as where she sat on the bus, whether it was raining or snowing, how many others exited the bus when she did.

I find that the identified discrepancies and inconsistencies are minor in nature and do not undermine the main aspects of Mrs. Pinarreta's account. Mrs. Pinarreta could not explain why she remembered at the hearing details she could not recall over a year earlier. She also admitted that her memory of the accident was not that clear at the hearing itself. Finally, she insisted that, though she could not explain why her recall varied over time, she had always told the truth to the best of her ability. I accept that Mrs. Pinarreta's recall about these details could have been compromised due to the passage of time, and I also accept that she was making best efforts to recall as much as possible at the arbitration hearing. In any event, her failure to be consistent about the details highlighted by ING, which in my view are peripheral rather than central to her claims, does not challenge the credibility of the main aspects of her account.

I am satisfied that Mrs. Pinarreta fell as she was exiting the bus. I am satisfied that she had placed both of her feet outside the bus and onto the snowbank present at the bus stop and then slipped and fell. I am satisfied about these facts because her own evidence on these details was consistent, and because the unchallenged evidence of Mr. Claro and Ms. Arruda otherwise confirms the most essential parts of Mrs. Pinarreta's account:

Mrs. Pinarreta did fall at the bus stop and not further along the road or on the sidewalk. Mr. Claro was walking east along Tycos Drive when he saw the bus on which Mrs. Pinarreta was a passenger drive up the street and stop at the bus stop. While he did not see her disembark, because he had walked past the bus, he heard the bus doors open and then he heard someone scream. When he turned around, he saw her laying on the snow bank. He said that she had fallen right where one gets off the bus. Ms. Arruda also confirmed that she found Ms. Pinarreta laying right at the bus stop on the snow bank.
The snow right at the bus stop had not been cleared and was piled high. Ms. Arruda testified that she remarked upon it to a second bus driver who came by following the incident and expressed to him a concern that one of his colleagues had dropped Mrs. Pinarreta off there. Mr. Claro indicated that the snow had not been cleared from the stop and described it as being approximately 1.5 feet high.

The fact that the bus driver did not stop to assist her and that the other passengers who exited the bus at the rear doors did not fall themselves, or come to her aid, does not cause me to disbelieve that Mrs. Pinarreta fell in close proximity to the bus stop, especially in light of the evidence of Ms. Arruda and Mr. Claro. First, as explained by Mrs. Pinarreta, the bus driver may not have seen her fall. Given that weather conditions had been bad, the incident occurred during the morning rush hour and the road conditions were treacherous, the driver might have been frazzled and distracted. Furthermore, it is conceivable that others exiting the bus might have had no interest in assisting Mrs. Pinarreta or believed that she did not require assistance.

Did Mrs. Pinarreta have an accident?

I highlight some of the significant principles that judges, and arbitrators at FSCO, have articulated as applicable in cases such as these.

The approach generally adopted by FSCO arbitrators, in part founded on principles enunciated in higher courts, is to inquire whether the ordinary use or operation of a vehicle was involved in the applicant's injury and then examine the causal connection between the use or operation of the vehicle and the injury.²

I find that there is no question in this case that the use or operation of the bus was involved in Mrs. Pinarreta's injury.

The real matter for determination is the causal connection between the use of the bus and Mrs. Pinarreta's injury. In other words, did the use or operation of the bus directly cause Mrs. Pinarreta's injuries? The following principles apply to this question:

A direct cause is defined in Black's Law Dictionary as 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. When one thinks of a direct cause, one thinks of something knocking over the first in a row of blocks after which the rest falls down without the assistance of any other act. (Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135)
Direct cause does not mean the only cause or the most immediate cause (TTC Insurance Company Limited and Correia, (FSCO P00-00061, July 16, 2001)
In some cases, intervening events may break the link of causation where those events cannot be said to be part of the normal incident of risk created by the use or operation of the automobile - if it is part of the ordinary course of things. In other cases, it is useful to ask if the use or operation of the automobile was the dominant feature of the incident. (Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135; Greenhalgh v. ING Halifax Insurance Co. Inc., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485)
Some cases consider the foreseeability of the loss and whether the loss was a risk of motoring; was the injury a natural and reasonable incident or consequence of the use of the vehicle and a risk associated with motoring. (Seale and Belair Insurance Company Inc., FSCO A01 -000635, January 31, 2002)
Factors such as time, proximity, activity and risk are relevant in determining the causal connection between the use or operation of the automobile and the loss. (Federation Insurance Company of Canada and Saad, FSCO P03-00017, January 8, 2004)
There is no requirement that an insured be in physical contact with the automobile to have been involved in an accident as defined in the Schedule.

ING argues that Mrs. Pinarreta was not involved in an accident because she got off the bus without incident and then slipped on the sidewalk. I do not accept this characterization.

Applying the relevant principles to the facts of this case, I find that Mrs. Pinarreta was involved in an accident. Mrs. Pinarreta did not get off of the bus without incident. She slipped as she was getting off the bus. Mrs. Pinarreta's use of the bus here caused an uninterrupted chain of events ending in her injuries. She was using the bus for its intended purpose - to get her from point A to her place of work (point B). Disembarking the bus was integral to its use. When she slipped, Mrs. Pinarreta was simply attempting to descend from the bus, something she needed to do in order to make use of it. The presence of the snowbank at her exit point does not qualify as an intervening act or force. Rather it is an external condition existing at the time of the incident. Furthermore, even if the snowbank was an intervening force, it would qualify as one that did not break the link of causation because surely it is part of the ordinary course of things that bus passengers will have to attempt disembarking a bus in all manner of weather conditions. Moreover, even if the snowbank at the bus stop contributed in some way to her injury, it is clear that it was not the sole cause, as the act of disembarking also caused her to slip and injure herself.

Like the arbitration cases of Seale³ (where the applicant slipped and fell on an icy road, within a minute of leaving her vehicle, and while attempting to follow it after it had begun to slide down an icy road) and Souchuk⁴ (where the applicant slipped on the road while running between her car and that of her family member who had been involved in an accident), I find that a consideration of the factors of time, proximity, activity and risk in the circumstances leads to the conclusion that Mrs. Pinarreta was injured as a result of an accident as contemplated in the Schedule. Mrs. Pinarreta slipped within mere minutes, if not seconds, of descending from the bus, right at the bus stop, engaging in an activity required by the use of the bus. Her fall, and injuries, resulting from her attempt to leave the bus were within the realm of risks associated with motoring and, in particular, with the use of a public transit vehicle.

Therefore, I conclude that Mrs. Pinarreta was involved in an accident as contemplated by the Schedule.

EXPENSES:

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

November 17, 2005

Rosemary Muzzi Arbitrator

Date