Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2008 ONFSCDRS 180

Appeal P08-00015

WAWANESA MUTUAL INSURANCE COMPANY Appellant

and

VICTORIA COOPER Respondent

BEFORE: Delegate Lawrence Blackman

REPRESENTATIVES: Mr. Aldo E. Picchetti for Wawanesa Mutual Insurance Company Ms. Angela L. Currie for Victoria Cooper

HEARING DATE: October 29, 2008

APPEAL ORDER

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

The Arbitrator’s decision dated February 14, 2008 is confirmed and the appeal is dismissed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003).

November 7, 2008

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The Respondent, Ms. Victoria Cooper, was injured in an incident on February 22, 2006. She applied to her first-party automobile insurer, Wawanesa Mutual Insurance Company (the “Appellant”), for statutory accident benefits payable under the Schedule.¹

The Appellant denied the Respondent’s claim, arguing that her injuries did not result from a motor vehicle accident as the term “accident” is defined in subsection 2(1) of the Schedule. In her February 14, 2008 preliminary issue decision, Arbitrator Miller (the “Arbitrator”) held that the Respondent was injured as a result of an “accident” as defined in the Schedule.

The Respondent’s evidence at arbitration was that she was a pedestrian crossing on a green light at a normal walking pace. When she reached the second lane of traffic, she heard the siren of a fire vehicle and felt petrified. She saw the fire vehicle, approximately ten cars away, move into the third lane, travelling in the opposite direction to traffic. After halting a second to decide what to do, the Respondent decided to quicken her pace to move across the road. Other pedestrians were also hurrying, one person behind her running past her. When the Respondent reached the fourth lane, she found herself airborne and fell into a steel pole at the curb. The time between when she heard the siren and when she fell was a matter of seconds. The roadway where she fell was clear. An ambulance took the Respondent to hospital.

The Arbitrator found the Respondent to be a credible and reliable witness, who provided her testimony in a detailed and straightforward manner without any inconsistencies or discrepancies, even of a minor nature. The Arbitrator made the following findings of fact based on the evidence of the Respondent, who was the only witness at the arbitration hearing:

the Respondent began to cross the street at a normal pace;
the sudden sound of the siren of a fire vehicle frightened her and caused her to increase her pace and hurry across the road to get out of the way of the oncoming fire truck;
the Respondent fell a matter of seconds after she heard the fire vehicle siren and saw the vehicle move into the third lane of traffic; and
it was a bright sunny day and the roadway was clear.

The Arbitrator noted that subsection 2(1) of the Schedule defines “accident” as “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.” Prior to November 1, 1996, the definition included impairments caused indirectly or directly by the use or operation of an automobile.

The Arbitrator also noted the arbitration decision in Petrosoniak and Security National Insurance Company, (FSCO A98-000198, November 2, 1998), which adopted the definition of “direct cause” 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” (emphasis in the original).

Citing specifically Petrosoniak and the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] 60 O.R. (3d) 776, the Arbitrator held that the use and operation of the fire vehicle was the dominant feature in this incident and the direct cause of the Respondent’s injuries. The use and operation of the vehicle, namely the sound of the siren and the fire vehicle racing down the third lane of the street, set in motion a train of events which forced the Respondent to take evasive action to get out of the way of the oncoming fire vehicle. This action, the quickening of her pace, resulted in her fall. The Arbitrator found that there was no evidence of any intervening factor that broke this chain of events.

The Arbitrator found that it has been held that an incident could be an accident, as defined, even though there was no direct physical contact with a motor vehicle by the person who was injured in a slip and fall where it is shown that the use or operation of a motor vehicle directly caused the slip and fall. The Arbitrator cited Chisholm that a direct cause does not mean the only cause or the most immediate cause and that there could be more than one direct cause of one’s injuries and that one of the direct causes must be the use or operation of a motor vehicle.

II. THE APPELLANT’S SUBMISSIONS

Citing the two-part test in Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, (as amended to take into account the more restricted definition of “accident” in the Schedule), the Appellant submits that there are two questions to be answered in this preliminary issue. First, did the Respondent’s impairment result from the ordinary and well-known activities to which automobiles are put. Second, if the answer to the first question is in the affirmative, did such use or operation directly cause an impairment. It is not disputed, for the purposes of this preliminary issue, that the Respondent suffered an impairment as a result of her fall.

The Appellant accepts the Arbitrator’s finding of facts. However, the Appellant submits that the Arbitrator erred in law in finding that there was an unbroken chain of events leading to the Respondent’s injuries such that the use or operation of a motor vehicle directly caused the Respondent’s slip and fall injury and that this incident constituted an “accident” as defined in subsection 2(1) of the Schedule.

Regarding the first part of the two-part Amos test, the Appellant submits that the Respondent did not meet the “purpose test,” that the incident did not “result from the ordinary and well-known activities to which automobiles are put.”

The Appellant submits that the incident must involve an automobile from the outset. The Respondent was neither operating nor in a vehicle, nor did she come into contact with a vehicle. In this case, the incident was initiated by the Respondent walking across the street and subsequently falling. Walking across the street does not result from the ordinary or well-known activities to which automobiles are put. As no vehicle was ever involved in this incident, the Respondent being ten cars from the fire vehicle when she heard the siren, there is no basis for the purpose test having been met.

The Appellant cites the Ontario Court of Appeal decision in Greenhalgh and ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), [2004] 72 O.R. (3d) 338, that “the common denominator in any situation falling under automobile insurance legislation is a situation wherein a car was put to use in an ordinary way … Neither insurance companies nor the insured would expect coverage to extend

to any and every use to which a car may be put, no matter how unforeseen or unprecedented.”

The Appellant submits that the incident in question is not an activity, situation or risk that could possibly have been contemplated by the parties to be covered under the motor vehicle liability policy when they entered into the insurance contract. It was not foreseeable that the Appellant would be liable to cover an impairment resulting from the Respondent tripping and falling into a pole without the direct involvement of a vehicle as opposed, for instance, to her having to dive out of the way on an oncoming automobile.

Further, and in the alternative, the Appellant relies on the second part of the two-part test, that it was not the use or operation of the automobile that directly caused the Respondent to fall. The siren would have been a direct cause if the Respondent had immediately fallen. Here, the Respondent had moved out of the zone of danger when she fell, the fire vehicle being able to safely stop without hitting her. The dominant feature in this incident was the Respondent tripping and falling over her own feet, as people sometimes do, once she had gotten out of the way of the fire vehicle.

Citing Chisholm, as well as the Supreme Court of Canada in both Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] S.C.J. No. 46 and Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, [2007] S.C.J. No. 47, the Appellant submits that the scope of what constitutes an accident has been narrowed to direct causation. As stated in Alchimowicz v. Continental Insurance Co. of Canada, 1996 CanLII 1313 (ON CA), [1996] O.J. No. 2989, “it must be remembered that this is automobile legislation.”

The Appellant submits that this case is comparable to the factual situation in Greenhalgh (travelling on foot) and the slip and fall accident in Mahadan and Co-operators General Insurance Co., (FSCO A00-000489, March 15, 2001). In both cases, it was found that the insured person had not been injured as a direct result of an accident, as defined.

The Appellant further argues that even if a motor vehicle did initiate the incident, intervening acts and/or the remoteness of any subsequent injury disqualify the incident from being deemed an accident. The Appellant had argued at arbitration that any injury in this case was not directly caused by the use or operation of the fire vehicle as her actions (walking with a dog and her unusual and irregular reaction), the passage of time elapsing between the initial sounding of the siren and the fall (which suggested that the reaction did not run with the normal course of events) and possible poor road conditions constituted intervening acts and the Respondent’s subsequent fall was too remote to be considered directly caused by the sound of the fire vehicle’s siren.

In summary, the Appellant submits that the focus, dominant feature or main part of the Respondent’s action was walking across the street and tripping. The fire vehicle was merely ancillary. Perhaps, indirectly, the Respondent was trying to get out of the way of the fire vehicle, but the direct cause of her injury was tripping over her own feet. The chain of causation between the Respondent being startled and her falling was broken by the intervening event of the Respondent getting out of the danger zone.

III. THE RESPONDENT’S SUBMISSIONS

The Respondent submits that the Arbitrator did not err in law and that there is no basis to overturn her decision as:

The decision is highly fact specific, is supported by the evidence and is consistent with the case law of the Commission and other jurisprudence.
There is sufficient evidence supporting an unbroken chain of events from the use or operation of the motor vehicle to the Respondent’s injuries and that the fire vehicle played a dominant role in that chain of events. There is no requirement that the insured person must come into actual physical contact with a motor vehicle.
The Appellant’s “description of the incident almost assumes that the incident occurred in a vacuum and provides a skewed and extremely narrow view of the situation that is devoid of any of the relevant surrounding circumstances which [the Arbitrator] found as facts during the hearing of the preliminary issue. It is almost akin to suggesting that a pedestrian who is struck by a motor vehicle is not involved in a motor vehicle accident as the incident was initiated by the act of the pedestrian walking.” This is not a case of a pedestrian simply walking somewhere and falling.
An emergency vehicle driving on the roadway and using its siren are ordinary and well- known activities for such a vehicle and, hence, meet the “purpose” test. A person trying to get out of the way of an emergency vehicle is a very foreseeable risk.
In this case there was an unbroken, logical and sequential chain of events, contemporaneous in time and place, involving the fire vehicle as a dominant feature which led to the Respondent’s injuries without the intervention of any force from a new and independent source. Here, the Respondent tripped because she was rushing. She was rushing because of the oncoming fire vehicle. When she tripped, the Respondent was still on the roadway and still in the danger zone.

Greenhalgh is distinguishable on the facts, as there were a number of intervening factors involving both time and space in that case, including the development of frostbite from nine hours of exposure. In Mahadan there was a separate and intervening cause for the insured’s fall, namely, a crack in the pavement. Here, there is no evidence of such a defect in the pavement.

There are a number of arbitration decisions after the 1996 legislative change restricting “accident” to direct causation which support a definition “outside the scope of the ‘traditional’ conception of a motor vehicle accident which is normally thought of as a collision between two vehicles.” In Ash and Wawanesa Mutual Insurance Company, (FSCO A05-001372, August 11, 2006) a bicyclist was distracted by a barking dog and hit a motor vehicle. In Eccleston and Guarantee Company of North America, (FSCO A04-000759, November 3, 2004) the applicant felt intimidated by an oncoming bus and stepped onto a pedestrian island where she slipped on a mound of ice and snow. In both cases it was found that the insured person was injured in an accident, as defined.

IV. ANALYSIS

Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I. 8, restricts appeals from the order of

an arbitrator to questions of law. Both parties agree that the Arbitrator did not err in law in her compilation of the following principles taken from numerous court and arbitration decisions:

The use or operation of a motor vehicle must directly cause the impairment;
A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act;
The motor vehicle need not come into direct physical contact with the accident victim;
The role played by the motor vehicle must be more than just the location, opportunity or motive;
The motor vehicle must be a dominant feature in the incident, and not ancillary to it;
Time, proximity, activity and risk are factors that are relevant in determining the causal connection between the use or operation of the automobile and the loss; and,
The injury must be a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.

Both parties also accept the Arbitrator’s findings of fact. The essence of Appellant’s case is the application of these principles to the facts as found.

The only principle enunciated by the Arbitrator with which the Appellant disagreed was the Arbitrator’s further statement, taken from Chisholm, that direct cause does not mean the only cause or the most immediate cause, that there can be more than one direct cause of a victim’s injuries and one of the direct causes must be the use or operation of a motor vehicle. The Appellant submitted that subsequent cases have narrowed this view and that now the direct cause must be the most immediate cause; otherwise, there is a break in causation.

Chisholm dealt with an April 1999 incident, that is, after the legislative change restricting causation. In addressing the question of direct causation, the Court stated that “[c]onceivably road accidents may occur where there is more than one direct cause of a victim’s injuries and one of the direct causes is the use or operation of an automobile.”

Far from disagreeing with Chisholm, the subsequent Court of Appeal decision in Greenhalgh (which pertained to a 2002 incident and is a decision upon which the Appellant significantly relies), follows what it terms, at paragraph 50, “the Chisholm causation test.” Earlier, at paragraph 36, the Court sets out the following two questions arising from the “Chisholm test:”

Was the use or operation of the vehicle a cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?

I note that the Court refers to “a” cause of the injuries, not “the” cause of the injuries.

I agree with the Respondent that this case was highly fact specific. I further agree that the facts, as found by the Arbitrator and which are not disputed, support the Arbitrator’s finding that the fire vehicle led to an unbroken chain of events culminating in the Respondent’s injury and that the use and operation of the fire vehicle was the dominant feature in this incident, without a later intervening act.

The case law² is clear regarding the present, more restricted, definition of accident that it is not a pre-requisite that a vehicle come into actual physical contact with the insured person for there to be an accident.

As stated by Arbitrator Renahan in Seale and Belair Insurance Company Inc., (FSCO A01-000635, January 31, 2002), 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." The Appellant agrees with this statement of the law.

As also stated in Greenhalgh, “[w]hat will amount to direct causation will depend much on the circumstances.” The case at hand is readily distinguishable from the facts as found in Greenhalgh. In the latter, the insured’s vehicle got stuck, causing the insured to travel on foot to find assistance. After several hours, the insured was lost and eventually fell through an ice-covered river, causing severe frost bite leading to the amputation of her lower legs.

While deciding that the “purpose test” had been possibly met, the Court held that none of the

intervening acts occurring between the car becoming stuck and the insured falling into the river could be considered “a normal incident of the risk created by the use or operation of the car” or that the use or operation of the car was the direct cause of the injuries. There is, in my view, a significant factual difference between walking through the woods for nine or ten hours after leaving one’s vehicle versus a matter of seconds elapsing between hearing a siren, taking evasive action to avoid being hit by quickening one’s pace and falling.

The case at hand also differs from the factual situation in Mahadan, which was also decided by this Arbitrator and which the Appellant maintains has the most similar fact situation. In Mahadan, the applicant parked his vehicle, retrieved his groceries, and in turning away from the vehicle, stepped in a groove and twisted his left foot. The Arbitrator found that:

… while Mr. Mahadan’s motor vehicle led him to the location of his injury, his injuries, nevertheless, were sustained from a new and independent source other than his car. I find that what caused Mr. Mahadan to trip and fall was the crack in the pavement. This crack in the pavement had nothing to do with the use and operation of a motor vehicle, but was there because of the construction work being done on the parking lot. I, therefore, find that the crack in the pavement was the intervening feature that ultimately caused his injury. Accordingly, I find that Mr. Mahadan was not involved in an “accident” as defined in subsection 2(1) of the Schedule.

Chisholm involved a motorist who was severely injured in a drive by shooting. Alchimoiwicz dealt with a “drunken person who is driven to a beach site, leaves the car, and some 25 minutes later dives off a dock to sustain serious injuries.” Herbison is a case where a member of a hunting party drove to his designated hunting stand, thought he saw a deer, got out of his truck, removed his rifle, loaded the rifle and shot at a flash of white, hitting another member of the hunting party. In Vytlingham, a vehicle was used to transport rocks to an overpass, from which two individuals, “high on alcohol and drugs,” dropped a large boulder.

In these cases, the use or operation of a vehicle may have provided the location, opportunity or motive. However, as the Arbitrator states, that is insufficient. The facts in the Respondent’s case present a very different scenario.

In this case, in terms of proximity (a matter of car lengths), time (a matter of seconds), activity (crossing a street used by vehicular traffic) and risk (an emergency vehicle in the wrong lane of traffic with it siren sounding), the subsequent chain of events leading to an impairment was hardly, to cite Greenhalgh, unforeseeable nor, presumably, even unprecedented. Rather, an emergency vehicle sounding its siren and travelling down the wrong side of a street is an “ordinary and well-known” activity to which such vehicles are put and it is part of the “ordinary course of things” that pedestrians may rush to get out of the way of such an oncoming vehicle in such circumstances that, in one’s haste, one may slip and fall causing an impairment.

The Appellant concedes that there was no finding of fact by the Arbitrator that the Respondent was out of the danger zone when she fell, that walking her dog caused her to fall or that there was a defect in the pavement. Nor was there a finding that there was some unusual or irregular reaction by the Respondent or, more relevantly, some unforeseen reaction.

In Chisholm, the Court stated that “[an] intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car.” It further stated that:

Legal entitlement to accident benefits . . . requires not just that the use or operation of a car be a cause of the injuries but that it be a direct cause . . . When one thinks of direct causation 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."

Similarly, in Seale it was found in that case that "the entire sequence of events …was one incident."

In Herbison, the Supreme Court of Canada stated that “the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract.” In Vytlingham, the same court stated that “insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer. No-fault insurance and indemnity insurance rest on different statutory provisions, but both fall to be interpreted in the context of a motor vehicle policy.”

I agree with the Respondent that the Appellant presents an extremely narrow, if not skewed, view of the reality of this factual situation. Here the fire vehicle played a role more than just the location, opportunity or motive, it was the dominant feature which set in motion an unbroken train of events leading directly to an impairment. In this case the fire vehicle was not merely “a” cause, which may be sufficient, but, while engaged in an ordinary and well-known activity of such a vehicle, was “the” cause of subsequent events which were part of the “ordinary course of things” rather than these events being intervening acts. Thus, in this case, the Respondent met both aspects of the Amos test, as amended in this stricter context.

The entire sequence of events in this case was one incident, the succeeding events flowing like a row of blocks falling down that could sensibly and reasonably have been anticipated at the time of the contract as a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring. To determine otherwise would be to enable an insurer to pocket a premium without liability for that risk.

Accordingly, I see no error of law in the Arbitrator’s finding that the use or operation of the fire vehicle directly caused the Respondent to slip and fall and that the Respondent was injured as a result of an “accident,” as defined in subsection 2(1) of the Schedule.

The appeal is, therefore, dismissed and the Arbitrator’s February 14, 2008 preliminary issue decision is confirmed.

IV. EXPENSES

If the parties are unable to agree on the expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code. I wish to thank both counsel for their very helpful and focused submissions.