Wawanesa Mutual Insurance Company v. Daphna Webb, 2012 ONFSCDRS 111

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2012 ONFSCDRS 111

Appeal P11-00015

OFFICE OF THE DIRECTOR OF ARBITRATIONS

WAWANESA MUTUAL INSURANCE COMPANY

Appellant

and

DAPHNA WEBB

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Ms. Pamela A. Brownlee for the Appellant, Wawanesa Mutual Insurance Company

Mr. Kevin Wolf for the Respondent, Ms. Daphna Webb

HEARING DATES:

November 29, 2011 and May 30, 2012, and additional written submissions received by April 10, 2012

APPEAL ORDER

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

1. This Appeal is allowed and the Arbitrator’s May 12, 2011 decision is rescinded.

2. If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested, as set out below, within sixty days of this decision.

July 18, 2012

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL AND BACKGROUND

The Respondent, Daphna Webb, submits that on February 8, 2009 she was injured in an accident, as that term is defined in subsection 2(1) of the Schedule.¹ The Appellant, Wawanesa Mutual Insurance Company, denied Ms. Webb’s application for first-party, automobile accident benefits under the Schedule on the basis that the incident did not constitute an accident.

The May 12, 2011 decision of Arbitrator Miller (the “Arbitrator”) held that the Respondent was injured in an accident, as defined. The Arbitrator found that due to a snow bank adjacent to the road in a wintry residential neighbourhood, the Respondent, to get onto the sidewalk, was compelled to park her car just before a pedestrian access point that had been shoveled out. The Respondent exited her car on the driver’s side and locked the door. After walking towards and then across the front of her car, the Respondent slipped and fell on ice when putting her foot onto the access point, breaking four bones in her right foot.

The Arbitrator found that whether to get to the access point after the Respondent had disembarked from her car took 10 seconds and three to four steps (as the Respondent testified at her examination under oath) or a few seconds and two to three steps (as she testified at the hearing) did not materially affect the Respondent’s credible description of the incident.

The Arbitrator found that the Respondent was still in the course of disembarking from her vehicle when she fell on the roadway at the entry of the access point as she had not safely and completely disembarked from her vehicle when she fell. The Arbitrator held:

… 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.

In my July 19, 2011 letter decision, upon considering submissions addressing Rules 50.2 and 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011) (the “Code”), I exercised my discretion to accept this appeal from a preliminary issue order, in part, because the appeal had the potential of determining the arbitration.

The Appellant submits that the Arbitrator, in finding that the Respondent was injured in an accident, as defined, misapplied both the purpose and the causation tests.

Regarding the purpose test, that the incident must arise from an ordinary and well-known activity to which automobiles are put, the Appellant argues that this case is factually similar to Lombard General Insurance Company of Canada and Diane Webb, (FSCO P06-00038, October 5, 2007). There, the insured got out of a taxi cab without incident and fell only after she began walking towards a hotel entrance. Delegate Makepeace concluded that the injury fell outside the scope of the definition and that the arbitrator had erred in law in reaching the contrary conclusion.

This incident, the Appellant argues, is an end of journey, not an interruption of journey case, the Respondent having testified that she did not intend to return to her vehicle. The Respondent was not, it is argued, in the process of exiting her vehicle when the incident occurred. Rather, her disembarkation had been safely completed well before she fell.

While this incident may have been separated by only a few seconds and a few feet from the use or operation of the vehicle, the Appellant submits that the Arbitrator erred in law in not applying the reasoning in Diane Webb to find that the fall did not involve the use or operation of an automobile.

The Appellant argues that the Respondent was not compelled to park where she did. Nor was she compelled to park at all, but simply could have returned home. The Respondent chose the location where to park and should be found to have accepted that risk. This case, it is submitted, differs from Mariano and TTC Insurance Company Limited, (FSCO A05-002112, September 15, 2006), upheld on appeal, (FSCO P06-00032, April 28, 2008), and Pinarreta and ING Insurance Company of Canada, (FSCO A04-001734, November 17, 2005), where a third party was driving and the insured person was compelled to exit at a certain spot.

In the alternative, the Appellant argues that if the Respondent’s disembarkation is found not to have been completed, then the causation test has not been met. The vehicle was not the direct cause of the Respondent’s injury, having been long out of the picture. Rather, the access point and the resultant slip and fall were intervening events breaking the chain of causation, taking the incident into the realm of occupier’s liability. The motor vehicle did not block the access point or create the risk. Rather, the risk was created by snow, as a result of which the Respondent has commenced an action against the municipality and the maintenance contractor.

The Appellant submits that in all four relevant factors − time, proximity, activity and risk − there is a continuum. While this case involves a matter of seconds and feet, when all four factors are considered there is sufficient separation from the use or operation of the motor vehicle to break the chain of causation.

The Appellant relies on Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), that the “but for” test is not conclusive in determining legal causation. Rather, legal entitlement to accident benefits requires that the use or operation of a motor vehicle is the direct cause of injuries. As stated in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 SCR 373, for both tort and first party claims, “there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.”

The Appellant submits that this case is distinguishable from DiMarco and Chubb Insurance Company of Canada, (FSCO A10-003967, February 22, 2012). There, Arbitrator Pressman found that the applicant fell from her bicycle while manoeuvering around a parked vehicle. Here, it is submitted, neither the automobile nor its placement resulted in the Respondent’s injuries.

The Respondent argues that there is no dispute that the Arbitrator set out the proper law in her decision. Further, she properly apprehended the evidence before her and correctly applied both the purpose and the causation tests to the evidence in reaching her decision. The Respondent submits that this appeal raises not a question of law but a question of fact. Under subsection 283(1) of the Insurance Act, questions of fact are not the proper subject matter of an appeal and the Arbitrator’s exercise of discretion in her findings of fact is final. The Respondent argues that this appeal is simply an attempt to revisit the Arbitrator’s factual findings and conclusions.

The Arbitrator found that disembarking from a vehicle in a safe manner is an ordinary and well-known activity to which vehicles are put. The Respondent was compelled to park at the access point, there being no other way to access her friend’s house. The Arbitrator found as a fact that the Respondent had not yet safely and completely disembarked when she stepped onto the access point. The slip and fall occurred within a few seconds and a few feet of leaving the vehicle. The access point jutted into and was part of the roadway. The Respondent had not yet reached the sidewalk. The Arbitrator found that the use or operation of her car was the dominant feature of the incident and a direct cause of her injuries.

The Respondent argues that the Appellant is endeavouring to create a bright line that the use or operation of a motor vehicle ends upon exiting the vehicle, an argument routinely rejected, as in Mariano, Pinarreta and Diane Webb, as well as Seale and Belair Insurance Company Inc., (FSCO A01-000635, January 31, 2002), upheld on appeal (FSCO P02-00005, January 28, 2003).

Citing Sarpong and Owusu and TD Home and Auto Insurance Company, (FSCO P08-00003 and P08-00004, February 2, 2009), the Respondent argues that an appellate officer’s role is not to second guess an arbitrator’s evaluation of the evidence or draw different factual conclusions. Nor is the appellate officer’s role to “engage, with a standard of perfection, in a microscopic analysis of the Arbitrator's decisions.” The Arbitrator’s finding of fact that the Respondent was still in the course of disembarking at the time of her fall should not be revisited on appeal.

The Respondent argues that this case is distinguishable from Wong and St. Paul Fire & Marine Insurance Company, (FSCO A09-001953, September 30, 2010), Mahadan and Co-operators General Insurance Company, (FSCO A00-000489, March 15, 2001) and Diane Webb, where the claimants had completed their disembarkation without incident when they tripped and fell. In this case, it cannot be said that the Respondent left her vehicle without incident as she was found to still be in the course of disembarking when she fell. The placement and location of her vehicle relative to the access point created and added to the risk facing the Respondent.

The Respondent relies upon DiMarco, where parking was found to be a common use or operation of an automobile, and physical contact with the vehicle was unnecessary for an incident to be an accident. As in DiMarco, the parked vehicle created a situation of risk setting in motion an unbroken chain of events directly leading to the subject injury. Likewise, the Respondent was required to manoeuvre around the vehicle. The automobile remained the dominant feature, even without any physical contact, and the direct cause of the Respondent’s injuries. The Respondent’s only alternative was not to visit her friend. Accordingly, it is argued that the Appellant is endeavouring to introduce fault into this no-fault system.

II. ANALYSIS

“Accident” is defined in section 2 of the Schedule 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; [emphasis added]

Subsection 64(4) of the Legislation Act, 2006, S.O. 2006, c. 21, states that an “Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

As stated in Downer v. The Personal Insurance Company, 2012 ONCA 302, the definition of “accident” in question is now more restrictive. The verb “causes” is no longer modified by the word “indirectly,” in addition to “directly.”

The parties agree that in determining whether the incident in question constituted an “accident,” the following questions² must both be answered in the affirmative:

(a) Did the incident arise out of the use or operation of an automobile? (the “purpose test”)

(b) Did this use or operation of an automobile directly cause the impairment? (the “causation test”)

The applicable case law, as follows,³ is not disputed:

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

• A direct cause is a cause that sets in motion a train of events leading to a result without any later intervening act.⁴

• 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, but one of the direct causes must be the use or operation of a motor vehicle.⁵

• The motor vehicle need not come into direct physical contact with the accident victim.⁶

• The role played by the motor vehicle must be more than just the location, opportunity or motive.⁷

• The motor vehicle must be a dominant feature in the incident and not ancillary to it.⁸

• 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.⁹

• The injury must be a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.¹⁰

An early decision on this question of insurance coverage is Law, Union & Rock Insurance Co. Ltd. v. Moore's Taxi Ltd., 1959 CanLII 81 (SCC), [1960] S.C.R. 80. That case pertained to the plaintiff taxi company holding a comprehensive liability policy. The policy excluded, in part, the defendant insurer’s liability for claims arising out of “the ownership, maintenance, use or operation by or on behalf of the Insured of any motor vehicle.”

The taxi company was contracted to transport children to and from school, including taking the children directly home from school and not letting any child out on the side of the street opposite his or her home. One of its drivers was transporting a child in a company taxi home from school. The driver stopped on the side of the street opposite the child’s home and let the child out of the taxi to cross the street alone. The child was hit by a truck and seriously hurt.

The Supreme Court of Canada held that the claim did not come within the motor vehicle exclusion. The presence of the child alone on the highway was found not to be a circumstance arising out of the ownership, maintenance, use or operation of the taxi, but out of the taxi driver’s failure to escort the child to his home.

In Lefor (Litigation Guardian of) v. McClure (2000), 2000 CanLII 5735 (ON CA), 49 O.R. (3d) 557 (Ont. C.A.), a driver parked on the street opposite a residence where she intended to leave her two children for the evening. Leaving the motor running, the mother exited the car and got her children out of the back seat. Holding the hand of her younger child, who was holding the older child’s hand, the mother, on seeing an approaching vehicle, told her children not to run. The older child misunderstood, moved forward and was struck and injured by the oncoming vehicle.

The Appellant third party was the driver’s insurer under a motor vehicle policy. That policy provided indemnity for loss or damages “arising from the ownership or directly or indirectly from the use or operation” of the motor vehicle. The Court of Appeal held that the Appellant was required to defend and, to the extent the driver was found liable, indemnify her with respect to her daughter’s claim. Noting the policy’s broad coverage, the Court held, applying Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, that:

• Stopping vehicles to pick up and drop off passengers is an ordinary and well-known aspect of the use or operation of an automobile.

• There was a clear nexus between the use and operation of the vehicle and the injuries sustained.

• The accident occurred as a result of the use of the vehicle as a means of conveying passengers from one place to another.

• The mother’s decision to park her car on the opposite side of the road and leave it running while she and her children darted across the street placed the child in a situation of danger and triggered the sequence of events that resulted in injury.

• The mother’s alleged negligence after leaving her vehicle did not preclude coverage as the vehicle need not be the instrument of the injury and injuries that do not arise from the negligent use of a vehicle may be covered, where, citing Incerto v. Landry, (2000), 2000 CanLII 22346 (ON SC), 47 O.R. (3d) 622 at 626 (S.C.J.), “the use or operation of a motor vehicle in some manner contributes to the injury, there is an entitlement to coverage.”

Notwithstanding a different analysis, in both Law, Union & Rock and Lefor the result was the same, that there was insurance coverage.

Greenhalgh v. ING Halifax Insurance Co. Inc., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, involved the “directly causes” test under the Schedule. The insured had taken a wrong turn off a country road. Her car became lodged upon a rock, stalled and would not start again. The battery on her cell phone died. The insured and her friend left the vehicle to walk back to a house they had seen earlier. In the darkness and amongst the extensive brush and trees they became disoriented. After walking through the night for nine or ten hours, they fell into an ice-covered river. As a result of exposure to the extreme cold, the insured suffered severe frostbite resulting in the amputation of her fingers and of her legs below the knees.

The Court of Appeal held that there were numerous intervening acts, including disorientation and falling into a river. None of these intervening acts could “be considered ‘a normal incident of the risk created by the use or operation of the car,’ or, in other words, the use or operation of the car cannot be said to be a ‘direct cause’ of the injuries. Taken together, these intervening acts support the conclusion that the use of the car here was not a direct cause of the impairments.”

The Court, citing several Commission cases, concluded:

Here, as in Hanlon, Alchimowicz and Mahadan, the use of the car had ended without injury being suffered, the insured had physically left the car; no automobile contributed physically to the insured’s injuries; and there was temporal distance between the end of the use of the car and the injuries. As in Hanlon, the problem with the car could be said to have led to the injuries, but one could not say that it caused the injuries. As in Mahadan, the factor that physically caused the injuries, in the present case the weather, was unrelated to the use or operation of the automobile.

Hanlon and Guarantee Company of North America, (OIC A-011977, October 30, 1995), upheld on appeal (OIC P95-00003, March 18, 1997), addressed the “indirectly or directly” test. This was a case of road rage, where two drivers pulled off the road and exited their respective vehicles. Words were exchanged, culminating in the other driver striking Mr. Hanlon with a portable cellular telephone. Arbitrator Renahan found that at the time of the assault, the use and operation of both vehicles had ended. The first part of the two-part test was not satisfied and, hence, the incident was not an accident, as defined.

Alchimowicz v. Continental Insurance Co. of Canada, 1996 CanLII 1313 (ON CA), also addressing the “indirectly or directly” test, held that “we do not agree that when a drunken person is driven to a beach site, leaves the car, and some 25 minutes later dives off a dock to sustain serious injuries, that this could be construed on any subtle variation of the facts at trial as an incident indirectly caused by the use or operation of a motor vehicle. As liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation.”

Mahadan and Co-operators General Insurance Company, (FSCO A00-000489, March 15, 2001), was also a decision of Arbitrator Miller. In that case, the “directly” test applied.

Mr. Mahadan had parked his car in his usual spot in his condominium parking lot. He turned the vehicle off and left his car, walking to the trunk, from which he took out groceries. As he turned away from closing the trunk, his left foot twisted in a construction-related groove in the pavement. As a result, Mr. Mahadan fell, hitting his right arm on the trunk of the vehicle and landing on the concrete, fracturing his left ankle and tibia. Arbitrator Miller held that the normal use and operation of Mr. Mahadan’s car did not directly cause his injuries.

Notwithstanding the above cases, the case law is clear that even under the present definition of “accident,” the use or operation of a motor vehicle does not automatically end when one leaves a car.

Shantz and Dominion of Canada General Insurance Company, (FSCO A01-001147, May 13, 2002), addressed the “directly” definition. Ms. Shantz had driven her car towards the key box of a parking garage. Finding she was too far away to reach it without stepping out of her car, she shifted her car into park, took off her seat belt and stepped out of the car, leaving her car door open with the motor running. As Ms. Shantz put her key in the box, her car began to roll down the sloped driveway. Following the car down the ramp in an effort to get back in and stop the car, Ms. Shantz tripped and fell, landing beside, but not in contact with the car, injuring herself.

Finding that Ms. Shantz was trying to regain control of her car when she fell, Arbitrator Skinner held that Ms. Shantz was injured as a result of an accident, as defined.

In Seale, noted supra, Delegate Makepeace upheld Arbitrator Renahan’s decision that Mrs. Seale’s walking down an icy road to retrieve her car that had rolled down the hill was a use or operation of a vehicle directly causing her subsequent injury. In Eccleston and Guarantee Company of North America, (FSCO A04-000759, November 3, 2004), Arbitrator Miller held that the insured was injured in a defined accident where the insured, to avoid an oncoming bus, stepped onto a traffic island with a high mound of snow and ice and slid and fell.

In Saad and Federation Insurance Company of Canada, (FSCO P03-00017, January 8, 2004), the insured, concerned his car seemed unbalanced, stopped for gas and a tire check. After filling his tires, he returned the air hose and walked back to his car, intending to drive home. Director Draper upheld Arbitrator Killoran’s decision, (FSCO A02-001279, April 24, 2003), that the use or operation of the vehicle was a direct cause of the insured’s injuries in falling on ice, his feet ending up under the car.

In Souchuk and State Farm Mutual Automobile Insurance Company, (FSCO P02-00039, January 8, 2004), two vehicles driving in tandem were hit by a third vehicle. The two struck vehicles fishtailed across the highway, their hubcaps flying off. Both vehicles came to a stop. While running to the other car to see if his friend was injured, the claimant fell on the roadway, breaking his left elbow. Director Draper upheld Arbitrator Bayefsky’s decision, (FSCO A02-000309, November 27, 2002), that this was an “accident” under the “directly” definition.

In Pinarreta, while stepping off a bus, Mrs. Pinarreta placed both of her feet outside the bus and onto the snow bank present at the bus stop, and then slipped and fell. Arbitrator Muzzi found that Mrs. Pinarreta was injured in an accident under the “directly causes” test of the Schedule.

In Mariano, the insured exited, in the dark, from the rear door of a bus. He took two steps when he tripped on a raised hump of asphalt in the roadway. He fell forward and struck his head on the curb. The fall occurred within one to two seconds after he got off the bus. Arbitrator Miller found that this was an accident under the “directly” test. On appeal, Delegate Evans held that:

This determination is at most a question of mixed fact and law, and the dispute resolution system deems the arbitrator's determination of facts to be determinative. I am not persuaded that the arbitrator has reintroduced indirect causation into the law, and I am satisfied that she considered the relevant law and applied it. I therefore have no basis on which to intervene.

Lombard General Insurance Company of Canada and Diane Webb, (FSCO P06-00038, October 15, 2007), involved the application of the “directly” test.

After paying her taxi cab fare, Ms. Diane Webb realized she did not have her hotel pass-card and would have to go around the back of the cab to enter the main hotel entrance. As she reached the rear of the cab and turned towards the hotel, Ms. Webb noticed patches of ice the arbitrator accepted were “sufficient in size and number to impede her path to the curb.” Slipping on the ice at the rear of the cab, Ms. Webb’s fingertips touched the bumper but she was unable to break her fall. The arbitrator found that it took several seconds for Ms. Webb to walk from the front passenger door to where she fell and injured herself.

Delegate Makepeace, in overturning the decision at first instance, held:

As I read the decisions, the prevailing consensus is that 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 Ms. Webb’s path into the hotel lobby. There is no suggestion that the position of the cab created an emergency or 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.

Stating that the cases in this area “are fact-sensitive,” Delegate Makepeace concluded:

The arbitrator did not err when he said that “the risk, at some point, must shift from a normal incident of using an automobile and become a risk associated with walking.” Ms. Webb got out of the cab without incident and fell only after she began walking toward the hotel entrance, use or operation of the cab was not a direct cause of her impairment. Looking at the matter with a common sense focus on the nature of the risk covered by automobile insurance, I conclude that Ms. Webb’s injury falls outside the scope of the “accident” definition, and that the arbitrator erred in law in reaching the contrary conclusion.

Kopas v. Western Assurance Company, 2008 CanLII 53135 (ON SC), was an especially tragic case. A small boy drove with his family to a parking lot for a festival. While the adults were unloading the car, the boy went to a fence to see a train passing by, just outside the parking area. Walking back to the car, the boy was killed by a car coming out of the parking spot. Corbett J., after carefully reviewing the case law, concluded:

I am satisfied that “use and ownership” of a vehicle includes taking reasonable care to ensure that passengers may disembark safely. The requirements “to take care” will depend on all of the circumstances, and as a matter of common sense the requirements will be higher for children.

Corbett J. found that “these circumstances occur on a continuum, and it may be very difficult to know precisely where the line will be drawn in any one case.” Corbett J. found that the young boy was safely out of the car. He had left the vicinity of the car. “Supervising him thereafter was a duty that arose from general duties to take care of small children, and not a special duty imposed upon a ‘motorist.’”

In DiMarco, the insured person was a cyclist, in the arbitrator’s words, forced to ride on the sidewalk, in a charity ride. A vehicle was parked encroaching half of the sidewalk, leaving a narrow space for the group of cyclists. While manoeuvering around the automobile in the narrow space allowed, Ms. DiMarco lost her balance and fell on the sidewalk, fracturing her hip.

Arbitrator Pressman found that parking is a common, ordinary and well-known use or operation of an automobile, meeting the purpose test. Finding that there were no other impediments in her way, other than the automobile, Arbitrator Pressman held that Ms. DiMarco, being compelled to manoeuvre around a parked vehicle, set in motion a chain of events directly resulting in her fall, without any intervening act.

Laskin J., in Chisholm, stated:

The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry’s liability to pay no fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car. Like almost any statutory standard, the direct causation requirement will, at the margins, produce hard cases, perhaps even sympathetic cases and seemingly arbitrary results.

However, “seemingly arbitrary results” do not mean results inconsistent with the statutory wording and intent.

The first question before the Arbitrator was the purpose test − whether the incident arose out of the ordinary use or operation of the motor vehicle. The Arbitrator held that, “[s]uccinctly I find that Ms. Webb had not safely and completely disembarked from her vehicle when she fell.”

As set out on judicial review by the Divisional Court in Economical Mutual Insurance Company v. Whipple, 2012 ONSC 2612, the ordinary use or operation of a motor vehicle may take into account the particular nature of the vehicle involved.

In this case, however, as in DiMarco, there is no question that parking is an ordinary use or operation of a motor vehicle. Disembarkation is also an ordinary use or operation of a motor vehicle. Disembarkation in the presence of snow and ice in winter in Ontario is an ordinary and usual use or operation of a motor vehicle. Regarding the purpose test, following Delegate Evans in Mariano, I have no basis for intervening in the Arbitrator’s decision that the Respondent’s injury arose out of the use or operation of the motor vehicle in the sense, to cite Lefor, the vehicle in some manner contributed to the injury. Here, the Respondent’s use or operation of her vehicle in parking and disembarking provided both the location and the chance of falling.

However, there is a second requisite test, the “causation” test. The Court of Appeal held in Chisholm:

Here, in a broad sense, one could say that the use or operation of the car Chisholm was driving was a factual cause of his injuries. As he argued, but for driving his car he would not have been shot. Legal entitlement to accident benefits, however, requires not just that the use or operation of a car be a cause of the injuries but that it be a direct cause.

Or, as stated more recently by the Court of Appeal in Downer:

Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.

In Greenhalgh, the Court of Appeal held that in Chisholm, “Laskin J.A. found three inquiries helpful in answering the ‘direct cause’ question: the ‘but for’ inquiry; the ‘intervening act’ inquiry; and the ‘dominant feature’ inquiry.” In Chisholm, “[e]ven under the more expansive legislation, Mr. Chisholm could not succeed … it was the gun shots, and not the use or operation of an automobile, that could be said to be the ‘dominant feature’ of Mr. Chisholm’s injury.”

Greenhalgh states, and Downer reconfirms, that the “but for” test “only serves to eliminate from consideration factually irrelevant causes, but does not conclusively establish legal causation.” The case law is clear that a policy of automobile insurance policy may not necessarily insure, even when one is inside a car, against assault,¹¹ gun fire¹² or every other possible peril.

That a driver is “compelled” to park in a location does not mean that all perils are necessarily covered until the driver, upon exiting the vehicle, walks to and reaches a place of safety. It could be argued in Greenhalgh that the plaintiff never reached a point of safety during her more than ten-hour ordeal. The Court of Appeal, however, held that the injuries suffered were not sustained as a result of an accident, as defined.

In the present case, the Arbitrator’s finding that the Respondent’s injury in the specifics of this case was ancillary to her being compelled to park at the access point is, to use Delegate Evans’ words in Mariano, a reintroduction of indirect causation, essentially applying a “but for” test. A taxi cab, being compelled to take a fare to a higher crime area, where the vehicle breaks down leading to the driver being assaulted or shot while inside or outside the vehicle, would not, under the present case law, meet the direct causation test. In Mahadan, an insured compelled to park in his usual condominium parking spot is insufficient to meet the “directly causes test.”

In terms of the “intervening cause” and “dominant feature” inquiries, this case is distinguishable from Mariano and Pinarreta where the insured person was still in the actual, physical, proximate process of getting out of a vehicle when injured. Nor was this a case where, to use Corbett J.’s reasoning in Kopas, there was a question of whether there was a duty of care of a driver, as a motorist, to a third-party insured person to ensure their safe disembarking.

In this case, I find persuasive the Arbitrator’s prior reasoning in Mahadan, where the claimant had a usual parking spot in his condominium. Nonetheless, the Arbitrator stated:

I find 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.

Applying the above excerpt from Malaban to the facts of this case, the following results:

I find that while [the Respondent’s] motor vehicle led [her] to the location of [her] injury, [her] injuries, nevertheless, were sustained from a new and independent source other than [her] car. I find that what caused [the Respondent] to trip and fall was [snow and ice on the access point to the sidewalk]. This [snow and ice on the access point to the sidewalk] had nothing to do with the use and operation of a motor vehicle, but was there because of the [the weather conditions]. I, therefore, find that the [snow and ice on the access point to the sidewalk] was the intervening feature that ultimately caused [her] injury. Accordingly, I find that [the Respondent] was not involved in an “accident” as defined in subsection 2(1) of the Schedule.

I agree with Delegate Makepeace in Diane Webb that the cases in this area are fact-sensitive, but that there must be a common sense focus on the nature of the risk covered by automobile insurance. Corbett J., in Kopas, said essentially the same, that there is a continuum, each case being a matter of common sense depending on all of the circumstances.

In this case, the Respondent had parked her vehicle, physically exited it, closed the car door, locked it, put her keys in her purse, walked up the side of the car, crossed in front of the car without incident and had proceeded to an access point a foot ahead of the front bumper of the car, when she fell.

The Respondent was not in the process of actually alighting from the vehicle when the incident took place. The Respondent was not intending to momentarily return to her vehicle. No automobile contributed physically to her injuries. There was a temporal distance between the physical exiting of the car and the injuries. The Respondent’s car was not blocking the access point. The vehicle was not an obstacle. At no time during the incident did the Respondent touch her car.

This was not a case of an insured person falling while checking whether there was a fire hydrant obscured under the adjacent snow or whether there were any posted restrictions regarding parking. Nor was this a case of an insured person walking back from a “pay and display” machine to place the ticket on the dashboard or feeding a single space meter, or similar situations where the use or operation of the vehicle could be seen to be a dominant feature.

Neither was this a case of a driver owing a duty of care, as a motorist, to a passenger in his or her vehicle, either generally, or, as set out in Kopas, under a higher, more specific duty to more vulnerable members of society such as children or those with a disability.

The time and distance separating the direct use and operation of the motor vehicle in this case and the subsequent, but not consequent, injuries, may not have been great. However, the separation was similar to, if not greater than in Diane Webb, Mahadan or in Wong, where Arbitrator Wilson found that an insured’s slip and fall was not directly connected to the use or operation of an automobile when she fell on black ice in a parking lot after descending a motor coach and passing a tour guide.

Falling on ice and snow is part of the ordinary course of things in Ontario winters, unlike assaults or being wounded by gunfire that form the factual basis of some of the leading cases. However, as stated in Diane Webb, “the risk, at some point, must shift from a normal incident of using an automobile and become a risk associated with walking.”

Applying the Arbitrator’s prior reasoning in Mahadan, there was a “new and independent source” of the Respondent’s injuries other than her car, namely, ice and snow at a pedestrian access point resulting from the weather conditions that, in the circumstances of this specific case, broke the chain of causation. Prudently, the Respondent has commenced a law suit against the municipality and the maintenance contractor.

As in Greenhalgh, the use or operation of the car can be said to have led to the injuries. It cannot be said that the use or operation of the car directly caused the injuries. Looking at all of the circumstances of the case, with a common sense focus on the nature of the risk covered by automobile insurance, as Delegate Makepeace found in Diane Webb in similar if not possibly stronger circumstances for the insured person, I respectfully conclude that the Respondent’s injury falls outside the scope of the applicable definition of “accident” and that the Arbitrator erred in law in reaching the contrary conclusion.

III. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, amending Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated August 2011), an expense hearing shall be requested within sixty days of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of such legal expenses, as are in dispute.

I wish to thank both counsel for their professionalism and most helpful submissions throughout in this at first glance seemingly straightforward, but in practice more intricate area of first-party insurance coverage.

July 18, 2012

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See Greenhalgh v. ING Halifax Insurance Co. Inc., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485.
3. 3As also set out in the Arbitrator Miller’s earlier decision in Kennedy and Gore Mutual Insurance Company, (FSCO A07-002444, March 26, 2009).
4. 4The Court of Appeal, in Chisholm, stated that the “motions judge and the Financial Services Commission have essentially adopted the same test of direct causation by relying on a definition of direct cause in Black’s Law Dictionary: ‘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,’” citing, as an example, Petrosoniak and Security National Insurance Company, (FSCO A98-000198, November 2, 1998). The Court stated that “[w]hen 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.”
5. 5TTC Insurance Company Limited and Correia, (FSCO P00-00061, July 16, 2001).
6. 6The principle most recently confirmed in DiMarco, noted supra.
7. 7The Arbitrator citing Lenti and Zurich Insurance Company, (FSCO P98-00030, December 18, 1998), Karshe and Non-Marine Underwriters, Mbrs. of Lloyds, (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).
8. 8See Chisholm, supra.
9. 9Federation Insurance Company of Canada and Saad, (FSCO P03-00017, January 8, 2004).
10. 10Seale, see supra. Pinarreta held that in some cases, intervening events may break the link of causation where those events cannot be said to be part of the normal incident of risk created by the use or operation of the automobile - if it is part of the ordinary course of things. In other cases, it is useful to ask if the use or operation of the automobile was the dominant feature of the incident, citing Greenhalgh v. ING Halifax Insurance Co. Inc., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, as well as Chisholm.
11. 11As in Kumar and Coachman Insurance Company, (FSCO P01-00026, August 9, 2002).
12. 12As in Chisholm.