Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 45

FSCO A10-001986

BETWEEN:

DAPHNA WEBB

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller

Heard: March 15, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Kevin Wolf for Ms. Webb

Pamela A. Brownlee for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Daphna Webb, alleges she was injured in a motor vehicle accident on February 8, 2009. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa denied her claim for benefits. The parties were unable to resolve their disputes through mediation, and Ms. Webb 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 Ms. Webb injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

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

BACKGROUND

Ms. Webb, who is 36 years old, is a single mother of two boys, ages 10 and 8. She works outside the home as a real estate agent.

Ms. Webb testified that on Sunday, February 8, 2009 she went to visit a friend, Frank Gianforcaro circa 12:30 p.m. Mr. Gianforcaro lives on Emmett Avenue in a residential neighbourhood. Emmett Avenue is an east-west street, with traffic lanes in both directions. Parking on the street is only permitted on the north side of the street, the same side Mr. Gianforcaro lives on. This side of the street does not have any driveways.

Ms. Webb testified there was no snow or ice on the road, however, there was a snowbank, two feet in height and over a foot wide going from the road to the curb that ran the length of the north side of the street. The only way to get onto the sidewalk was through access points that had been shovelled out. To the best of her knowledge the city clears these access points. There is no other way to access the sidewalk than through these access points.

Ms. Webb testified that she was able to park her car directly in front of an access point, in front of another vehicle. She stated that she exited her car on the driver’s side, locked the door and walked around the car to the front. She stated that she has a compact car and it took her, a few seconds, two or three steps to get to the access point. When she put her foot onto the access point, she slipped on ice and fell backwards. As a result of this fall, Ms. Webb broke four bones in her right foot.

SUBMISSIONS

Ms. Webb’s Submissions

Ms. Webb submits that the facts and the law support that she was injured as a result of a car accident pursuant to section 2(1) of the Schedule.

Ms. Webb submits that disembarkation from a motor vehicle clearly falls within the ambit of the ordinary use or operation of a motor vehicle. Ms. Webb submits that she had not completed her disembarkation when she fell. Ms. Webb stated that similarly to the cases of Mariano and TTC ² and Pinarreta and ING³, where it was held that disembarkation is complete when one has reached a point of safety, she had not reached a point of safety, i.e. the sidewalk, when she fell. Her case can be factually distinguished from the cases of Mahadan and Co-operators⁴, Wong and St. Paul⁵ and the appeal case of Diane Webb and Lombard⁶ where it was held that the applicants had completely disembarked from their vehicles without incident and had walked away. There was no evidence in these cases that the applicants were walking to a point of safety in the course of disembarking.

Ms. Webb submits that the snowbank was an external condition, not an intervening act or force and not the sole cause of her fall. She submits that the use or operation of her motor vehicle was a dominant feature and a direct cause of her injury. She submits that the chain of causation remained unbroken. She states that she was required to park her car where she did in order to gain access to the sidewalk and it was in the course of disembarking, within a few seconds of exiting her car, that she fell.

Ms. Webb submits that falling in the course of disembarking falls within the realm of a recognized risk associated with an automobile. She states that the time, proximity, the activity and the risk all support a direct causal connection between her vehicle and her fall.

Wawanesa’s Submissions

Wawanesa submits that the use or operation of Ms. Webb’s vehicle had long ended at the time of the slip and fall. Wawanesa submits that Ms. Webb had turned off her car, took her key out of the ignition, closed her door and locked her car. Most importantly she was able to navigate the roadway safely and without incident. It was not until she reached the access point and put one foot on the access point, which started on the road, did she slip and fall. Wawanesa submits that even if the access point was on the road, it constitutes a different geography. Wawanesa submits that by the time Ms. Webb stepped on the access point she was no longer engaged in the ordinary course of activities in which automobiles are put.

Wawanesa submits that Ms. Webb has also not met the causation test. Wawanesa submits that the involvement of the access point interrupts the chain of causation. Wawanesa submits that the access point is the intervening factor that was the ultimate cause of Ms. Webb’s injuries. Wawanesa submits that this case is similar to Mahadan, where the applicant had twisted his foot on the crack in the pavement of a parking lot after disembarking from his car. The present case can be distinguished from both the Mariano and Pinaretta cases. In Mariano, the applicant had to disembark on the roadway because the bus bay was blocked. He was compelled to exit on the roadway and fell as a result. In Pinaretta, the applicant when exiting the bus was forced to step into a snowbank and fell as a result.

Wawanesa submits that the facts in the present case are different. In the present case, Ms. Webb safely exited her vehicle. There was no obstruction, such as either a snowbank in Pinaretta or being compelled to exit on the roadway in Mariano.

THE LAW

Subsection 2(1) of the Schedule, which was enacted on November 1, 1996, defines “accident” 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 other medical or dental device.

Prior to November 1, 1996, the definition was more expansive in that it encompassed impairments caused “indirectly or directly” by the use or operation of an automobile.

The post‑November 1996 definition limited the definition to “directly causes.”

In the Court of Appeal decision of Chisholm and Liberty Mutual,⁷ Justice Laskin clearly confirms that the new definition of “accident” significantly narrows the scope of what can be considered an accident in comparison to the definition prior to November 1996.

A leading arbitration case in interpreting the revised definition of an accident is Petrosoniak and Security National Insurance Company.⁸ In that case, Arbitrator Novick found that the deletion of the word “indirectly” from the definition now required that there be a direct link between the circumstance that caused an injury and the incident. In interpreting the new definition of “accident,” Arbitrator Novick adopted the definition of “direct cause” found in Black’s Law Dictionary where the phrase was defined 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 omitted]

This interpretation of “directly causes” has been consistently adopted by both arbitrators and judges in interpreting the post-November 1996 definition of “accident.”

A number of arbitration cases have discussed the new definition in depth and its effect on the concept of what is an “accident” post-November 1996. I have relied on them and the Chisholm case to extract the following propositions applicable to dealing with the issue of what is an “accident” pursuant to subsection 2(1) of the Schedule. These are:

• The use or operation of a motor vehicle must directly cause the impairment.⁹

• A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.¹⁰

• Direct cause does not mean the only cause or the most immediate cause. 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.¹¹

• The motor vehicle need not come into direct physical contact with the accident victim.¹²

• The role played by the motor vehicle must be more than just the location, opportunity or motive.¹³

• The motor vehicle must be a dominant feature in the incident, and not ancillary to it.¹⁴

• 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.¹⁵

• The injury was a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.¹⁶

These principles are incorporated in my analysis below.

ANALYSIS AND FINDINGS

The burden of proof rests with Ms. Webb to show on a balance of probabilities that she was injured as a result of an accident pursuant to subsection 2(1) of the Schedule. For the following reasons I find that Ms. Webb has satisfied her burden.

I would first like to deal with the two inconsistencies raised by Wawanesa. Wawanesa submitted that in her Examination under Oath on January 25, 2010, Ms. Webb had stated that after she disembarked it had taken her 10 seconds and 3 to 4 steps to get to the access point. At the hearing, Ms. Webb had stated it had taken her a few seconds and 2 to 3 steps to get to the access point and that counsel for the insurer at the Examination under Oath had confirmed that it was a few seconds. I find that the inconsistencies raised by Wawanesa are minor in nature. I find that they do not materially affect Ms. Webb’s credible description of the incident.

There is no dispute that Ms. Webb suffered an impairment as a result of the incident on February 8, 2009. The issue to be decided in this case is whether pursuant to section 2 of the Schedule the use or operation of a motor vehicle directly caused Ms. Webb’s injury.

In the appeal case of Federation Insurance Company of Canada and Saad, the Director of Arbitration stated:

... 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 the use or operation directly caused the impairment.

The 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 [in Seale] 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. [Bold Emphasis added]

Disembarking from a motor vehicle is a normal activity required by the use or operation of a motor vehicle. Based on the evidence presented in this case, I find as a fact, that the use or operation of Ms. Webb’s motor vehicle was involved in her injury. The key question that must be answered is whether Ms. Webb’s injury was “directly” caused by the use or operation of her motor vehicle.

Wawanesa submitted that the access point constituted a different geography and was an intervening event. Once Ms. Webb had exited her vehicle and walked to the front of her vehicle, the disembarkation had concluded as she stepped onto the access point and, accordingly, she was no longer engaged in the ordinary activities to which an automobile is put. I disagree.

It is important to note that the access point was still part of the roadway as the snowbank jutted out from the curb to the road. The access point was clearly part of the roadway that Ms. Webb had to traverse before she got to the curb. In my view, traversing this access point went beyond the ordinary risk faced by anyone who disembarks from a vehicle on a roadway. It was not an intervening event.

On the facts in this case, I find that because of the snowbank, Ms. Webb was compelled to park her car at the access point and that she was still in the course of disembarking from her vehicle when she fell on the roadway at the entry of the access point. Succinctly, I find that Ms. Webb had not safely and completely disembarked from her vehicle when she fell.

This case can be clearly distinguished from the cases relied upon by Wawanesa − Mahadan, Wong and the Appeal in Diane Webb. In respect to the facts of those cases, it was found that the applicants had completed their disembarkation before they tripped and fell. In the present case, I find this not to be the case. In my view, the present case is similar to the Pinarreta and Mariano cases. In those cases the applicants were passengers on a bus who were compelled to disembark in a situation that put them at risk.

In the case of Pinarreta, the applicant was compelled to exit onto a snowbank which caused her to fall and be injured. In that case, Arbitrator Muzzi found as a fact that the applicant “had placed both of her feet outside the bus and onto the snowbank present at the bus stop and then slipped and fell.” She further found “that there is no question in this case that the use or operation of the bus was involved in Mrs. Pinarreta’s injury.”

Arbitrator Muzzi then went on to find, for the reasons noted below, that Mrs. Pinarreta was involved in an accident pursuant to subsection 2(1) of the Schedule:

... 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....

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.

In the Mariano case, the bus he was on could not enter the bus bay by the sidewalk. As a result, Mr. Mariano was compelled to exit onto the roadway where he tripped on the asphalt and injured himself. As the arbitrator in the Mariano case, I relied, in part, on the decision in Pinarreta wherein I held:

… Mr. Mariano was on the 29 bus so that it would take him to the 300 Bloor Street bus which would take him to work. Integral to the use of taking the bus was getting on and off of the bus in a safe manner. Not unlike the Pinarreta case, where the applicant was compelled to disembark at a snowbank on the sidewalk, in the present case, when the bus stopped in the roadway, and not in the bus bay at the sidewalk, Mr. Mariano was compelled to exit onto the dark roadway.

As in the Pinarreta case, I find that, like the snowbank, the raised asphalt in the roadway was an external condition existing at the time of the incident rather than an intervening act or force. As stated in Chisholm, a direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of an applicant’s injuries, and one of the direct causes is the use or operation of a motor vehicle. In this case, I find that the use and operation of the bus was the “dominant” feature in the incident and a direct cause of Mr. Mariano’s injuries.

I find that when the TTC bus stopped on the roadway, the bus set in motion an unbroken chain of events which resulted in Mr. Mariano tripping on the asphalt. Although tripping on the asphalt caused Mr. Mariano’s injuries, I find this was “ancillary” to Mr. Mariano being compelled to disembark from the bus onto the dark roadway.

In exiting from the bus, Mr. Mariano, who was on his way to catch another bus, was engaged in a normal activity required by the use of the bus, namely, disembarking in a safe manner. Within one to two seconds after he exited the bus and before he reached the sidewalk, Mr. Mariano, who was still in the process of disembarking, tripped over the raised asphalt in the roadway. Like in the Pinarreta case, I find that Mr. Mariano’s fall and injuries resulting from his 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.” I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle, the TTC bus, caused an uninterrupted chain of events ending in Mr. Mariano’s injuries.

The Mariano and Pinarreta decisions were both upheld on appeal. Moreover, both these cases were cited with approval by the Director's Delegate in the Diane Webb appeal. In that case, a passenger had disembarked from a taxi in a hotel driveway and slipped and fell on ice behind the cab while walking toward the hotel entrance. The hearing arbitrator found that the applicant had been injured as a result of an “accident” as defined by section 2 of the Schedule. On appeal, however, his decision was overturned. The Director’s Delegate in her reasons stated:

... As I read the [end of journey] decisions, the prevailing use or operation generally ends when the claimant leaves the vehicle without incident and walks away. However, 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 Mariano. In this case, the arbitrator found that the location and orientation of the stationary cab created an obstacle in [the applicant’s] path into the hotel lobby. There is no suggestion that the position of the cab created ... any special risk beyond the ordinary risk faced by anyone who leaves a vehicle in a parking lot and walks towards the entrance of a hotel or a store, and I do not accept that the need to walk around a parked or stationary vehicle is enough, without more, to shift the nature of the risk from occupier’s liability to automobile accident benefits.

In the present case, like the Pinaretta and Mariano cases, I find that Ms. Webb was engaged in a normal activity required by the use of a motor vehicle, namely, disembarking in a safe manner. I find as a fact that within a few seconds of exiting her car, Ms. Webb was still in the process of disembarking when she fell on the roadway before she was able to reach the safety of the sidewalk. I find that the use or operation of her motor vehicle was the “dominant” feature in the incident and a direct cause of her injuries.

I find that when Ms. Webb was compelled to park at the access point it created a risk that set in motion an unbroken chain of events which resulted in her tripping on the roadway at the access point. Although the tripping on the roadway at the access point caused Mrs. Webb’s injuries, I find as a fact that this was “ancillary” to her being compelled to disembark at the access point. I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle caused an uninterrupted chain of events ending in Ms. Webb’s injuries.

Accordingly, for these reasons, I find that Ms. Webb was injured as a result of a motor vehicle accident pursuant to subsection 2(1) of the Schedule

EXPENSES:

If needed, the parties can speak to the issue of expenses within 30 days of receipt of this decision.

May 12, 2011

Joyce Miller Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 45

FSCO A10-001986

BETWEEN:

DAPHNA WEBB

Applicant

and

WAWANESA MUTUAL 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. Ms. Webb was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

2. If needed, the parties can speak to the issue of expenses within 30 days of receipt of this decision.

May 12, 2011

Joyce Miller Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Mariano and TTC Insurance Company Limited (FSCO A04-001734, November 17, 2005)
3. 3Pinarreta and ING Insurance Company of Canada (FSCO A05-002112, September 15, 2006), confirmed on appeal (FSCO P06-00032, April 28, 2008)
4. 4Mahadan and Co-operators General Insurance Company (FSCO A-000489, March 15, 2001)
5. 5Wong and St. Paul Fire & Marine Insurance Company (FSCO A09-001953, September 30, 3010)
6. 6Lombard General Insurance Company of Canada and Diane Webb (FSCO P06-00038, October 15, 2007)
7. 7Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002)
8. 8(FSCO A98-000198, November 2, 1998). In this case, Arbitrator Novick held that an oil slick left on the road by a vehicle “directly caused” the applicant’s injuries, when his bike slipped on the oil slick.
9. 9Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Sarkisian and Co-operators General Insurance Company (FSCO A99-000966, January 17, 2001); Karshe and Non‑Marine Underwriters, Mbrs. of Lloyd’s, (FSCO A99-000855, December 15, 2000); Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002); Elensky and Royal & SunAlliance Insurance Company of Canada (FSCO P01-00030, August 9, 2002); Chisholm v. Liberty Mutual [2001] O.J. No. 3294, August 13, 2001; TTC Insurance Company Ltd. and Correia (FSCO P00-00061, July 16, 2001); State Farm Mutual Automobile Insurance Company and Souchuk (FSCO P02-00039, January 8, 2004); Federation Insurance Company of Canada and Saad (FSCO P03-00017, January 8, 2004); and Umer and Non-Marine Underwriters, Mbrs. of Lloyd’s (FSCO A02-000721, April 3, 2003)
10. 10Ibid
11. 11Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002); TTC Insurance Company Ltd. and Correia (FSCO P00-00061, July 16, 2001); State Farm Mutual Automobile Insurance Company and Souchuk (FSCO P02-00039, January 8, 2004); and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
12. 12Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Shantz and Dominion of Canada General Insurance Company (FSCO A01-001147, May 13, 2002); State Farm Mutual Automobile Insurance Company and Souchuk (FSCO P02-00039, January 8, 2004); and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
13. 13Lenti and Zurich Insurance Company (FSCO P98-00030, December 18, 1998); Karshe and Non-Marine Underwriters, Mbrs. of Lloyd’s (FSCO A99-000855, December 15, 2000); Waters and Royal & SunAlliance Insurance Company of Canada (FSCO A00-001143, October 18, 2001); Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002); Elensky and Royal & SunAlliance Insurance Company of Canada (FSCO P01-00030, August 9, 2002); and State Farm Mutual Automobile Insurance Company and Souchuk (FSCO P02-00039, January 8, 2004).
14. 14Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002), which cites Heredi v. Fensom [2002] SCC 50; and State Farm Mutual Automobile Insurance Company and Souchuk (FSCO P02‑00039, January 8, 2004)
15. 15Federation Insurance Company of Canada and Saad (FSCO P03-00017, January 8, 2004)
16. 16Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)