Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 152

FSCO A14-001321

BETWEEN:

MIROSLAWA BUS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Tanja Wacyk

Heard: By written submissions due August 18, 2015 and in person at Hamilton, Ontario on March 23, 2016

Appearances: Mr. Ben Fortino and Ms. Diana Colangelo for Ms. Miroslawa Bus

Ms. Lora Castellucci for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Miroslawa Bus, was injured on February 15, 2013 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) payable under the Schedule.¹ The parties were unable to resolve their dispute through mediation, and Ms. Bus, through her representative, 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:

1. Was Ms. Bus involved in an automobile accident within the meaning of s. 3(1) of the Schedule?

2. Is either party entitled to its expenses of this proceeding?

Result:

1. Ms. Bus’s accident did not arise from the use or operation of an automobile, and was not an "accident" within the meaning of s. 3(1) of the Schedule. Accordingly, Ms. Bus’ Application for Arbitration is dismissed.

2. Should the parties be unable to agree regarding either the entitlement to or quantum of expenses, they may submit written submissions in that regard, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code? If written submissions are necessary, the parties are to agree to a schedule ensuring the submissions are completed by no later than three months from the date of this decision.

EVIDENCE AND ANALYSIS:

BACKGROUND

Ms. Bus testified she fell while exiting her Lincoln Navigator sports utility vehicle, which she had parked in the lot adjacent to a TD Bank, with the intent of conducting some banking. She testified she exited the vehicle “very carefully”, hanging on to both the door and frame of the vehicle. She put one foot on the step of the vehicle, and attempted to step down with her other foot. However, her other foot slipped on black ice, causing her entire body to slide out of the vehicle. Ms. Bus testified that as a result, she fell on her back and hit her head on the step of her vehicle.

A passerby helped Ms. Bus up, following which she attended at the TD Bank to complete her banking.

Ms. Bus maintained that on entering the TD Bank, she reported the incident to “Marianna”, one of the tellers. Ms. Bus indicated she has known Marianna for the approximately 20 years that she has been banking at that TD Bank branch. Ms. Bus testified she was in the TD Bank for more than 20 minutes, describing how she fell, including that she had hit her head on the step of her vehicle. She also completed her banking and “rested a bit”. Ms. Bus indicated Marianna advised her manager of Ms. Bus’ accident, but no incident report was completed.

The following day, Ms. Bus attended at Walkers Medical Clinic, a walk-in clinic, where she was seen by Dr. Raoufeh Rahimpour. Ms. Bus maintained that with her husband’s assistance, she explained to Dr. Rahimpour that she slipped while exiting her vehicle and hit her head on the step of her vehicle. Ms. Bus testified she is certain Dr. Rahimpour understood she was injured when she fell out of her vehicle.

Dr. Rahimpour’s notes² made no reference to Ms. Bus falling out of her vehicle or striking her head on the step. Rather, they simply state “fell on the ice, last night, pain in the left hip, …in pain chest clear, hip pain on extension, abdo soft no mass, chest clear, pain on the lumbar are and the thoracis spine”[sic].

On February 26, 2013, Ms. Bus underwent a CT scan of her head. The resulting report refers to a "1 week history of dizziness and vertigo", and makes no mention of Ms. Bus’ fall.³ It appears this CT scan may be related to her pre-accident diagnosis of “severe vertigo” on February 6, 2013, by Dr. Joseph Chemparathy, her family physician at the time. His medical notes on that date indicate a CT scan was to be requisitioned.⁴

On March 7, 2013, Ms. Bus was again seen by Dr. Chemparathy. His notes from that date indicate Ms. Bus “fell down after slipping on black ice 3 weeks ago (on Feb 15th); had a lot of pain in her neck, Lt [sic] shoulder and left hip area.”⁵

Ms. Bus initially denied having discussed her fall with Dr. Chemparathy, and indicated she had moved to Dr. Rahimpour as her primary care physician. When it was pointed out that

Dr. Chemparathy’s March 7, 2013 notes referred only to her falling because she slipped on the ice, Ms. Bus indicated she did not speak to Dr. Chemparathy in detail, as she felt they did not have a good relationship. Ms. Bus reiterated she preferred to deal with Dr. Rahimpour.

However, Ms. Bus subsequently conceded she saw Dr. Chemparathy once per month between the time she fell in February 2013 and when he completed her Disability Certificate (OCF-3) on June 10, 2013.

Ms. Bus submitted her Application for Accident Benefits on or about June 4, 2013. When asked why she had delayed approximately 4 months following her accident to do so, Ms. Bus initially stated it was because she did not have time to file it earlier. She then indicated she called her lawyer approximately three weeks after the accident, and suggested “maybe” her lawyer was late.

The first clinical record referencing the presence or involvement of a vehicle in describing Ms. Bus’ injuries was the June 10, 2013 Disability Certificate completed by Dr. Chemparathy, and created only after Ms. Bus’ Application for Accident Benefits was filed. In the Disability Certificate, Dr. Chemparathy indicated Ms. Bus drove to the TD Bank to do some banking, and parked her vehicle in the Plaza parking lot. She then opened her driver's side door and put a foot outside. Once she placed her other foot, she slipped on ice and fell to the ground.⁶

When it was pointed out that Dr. Chemparathy’s notes contain no reference to hitting her head, Ms. Bus simply indicated she did not remember anything about Dr. Chemparathy, as she was not comfortable with him. She also testified he was aggressive with her.

Dr. Chemparathy’s notes indicate Ms. Bus was also somewhat aggressive with him.⁷ Specifically, Dr. Chemparathy’s notes indicate that on June 10, 2013, after documenting the information required for the Disability Certificate, Ms. Bus said she had additional issues to address. His notes further indicate that when Dr. Chemparathy advised Ms. Bus he had already spent twice the allotted time, and was running behind:

[Ms. Bus] became very aggressive and angry and started abusing [sic], saying that I am the worst doctor she has seen, threatening that if I make her angry she will sue me.

Further, on June 14, 2013, Dr. Chemparathy’s notes indicate:

[Ms. Bus] came to discuss the temporary disability form which I had filled out earlier. She says, she has pain in her limbs, back and neck even now. She agrees that she had all these pains even before the fall, but the pain increased after the fall. She already had this form filled out by some other doctor but refused to tell me which doctor it was; said, it was a walk in doctor, that she had given her disability for 12 weeks. It is not clear why she is not using that form but wants me to write that she has problems lasting for more than 12 weeks.

She is quite aggressive verbally

Very demanding – she wants me to rewrite the duration of disability as more than 12 weeks

Angry outburst without provocation. …

No useful clinical assessment was possible because of her aggressive behaviour.

The significance of the above will be addressed below.

With one exception, the medical documentation created subsequent to Ms. Bus having brought her Application for Accident Benefits, references Ms. Bus’ vehicle being involved in her injury. For example, in August 2013, Ms. Bus was seen by Dr. Sandhu for chronic pain complaints. Dr. Sandhu’s notes indicate Ms. Bus slipped on black ice and fell while getting out of her car.⁸

Further, Ms. Bus underwent an Insurer Examination on August 23, 2013 with Dr. Elliott.

Dr. Elliott’s report noted Ms. Bus had been involved in a motor vehicle accident on February 15, 2013, when, while exiting her vehicle, she fell on black ice, striking the back of her head on her vehicle. Further, Dr. Elliott concluded Ms. Bus had sustained injuries following the motor vehicle accident.⁹

Finally, in September 2013, Ms. Bus underwent an Insurer Examination with Dr. Speak. In his report, Dr. Speak noted Ms. Bus was exiting her vehicle at her local bank, and upon stepping out of the car hit black ice and struck her head on the step of the car. Further, Dr. Speak noted Ms. Bus informed her bank.¹⁰

The one exception, as mentioned above, was an MRI report, dated September 4, 2014, indicating the reason for the test was “persistent vertigo following fall 1 year ago”, and which makes no reference to a vehicle or Ms. Bus hitting her head.¹¹

Ms. Bus testified that each time she discussed the accident with a physician, she was clear she fell while getting out of her vehicle. She could not explain why this was not reflected in either

Dr. Rahimpour’s or Dr. Chemparathy’s notes. When asked if she had attempted to have them correct their notes, she pointed out she had no way of knowing what they had written in their notes.

However, Ms. Bus conceded that by May 22, 2015, when State Farm filed its submissions in this Preliminary Issue Hearing, she was aware that State Farm challenged her account that she was injured while exiting her vehicle. She further conceded she made no effort since then to have either Dr. Rahimpour or Dr. Chemparathy amend their notes to more accurately reflect what she maintains she told them, i.e. that she fell while exiting her vehicle and hit her head on the step. She explained that she did not attempt to have Dr. Chemparathy correct his notes, as she was not comfortable dealing with him.

Ms. Bus further acknowledged she made no effort to determine whether there was any video surveillance in the parking lot, which may have captured her fall.

Ms. Bus did testify that approximately two or three weeks before the Hearing of March 23, 2016, she attended at the TD Bank and spoke to Marianna, the teller to whom she maintains she reported her fall. However, Marianna advised her she cannot recall the incident. Ms. Bus suggested Marianna may have been “afraid” to give a statement, but gave no reasons for such an assertion.

ARGUMENT

State Farm

State Farm does not dispute Ms. Bus experienced a slip and fall accident on February 15, 2013. However, State Farm points out Ms. Bus bears the onus to demonstrate she was injured as the result of an "accident" within the meaning of s. 3(1) of the Schedule. It submits she has failed to produce compelling evidence to establish her slip and fall was an “accident” within the meaning of s. 3(1) of the Schedule, and therefore is not entitled to accident benefits.

State Farm points out that despite Ms. Bus’ assertions that she reported her fall to a teller in the TD Bank, there is no dispute the TD Bank has indicated no incident report related to Ms. Bus exists.

State Farm also submits it is curious that on February 6, 2013, just days prior to her February 15, 2013 slip and fall, Dr. Chemparathy diagnosed Ms. Bus with severe vertigo, and requisitioned a CT scan.

State Farm argues the medical records created by Dr. Rahimpour on February 16, 2013 and

Dr. Chemparathy on March 7, 2013 confirms Ms. Bus experienced a slip and fall due to ice, and was in no way related to the use and operation of her vehicle.

State Farm points out the Schedule defines "accident" at section 2(1) [now 3(1)] as:

"accident" means 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.

State Farm submits the definition of “accident” set out above clearly reflects legislative intent that only injuries directly caused by the use or operation of an automobile will be afforded no-fault benefits.

State Farm maintains the jurisprudence supports a finding that Ms. Bus’ slip and fall accident is not an accident as defined by the Schedule, and accordingly she is not entitled to no-fault benefits.

Specifically, State Farm points out the Court of Appeal held in Chisholm v. Liberty Mutual Group, that the “direct cause” requirement cannot be satisfied by the "but for" test for causation. Rather, an Applicant must go further than establishing that “but for” the use or operation of an automobile, the incident in question would not have occurred. Instead, the Court referred to the Black's Law Dictionary definition of “direct cause”:¹²

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 independent source.

Further, State Farm submits the decision in Diana Webb v. Lombard General Insurance Company of Canada, affirmed by the Court of Appeal,¹³ dealt with an analogous situation to that of Ms. Bus. In Webb, the Applicant slipped and fell on ice subsequent to exiting a taxi in front of her hotel. Ms. Webb fell in a location close enough to the rear of the taxi to make contact with it. Indeed, she claimed to have reached out and touched the bumper of the taxi during her fall.

In Webb, Director's Delegate Makepeace confirmed an Applicant's “use or operation” of a motor vehicle generally ends when she leaves the vehicle without incident and walks away, although a different conclusion may be reached when the use or operation of a vehicle created or added to the risk that befell the Applicant – for instance, an Applicant being forced to exit a public bus at a certain location.

State Farm argues it is significant Delegate Makepeace held there was no indication the position of the taxi created “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 store.” She did not accept “that the need to walk around a parked or stationary vehicle is enough ... to shift the nature of the risk from occupier’s liability to automobile accident benefits.” Delegate Makepeace confirmed that the risk, at some point, must shift from the risk of a normal incident associated with using an automobile, to become a risk associated with walking.¹⁴

State Farm argues the Webb decision employed a common sense focus on the nature of the risk covered by automobile insurance, and it was held in the end that because the Applicant disembarked from the taxi without incident and fell only after she began walking toward the hotel entrance, her use or operation of the taxi was not a direct cause of her impairment, and her slip and fall was not an “accident” for the purposes of the Schedule.

State Farm also relies on the Appeal decision in Wawanesa Mutual Insurance Company v. Daphna Webb¹⁵ which it maintains also dealt with a similar situation. In that case, Ms. Webb, due to a snow bank adjacent to a road, felt compelled to park her vehicle in front of a cleared pedestrian access point in order to get onto the sidewalk. After walking towards and then across the front of her car, the Applicant slipped and fell on ice when putting her foot onto the access point.

Delegate Blackman found that, “while the Respondent’s motor vehicle led her to the location of her injuries, her injuries, nevertheless, were sustained from a new and independent source other than her car”. Specifically, Delegate Blackman held the snow and ice were the intervening features that ultimately caused the Applicant’s injury. Accordingly, she was not involved in an "accident" for the purposes of the Schedule.

Delegate Blackman reiterated the proposition in Webb¹⁶ that there must be a common sense focus on the nature of the risk covered by automobile insurance, and that at some point, the risk must shift from a normal incident of using an automobile to become a risk associated with walking.

Further, State Farm relies on the decision of Wong and St. Paul Fire & Marine Insurance Company.¹⁷ State Farm submitted the facts in Wong also mirrored those in this instance, in that Ms. Wong slipped and fell on ice in a parking lot after exiting a tour bus. Arbitrator Wilson concluded Ms. Wong exited the motor coach without incident, and that there was causal separation in distance and time from the disembarkation and the subsequent slip and fall.

State Farm argues that not only has Ms. Bus failed to satisfy her onus to prove her fall meets the definition of “accident” under the Schedule, but further submits a negative inference can be drawn from her failure to produce evidence that might have been available to assist her.

In that regard, State Farm relies on the decisions in Thanikasalam and State Farm Mutual Automobile Insurance Company;¹⁸ Sediqyar and Unica Insurance Inc.;¹⁹ and McKoy and Unica Insurance Inc.,²⁰ which confirmed that the failure to secure potentially available evidence, may lead to a negative inference the evidence would not have supported that party’s position.

In conclusion, State Farm maintains that on February 15, 2013, Ms. Bus exited her vehicle without incident, and fell because of ice, an intervening factor completely independent from her use or operation of her motor vehicle, making this an occupier's liability case, and not an accident benefits case.

As such, State Farm maintains the Applicant is not entitled to accident benefits.

State Farm states that it has acted in good faith and has been a willing participant to the proceeding, having now incurred unnecessary time and expense in preparing for a defence, and by participating in various Pre-Hearing and Preliminary Hearing conferences.

Based on the above, State Farm submits an Order granting the dismissal of the Application for Arbitration, with costs, is just and appropriate in the circumstances.

Ms. Bus

Ms. Bus maintains she has produced an abundance of medical documentation in support of how her injuries occurred. Ms. Bus points out that at no time did either Dr. Elliott or Dr. Speak, when conducting the Insurer Examinations, question Ms. Bus’ description of how the accident occurred, or indicate they felt she had been untruthful in describing the manner in which the accident occurred.

Further, she points out State Farm never sought a statement from her regarding how the accident occurred, but continued to adjust her accident benefits file until it brought this Preliminary Issue.

Ms. Bus maintains her fall occurred when she was not entirely out of her vehicle. She points out the act of alighting from a motor vehicle requires a shift in body position and weight, and argues it was the act of exiting from the vehicle which caused her fall. She further argues the black ice on which she slipped does not represent an intervening event, breaking the chain of causation.

In support of her claim, Ms. Bus relies on the Ontario Superior Court Decision in Economical Mutual Insurance Company v. Caughy.²¹ In that instance, the Applicant, while at a festival, detached his trailer and parked alongside other trailers, leaving a gap designated as a walkway leading out of the campsite. Two motorcycles were subsequently parked on the Applicant's site, in the designated walkway between the Applicant's truck and an adjacent trailer. The Applicant ran between his truck and the adjacent trailer, colliding with and tripping over one of the motorcycles parked in the walkway. As a result, the Applicant struck his head on his truck and fell to the ground, sustaining spinal cord injuries. The Court determined the Applicant was involved in an accident pursuant to section 3(1) of the Schedule.

In doing so, the Court applied the twofold test articulated in Amos v. Insurance Corporation of British Columbia:²²

1. Did the accident result from ordinary and well-known activities to which automobiles are put (the "Purpose Test") and, if so

2. Was the relationship causal……or was it merely fortuitous or incidental (the "Causation Test").

In Caughy, the Court found the temporary parking of the motorcycle on the walkway constituted a normal, ordinary or well-known use or operation of that motorcycle. It further found there were no intervening acts sufficient to break the chain of causation between the Applicant's collision with the motorcycle and his injuries. Rather, the Court found that the use or operation of the motorcycle was the dominant feature or at least a significant contributing or direct cause of his injuries.

Ms. Bus also relied on the decision in Kasman and Security National Insurance Co./Monnex Insurance Mgmt. Inc. ²³ In that instance, the Arbitrator concluded the Applicant was injured as a result of an “accident” as defined in the Schedule, when he was struck by the arm regulating vehicle entry into a parking garage. The Arbitrator found the use or operation of the car the Applicant followed into the parking garage set into motion a chain of events that directly led to his injury. In making that determination, the Arbitrator found there was no doubt the car entering the parking garage was engaged in an ordinary and well-known activity to which automobiles are put. Further, the Arbitrator found it was this entry into the parking garage which caused the arm to lift and then descend, causing the Applicant’s injury.

Ms. Bus also pointed out the Schedule does not define “disembarking” or indicate disembarking on any particular type of surface affects the result. In that regard, Counsel referenced the recent decision in Roberts and Intact Insurance Company.²⁴ In that case, the Applicant jumped into a lake from the tailgate of a truck, severing her spine on impact. In applying the “Purpose/Use Test”, the Arbitrator, at pages 6 and 9, noted the jurisprudence has determined the ordinary use of a vehicle extends beyond the act of driving, and includes embarking and disembarking, and that disembarking can occur onto various surfaces, including ice.

Ms. Bus pointed out that in this instance, the surface upon which she disembarked was black ice, and like the water in the Roberts case, does not constitute an intervening act. Rather, the disembarking was the direct “cause” of her injury.

Ms. Bus also relied on the decision in Belair Insurance Company Inc. and Seale,²⁵ in which Director’s Delegate Makepeace upheld the finding that the Applicant’s use or operation of her automobile directly caused her injury. In that instance, the Applicant was driving home when, as a result of snow and ice, her vehicle became stuck. The Applicant exited her vehicle in order to extricate it, at which point the vehicle slid into a snow bank. While walking towards her vehicle, the Applicant fell on the icy road and broke her arm.

Ms. Bus argues the accident on February 15, 2013 arose directly from the use or operation of her automobile and, as such, is an accident as defined by the Schedule.

Accordingly, Ms. Bus maintains she is eligible to receive accident benefits from State Farm, and her Application for Arbitration should not be dismissed.

ANALYSIS

I begin by pointing out that Ms. Bus bears the onus to demonstrate her injury resulted from an automobile accident within the meaning of s. 3(1) of the Schedule.

The first issue I must decide is whether Ms. Bus fell as she was disembarking from her vehicle, or at some later time. This requires an assessment of Ms. Bus’ credibility as she was the only available witness to the event.

As stated by the Arbitrator in Adusei-Peasah and TTC Insurance Company Limited:²⁶

In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness's testimony has been contradicted by other evidence; and whether the testimony is plausible. …

In this instance, I am troubled by the apparent disparity between Ms. Bus’ testimony, and the other available evidence.

In the first instance, Dr. Rahimpour’s and Dr. Chemparathy’s documentation is consistent, in that it indicates Ms. Bus slipped on the ice, but makes no mention of her disembarking from her vehicle at the time, or hitting her head on the step of her vehicle – or any other object. These are significant factors. In particular, a blow to the head ought to have resulted in immediate investigation on the part of Dr. Rahimpour, and inquiry on the part of Dr. Chemparathy. It is difficult to accept they were both advised of this important detail and simply ignored it, not bothering to record it in their records.

Dr. Rahimpour’s and Dr. Chemparathy’s records are also created closest in time to the incident. At least on their face, these records ought to be considered a more accurate account by Ms. Bus of what occurred than any of her later accounts – which may be affected by the passage of time.

It is of course possible Ms. Bus did indicate she had fallen while exiting her vehicle, hitting her head on the step, and Dr. Rahimpour and Dr. Chemparathy simply failed to include those details in their reports. However, if that were the case, there is no compelling reason why Ms. Bus would not have asked them for a corrected version once she became aware those missing details were critical to her claim.

This is particularly the case as Ms. Bus indicated in her testimony she had a good rapport with Dr. Rahimpour. Although Ms. Bus indicated she did not have a good rapport with Dr. Chemparathy, as his notes set out above indicate, Ms. Bus has not been reluctant to express her frustrations with him, or demand, quite aggressively, what she requires of him.

I find the absence of a compelling explanation regarding why Ms. Bus failed to ask Dr. Rahimpour and Dr. Chemparathy to correct their notes suggests their notes accurately reflect what she told them.

While Ms. Bus relied on the notes of physicians seen after June 4, 2013 - the date on which she brought her Application for Accident Benefits - I find these are of little assistance to her. Although they do reflect Ms. Bus’ current version of events, their timing suggests Ms. Bus realized that in order to be eligible for accident benefits, her injuries would have to be attributed to the use or operation of an automobile. Having filed her Application on that basis, it is not surprising subsequent medical practitioners’ notes were consistent with that version of events. I have no reason to believe, nor has any suggestion been made, that the physicians had any independent basis on which to question her account; rather, they would have simply recorded what she told them.

Ms. Bus’ delay in bringing her Application for Accident Benefits is also troubling. While the delay itself may not be extraordinary, I find Ms. Bus’ explanation of it is. As indicated above, Ms. Bus first stated she did not file her Application for almost four months following her accident because she did not have time to do so. However, she provided no details regarding what kept her so busy she could not address this relatively important issue in her life.

Ms. Bus then appeared to recognize her response was less than compelling, and somewhat tentatively suggested that “maybe” her lawyer was late – again with no details that would support that suggestion. In the circumstances, I find neither response is a satisfactory answer to her delay.

In addition, unlike the Applicant in Kasman,²⁷ Ms. Bus made no effort to determine if there was video surveillance which may have captured her fall. In this era of hyper-surveillance, it is not unlikely such surveillance would exist in a parking lot adjacent to a bank. Such evidence could have been compelling and of significant assistance in her case. Ms. Bus gave no explanation regarding why she failed to explore that possibility. I find her failure to do so leads me to the negative inference that any such footage would not have been of assistance to her.

Finally, Ms. Bus indicates that 2-3 weeks before the Hearing, she approached the teller, Marianna, at the TD Bank to see if she would provide a statement, but Marianna advised she could not recall Ms. Bus reporting her fall to her. This is somewhat surprising, given that Ms. Bus and Marianna have known each other for approximately 20 years. However, while Ms. Bus suggested Marianna was “afraid” to give a statement, she gave no indication of what may be the cause of such fear. Accordingly, that evidence also does not assist Ms. Bus.

In light of all of the above, I am not persuaded Ms. Bus fell while disembarking from her vehicle.

Rather, as detailed in the medical documentation created closest in time to her fall, and prior to her filing her Application for Accident Benefits, I find Ms. Bus successfully and safely exited the vehicle, and subsequently slipped on ice and fell as she walked toward the TD Bank.

I further find the ice upon which Ms. Bus slipped to be an intervening factor, completely independent from her use or operation of her motor vehicle. While I accept Ms. Bus’ vehicle took her to the approximate location of her injury, the cause of the fall was a new and independent source – the ice on the pavement.

There may be fact situations in which the separation from a vehicle is sufficiently minimal in terms of time and distance, that an individual can still be considered to be disembarking. However, in this instance, the only evidence we have in that regard is what I conclude was

Ms. Bus’ initial accounts to Dr. Rahimpour and Dr. Chemparathy. In those accounts, and in her mind, Ms. Bus’ vehicle did not play a role in her injury.

Consistent with the decision in Webb,²⁸ in the absence of evidence that the use or operation of a vehicle created or added to the risk that befell Ms. Bus, I find her “use or operation” of a motor vehicle ended when she left the vehicle without incident and walked away. The risk, at that point, shifted from the risk of a normal incident associated with using an automobile, to a risk associated with walking.

Accordingly, I find that because Ms. Bus disembarked from her vehicle without incident and slipped on ice and fell only after she began walking toward the TD Bank, her use or operation of her vehicle was not a direct cause of her impairment, and her slip and fall was not an “accident” for the purposes of the Schedule.

DETERMINATION

Ms. Bus’ accident did not arise from the use or operation of an automobile, and was not an "accident" within the meaning of s. 3(1) of the Schedule.

Accordingly, Ms. Bus is not entitled to accident benefits pursuant to the Schedule, and her Application for Arbitration is dismissed.

EXPENSES:

Should the parties be unable to agree regarding either the entitlement to or quantum of expenses, they may submit written submissions in that regard, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code?

If written submissions are necessary, the parties are to agree to a schedule ensuring the submissions are completed by no later than three months from the date of this decision.

May 24, 2016

Tanja Wacyk Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 152

FSCO A14-001321

BETWEEN:

MIROSLAWA BUS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Ms. Bus’s accident did not arise from the use or operation of an automobile, and was not an "accident" within the meaning of s. 3(1) of the Schedule. Accordingly, Ms. Bus’ Application for Arbitration is dismissed.

2. Should the parties be unable to agree regarding either the entitlement to or quantum of expenses, they may submit written submissions in that regard, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code? If written submissions are necessary, the parties are to agree to a schedule ensuring the submissions are completed by no later than three months from the date of this decision.

May 24, 2016

Tanja Wacyk Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Insurer’s Document Brief, Tab 3.
3. 3Ibid., Tab 4.
4. 4Insurer’s Document Brief, Tab 2.
5. 5Ibid., Tab 5.
6. 6Applicant’s Document Brief, Tab 3.
7. 7Ibid., Tab 6.
8. 8Applicant’s Document Brief, Tab 7.
9. 9Ibid., Tab 8.
10. 10Ibid., Tab 10.
11. 11Exhibit 5.
12. 122002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, at paragraph 30.
13. 13FSCO Appeal P06-00038, October 5, 2007; [2007] O.F.S.C.D. No. 188.
14. 14Ibid., at paragraph 33.
15. 15[2012] O.F.S.C.D. No. 102, at paragraphs 75 and 76.
16. 16Op. cit., at paragraph 12.
17. 17FSCO A09-001953, September 30, 2010.
18. 18FSCO A12-000791, July 7, 2014.
19. 19FSCO A11-003933, April 29, 2014.
20. 20FSCO A12-006887, February 23, 2015.
21. 212015 ONSC 3251, aff’d [2016] ONCA 226.
22. 221995 CanLII 66 (SCC), [1995] 3 S.C.R. 405.
23. 23FSCO A12-007175, October 2, 2014.
24. 24FSCO A14-002957, January 4, 2016 [currently under Appeal].
25. 25FSCO Appeal P02-00005, January 28, 2003.
26. 26FSCO A05 B 000865, February 2, 2007.
27. 27Supra, at footnote 21.
28. 28Supra, at footnote 12.