Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 148
FSCO A11-001753
BETWEEN:
SYLVIE NICKERSON
Applicant
and
SECURITY NATIONAL INSURANCE CO./
MONNEX INSURANCE MGMT. INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Rosemary Muzzi
Heard: Ms. Nickerson’s written submissions were received on April 2, 2012.
Security National’s response was received on April 30, 2012.
Ms. Nickerson’s reply was received on May 18, 2012.
Appearances: Lisa D. Belcourt for Ms. Nickerson
Ashley D. Lepine for Security National Insurance Co./
Monnex Insurance Mgmt. Inc.
Introduction and Issue:
Sylvie Nickerson applied for accident benefits from Security National, her auto insurer, when, on March 5, 2008, she suffered a fractured right ankle as a result of slipping and falling on the icy pavement of a Canadian Tire store parking lot. She was in the parking lot heading back to her vehicle to retrieve a broken windshield wiper blade that was to be exchanged under warranty by the store. She had broken the wiper blade earlier that afternoon as she attempted to clear the ice from her windshield for her drive home from work.
The issue in this case is whether Ms. Nickerson was injured in an “accident” as that term is defined in the Schedule.1 Security National asserted that the incident that occurred on March 5, 2008 was not an incident in which “the use of operation of an automobile directly causes an impairment.” Consequently, Ms. Nickerson was denied accident benefits.
The parties were unable to resolve this dispute through mediation and Ms. Nickerson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
Facts:
The parties agree on the pertinent facts. There are some peripheral facts about which the parties do not agree but they do not bear on my decision.
The parties agree that Ms. Nickerson proceeded directly to the Canadian Tire store on her way home from work in order to purchase the new wiper blade. It is also true that she parked her car in the lot without incident and that she walked into the store without incident. Ms. Nickerson was advised by store personnel that her damaged wiper blade would be replaced under warranty and that she needed to retrieve the damaged one for replacement. On her way back to her car but before arriving there, and at least 20 feet from it, she slipped and fell on the ice that had accumulated in the lot.
Result:
I find that Ms. Nickerson was not involved in an accident as that term is defined in the Schedule. Ms. Nickerson’s injuries were not directly caused by the use or operation of her vehicle. The cause of her injury was the slip and fall on the ice in the parking lot. Any connection between the use or operation of her vehicle and her injury is remote at best and therefore does not meet the test.
Analysis:
These types of cases all turn on the particular facts but it is accepted that the required analysis is in two parts:
(i) Did the incident arise out of the use or operation of an automobile? (Use or operation referring to an ordinary and well-known activity to which automobiles are put.)
(ii) Did this use or operation of an automobile directly cause the impairment?2
Ms. Nickerson claims that her injury resulted directly from the use or operation of her vehicle because:
- there are numerous cases applying the definition of “accident” in circumstances where an injury occurs in the course of the repair or maintenance of an operational vehicle. Her vehicle was operational and roadworthy but required a replacement wiper blade in order to be operated safely;
- she had used the vehicle to transport herself directly to the store in order to replace the part and she planned to proceed home immediately once the repair had been effected.
On the facts before me, I find that Ms. Nickerson’s case fails both tests: her fall did not arise out of the use or operation of an automobile; and, even if I am wrong on this count, the use or operation of an automobile did not directly cause her injury (impairment).
(i) Did the incident arise out of the use or operation of an automobile?
While some cases conclude that an injury which occurs in the course of the repair or maintenance of an operational vehicle is an accident, there are others standing for the opposite proposition.3 One arbitrator opines that the actual repair or maintenance of a vehicle does not put the vehicle into use and often the vehicle is not operating at such a time either.4 I agree with his reasoning that while perhaps integral to the use or operation of a vehicle, repair or maintenance of a vehicle is not a use of that vehicle.
Furthermore, it is questionable whether this principle could even apply in this case. My review of the repair and maintenance cases indicates that generally those cases involve the actual activity of repair. In this case, Ms. Nickerson was not in the course of carrying out a repair to her vehicle or to one of its parts when she fell. The damaged wiper blade was still on her vehicle; she had yet to remove it. And, she was not in possession of the replacement wiper blade at the time that she fell. So, even if the repair of a vehicle can be considered use or operation of a vehicle, Ms. Nickerson’s injury was not directly caused by a repair or by her attempts to repair either the vehicle or the part.
In the facts before me, I find it impossible to conclude that the incident arose out of the use or operation of an automobile.
Even if I am incorrect in this conclusion, I find on the facts of this case that the use or operation of the vehicle did not directly cause Ms. Nickerson’s injuries.
(ii) Did this use or operation of an automobile directly cause the impairment?
In order to find an accident as defined in the Schedule, the evidence must show a clear link between the use and operation of the vehicle and the person’s injuries. This link may be found by considering the vehicle in the whole scenario5 and factors such as time, proximity, activity, and risk.6 I examine each of these factors in turn.
I have already considered the factor of activity in relation to the issue of whether this incident was as a result of the use or operation of a vehicle. Looking at activity more broadly, the fact that Ms. Nickerson was involved in the activity of walking back to her car rather than any activity directly related to her car weakens the link here. In addition, considering factors such as time and proximity, Ms. Nickerson’s case weakens even further. When she fell, Ms. Nickerson was not in or near her car: she had stepped away from her vehicle to enter the store; she had been away from her vehicle for some time while she inquired about the warranty coverage; and, she was still en route to her vehicle to obtain the damaged part. When looking at risk as a factor, the question to ask is whether the injury was a natural and reasonable incident or consequence of the use of a motor vehicle and a risk associated with motoring.7 Slipping on ice and falling is not a risk normally associated with motoring.
Examining all of these factors together, it seems to me that the role of the vehicle in the whole scenario before me was merely the means by which Ms. Nickerson got herself to the store’s parking lot. At best, I find that there is only a very weak link between the use or operation of the vehicle and her fall.
Finally, even accepting that under the present definition of “accident”, the use or operation of an automobile does not automatically end when one leaves a car8, it is still necessary that the facts show that the use of operation of the vehicle had a continuing causal role and remained the dominant feature of the incident9 and not ancillary to it.10 It is not enough to show that the vehicle was involved in some peripheral or some incidental way.11
Given all the circumstances in this case, I do not see how the use or operation of the vehicle remained a dominant feature of the incident that caused Ms. Nickerson’s injuries. I find that Ms. Nickerson’s fall was an incident completely separate from the use or operation of the vehicle, something that occurred after she used her vehicle to get to the store and before she returned to the vehicle. There was nothing integral to the use of operation of the vehicle occurring when Ms. Nickerson injured herself.
Therefore, I find that that the use or operation of the vehicle did not directly cause Ms. Nickerson’s injuries.
As a result, Ms. Nickerson was not involved in an accident as defined in the Schedule.
EXPENSES:
If the parties cannot agree on expenses, they may arrange for a hearing on expenses in accordance with the provisions of the Dispute Resolution Practice Code.
November 1, 2012
Rosemary Muzzi
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 148
FSCO A11-001753
BETWEEN:
SYLVIE NICKERSON
Applicant
and
SECURITY NATIONAL INSURANCE CO./
MONNEX INSURANCE MGMT. INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Nickerson’s Application for Arbitration is dismissed.
November 1, 2012
Rosemary Muzzi
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Greenhalgh v. ING Halifax Insurance Co. Inc., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485.
- Khan v. Certas Direct Insurance Company (FSCO A06-002205, July 18, 2008). Repair of the vehicle is not considered use and operation of the vehicle.
- Olesiuk and Kingsway General Insurance Company (FSCO A10-002609, September 7, 2011) at pages 8 and 11
- Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003), Appeal
- Federation Insurance Company of Canada and Saad (FSCO P03-00017, January 8, 2004), Appeal
- Seale supra at footnote 5
- Shantz and Dominion of Canada General Insurance Company (FSCO A01-001147, May 13, 2002); Belair and Seale supra
- Webb v. Lombard General Insurance Company [2007] O.F.S.C.D. No. 188
- Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA)
- Ekunah and Simcoe & Erie Insurance Company (OIC P-007550, April 22, 1996), Appeal; Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002) Appeal; Karshe v. Non-Marine Underwriters A99-000855; State Farm Mutual Insurance Company and Souchuk (FSCO P02-00039, January 8, 2004), Appeal