Malaya Roberts v. Intact Insurance Company, 2016 ONFSCDRS 3

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 3

FSCO A14-002957

BETWEEN:

MALAYA ROBERTS

Applicant

and

INTACT INSURANCE COMPANY

Insurer

Before:

Arbitrator Jeff Musson

Heard:

In person at Thunder Bay on August 27, 2015 and by written submissions due September 27, 2015

Appearances:

Mr. Duncan Macgillivray participated for Ms. Malaya Roberts

Ms. Deborah G. Neilson participated for Intact Insurance Company

Issues:

The Applicant, Ms. Malaya Roberts, was injured in an accident on August 13, 2011 and sought accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Malaya Roberts, 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 Hearing are:

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

Result:

The Applicant was involved in an accident as defined by Section 3(1) of the Schedule.
Intact is liable to pay Ms. Roberts’ expenses in respect to the Hearing. 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

There was an agreed statement of facts submitted by both Applicant’s and Insurer’s Counsel. At the time of the incident, the Applicant, Ms. Roberts, was 19 years old, living in Manitouwadge, Ontario (394 kilometres northeast of Thunder Bay). On the evening of Friday August 12, 2011, Ms. Malaya Roberts, Mr. Michael Kelly, Mr. Craig Chabot, Mr. Dusk Fairservice and Ms. Melissa Scapinello were out for a night of socializing and drinking at a bar in Manitouwadge, Ontario.

At approximately 2:00 a.m. on August 13, 2011, the Applicant, Ms. Roberts, along with Mr. Kelly, Mr. Chabot, Mr. Fairservice and Ms. Scapinello travelled to Sand Lake, a few minutes' drive outside of Manitouwadge. Once at the lake, Mr. Kelly backed his pick-up truck on to the beach, to the edge of the lake with the tailgate extending over the water of the lake, allowing the people in the group to jump into the lake from his truck’s tailgate and box.

When Mr. Kelly backed up his truck to the lake, the rear tires of his truck became stuck in the sand and water. Using a tow-rope, another pick-up truck, owned by Mr. Chabot, towed Mr. Kelly’s truck a couple of feet forward in order to free it from being "stuck" in the sand and water.

Once repositioned, Mr. Kelly’s truck remained backed up to the lake, with the engine off but music playing out of the truck's stereo. The individuals in the group used the box and tailgate of Mr. Kelly's truck to run and jump into the lake, doing "cannonballs". Mr. Chabot’s truck was positioned in such a way that the headlights of the truck provided some illumination while the individuals were swimming.

Unfortunately, because it was in the early morning hours, the bottom of the lake was not visible from the edge of the lake, thereby making it difficult to judge the depth of the lake.

Mr. Kelly and the others, not including the Applicant at this time, were jumping into the lake from the tailgate of Mr. Kelly’s truck. Everyone except the Applicant proceeded to jump in and out of the lake numerous times. When Mr. Fairservice returned from his swim, he recalls seeing the Applicant standing beside Mr. Kelly's truck. At that point, the Applicant stepped into the back of Mr. Kelly’s pick-up truck and was standing up in the box of the truck bed.

According to the agreed statement of facts, Mr. Fairservice retrieved his towel from the side of the box of Mr. Kelly’s truck and then walked approximately 10-20 feet past the front of Mr. Kelly’s truck to look for the others in the group. Mr. Fairservice turned around and saw the Applicant floating face down in the lake about 10-20 feet away from the shore. According to Mr. Fairservice, less than a minute occurred between seeing the Applicant standing in the box of the truck to seeing her face down in the water. None of the Applicant’s friends witnessed how the Applicant entered the water nor does the Applicant remember how she entered the water. Based on the severity of the Applicant’s injuries and where she was last observed standing up in the bed of the truck, it is within the balance of probabilities that the Applicant had jumped into the water from the tailgate of the pick-up truck in a similar manner to others in the group that night. Unfortunately, it was determined that after jumping into the lake, the Applicant landed in water that was approximately a foot in depth.

After seeing the Applicant floating in the water, Mr. Fairservice attempted to get the Applicant’s attention and when she did not respond, he swam out to check on her and managed to turn her over. The Applicant gasped, took a breath and started talking right away and said that she could not feel anything. Mr. Fairservice swam the Applicant back towards the shore. A call to 911 was placed at 4:20 a.m. on August 13, 2011, and an ambulance was dispatched.

Mr. David Schieler, a paramedic, was one of the first responders on scene. He was advised that the Applicant injured herself by diving off the back of a truck. Mr. Schieler also stated that the Applicant was in the water and her head was being held up by one of her friends so that she would not drown. There were no marks or obvious injuries on the Applicant’s body and she spoke clearly but unfortunately recalled very little of what happened in regards to the incident.

The Applicant was transported to Manitouwadge Hospital. At 7: 16 a.m. on August 13, 2011, according to testing at the hospital, the Applicant had relatively high alcohol content in her blood. Her ethyl alcohol reading was 24 mmol/L. While at the hospital, it was confirmed that the Applicant suffered a complete (ASIA A) cervical spinal cord injury C5-C6, secondary to traumatic C5-C6 fracture-dislocation, rendering her a quadriplegic. In order to receive the treatment she requires because of her injuries, she currently resides at a long-term care facility in Ottawa.

Intact is the automobile insurer of Mr. Kelly's truck. The Applicant has applied for accident benefits from Intact pursuant to the policy issued to Mr. Kelly. Intact, however, disputes that the incident is an “accident” within the meaning of the Schedule.

DECISION ANALYSIS

As stated earlier, both parties agreed to a statement of facts related to this incident. Where there is disagreement is whether this incident should be considered an automobile accident as defined under the Schedule. In order to determine if an accident occurred, both parties are in agreement that the two part test (Purpose Test & Causation Test), as established by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia.² should apply to this incident. The test was also used by the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group³ and in Greenhalgh v. ING Halifax Insurance Co.⁴

An accident is defined under Section 3(1) of the Schedule as: 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 (“accident”).⁵

The Insurer argued that the definition of “accident” has been narrowed since September 1, 2010.⁶ The narrowing of the definition means that for the incident involving Ms. Roberts on August 13, 2011 to be considered an “accident” under the Schedule, it must be shown to have been a direct cause by the use or operation of a vehicle.

One of the arguments that the Insurer raised is in respect to the Applicant not being covered under Mr. Kelly’s insurance coverage because the Applicant is not a spouse or dependant of Mr. Kelly’s nor is she listed as a driver on the auto insurance policy issued by Intact for Mr. Kelly’s vehicle.⁷ I disagree with the Insurer’s position because case law and the Schedule⁸ itself states in Section 3(1)(c) that an insured person means: (c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident, if the accident occurs outside Ontario (“personne assure”). In the agreed statement of facts, both parties agreed that the Applicant resides in Ontario and was seen occupying the back of the pick-up truck box just prior to the incident. In my opinion, the Applicant meets the definition of Section 3(1)(c) of the Schedule⁹ and should be covered under Mr. Kelly’s automobile insurance policy.

The Two-Part Test

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?

The Purpose/Use Test

It has been determined through jurisprudence that the ordinary use of a vehicle extends beyond the act of driving. In fact, it includes getting in and out of a vehicle (embarking and disembarking), loading, unloading, delivery of cargo, fuel delivery, changing a tire along with repair and maintenance.¹⁰

From the Insurer’s perspective, the Applicant does not pass the purpose/use test. The Insurer is relying on case law and the Schedule in which to prove that this incident should not be considered an accident. The Insurer states that using the bed of a pick-up truck for tailgating/recreational activities does not fall under the definition of ordinary use. It also disagrees with the Applicant’s position as it relates to disembarking from the vehicle.

The Insurer is challenging the position that the Applicant in fact injured herself after disembarking from the truck bed into the lake. The Insurer is claiming that since no one specifically witnessed the Applicant dive from the tailgate of the truck, that the Applicant has not met the onus of proof showing that she disembarked from the bed of the pick-up truck. The Insurer states that the Applicant could have just as easily been injured jumping from the shore.¹¹

Applicant’s Counsel presented the argument that in order for the Applicant to sustain the type and severity of injuries that she did, common sense and the general laws of physics state that she needed to have sufficient height and downward speed with which to sever her spine upon impact. On the night of the incident, this could only have occurred from a platform such as the tailgate of the truck as opposed to the shore of the lake. Based on the evidence, I am of the opinion that a reasonable inference can be drawn concluding that the Applicant jumped into the lake from the tailgate of Mr. Kelly’s pick-up truck.

There are a number of cases that the Insurer is relying upon in order to provide relief from paying benefits to the Applicant. One of these cases is Greenhalgh v. ING Halifax Insurance Co.¹² The Applicant in that case suffered frostbite as a result of walking to get help after her car became stuck on a country road on a cold winter night. The Court of Appeal ruled that there were “numerous intervening occurrences between the time the car became stuck and the time the Insured suffered her injuries”. With the case before me, according to the evidence, there were no intervening occurrences between the Applicant disembarking from the tailgate of the pick-up truck and landing in the water. The last activity before hitting the water was disembarking from the truck. In my opinion, in the case before me, while the Applicant in Greenhalgh¹³ did not pass the ordinary use test, the Applicant in this case does.

Another case the Insurer relied upon to determine if the Applicant passed the ordinary use test was Citadel General Assurance Co. vs. Vytlingam.¹⁴ There are some distinct differences in that case compared to the case before me. First, it is a “tort” coverage case, not a case based on the Schedule, and second, it involved a third party act i.e., individuals used a truck to haul boulders to a bridge and then dropped those same boulders from a bridge onto the Vytlingam’s car causing an accident and subsequent injuries. In the case before me, there was not a third party act such as someone pushing the Applicant into the water. Ms. Roberts went into the water as a result of disembarking directly from the back of the pick-up truck.

In Olesiuk and Kingsway General Insurance Company,¹⁵ also cited by Insurer, the Applicant was using the truck’s hood as a platform on which to stand, which was an activity for which the hood of the truck was not designed. In the case before me, the Applicant was not on the hood of the truck, she was in the bed of the truck and was using the truck bed in a recreational manner which in my opinion is an ordinary use. If for instance, the Applicant, Ms. Roberts jumped off the hood of the truck and into the lake, then she would not have passed the purpose test. She jumped from the truck bed into the lake; therefore, in my opinion she passes the purpose test where the Applicant in Olesiuk and Kingsway General Insurance Company¹⁶ did not.

Finally, in Savard v. Royal & SunAlliance Insurance Co. of Canada,¹⁷ Justice Gauthier ruled that the Applicant was not entitled to accident benefits as a result of the vehicle falling on the Applicant as he was working on it. In that case, it was determined that “the activity in which the plaintiff was engaged was a deliberate conversion of an operable vehicle to a completely disabled, disemboweled shell. The purpose and character of the vehicle was being radically changed”. In the case before me, the vehicle was not being “radically” changed. In fact it was being used in a manner that is consistent with how it was designed. The Applicant was tailgating with her friends and in my opinion, this use passes the ordinary use test whereby in the case of Savard v. Royal & SunAlliance Insurance Co. of Canada, the Applicant did not pass the test.

Applicant’s Counsel used the word “tailgating” in his submission to clearly define the ordinary recreational use that the Applicant was using Mr. Kelly’s truck for. The dictionary definition of tailgating is defined as “following too close the car ahead or a social event held on and around the open tailgate of a vehicle”. In this case, the latter definition is what the Applicant is referring to. As Applicant’s Counsel succinctly stated at the Hearing, automakers are promoting the use of trucks for recreational purposes by installing accessories in a pick-up truck box such as cup holders for people to use.

Applicant’s Counsel pointed out that the Applicant and her friends were using Mr. Kelly’s truck in a multi-purpose manner. As was stated in Whipple and Economical Mutual Insurance Company,¹⁸ context as relates to an incident is important. In this case, the context in which the incident occurred is tied directly to the recreational use of the bed of the pick-up truck.

Further Purpose/Use Tests: Parking and Disembarking

In terms of parking, in the agreed statement of facts, Mr. Kelly’s pick-up truck was parked at the time of the incident. In terms of disembarking, the Schedule does not specifically define what constitutes the activity of disembarking. There is not a definition that says disembarking is only considered disembarking when it occurs from the “passenger compartment”. As long as an individual is exiting a vehicle, there are no limitations in terms of where they can exit. Further, the Schedule does not define if disembarking only occurs once at the end of a trip or can occur multiple times after a trip has ended.

Disembarking can occur with an individual stepping out of a vehicle or rolling out of a vehicle or in this case hopping/jumping out of a vehicle. In Webb and Wawanesa Mutual Insurance Company,¹⁹ disembarking from the box and tailgate of a pick-up truck in the presence of a lake during an Ontario summer was held to be an ordinary use of that automobile, just like disembarking in the presence of snow and ice in the winter.²⁰ The Insurer views disembarking as only occurring once at the end of a trip. I disagree with this opinion, because a person can embark and disembark multiple times when a vehicle is parked. A perfect example of this occurs when a person is retrieving multiple items out of a pick-up truck, causing an individual to embark and disembark multiple times.

A person disembarking from a vehicle can also disembark onto various surfaces. That surface could be asphalt, gravel, concrete, ice, grass or a multitude of other types of surfaces including water. There is not a provision that states that a person’s insurance coverage is void if an individual disembarks onto one surface as opposed to another. This type of limitation does not exist, so in this case, the Applicant disembarked into water, which is not prohibited. The Insurer believes that in fact it should make a difference how a person disembarks and onto what surface the person disembarks because a specific surface is tied in with uses that the vehicle is a part of.

Since the onus is on the Applicant to show that she sustained her injuries as a result of the incident, ultimately, the Insurer states that the Applicant cannot meet the purpose test and as a result, therefore further analysis as it relates to the causation test is moot. Based on the evidence present at the Hearing, I am of the opinion that the Applicant, Ms. Roberts, does pass the ordinary use test and therefore she must also pass the causation test in order for the incident to be considered an accident as defined by the Schedule.²¹

The Causation Test

Part two of the two–part test relates to causation. Was the use of the truck the direct cause of the Applicant’s injuries?

The Insurer is of the opinion that in the cases of Chisholm²² and Greenhalgh,²³ the “but for” inquiry is a way in which to separate causes which are irrelevant and do not establish legal causation.²⁴ The Court of Appeal ruled that an intervening act will absolve the Insurer of liability if it cannot fairly be considered a normal incident of risk created by the use or operation of the vehicle.²⁵ Further in Greenhalgh,²⁶ the courts ruled that there was an intervening act, therefore the Applicant was not entitled to benefits. In this case before me, there was no intervening act between disembarking from the tailgate of the pick-up truck and the Applicant hitting the water. In essence, the disembarking from Mr. Kelly’s truck was a direct cause of the Applicant’s injuries, meaning there was not an intervening act or acts that resulted in her injuries. Further, the Insurer is of the opinion that the Applicant does not pass the causation test because in its view, the manner in which the Applicant used Mr. Kelly’s truck should be considered an intervening event from the journey to the lake. I disagree with the Insurer’s position. In my opinion, the truck is not an intervening act because from the time the truck was driven to the lake up until the incident, the truck was continually in use, therefore it does not absolve the Insurer of liability.

Finally, the Insurer relied upon Gill and Certas Direct Insurance Company²⁷ in its submissions. The Applicant in that case had a panic attack, rolled out of his vehicle as it was moving and when he wasn’t hit by oncoming traffic, proceeded to jump off the bridge onto the roadway below. In that case, Director’s Delegate Evans ruled that the use or operation of the vehicle was not the dominant feature of the accident. There were other issues, namely the mental state of the Applicant, which led to the incident. With the case before me, there is no such evidence presented that there was another dominant feature which could be the cause of this incident. As stated earlier, the severity of the Applicant’s injuries dictate by drawing a reasonable inference from the evidence presented that the Applicant sustained her injuries immediately after disembarking from the tailgate of the truck.

The Applicant’s injuries were a direct result of her disembarking into the lake directly from the back of the pick-up truck. In Greenhalgh v. ING²⁸ and in Pinaretta and ING Insurance Company of Canada,²⁹ it was held that the use or operation of the automobile must be a cause, but not necessarily the direct cause. As was stated by Applicant’s Counsel at the Hearing, an automobile accident can have more than one direct cause. In this case, the Applicant jumped into the lake with the water being approximately 1 foot in depth. The use of the truck bed was a cause of the Applicant’s injuries. In Chisholm v. Liberty Mutual Group,³⁰ Justice Laskin lists three separate inquiries that can assist in answering causation determinations. They are: the “but for” inquiry, the “intervening act” and the “dominant feature” inquiry. In the case before me, when looking at the “but for” inquiry, the following analysis occurs. “But for” the parking of the truck on the edge of the lake, the incident would not have taken place. Similarly, “but for” the disembarking from the tailgate, the incident would not have taken place. Ultimately, it was the disembarking that caused the Applicant to become a quadriplegic. With the evidence submitted, it is a reasonable inference that the pick-up truck was the last object that the Applicant’s body had contact with before hitting the water.³¹ Therefore, I am of the opinion that the Applicant’s incident passes the causation test.

CONCLUSION

Based on the evidence submitted and the jurisprudence provided, I conclude that the Applicant was involved in an accident as defined in Section 3(1) of the Schedule. The Applicant is therefore is entitled to submit a claim for benefits against Mr. Kelly’s automotive insurance policy.

EXPENSES:

The parties made no submissions on 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.

January 4, 2016

Jeff Musson

Arbitrator

Date