Leroy Walton v. Certas Direct Insurance Company, 2010 ONFSCDRS 35

Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 35

FSCO A08-001951

BETWEEN:

LEROY WALTON

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Anne L. Sone

Heard: July 29, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Lorne Climans for Mr. Walton Ian C. Lambert and Magda Phillips for Certas Direct Insurance Company

Issues:

The Applicant, Leroy Walton, was injured in an incident on December 6, 2004. He applied for statutory accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ Certas denied Mr. Walton’s claims for accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Walton 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 Mr. Walton injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

1. Mr. Walton was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

Background:

Mr. Walton was injured in an incident during a bout of freezing rain in Toronto. Subsequently, Certas collected a number of statements. From these statements, the insurer concluded that Mr. Walton had been injured when he slipped on the ice some time after getting out of his car. It therefore denied benefits to Mr. Walton on the basis that he had not been involved in an accident.

The parties do not dispute the following version of the events.

1. On an icy day in Toronto Mr. Walton’s champagne coloured Plymouth Voyager van slid down a very steep hill.

2. At the bottom, he decided it was too slippery to continue driving and sat there for approximately 20 minutes waiting for a salt truck to arrive.

3. A red Honda Prelude had preceded Mr. Walton’s van down this hill, and Mr. Walton’s van sat near it.

4. Mr. Lloyd Byron Clarke was the driver of the red Honda. While they were waiting for the salt truck to arrive, they rolled down their windows and chatted. Neither of them got out of the car.

5. A blue Honda Civic had also experienced difficulty with the hill. After sliding down to the bottom, that driver, Ms. Judi Black, had gotten out of her car and walked away.

6. Mr. Walton and Mr. Clarke were happy, at first, to see the salt truck at the top of the hill through their rear view mirrors.

7. When they realized that the salt truck was out of control and sliding sideways down the hill towards them, their joy understandably turned to panic.

What happened after that, while they rushed to get out of their cars away from the impending danger, is in dispute. Statements from Mr. Walton, Mr. Clarke and the driver of the salt truck, Mr. Lucjan Nieweglowski, indicate that Mr. Walton slipped on ice at some point after leaving his car. However, Mr. Walton’s testimony accords with his second statement that the salt truck actually hit his car as he was trying to get out of it, and that the force of the impact threw him onto the ice. Mr. Clarke’s testimony and affidavit also support this version of the events.

LAW:

Statutory Framework:

The Schedule governing this case deals with accidents on or after November 1, 1996. It defines the term “accident” 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 medical or dental device [emphasis added].

This Regulation replaced Statutory Accidents Benefits Schedule – Accidents After December 31, 1993 and Before November 1, 1996, O.Reg. 776/93, which defined “accident” in section 1 as follows:

“accident” means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or medical or dental device [emphasis added].

Similarly, section 2 of the previous version of this Regulation, Statutory Accident Benefits Schedule – Accidents Before January 1, 1994, O.Reg. 672, defined “accident” as follows:

“accident” means an incident in which, the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or medical or dental device [emphasis added].

The Applicable Tests:

Unlike the two previous Schedules, the Schedule currently in force defines the term “accident” as an incident in which:

• the use or operation of an automobile
• directly causes an impairment ...

This leads to two questions:

1. Did the incident arise out of the use or operation of an automobile?
2. Did this use or operation of an automobile directly cause the impairment?

The first question deals with what has been called the “purpose test.” In other words, for what purpose was the automobile being used or operated at the time of the incident? Did the incident arise from the ordinary and well-known activities to which automobiles are put? The Supreme Court of Canada set out the purpose test in Amos v. Insurance Corporation of British Columbia.² In Greenhalgh v. ING Halifax Insurance Company,³ the Ontario Court of Appeal elaborated on this test and why there was good reason for keeping it, despite changes in the legislation.

The second question deals with the “causation test.” Unlike its predecessors, this legislation requires a direct link of causation. Because of this change in the legislation, the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group⁴ rejected the causation test as set out in Amos.⁵

In Greenhalgh, the Court stated that:

…the Chisholm test… can best be set out in the form of two questions:

1. Was the use or operation of the vehicle a cause of the injuries?
2. 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?

The Court in this case also stated:

What will amount to direct causation will depend much on the circumstances.

Petrosoniak and Security National Insurance Company⁶ was the first arbitration decision to consider the narrowed definition of “accident.” In this case, a cyclist lost control and fell onto the road without having any physical contact with an automobile. Mr. Petrosoniak’s fall was caused by oily fluid on the roadway, released by a motor vehicle. Arbitrator Novick referred to Black’s Law Dictionary to define direct cause 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.” In this case, she found that the insured person was injured as direct result of riding over the wet patch.⁷ She concluded that the use or operation of an automobile directly caused the injuries, and that therefore, Mr. Petrosoniak was in an accident under the new, narrower definition.

End of Journey Cases:

Since so much does depend upon the circumstances, it is helpful to look at cases with similar fact situations. There have been a number of cases where an insured has been injured while exiting a vehicle. Use or operation of the automobile generally continues while the person gets out of the car or off a bus, as long as physical contact is maintained.⁸

In a couple of cases, insureds have slipped and fallen (sometimes on ice), a short time after exiting a vehicle. These cases generally turn on whether there was an intervening event which cannot be said to be part of the ordinary course of use or operation of an automobile.⁹

In Ribeiro, Arbirator Manji found that Mrs. Ribeiro’s fall was an “accident” because she still had one foot on the steps of the bus when she fell. However, the arbitator stated later in her decision that it would not have been an “accident” if she had fallen on a patch of ice and snow, 15 feet away.

In Seale and Belair Insurance Company Inc., Director’s Delegate Makepeace found that an applicant who had slipped and fallen on an icy road, after she had been out of her vehicle was involved in an “accident.” She described the chain of events as follows:

Mrs. Seale’s fall happened while she was engaged in an ordinary activity in a Canadian winter – trying to regain control of a vehicle on an icy road. She did the usual things when her van got stuck. After calling an automobile association, she accepted help from a passerby. As is often done in such situations, she allowed Mrs. Harwood to take the wheel so she could do the hard work of pushing. When her van slid down the hill, she followed it, again doing the ordinary thing. She did not, as her counsel put it, decide to get a coffee first, then fall on the way. She walked down the road because the sidewalk was impassable. She fell because the road was icy, the same reason she had lost control of her van. There was “a perfect chain” between the two events, in my view. Putting it another way, the entire sequence of events was once [sic] incident.

Director’s Delegate Makepeace refers to the factors of time, proximity, activity and risk as being important in defining the incident that resulted in injury.¹⁰ She found the entire sequence of events was one incident, and that there was no intervening act that could not be said to be part of the “ordinary course of things.” Further, she found that the use or operation of an automobile was the dominant feature of the incident. As a result, although she admitted that the case was “close to the line”, she concluded that the use or operation of an automobile directly caused Mrs. Seale’s injury.

In Saad, Director Draper states the following:

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 [emphasis added].¹¹

An example of a case where the arbitrator found there was not an “accident” is Mahadan and Co-operators General Insurance Company.¹² In that case, the arbitrator found that the use or operation had ended when Mr. Mahadan removed his groceries, closed the trunk, and walked away, only to twist his ankle in a crack in the pavement of the parking lot.

Further, in Webb and Lombard General Insurance Company of Canada,¹³ Ms. Webb fell on ice after a taxi cab dropped her off at her hotel. She had walked from the front passenger door to the rear of the cab, when she fell. Director’s Delegate Makepeace found that the prevailing consensus of the cases is that use or operation generally ends when the claimant leaves the vehicle without incident and walks away. Therefore, she concludes that Ms. Webb’s injury falls outside the scope of the definition of “accident.” She also notes that a different conclusion may be reached where use or operation of the vehicle created or added to the risk that befell the claimant, as found in Pinaretta and ING Insurance Company of Canada¹⁴ and Mariano and TTC Insurance Company Limited.¹⁵ In both of these cases, the claimants fell while exiting or moments after exiting buses. In Mariano, an added risk was created because the bus was unable to stop at the bus bay, due to an illegally parked truck. The passengers were discharged onto the roadway, where Mr. Mariano tripped over a raised hump of asphalt.

Fleeing Imminent Danger:

In some cases at the Commission, claimants have sustained injuries when fleeing imminent danger from a motor vehicle. For example, in Wawanesa Mutual Insurance Company and Cooper,¹⁶ a pedestrian was 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. She decided to quicken her pace and ended up falling into a steel pole at the curb.

Director’s Delegate Lawrence Blackman upheld the hearing arbitrator’s finding that “the use or operation of a 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.

Obviously, these cases turn, in large part, on their particular facts.

Assessing Conflicting Evidence:

There is a lot of conflicting evidence in this case. For example, even Mr. Clarke’s written statements and oral testimony are not consistent. In addition, the salt truck driver’s statement directly contradicts Mr. Walton’s evidence.

In Faryna v. Chorny,¹⁷ the court made some recommendations on how to assess the credibility of witnesses and their evidence, especially where there is conflicting evidence. It stated:

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for the knowledge, powers of observation, judgement and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility …

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

In other words, I cannot rely just on the demeanour of witnesses when assessing credibility. Opportunities for observation, consistencies in the evidence and harmony with the probabilities which a practical and informed person would recognize as reasonable in that place, under those conditions, are equally, if not more important.

EVIDENCE AND ANALYSIS:

Oral and Documentary Evidence and Findings of Fact:

There are several versions of what happened to Mr. Walton as the salt truck rolled sideways down the slippery slope on that icy December day. Mr. Walton and Mr. Clarke, the driver of the car sitting next to Mr. Walton’s van, both testified at the hearing. Their testimony contradicts many of the written statements taken closer to the time of the incident, even Mr. Clarke’s and one of Mr. Walton’s own statements are at loggerheads with their testimony at the hearing. The key factual finding in this case is whether I believe Mr. Walton’s and Mr. Clarke’s oral testimony at the hearing over all the written statements. I do. I will now discuss the written and oral evidence in greater detail to explain why I find Mr. Walton’s and Mr. Clarke’s oral testimony the most cohesive, believable and persuasive version of the events that transpired.

City of Toronto Driver/Operator Report of Accident by the Salt Truck Driver, Lucjan Nieweglowski dated December 6, 2004:

Mr. Nieweglowski’s Driver/Operator Report simply states that due to the icy conditions, there was nothing he could do to avoid hitting the vehicles at the bottom of the hill. The report reads as follows:

I was working a salting operation going down Haverson. As I started down hill there was a vehical [sic] across roadway. I put on the brakes. Do [sic] to the icy conditions the truck slide [sic] down hill. There was nothing I could do to avoid hitting the vehicals [sic] that had slid down the road ahead of me.

Leroy Walton’s Oral Statement to Certas dated December 24, 2004:

In an oral statement recorded in handwriting by Certas on December 24, 2004, Mr. Walton allegedly said the following:

I then saw a salt truck slidding [sic] down the hill towards my vehicle sideways. When I saw the vehicle moving closing [sic] to my vehicle, I opened my door and while stepping out of the vehicle I slid and fell on the road. My left foot was first to touch the ground when I stepped out the van and it slip [sic] and I then I fell. My head also hit the ground as I fell backward. I lost consciousness for about 15 minutes. The truck had stopped after hitting one of the other vehicles that had skidded off the road and it also hit my vehicle and pushed it away. When I awoke, I was dizzy and did not know what was going on. When I had fall [sic] down, I skidded away for about 25 feet. I am lucky that I skidded away or else my body would have been crushed when the truck hit my vehicle. I did not run from my vehicle as I fell down as soon as I came out of my vehicle and hit my knee and then I fell back and hit my head.

At the end, the statement says:

I have read this statement of 5 pages and 5 lines of this statement [sic] and I [sic] true and accurate to the best of my belief and knowledge.

This version of the events suggests that Mr. Walton fell while he was exiting his vehicle to escape the danger of the oncoming salt truck [emphasis added].

Leroy Walton’s Oral Statement to Jean Glover of McLarens Canada dated December 6, 2006:

On December 6, 2006, (some two years after the incident), Ms. Glover of McLarens recorded in her handwriting another oral statement from Mr. Walton. It states that Mr. Walton said the following:

I heard a loud noise and looked around, behind me and I saw a city salt truck sliding down the street sideways. I immediately thought I had to get out of my van so as not to get injured. I opened my driver’s door. I put my left foot out and onto the ground with my right hand on the steering wheel. I felt the impact and I was pushed outside of my van. My left side hit the ground. My back and my head hit the ground. I saw the city truck hit my van.

At the end of page seven, followed by Mr. Walton’s and Certas’ adjuster’s signatures, the statement says:

I have read these 7 pages and they are true and correct.

This version of the events suggests that Mr. Walton was pushed out of his van by the impact of the salt truck [emphasis added].

Statement of the Salt Truck Driver, Lucjan Nieweglowski to Jean Glover of McLarens Canada dated May 16, 2007:

In his oral Statement to Ms. Glover of McLarens, the salt truck driver, Lucjan Nieweglowski asserts the following at page three:

I was facing east and sliding south. The rear of my truck hit the blue Honda first pushing it into the red Honda. The rear of my truck also hit the van, the back end of the van. …

At page four, Mr. Nieweglowski states:

All the vehicles, the 2 Hondas and the van were empty when my truck hit them. I understand that the owner of the van is now saying he was in the van and in the process of getting out, (with the door open and one foot out of the van) and that the impact caused him to be pushed out of the van and onto the road. This did not happen because he would have been squashed by my truck or his van because it was pushed 20 meters down the hill. I do remember the owner of the van laughing and saying that he and the other guy saw me coming and that they jumped the fence thinking I was going to hit them.

At page five, followed by Mr. Nieweglowski’s and Ms. Glover’s signatures, the statement reads as follows:

I have read the above 5 pages and they are true and correct to the best of my knowledge.

The salt truck driver states that the rear of his truck hit three vehicles, including Mr. Walton’s van. Despite facing in the other direction, he says that all three vehicles were empty when his truck hit them.

I place very little weight on Mr. Nieweglowski’s statement that “2 Hondas and the van were empty when my truck hit them.” Since his salt truck was sliding down the hill sideways, he did not have an opportunity to view if anyone was in the vehicles that the truck struck. He jumps to this conclusion based on the assumption that Mr. Walton would have been “squashed by my truck or his van”, not on his own observation of the collision.

In addition, based on Mr. Walton’s first statement and on persuasive testimony I heard at the hearing, Mr. Walton was unconscious and disoriented for a period of time after the incident. Accordingly, it is unlikely that he was laughing about jumping a fence. Further, Mr. Clarke makes no reference to jumping any fences in his statement or his affidavit.

Lloyd Byron Clarke’s Statement to Jean Glover of McLarens Canada dated May 16, 2007

In his statement to Ms. Glover of McLarens on May 16, 2007, Mr. Clarke indicates the following at pages two and three:

He [Leroy] noticed the salt truck at the top of the hill and we were so happy to see it at first. But the salt truck started to slide down the hill, sideways. When we saw that we said to each other, we have to move or the truck will hit us. We both got out of our vehicles. I ran to the curb next to my car. When I got on to the sidewalk, I slipped and fell because of the ice. Leroy was right behind me and got onto the sidewalk, and the next thing I know he was down the street and around the corner. There was an intersection with a stop sign about a car length north of where our vehicles were and he had run down the street and around the corner. After I fell on the sidewalk, I got up and fell down again. My right foot and my right finger was [sic] injured. … After I fell the second time, I was able to get up again and I ran further away from the vehicles. At this point Leroy had run further than I had. …

When the salt truck hit the vehicles Leroy was around the corner from the intersection and I was at the stop sign.

Mr. Clarke’s Statement suggests that Mr. Walton passed Mr. Clarke at some point while they were both running on the sidewalk away from the out of control salt truck.

However, Mr. Clarke does not state that he actually saw Mr. Walton pass him. He assumes that Mr. Walton is right behind him when he falls. He also assumes that because he can no longer see Mr. Walton after he gets up that Mr. Walton has passed him and is right around the corner.

Affidavit of Lloyd Byron Clarke dated May 29, 2007:

In his Affidavit dated May 29, 2007, Mr. Clarke swears before a Notary Public that:

2. I have reviewed the e-mail dated May 18, 2007 from adjuster Jean Glover addressed to Lorne Climans. The e-mail form Ms. Glover does not accurately describe my discussion with her of May 15, 2007 so I wish to clarify my observations as witness to the incident of December 6, 2004.

3. At approximately 9:30 a.m. on December 6, 2004 I was operating a Honda Prelude on Blackthorn Avenue south of Cameron Avenue, in the City of Toronto, in a northbound direction (down a portion of the street which sloped down). The road was icy and slippery. There had been freezing rain which stopped earlier that morning. I lost control going down the street and my vehicle slid into the curb at the bottom of the hill. I was attempting to drive my vehicle but I did not have winter tires (I had wide “mag” tires) and my vehicle had no traction.

4. I was still in my vehicle when approximately ten minutes later I saw Leroy Walton’s Plymouth Voyager travelling down the street in the same direction as I had been. He lost control of his vehicle which stopped beside my vehicle. We both sat in our cars and then I observed another vehicle, a Honda Civic, drive down the hill, out of control, and stopped [sic] behind me.

5. Mr. Walton and I had rolled down our windows and were talking for approximately 15 to 20 minutes. We were waiting in our vehicles to see if the road would be salted.

6. I observed a salt truck at the top of the hill. The truck stopped at a stop sign at the top of the hill and then slid sideways down the street approximately 50 feet from the bottom towards the parked vehicles.

7. I told Mr. Walton that we have to get out of our vehicles to avoid being struck by the truck. When I got out I fell as I was exiting my vehicle. I got up and fell again near my vehicle. I stood up and run [sic] around the corner to the end of another street.

8. As I was trying to leave my vehicle I noticed that Mr. Walton was slowly trying to exit his vehicle. I exited my vehicle before Mr. Walton exited his vehicle. I was so busy escaping from my vehicle (and falling down) that I did not see Mr. Walton actually exit his vehicle. When I started running away after I fell I noticed that he had one foot in and one foot out of his vehicle.

9. I was by myself when I ran away from my vehicle. I heard a collision but I did not see the collision as I was still running away. I returned to the scene approximately two minutes after the collision and I saw two black men lift up Mr. Walton from the paved road and put him in his van. The two persons told me that Mr. Walton had fallen on his back and could not get up. They carried him into his passenger seat. I saw Mr. Walton lying on the paved ground approximately five steps from his vehicle. Mr. Walton was complaining about back pain and was later lying down in the passenger seat. It took 2 ½ hours for the police to arrive.

10. I have not spoken to Leroy Walton from the date of the accident until May 28, 2007 when he asked me to call his lawyer’s office. I am not a friend or acquaintance of Leroy Walton. I did not know him before this accident.

Paragraph 8 is especially noteworthy since it confirms that Mr. Clarke was so busy escaping from his vehicle (and falling down) that he did not see Mr. Walton actually exit his vehicle. After he fell a second time, he noticed that Mr. Walton had one foot in and one foot out of his vehicle, which supports the statement that Mr. Walton made to Ms. Glover of McLarens.

Ancaster Rehabilitation Clinic’s Form:

This form was attached to Mr. Walton’s Application for Accident Benefits dated December 14, 2004. It asks the client to provide (among other things) a brief description of the accident. It states as follows:

I was in my car on Blackthorn Ave. and due to weather conditions I could not move. All of a sudden I saw a big salt truck skiding [sic] or sliding sideways down the hill coming right at me. I started to press the gas and move out of the way, but couldn’t due to the snow. I jumped out of the car, and fell several times, but got out of the way. This is when the truck ran into 3 cars including mine [emphasis added].

Mr. Walton’s Testimony at the Hearing:

Mr. Walton testified that after stopping his car at the stop sign at the top of the hill, he zigzagged south down the hill, hit the curb on the west side of the street and stopped beside Mr. Clarke’s car. While Mr. Walton was talking to Mr. Clarke, Mr. Clarke saw the salt truck first, and yelled out a warning. Mr. Walton then turned his head around, and saw it. At that time, Mr. Walton stated that he opened his driver’s side door and put his left foot out first on the ice. He said that his right hand was holding the steering wheel so he could put his other foot out. Mr. Walton testified that while he was attempting to escape, the back of the salt truck hit the back of the van and he was propelled onto the ice. He indicated that he was very lucky that somehow the van swung around him, with the wheel passing very close to his head. He stated that Mr. Clarke “was much swifter than me. That’s why he escaped.” After the incident, he remembers sitting in the van, but does not know how he reached it.

He also testified that he has trouble with reading. He stated that he does not know what he signed in his statement to Ms. Glover. He specifically disagreed with the sentence in the Ancaster Rehabilitation description of the accident that stated, “I got out of the car, and fell several times, but got out of the way.” He testified that he did sign the form on page 7, but that otherwise it was not in his handwriting and that he did not fill out any of it.

Mr. Clarke’s Testimony at the Hearing:

When Mr. Clarke saw the salt truck starting to come down the hill, he stated that it spun sideways right away. As the salt truck slid south down the hill, its driver faced east, away from the direction of cars at the bottom. After yelling a warning to Mr. Walton, Mr. Clarke opened the door of his car to get out. He immediately fell on the ice. He got back up and fell again.

Mr. Clarke said that he could see that Mr. Walton had one foot on the ground just before the collision because he himself was on the ground nearby, having just fallen. This occurred seconds before the impact of the salt truck.

After falling down on the ice the second time, Mr. Clarke testified that he looked back and saw that Mr. Walton had one foot out of his van and one foot in the van. After that Mr. Clarke ran for his life. He did not see the collision. However, he heard the bang. By that time, he had run what he described was the length of the hearing room, approximately 40 feet.

After the collision, Mr. Clarke stated that all three vehicles at the bottom of the hill were damaged by the salt truck and that the back of Mr. Walton’s van was smashed up. He also said that Mr. Walton was lying unconscious beside where his van originally was. Two other men lifted Mr. Walton up and put him inside his van.

Mr. Clarke testified that Ms. Jean Glover, an adjuster, came to see him in his apartment. He stated that after talking to her, he signed a piece of paper without reading it. He testified that he reads at a very low level. He also stated that he thought that she was talking to him about his insurance claim, not Mr. Walton’s claim, so he did not pay attention to anything she said about Mr. Walton. He emphatically disagreed with the portions of the statement in the adjuster’s handwriting that said: “At this point, Leroy had run further than I had. … When the salt truck hit the vehicles Leroy was around the corner from the intersection and I was at the stop sign.” Mr. Clarke testified that Ms. Glover never asked him where Mr. Walton was.

Basis for My Findings of Fact:

As I stated earlier, I find Mr. Walton’s and Mr. Clarke’s oral testimony (along with Mr. Walton’s second statement and Mr. Clarke’s affidavit), the most inherently plausible, cohesive, and persuasive version of the events that transpired.

• I give no weight to Mr. Nieweglowski’s statement to Ms. Glover for various reasons. Firstly, because he did not testify, his statement was not subject to cross-examination. In addition, with his truck spinning out of control, and facing away from the vehicles he eventually hit, he was not in a position to observe if anyone was exiting one of the vehicles. Further, his conclusions that no one was in these vehicles or could have survived the collisions were pure speculation.
• I give no weight to the Form prepared by the Ancaster Rehabilition Clinic, since Mr. Walton stated that he did not fill any of it out¹⁸, and was a very poor reader. In addition, it seemed to be very similar to Mr. Clarke’s statement, and may have been copied from Mr. Clarke’s application.¹⁹ Again, no one from Ancaster Rehabilitation testified, so this form was not subject to cross-examination.
• Although there were minor inconsistencies between Mr. Walton’s and Mr. Clarke’s testimony at the hearing²⁰, these were not on key facts, and are not surprising, given the jumbled position of the various stranded vehicles prior to the salt truck’s descent and the passage of five years between the time of the incident and the hearing. The inconsistencies actually bolstered the credibility of both of them because it showed that their testimony was not rehearsed.
• Normally statements closest in time to the incident should have the most weight. However, in this case, both Mr. Walton and Mr. Clarke testified that their reading skills were very poor, and so, they did not read the form or the statements before signing them. In Mr. Clarke’s case, he testified that he thought the adjuster was talking to him about his insurance claim, so he didn’t pay attention to what the adjuster said about Mr. Walton. In addition, in his testimony, he specifically disagreed with what the earlier statement said about the Applicant. Ms. Glover never provided copies of these statements to Mr. Walton or Mr. Clarke so that they could have someone check them.
• The second statement that Mr. Walton provided to Ms. Glover and the affidavit of Mr. Clarke are consistent with their evidence at the hearing, which was subject to cross-examination. The Applicant called two witnesses. The Insurer did not call any, although it had indicated that it was going to call three witnesses,²¹ in addition to Mr. Clarke, in the pre-hearing letter.
• Both Mr. Walton and Mr. Clarke readily admitted if they did not know an answer to a question. In response to questions about distances, they preferred to describe it in terms of the dimensions of the hearing room rather than estimate in feet.
• Mr. Clarke did not know Mr. Walton prior to the incident. They are not friends, so he did not have a motive to lie about this case. His testimony that he personally saw, just prior to the collision, that Mr. Walton had one foot on the ground beside his van was all the more persuasive because of Mr. Clarke’s position at that time (lying on the icy sidewalk because he had fallen for a second time).

Conclusion:

Based on my finding that Mr. Walton was exiting his vehicle as it was struck by the out of control salt truck, I find that this incident was an accident, as defined in the Schedule.

In terms of the purpose test, I must ask whether the incident arose out of the use or operation of an automobile. Exiting is an ordinary use to which automobiles are put. As I have found that Mr. Walton was exiting his vehicle as it was struck by the salt truck, it follows that the incident occurred during the use of an automobile.

The next question is, did this use directly cause the impairment? I have found that Mr. Walton’s van was struck while he was exiting it, and that this caused him to be thrown onto ice, thereby sustaining injuries. Thus, the impact of the salt truck directly caused Mr. Walton’s impairment. In this scenario, there are no intervening acts that caused Mr. Walton’s injuries.

If I have erred in my finding of fact that Mr. Walton was exiting his vehicle as it was struck, I find that the next most likely scenario is that he slipped and fell while fleeing the oncoming salt truck.²² In this case, I also find that this incident was an accident, as defined in the Schedule.

In terms of the purpose test, in the ordinary course of events, people may fall getting out of the way of an out of control vehicle (or emergency vehicle as in Cooper).

In terms of the causation test, Mr. Walton’s impairment was a direct result of him rushing to get out of the way of an oncoming vehicle.²³ Mr. Walton, at the very least, was fleeing imminent danger from the out of control salt truck sliding down the slippery slope. Again, there are no intervening acts that caused Mr. Walton’s injuries.

In the very particular facts of this case, whether Mr. Walton was in his van, exiting his van or running from his van turns out to be incidental. It was the salt truck coming at him and colliding with his van that directly caused his injuries.

EXPENSES:

I exercise my discretion to award Mr. Walton his expenses incurred in this preliminary issue hearing. If the parties are unable to agree on the amount, either party may request that the question of expenses be dealt with in accordance with Rule 79 of the Dispute Resolution Practice Code.

March 25, 2010

Anne L. Sone Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 35

FSCO A08-001951

BETWEEN:

LEROY WALTON

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Walton was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

March 25, 2010

Anne L. Sone Arbitrator

Date

(a) the “but for” test can act as a useful screen; (b) in some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and (c) in other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct.”

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 21995 CanLII 66 (SCC), [1995] 3 S.C.R. 405. In Amos, the driver of a van was shot during an attempted hijacking of his vehicle. The Supreme Court of Canada considered the “purpose” and “causation” tests and found him to be entitled to coverage. See Kumar and Coachman Insurance Company (FSCO PO1-00026, August 9, 2002) for a detailed discussion of Amos and the cases that have considered it.
3. 32004 CanLII 21045. In Greenhalgh, the insured left her vehicle after it became lodged upon a rock on a remote private road. After leaving her vehicle, she and her friend became disoriented in the dark bush, and fell into a river. As a result, she suffered severe frostbite, which required amputations. The Ontario Court of Appeal held that while the insured could possibly meet the purpose test, she could not possibly meet the causation test, and therefore, was not covered.
4. 4(2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776. In Chisholm, an unknown assailant fired gunshots at the driver of a car, rendering him a paraplegic. The Ontario Court of Appeal found that gunshots from an unknown assailant can hardly be considered an intervening act in the “ordinary course of things” and denied coverage.
5. 5Footnote 2, supra.
6. 6(FSCO A98-000198, November 2, 1998).
7. 7In Greenhalgh (and Chisholm), the Court also looked at the following factors for guidance in deciding whether causation has been established in a given case:
8. 8For example, Ribeiro and Guarantee Company of North America (OIC A95-000369, October 24, 1996).
9. 9For examples of cases where arbitrators found there was an “accident” see: Bissoon and Pilot Insurance Company (OIC A95-000120, November 6, 1996), confirmed on appeal (FSCO P96-00084, October 8, 1997), Friedrichs and Guarantee Company of North America (OIC A96-001053, June 20, 1997), and Pantazis and TTC Insurance Company Limited (FSCO A01-001564, September 16, 2002).
10. 10Approved by Director Draper in Federation Insurance Company of Canada and Saad (FSCO P08-00017, January 8, 2004) at page 6.
11. 11See Seale at pages 10 and 27.
12. 12(FSCO A00-000489, March 15, 2001).
13. 13(FSCO A06-001004, October 5, 2007).
14. 14(FSCO A04-001734, November 17, 2005).
15. 15(FSCO A05-002112, September 15, 2006).
16. 16(FSCO A07-001407, February 14, 2008, confirmed on appeal P08-00015, November 7, 2008).
17. 171951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354.
18. 18Mr. Walton admitted that he signed a blank form for the Clinic to claim accident benefits and that he had not read the completed form or requested a copy of it.
19. 19Mr. Clarke was also treated at Ancaster Rehabilitation Clinic. The Clinic had apparently left its cards at the scene of the collision.
20. 20For example, Mr. Clarke could not remember whether Mr. Walton’s car was facing north or south while he was having a conversation with him before they noticed the salt truck starting to slide sideways down the hill.
21. 21These three witnesses were the salt truck driver, Ms. Black, the driver of the third vehicle hit by the salt truck, and Ms. Glover, the adjuster.
22. 22As set out in his original statement to Certas dated December 24, 2004.
23. 23In both this case and Webb, ice probably played a role in causing the claimants’ injuries. However, unlike the circumstances in Webb, the use or operation of a vehicle (the out of control salt truck) directly created or added to the risk that befell Mr. Walton.