Jacqueline Newey v. Dominion of Canada General Insurance Company, 2016 ONFSCDRS 144

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 144

FSCO A15-005569

BETWEEN:

JACQUELINE NEWEY

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Jeff Musson

Heard:

In person at Windsor, Ontario on March 18, 2016

Appearances:

Ms. Ruth Stewart for Ms. Jacqueline Newey Ms. Joyce Tam for Dominion of Canada General Insurance Company

Issues:

The Applicant, Ms. Jacqueline Newey, was injured in an accident on February 19, 2014 and sought accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Newey applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

Was the Applicant involved in an “accident” as defined in Section 3(1) of the Schedule?
Is either party entitled to its expenses in respect of the Preliminary Issue Hearing?

Result:

The Applicant was not involved in an accident as defined by Section 3(1) of the Schedule.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

The following was an Agreed Statement of Facts submitted by both Applicant’s and Insurer’s counsel. On the evening of February 19, 2014, at approximately 11:00 p.m., the Applicant drove to the Petro Canada gas station on Eugenie Street in Windsor, Ontario to refuel her car. There was snow and ice on the ground at the gas station.

The Applicant pulled up to the gas pump and exited her vehicle. The gas intake for the Applicant’s vehicle was located on the passenger side of the vehicle. As the Applicant was walking around her car, she slipped on a patch of ice and fell backwards, striking the back of her head on the pavement. An ambulance was called to the scene. The Applicant’s son was also called. Her son arrived before the ambulance and subsequently drove his mother, the Applicant, to Hotel Dieu Hospital. At the hospital, x-rays were taken of the Applicant’s head and hip. The results came back as negative for fractures. The emergency room physician prescribed pain medication for the Applicant and she was discharged the following morning at 8:00 a.m. After the hospital visit, the Applicant followed up with her family physician, Dr. Musgrove.

The Applicant has applied for accident benefits from Dominion. In the Joint Arbitration Brief, the Applicant stated that she did not file a claim with Dominion “until the end of December 2014, because she was unaware that she could claim accident benefits as a result of a slip and fall.”² Dominion, however, disputes that the incident is an “accident” within the meaning of the Schedule.³

The Issues in Dispute

The issue put forward at this Preliminary Issue Hearing is the determination if this incident qualifies as an accident under the Schedule. Both parties agree that the two-part test should be used in determining whether the Applicant’s incident can be defined as an “accident”.

Part one of the two-part test relates to the purpose or use test. Did the incident arise out of the use or operation of a vehicle in the ordinary and well-known activities to which vehicles are put (the “Purpose Test”)? Part two of the two-part test relates to the causation test. Was the use or operation of an automobile a cause of the injuries (the “Causation Test”)? If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?

Applicant’s Position

The Applicant submits that she has been able to satisfy in the affirmative both questions of the two-fold test, thereby allowing the Applicant to claim accident benefits under her automobile policy. In terms of the first question, the Applicant believes that the activity of refueling her car is an ordinary activity related to the use or operation of a vehicle. The Applicant concedes in her Joint Arbitration Brief that she had not begun to refuel her car when she slipped on the ice; but was walking around the car to get to the gas pump on the passenger side in order to begin refueling.

The Applicant believes that her injuries were sustained from an uninterrupted sequence of events that occurred as a result of the use or operation of a vehicle; in this case, the refueling of the gas tank. The Applicant submits that the causation factors such as the activity that was being engaged in, the short amount of time after the car was parked next to the gas pump and the proximity to the car all favour her passing the causation aspects of the two-part test.

Although not germane to the determination that the incident qualifies as an accident under the Schedule, the Applicant raised the issue that the Insurer did not comply with the Schedule as stated in Section 32(10) in making a determination within 45 days regarding the Applicant’s entitlement to benefits. Therefore, the Applicant stated that she had every right to believe that her claim for accident benefits had been accepted and by extension, that the Insurer agreed that the incident that took place was an accident.

The Applicant’s claim for accident benefits was submitted on November 11, 2014⁴ and she takes the position that on or about February 6, 2015 is the date when the final determination of entitlement to benefits by Dominion should have taken place. The final determination of entitlement did not take place until many weeks later, on June 2, 2015.⁵ As part of her submissions at the Preliminary Issue Hearing, the Applicant is relying on the legal principle of Estoppel in order to claim she is entitled to accident benefits. As a result, the Applicant submits that with all of the correspondence between the parties, and the terminology used, she was under the impression that her claim was being processed. The Applicant is relying on the Insurer’s request for medical notes and records, the request for the Applicant’s collateral benefits file and the request for any available police reports. The Applicant submits that there was terminology in the letters sent by the Insurer to the Applicant which specifically referred to benefits being terminated by a specific date if the Applicant did not comply with various requests.⁶ Therefore, by threatening termination, the Applicant believed that she in fact qualified for accident benefits – otherwise how does the Insurer terminate benefits that were never commenced in the first place.

Insurer’s Position

The Insurer states that the incident that the Applicant was involved in on February 19, 2014 does not satisfy either part of the two-part test which is required if this incident is to qualify as an accident under the Schedule. The Insurer submits that repair and maintenance including refueling is not a use or operation of an automobile and even if it was, the Applicant fails to meet part two of the two-fold test, namely causation. The Applicant fell on the ice as she was walking alongside the car.

In the Insurer’s submission, the Applicant had safely disembarked from the vehicle and shut the driver’s door. It was the ice on the ground which was the intervening factor which broke the chain of causation. Therefore, the Applicant is not entitled to claim this incident as an accident as defined under the Schedule.

The Insurer’s position in relation to Estoppel is that it does not apply in this case. In order for it to apply, there must be an established promise to pay that is full and unambiguous. In this case, the Insurer never paid any amount towards Income Replacement Benefits to which the Applicant believes she is entitled. There was no promise to pay this benefit and as such, the Applicant should not have assumed that there was an acceptance of her claim to accident benefits.

Analysis

The Two-Part Test

It has been determined through jurisprudence that the ordinary use of a vehicle extends beyond the act of driving. There were multiple cases submitted by both parties at this Arbitration Hearing that speak to activities which constitute an ordinary, well known use of a vehicle. However, there were two specific cases that provide the best guidance as it relates to the case before me.

In her submissions, the Applicant submitted and relied on the Saad and Federation Insurance Company of Canada⁷ case. Although the Saad case is similar to the case heard before me, the significant factor in the Saad case is that the car was still running when Mr. Saad was injured. In the case before me, the car was turned off and the Applicant had successfully disembarked without incident. It was only when the Applicant was walking around that she slipped and fell on the ice. Based on the evidence, the intervening force of this incident was the ice which caused the Applicant’s injuries, not the ordinary, well known operation of a vehicle.

The other case which provided some guidance was the Banos and Jevco Insurance Company⁸ case. Mr. Banos’ incident occurred at a gas station as well, similar to Ms. Newey’s incident. The Applicants in both cases slipped on ice at the gas station. I agree with Arbitrator Savage’s analysis of the Banos case:

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 this 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.⁹

In the case before me, the Applicant in my opinion fails to meet both tests as well. Just like Mr. Banos, Ms. Newey’s car was turned off and similar to Mr. Banos, Ms. Newey also slipped on the ice at the gas station. Ultimately, when looking at the risk factor associated with Ms. Newey’s incident, it is imperative to ask the question: “Was the injury a natural and reasonable incident or consequence of the use of a motor vehicle and risk associated with the motoring?” In my opinion, slipping on ice and falling once a vehicle is turned off and the occupants have fully disembarked is not a risk that is normally associated with the activity of motoring.

Estoppel

The focus of this Hearing was to determine if the incident that the Applicant was involved in is considered an accident under the Schedule. The issue of Estoppel is an argument that is normally not associated with the determination of whether an incident is considered an accident under the Schedule.

The Applicant submitted at the Hearing that she had a right to believe that her claim for accident benefits had been accepted based on the opening of an accident benefit file and the correspondence from the Insurer. In reviewing this correspondence, I am of the opinion that she had erred in this assumption. The mere fact that the Insurer opened an accident benefits file and was requesting all related documentation does not constitute acceptance on the Insurer’s part. The Applicant is relying on the legal principle of Estoppel in which to further her claim; however there was no evidence provided which showed that the Insurer had agreed to pay the Applicant’s Income Replacement Benefits claimed. In its submissions, the Insurer referred to Maracle v. Travellers Indemnity Company of Canada¹⁰ and the differences in that case versus the Applicant’s case. In Ms. Newey’s case, the Insurer continued to send correspondence to the Applicant asking for information in order to properly assess the file. The Applicant was under the impression that she was entitled to benefits. In my opinion, opening an accident benefits file and sending a letter requesting information do not constitute an Insurer agreeing to pay accident benefits to the Applicant.

In her submission, the Applicant referred to Section 32(10) of the Schedule¹¹ when stating that the Insurer had 45 days in which to make its determination on the Applicant’s file. What the Applicant fails to address is Section 32(10)(b) which states that the 45 days does not apply when there is further information being requested. At such time, according to Section 32(10)(b), once the Applicant complied with any requests made by the Insurer, the Insurer has 10 days in which to respond. I am of the opinion that, based on the evidence, the Insurer made best efforts to process the Applicant’s claim in an expeditious manner and that any delay does not constitute the Insurer agreeing to the Applicant’s position that an accident did occur.

Ultimately, the Insurer never paid the Applicant Income Replacement Benefits that are in dispute. In my opinion, the Applicant is not able to rely on the principle of Estoppel in order to receive accident benefits from Dominion. Based on this fact, the correspondence submitted and the case law submitted, there was no implied acceptance by the Insurer that the incident of February 19, 2014 was an accident within the meaning of the Schedule which entitles the Applicant to accident benefits.

CONCLUSION

Based on the evidence presented before me in this case, I am of the opinion that the Applicant’s slip and fall was an incident that was separate from the use or operation of a vehicle. Although the Applicant drove to the gas station using her vehicle, that vehicle was parked, the engine was turned off and the Applicant had fully disembarked from the vehicle, shutting the driver’s door behind her. It was only when she was walking around the rear of her vehicle that she slipped and fell on the ice. Therefore, I find that the use or operation of the vehicle did not directly cause the Applicant’s injuries.

As a result, the Applicant was not involved in an accident as defined in the Schedule.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 16, 2016

Jeff Musson Arbitrator

Date