Neutral Citation: 2015 ONFSCDRS 175 FSCO A14-001846

BETWEEN:

FRANK BANOS Applicant

and

JEVCO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Harvey Savage Heard: By written submissions received on June 5, 2015 and June 19, 2015 and in person at ADR Chambers on June 26, 2015 Appearances: Ms. Sandra Rodriguez for Mr. Frank Banos Mr. Ryan Kirshenblatt for Jevco Insurance Company

Issues:

The Applicant, Mr. Frank Banos, applied for accident benefits from Jevco Insurance Company (“Jevco”) after he was injured in an automobile accident on January 30, 2010. Jevco denied Mr. Banos accident benefits on the basis that the incident was not an “accident” as that term is defined under the Schedule.¹ The parties were unable to resolve this dispute through mediation and Mr. Banos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this Preliminary Issue Hearing is:

Was Mr. Banos injured in an “accident” as that term is defined in the Schedule?

Result:

Mr. Banos was not injured in an “accident” as that term is defined in the Schedule. Mr. Banos’ Application for Arbitration is dismissed.

EVIDENCE AND ANALYSIS:

The parties filed an agreed statement of facts.

The parties agree that on January 30, 2010, at approximately 12:30 p.m., Mr. Banos attended an Esso gas station located at 248 Lynden Road in Brantford, Ontario to refuel his 2006 Ford Fusion. At the gas pump, Mr. Banos exited the car and refueled his car with gasoline. His tank was ¾ empty when he stopped to refuel. After refueling, Mr. Banos left his car parked at the pump while he entered the convenience store just over 57 feet away in order to pay.

After he paid for the gas, Mr. Banos began to return to his car to continue his journey. He had just exited the doors to the convenience store and had begun walking towards his car when he slipped and fell on ice on the ground. His car was approximately thirty feet away from him when he fell.

Mr. Banos picked himself up, got into his car and drove home. As a result of the fall, Mr. Banos sustained injuries to his left elbow and knee.

Applicant’s Position

The Applicant submits that he has satisfied both questions of the applicable two-fold test developed in case law used in determining whether an “accident” has occurred under s. 3(1) of The Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, s. 1.

He submits with respect to the first question – “use or operation” – that his having engaged in refueling his tank was an ordinary activity that was the dominant feature of the incident at issue, and more specifically, that his entire sequence of activities – exiting his car to refuel, paying for the gas at the station, returning to his vehicle, and then driving home was part of such ordinary use and operation.

With respect to the second question – direct causation – he submits that his injuries resulted from an uninterrupted sequence of events involving the use and operation of a vehicle, that of refueling. Referring to decisions such as Saad² and Olesiuk,³ he submits that the factors set out in authorities such as Chisolm,⁴ causation factors such as time, proximity, activity and risk are all satisfied and militate in favour of the Applicant in this case.

Insurer’s Position

Jevco asserted that the incident that occurred on January 30, 2010 was not an incident in which “the use or operation of an automobile directly causes an impairment”. Consequently, Mr. Banos has been denied accident benefits.

The Insurer submits that the Applicant satisfies neither the “purpose test” nor the “causation test”, both of which are required to establish involvement in an “accident”, (a two-part legal test which will be set out below in greater detail).⁵

Regarding the first question, it submits that repair and maintenance (refueling) is not “use or operation” of an automobile and regarding the second question, that when Mr. Banos fell on ice, he was not engaged in the use or operation of his vehicle, but further, the ice was an intervening factor which interrupted the chain of causation such that it could not be said that the vehicle was a direct cause of his injuries.

Analysis

While these types of cases all turn on the particular facts, it is accepted and acknowledged by both parties that the required analysis is in two parts:

Did the incident arise out of the use or operation of an automobile? Decisions define “use or operation” as:

(i) 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?⁶

Mr. Banos claims that his injury resulted directly from the use or operation of his 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. His refueling of his gas tank was an ordinary use of maintaining his car;
he had used the vehicle to drive to the gas station to refuel his gas tank and had intended to return home once he paid for the gas.

On the facts before me, I find that Mr. Banos’ case fails both tests: his 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 his injury. The cause of his injury was the slip and fall on the ice in the gas station area about thirty feet from his parked car. Any connection between the use or operation of his vehicle and his injury is remote at best and therefore does not meet the test.

(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 other cases standing for the opposite. In Khan and Certas Direct Insurance,⁷ Arbitrator Richards found that the Applicant’s repair of his wife’s vehicle, while escaping vapour fumes burned him, did not constitute an “accident” both because the repair to the vehicle was not a “use” of that vehicle and also because he found that the Applicant’s injuries were not caused directly by the repairs. Arbitrator Richards found the faulty air compressor igniting the flames was an intervening event that broke the chain of causation.

In Olesiuk and Kingsway,⁸ the Applicant argued that because in the process of effecting repairs to a stationary vehicle, he was using the truck’s hood as a platform when he fell, he was “using” the vehicle for purposes of the Schedule. Arbitrator Feldman disagreed, reasoning that repairing a vehicle, in general, will not constitute a use of the vehicle and cannot be converted into a “use” merely by standing on a vehicle while making repairs.

Arbitrator Feldman in the Olesiuk decision, referring to various Supreme Court of Canada and Ontario Court of Appeal decisions, also opined that common sense should be used and interpretation must give effect to the reasonable expectations of the Insured and Insurer. He also reiterates Driedger’s oft cited “modern rule” of interpretation that “courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation”.

I find the reasoning in these decisions persuasive. A common sense view of the facts in this case militates against a parked car that has already been refueled as constituting a “use” in terms of the two-fold test.

I also find persuasive the decision of Arbitrator Muzzi in Nickerson and Security National where the facts are not materially different from the facts in this case. Like Mr. Banos’ situation, Nickerson involved a slip and fall, and a parked car whose owner only intended it to be parked temporarily.⁹

In that case, Arbitrator Muzzi found that Ms. Nickerson was not in the course of carrying out a repair to her vehicle or to one of its parts when she fell. There was a damaged wiper blade on her car which she was on her way of retrieving to take to the Canadian Tire store from the parking lot where her car was parked. She had been told by a clerk when she was inside the store to obtain it from her car window. She was en route to her parked car at the time that she fell.

Arbitrator Muzzi found on those facts that 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 attempt to repair either the vehicle or the part. It was caused by a fall while she was walking to her parked car.

According to the facts before me, Mr. Banos refueled his car and then left it in a parked position to pay for the gas. While this kind of maintenance was integral to his driving - just as Ms. Nickerson’s intended replacement of the defective windshield wiper could be considered equally integral - I am persuaded that it was the slip and fall on ice that was the sole cause of Mr. Banos’ injury, and not use and operation of the vehicle.

(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 scenario¹⁰ and factors such as time, proximity, activity, and risk. 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 Mr. Banos was involved in the activity of walking back to his car rather than any activity directly related to his car weakens the link here.

In addition, considering factors such as time and proximity, Mr. Banos’ case weakens even further. When he fell, Mr. Banos was not in or near his car; he had left his vehicle by the fuel pump while he went to pay for the gas. While this did not consume an inordinate amount of time, the fact remains that being even thirty feet away when he fell on ice on his way to the car, constituted an intervening factor.

This activity fails both the time and proximity factors. This can be distinguished from the Saad decision referred to in the above outline of the Applicant’s position, where there was a much closer proximity between driver and car, and the act of falling was much closer to the car.

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.¹¹ Slipping on ice and falling is not a risk that is normally associated with the activity of motoring.

Having regard to the totality of the evidence, the vehicle was merely the means by which Mr. Banos got to the gas station to refuel. At best, I find that there is only a very weak link between the use or operation of the vehicle and his 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 car,¹² it is still necessary that the facts show that the use or operation of the vehicle had a continuing causal role and remained the dominant feature of the incident¹³ and not ancillary to it.¹⁴ It is not enough to show that the vehicle was involved in some peripheral or some incidental way.¹⁵

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 Mr. Banos’ injuries. I find that Mr. Banos’ fall was an incident completely separate from the use or operation of the vehicle, something that occurred after he had used his vehicle to refuel at the gas pump and before he returned to the vehicle. There was nothing integral to the use of operation of the vehicle occurring when Mr. Banos fell on ice and injured himself.

Therefore, I find that that the use or operation of the vehicle did not directly cause Mr. Banos’ injuries.

As a result, Mr. Banos 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.

August 31, 2015

Harvey Savage Arbitrator

Date

Financial Services Commission of Ontario