Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 16

FSCO A10-003967

BETWEEN:

MARILENA DIMARCO

Applicant

and

CHUBB INSURANCE COMPANY OF CANADA

Insurer

Before: Deborah Pressman

Heard: November 22 and 23, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Transcripts received December 20, 2011

Appearances: Peter Cho for Ms. DiMarco

George Kanellakos for Chubb Insurance Company of Canada

The Applicant, Marilena DiMarco, claims to have been injured on May 23, 2009, in a motor vehcile accident. She applied for statutory accident benefits from Chubb Insurance Company of Canada (“Chubb”), payable under the Schedule.¹ Chubb refused to pay her benefits, taking the position that her injuries were not directly caused by the use or operation of the motor vehicle, as required by the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. DiMarco 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:

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

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

Background

Ms. DiMarco is a 47 year old real estate agent, who has been married for 27 years and has 2 adult children. After her nephew was diagnosed with leukemia, her family joined the “ride to conquer cancer” event.²

On May 23, 2009, the day of the incident, Ms. DiMarco was participating in an 80 kilometre training ride with a group of approximately 30 other cyclists. The weather was clear and dry.

When the cyclists were riding through Beeton, located in southern Ontario (between Tottenham and Alliston), they discovered that the town was having its Beeton Honey and Garden Festival.

Main Street Road was closed to all automobile and bicycle traffic and was filled with booths and pedestrians.

As a result, Ms. DiMarco and the group of cyclists were unable to ride on Main Street Road. Their ride guide led them to the sidewalk and directed them to follow him in a single file. While travelling east on the sidewalk, the cyclists encountered a parked automobile. While manoeuvring around this automobile, Ms. DiMarco fell off her bicycle and sustained injuries.

Facts

The only facts in dispute between the parties are that which occurred while Ms. DiMarco was manoeuvring around the parked automobile.

Ms. DiMarco, Ms. Lee and Ms. Lue-Kim testified at the hearing. All three were part of the “ride to conquer cancer” event and were cycling close to one another at the time of the incident.³

Chubb’s witnesses, P.C. Mortimer, a police officer and Mr. Nolan, a paramedic, arrived at the scene after Ms. DiMarco’s fall.

Based on the testimonies of these witnesses at the hearing, I find that the parked automobile significantly encroached on the sidewalk at the time of the incident. The automobile’s location and orientation created an obvious obstacle for Ms. DiMarco. There were no other impediments immediately surrounding the automobile or Ms. DiMarco at the time of her fall. Therefore, I accept that on the balance of the evidence, the automobile was the dominant reason for her fall.

Ms. DiMarco testified that while cycling on the sidewalk she had to steer her bicycle around an automobile parked directly in her way. While manoeuvring in this narrow space, Ms. DiMarco lost her balance, touched the automobile with her right hand, and fell on the ground. She fell down with her bicycle, on her right side, next to the automobile. As a result, she fractured her hip and was unable to get up without the help of the paramedics.

Chubb has asked me to draw an adverse inference based on several discrepancies or inconsistencies between Ms. DiMarco’s testimony at this proceeding and the evidence she provided at an examination under oath.

I find that Ms. DiMarco’s account of her contact with the automobile is consistent with the transcripts from the examination under oath.⁴ In the transcripts, she stated that she was trying to manoeuvre around the van when she fell. She also stated that she did not hit anything with her bike but at some point touched the van with her hand to try and avoid falling. This evidence was consistent with her testimony at the hearing, as well as with the description of the accident in the Application for Accident Benefits.⁵

Chubb argued that Ms. DiMarco failed to remember certain details about the ignition of the automobile at her examination under oath but had provided those details at the arbitration hearing. I find that the discrepancies identified by Chubb are minor in nature and do not undermine her testimony on the substantive and material elements of her claim.

I am satisfied that Ms. DiMarco’s own evidence on the details of the incident was consistent and credible. Ms. Lee and Ms. Lue-Kim confirmed the most essential parts of Ms. DiMarco’s account. I prefer their evidence, as they were present at the time of the incident, while Mr. Nolan and P.C. Mortimer arrived at the scene later on.⁶

Ms. DiMarco testified that there were no other impediments on the sidewalk as she was making her way around the parked automobile. I accept her testimony that there were no pedestrians, chairs or traffic on the sidewalk at the time of her fall.

Ms. Lee and Ms. Lue-Kim made similar and credible observations with respect to where she fell and the significant role the automobile played in her fall. In fact, both Ms. Lee and Ms. Lue-Kim recalled that the automobile was parked significantly over on the sidewalk and the vehicle itself was the only observable impediment in Ms. DiMarco’s fall.

P.C. Mortimer arrived at the scene after Ms. DiMarco’s fall. During the hearing he testified that by the time he arrived at the scene, the automobile had already been moved into the driveway. However, in his OPP Occurrence Confirmation Report, he stated: “the victim was attempting to manoeuvre around numerous pedestrians, chairs, displays and vehicles that were parked along Main Street.”⁷ I find this statement to be a general observation of the area at the time of the festival and not specific to the time and location of the incident in question. Therefore, P.C. Mortimer was not able to testify with respect to the automobile’s position at the relevant time.

Moreover, he recalled that he was told that there was very little room to manoeuvre around the parked automobile and this was the main reason for Ms. DiMarco’s loss of balance and fall.

Mr. Nolan, the paramedic, arrived at the scene after P.C. Mortimer. He testified that he was told by Ms. DiMarco and other bystanders that a vehicle was blocking the sidewalk and Ms. DiMarco struck the parked car with the bicycle and then fell over on her right side.

In summary, I find the following facts:

On the day of the incident, Main Street was closed to all automobile and bicycle traffic due to a festival.
Ms. DiMarco and the “ride to conquer cancer” cyclists were forced to ride on the sidewalk.
The owner of the automobile in question parked his vehicle over the sidewalk and close to the road to play music from his vehicle and attract festival goers to his booth.
By encroaching half way over the sidewalk, the automobile left a narrow space for the group of cyclists.
Ms. DiMarco lost her balance and fell on the sidewalk while maneuvering around the automobile in the narrow space left by its owner.
There were no other impediments in her way, other than the automobile.
Ms. DiMarco sustained injuries, including a fractured hip.

The Definition of “Accident”

Section 2(1) of the Schedule defines the term accident as “an incident in which the use or operation of an automobile directly causes an impairment…”⁸

This definition raises two questions:

Did the incident arise out of the use or operation of an automobile; and if so,
Did such use or operation of an automobile directly cause Ms. DiMarco’s injuries?

Did this incident arise out of the use or operations of an automobile?⁹

Since the Supreme Court decision of Stevenson v. Reliance Petroleum Ltd.,¹⁰ judges and arbitrators have confirmed that the term “use or operation” of a motor vehicle must be broadly interpreted to mean ordinary and well-known uses of an automobile.¹¹

As a result, the interpretation of “use or operation” has been extended well beyond driving and includes not only “motoring purposes” in general, but the ordinary and expected uses of vehicles.¹²

At the time of this incident, the owner of the automobile was using his van to play music, in order to attract festival goers to his booth. For this reason, he parked his vehicle purposely over the sidewalk and close to the road.

Chubb submitted that the act of parking takes the automobile out of the “use or operation” definition. However, parking has been considered one of the ordinary and well known uses to which automobiles are put. ¹³ In Ash and Wawanesa Mutual Insurance Company¹⁴, Arbitrator Wilson commented:

one need not go far to accept that parking a vehicle constitutes a normal part of the use of an automobile ...most automobiles spend the vast majority of their useful lives at rest, waiting to be put in motion or “operated”, but still in “use”, if only on standby as a road vehicle.”¹⁵

Therefore, I cannot accept Chubb’s argument that parking is beyond the ordinary and expected uses of a vehicle. In my view, a parked car is a common occurrence in relation to the “use or operation” of an automobile and easily falls within the ordinary and well known uses to which automobiles are put.

I find that Ms. DiMarco has satisfied the purpose test and met her burden of proving that the use or operation of an automobile was involved in this incident.

Did such use or operation of an automobile directly cause Ms. DiMarco’s injuries?¹⁶

What amounts to a “direct cause” will turn on the facts and circumstances of each case.¹⁷ On the facts of this case, I find that the use or operation of the automobile directly caused Ms. DiMarco’s injuries.

Arbitrators and judges have accepted that direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.¹⁸ In Ash, a cyclist bumped into a trailer attached to a parked automobile. Arbitrator Wilson found that the automobile set in motion a train of events leading to injuries without any intervening act.

In this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way. This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco. Therefore, there was a direct and proximate cause between the “use or operation” of the automobile and Ms. DiMarco’s injuries.

Leading cases that dealt with causation formed the principle that for an incident to qualify as an accident, an automobile must be a dominant feature in the incident, and not ancillary to it.¹⁹ Chubb submitted that Ms. DiMarco’s cycling abilities are the cause of her fall and her injuries. I agree that the falling off of her bicycle caused Mrs. DiMarco’s injuries and that her cycling abilities may have been a contributing factor to this accident.

However, I find that the fall from her bicycle was “ancillary” to Ms. DiMarco being compelled to manoeuvre around this parked automobile. The direct cause of her injuries was the unintended contact with the parked automobile. I find as a fact that the dominant feature in this incident is an automobile.

In any event, a direct cause is not required to be the only cause or the most immediate cause.²⁰

While there could be several causes to an injury, as long as an automobile is significantly involved in the incident, an insured may still qualify under the definition of “accident”. On that basis, Ms. DiMarco’s cycling skills, or lack thereof, do not automatically disqualify her from meeting the direct causation test under the Schedule.²¹

Chubb also submitted that the lack of contact between Ms. DiMarco’s bicycle and the automobile is an important point. I disagree. Arbitrators have found “direct cause” in incidents where the automobile did not come into physical contact with the accident victim.²² In fact, in Petrosoniak, a cyclist fell from his bicycle nowhere near an automobile and was found to qualify under the definition of “accident”.²³ I find that Ms. DiMarco’s incident is a lot less remote than Petrosoniak. In any event, I had already found that Ms. DiMarco did in fact come into contact with the automobile at the time of her fall.

The direct causation test is also satisfied when the use or operation of an automobile creates to or adds to the risk that befalls the claimant.²⁴ In Seale, Arbitrator Makepeace confirmed that cases on the margin will turn on a number of factors, including whether the peril or the mechanism of injury relates to use or operation of the automobile.²⁵

In this case, I find that the vehicle created a situation of risk by encroaching half way over the sidewalk. The decision to park the vehicle in a situation of risk triggered a sequence of events that placed Ms. DiMarco in harm’s way, which directly resulted in her injuries. On that basis, Ms. DiMarco’s incident satisfies the causation principle.

For the reasons set out above, I find that Ms. DiMarco has met her onus, on a balance of probabilities, of proving that her injuries were directly caused by the use or operation of a motor vehicle within the meaning of the Schedule.

EXPENSES

The parties did not make submissions on the issue of expenses. If the parties are unable to reach

an agreement, they may request a determination pursuant to Rule 79 of the Dispute Resolution Practice Code.

February 22, 2012

Deborah Pressman

Arbitrator

Date