Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 174 FSCO A16-000550

Between: Ronalee Porter (Applicant) and Dominion of Canada General Insurance Company (Insurer)

Decision on a Preliminary Issue

Before: Arbitrator Marshall Schnapp Heard: In person at London, Ontario on March 27, 2017 and by written submissions completed on April 21, 2017 Appearances: Mr. Christopher Dawson for Ms. Ronalee Porter Mr. Josh R. Knox for Dominion of Canada General Insurance Company

Issues:

The Applicant, Ms. Ronalee Porter, was injured in a motor vehicle accident on May 18, 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. Porter, 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. Porter involved in an “accident” within the meaning of the Schedule?
2. Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

1. Ms. Porter was not injured in an “accident” as that term is defined in the Schedule.

Ms. Porter’s Application for Arbitration is dismissed.

2. 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

Ms. Porter provided the following testimony at the Preliminary Issue Hearing. She had just purchased some plants from Canadale Nurseries and finished loading them in her trunk. After she closed her trunk, she was walking over to return her cart to the corral, when a store clerk came to her and took her cart. Ms. Porter testified that she then turned with her key fob in her hand and when she tried to step towards her car, she was unable to do so and ended up on the ground. Ms. Porter came to learn after her fall that her leg had become caught in a piece of strapping that was on the ground in the parking lot.

Applicant’s Position

Ms. Porter concedes that, in part, she fell as a result of a material that affected her footing; however, according to the Schedule, the accident was caused by her use of her automobile. It is established law that falling and suffering injury, while in the process of unlocking one’s vehicle, constitutes its “use or operation”, even if that person is a distance away from the vehicle and falls on account of something that is not part of the vehicle.

Section 3(1) of the Schedule defines an “accident” 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.

The Applicant submits that the leading case of Amos v. Insurance Corp. of British Columbia established a two-step test that outlined both a “purpose” and “causation” analysis that needs to be applied to the facts of each situation seeking qualification as an accident.² Subsequent to Amos, the Ontario Court of Appeal decisions in Chisholm v. Liberty Mutual Group³ and Greenhalgh v. ING Halifax Insurance Co.,⁴ explained the two-part test used to determine whether impairment was caused by an “accident” pursuant to the Schedule as follows:

a. Whether the incident arose out of the use or operation of an automobile (the “purpose test”); and b. Whether the use or operation of an automobile directly caused the impairment (the “causation test”).

The Applicant submits that unlocking her vehicle, and attempting to enter her vehicle to drive it away from a parking lot after having loaded it with purchased goods, is an ordinary and well-known use of a vehicle. She cites several cases to show she has met the purpose test. In Lynam and Formosa Mutual Insurance Company, the driver was exiting his motor vehicle when his feet slipped on ice (which was either on his sideboard or on the ground - it was factually unclear). The Arbitrator found the driver was entitled to benefits, and held the following: “In my view entering into and exiting from an automobile is an integral part of any ordinary and well-known activity to which an automobile can be put.”⁵

In Ribeiro and Guarantee Company of North America, the Arbitrator awarded benefits where the Applicant fell on ice while getting off a bus.⁶ In Belair Insurance Company Inc. v. Seale, the Applicant’s van became stuck in snow, and the Applicant got out to push the vehicle, when it suddenly slid down the hill. As the Applicant walked down the hill to her vehicle, she slipped and fell on the icy road suffering injuries. The Arbitrator concluded that her use or operation of her van caused the accident.⁷ In Gligoric and Economical Mutual Insurance Company, the Arbitrator found that the Applicant fell while approaching the driver’s door of his car. Although Mr. Gligoric could not specify his distance from the door at the moment he fell, he stated that he had extended his arm, key in hand, and was about to insert the key into the lock. The Arbitrator held the following: “I find that attempting to unlock a car door is an ordinary and well-known activity to which an automobile can be put. I therefore conclude that Mr. Gligoric has satisfied the first part of the Amos test.”⁸ The Applicant also referred me to Dittmann v. Aviva Insurance Company of Canada, where the Plaintiff ordered coffee at a McDonald’s drive through. While she attempted to place the cup of coffee in the vehicle’s cup holder, the cup spilled scalding coffee on her thigh. The Court found that attending at a drive-through window at a fast food restaurant is within the range of the ordinary and well-known activities to which automobiles are used and the purpose test had been met.⁹

According to the Applicant, if the “purpose test” is fulfilled, it must next be established that the “use or operation” of the automobile directly caused her impairments. In Greenhalgh, the Ontario Court of Appeal recognized that what will amount to direct causation depends on the facts of an individual case, though certain considerations provide useful guidance:

a. The ‘but for’ test can act as a useful screen; b. Intervening events may serve to break the link of causation; and c. Whether the use or operation of the vehicle was the dominant feature of the incident?¹⁰

The Applicant submits that the decision in Seale is also helpful to the analysis of this case. In that decision, the Director’s Delegate concluded the following on the causation test:

It is clear that “direct cause” need not be the only cause, that physical contact with an automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is “part of the ordinary course of things”. In this case, each link in the chain of events that led to Mrs. Seale’s injury was “part of the ordinary course of things”.¹¹

The decision in Dittmann dealt with the causation test and found that a “but for” analysis was useful in determining causation and determined in this case but for the use of the vehicle, the Plaintiff’s injuries would not have occurred.¹²

In the facts before me, the Applicant submits at the time of her fall, she was walking in the parking lot towards her automobile to leave and was in the process of entering her automobile, using her lock remote to unlock her automobile when the accident occurred. But for her use of her automobile, she would not have fallen and but for her reaching out and unlocking her vehicle, she may have been able to “take evasive action to avoid or lessen” the material on her footing.

Dominion’s Positon

Dominion takes the position that at the time of the incident, the Applicant was not operating or using her vehicle. She was not in contact with the vehicle and it did not add to the risk or contribute to her injuries. As a result, the incident does not fall within the definition of an “accident” as set out in the Schedule.

It is submitted by Dominion that the Applicant most accurately described the incident in detail in a November 6, 2014 statement:

I was in the parking lot I did some shopping for some plants and I loaded them into the car and you I [sic] went to return the shopping cart. A parking lot attendant was there, I said "I have another one for you" he came towards me to take the cart from me. I than [sic] turned around and it [sic] did not see what happed [sic]. I had the key in my hand to open my car. I did not notice that something was wrapped around my feet. .. Someone took off my sandal and I felt the strapping being pulled from my fee [sic]. When it was off someone threw it on the ground that I could see it. My assumption is that the strapping is used by the Nursery to wrap shrubs but I'm not certain. I did not notice anything on the ground when I was returning my cart.¹³

With respect to the circumstances surrounding the Applicant’s fall in the parking lot, Dominion also highlights that in all the documents explaining the incident, including statements and clinical notes and records and an incident report, none of them refer to the Applicant unlocking her vehicle at the time of the incident. Dominion takes the position that the Applicant’s oral testimony that she was in the process of unlocking her vehicle when she fell is inconsistent with the documentary evidence.

Dominion relies on several cases to demonstrate that the Applicant has not met her burden of proof that she was involved in an “accident” as defined by the Schedule. In Mahadan and Co-operators General Insurance Company, the Applicant parked his car, turned off his vehicle, and got out of the car. He walked along the driver’s side of the vehicle to the trunk, opened it, took out five bags of groceries, and then closed it. As he turned away from the trunk, his left foot twisted in a groove cut out of the pavement. It was Arbitrator Miller’s findings that the Applicant’s injuries:

…were sustained from a new and independent source other than his car. I find that what caused Mr. Mahadan to trip and fall was the crack in the pavement. The crack in the pavement had nothing to do with the use and operation of a motor vehicle, but was there because of the construction work being done on the parking lot. I, therefore, find that the crack in the pavement was the intervening feature that ultimately caused his injury... I find that Mr. Mahadan was not involved in an “accident”.¹⁴

In Dominion of Canada General Insurance Company v. Prest, the Respondent had moved his car in his parking spot in his residence in order to wash it. He exited the vehicle and walked to the end of his car. As his right hand was touching the car, he then tripped over a concrete curb that stuck out from the wall of the parking garage. Justice McNamara found:

... At the time of the incident the vehicle was being neither used nor operated. ... Even if it could be argued that the purpose test is met. .. I am satisfied that the use or operation of the automobile was not a direct cause of the impairment. Here the only role played by the motor vehicle was that the respondent drove it to the general location of where the incident occurred. The use of the car had ended without injury being suffered. Mr. Prest had left the car and then was injured by a new intervening act, namely when he tripped over the curb that in the respondent's words "sticks out" … If that curb is in a bad location or is otherwise dangerous, that is an occupier's liability issue... In the circumstances, I am satisfied Mr. Prest was not injured as a result of an “accident”.¹⁵

Dominion submits the jurisprudence demonstrates that the need to walk around, or close to, a parked vehicle is not enough to shift the nature of the risk from occupier’s liability to automobile accident benefits. In this case, there is no evidence that the Applicant’s vehicle added to the risk or contributed to her injuries. The intention to unlock one’s vehicle is different than the physical act of unlocking a vehicle. In this matter, the Applicant’s injuries were caused by an object that was left on the ground in the parking lot. But for the object on the ground, the Applicant would not have fallen. The strapping - the object in this case - was the intervening and dominant feature that most directly caused the Applicant’s injuries. Thus, the use or operation of a vehicle was not a direct cause of the Applicant’s injuries and therefore the Applicant’s trip and fall does not fall within the definition of an accident under the Schedule.

According to Dominion, the Applicant’s vehicle was not a direct cause of her injuries and thus she fails to meet the causation test. The Applicant's injuries were caused by the strapping left on the ground in the parking lot and but for the strapping on the ground, she would not have fallen. Dominion notes that although the vehicle may have led her to the location of where the injury occurred, her injuries were sustained from a new and independent source other than her vehicle. Dominion also submits jurisprudence has established that slipping on ice or tripping on a curb/crack in a parking lot has not been considered a normal incident of the risk created by the use or operation of a vehicle. As well, there was no evidence that the position of the Applicant’s vehicle created any special risk beyond the ordinary risk faced by anyone whose vehicle is parked in a parking lot.

Findings

While these cases all turn on the particular facts, it is acknowledged by both parties that the required analysis is in two parts: 1) did the incident arise out of the use or operation of an automobile; and 2) did this use or operation of an automobile directly cause the impairment?

Did the incident arise out of the use or operation of an automobile?

While I found Ms. Porter to be a credible witness and believe she was attempting to provide the facts as she recalled them; overall, I am not persuaded by her testimony and the documentary evidence before for me that her fall was an incident arising out of the use or operation of an automobile. Her testimony was that after she gave her cart to a clerk, who was in the parking lot, she turned with her key fob in her hand but could not take a step and ended up down on the ground. She recalled that she had her left arm stretched out towards the car as she had just unlocked the driver side door. The Applicant’s submission is it is established law that falling and suffering injury, while in the process of unlocking one’s vehicle, constitutes its “use or operation”, even if that person is a distance away from the vehicle and falls on account of something that is not part of the vehicle. From the evidence provided by Ms. Porter, I am unable to find on a balance of probabilities that she in fact did fall and suffer an injury while in the process of unlocking her vehicle. My review of her testimony does not provide me with clarity on whether or not she was in fact in the process of unlocking her vehicle. From her evidence, I find it more likely that the fall occurred when she was turning from the clerk so as to walk back to her car.

The above finding is supported by a significant amount of the documentary evidence in this matter which all lead to a finding that her fall occurred just after she returned her cart and not while she was in the process of unlocking her vehicle. Ms. Porter’s family doctor’s notes, dated October 24, 2014, explain the incident with the following notes: “Date of accident –May 18, 2014…strapping in parking lot of Canadale’s Nursey + this wrapped around her feet + caused her fall”.¹⁶ A Consultation Note from a Dr. Lawendy for an examination of Ms. Porter on August 12, 2014, documents he saw Ms. Porter “…with respect to a fall on her left shoulder in a nursery.”¹⁷ Another clinical note from Dr. LeBel documents the incident as follows:

Ms. Porter fell this past May as she was at a nursery. She was pushing her cart to go back to her car and the cart hit something on the ground and something wrapped around her ankles. She fell down next to her car…¹⁸

Lastly, I note that Ms. Porter provided a personal statement to Dominion on November 6, 2014. According to her testimony, this statement was taken at her lawyer’s office. On page one of the statement, Ms. Porter describes the incident as follows:

The accident happened on May 18, 2014 at approximately 3:35 in the afternoon. I was in the parking lot of Candale Nurseries…and did some shopping for some plants and I padded them into the car and you (sic) and I went to return the shopping cart. A parking lot attendant was there, I said “I have another one for you” he came towards me to take the cart from me. I than (sic) turned around and something went around both my legs and I did not see what happed (sic). I had the key in my hand to open my car. I did not notice that something was wrapped around my feet. I turned to take a step, I could not take a step and down I went. I fell onto the ground…¹⁹

I highlight that contained within all of these above documents, Ms. Porter does not describe the incident as she fell to the ground while attempting to unlock her automobile door. I also find it telling that when she described the incident to her family doctor and Dr. Lawendy, she fails to even mention her automobile. It is my finding that the facts of the case before me are very similar to two decisions relied on by Dominion. The first was the Mahadan case, where the Applicant parked his car, removed groceries from his trunk and as he turned away from the trunk, his left foot twisted in a groove cut out of the pavement. The second was the Prest decision, where the Respondent had parked his car in his residence in order to wash it, exited the vehicle and walked to the end of his car. As his right hand was touching the car, he then tripped over a concrete curb that stuck out from the wall of the parking garage. In both these cases, the incident was found not to be a result of the use or operation of a vehicle. The facts of the case before me are such that the incident did not arise out of the use or operation of an automobile.

Did this use or operation of an automobile directly cause the impairment?

In order to answer this question, the evidence must show a clear link between the use and operation of the vehicle and the person’s injuries. To determine if there is a link, I will use the analysis outlined in Greenhalgh, where it was recognized that what will amount to direct causation depends on the facts of an individual case and certain considerations provide useful guidance:

a. The “but for” test can act as a useful screen; b. Intervening events may serve to break the link of causation; and c. Whether the use or operation of the vehicle was the dominant feature of the incident.

In the facts before me, I do find that “but for” the use of her vehicle, Ms. Porter would not have been in the parking lot and been in a position where she became entangled in the strapping and fell to the ground. However, the “but for” test only serves to eliminate from consideration factually irrelevant causes and does not conclusively establish legal causation. The next two parts of the test must therefore be considered. The “intervening act” consideration is determining whether it can be said that the use or operation of the motor vehicle was “a direct cause” of the injuries. From the facts before me and a review of the cases on this issue, I find the direct cause of her injuries was when Ms. Porter became entangled in the strapping on the ground as she was returning her cart, and the use of her automobile was not a direct cause of her injuries. With respect to the last part of the analysis - the “dominant feature” consideration – again, based on the facts before me and a review of the cases on this issue, Ms. Porter’s automobile was not the dominant feature of the accident and rather, it was her becoming entangled in the strapping on the ground as she was returning her cart.

Therefore, I find that the use or operation of the vehicle did not directly cause Ms. Porter’s injuries. As a result, Ms. Porter was not involved in an accident as defined in s. 3(1) 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.

June 19, 2017

Marshall Schnapp Arbitrator

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. Porter was not injured in an “accident” as that term is defined in the Schedule.

Ms. Porter’s Application for Arbitration is dismissed.

2. 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.

June 19, 2017

Marshall Schnapp Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Amos v. Insurance Corp. of British Columbia, [1995] S.C.R. 405, at p. 17.
3. 3Chisholm v. Liberty Mutual Group, [2002] O.J. No. 2135.
4. 4Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No 3485.
5. 5Lynam and Formosa Mutual Insurance Company, OIC A-010990, January 18, 1996, at p. 12.
6. 6Ribeiro and Guarantee Company of North America, OIC A95-000369, October 24, 1996.
7. 7Belair Insurance Company Inc. and Seale, FSCO Appeal P02-00005, January 28, 2003.
8. 8Gligoric and Economical Mutual Insurance Company OIC, 1997 Carswell Ont 5363.
9. 9Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429, [2016] O.J. No. 5659.
10. 10Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No 3485.
11. 11Supra, note 6.
12. 12Dittmann v. Aviva Insurance Company of Canada [2016] O.J. No. 5659, 2016 ONSC 6429 (Ont. S.C.J.), at para. 11.
13. 13Exhibit 4, Statement dated November 6, 2014, Arbitration Document Brief of the Respondent, Tab 10.
14. 14Mahadan and Co-operators General Insurance Co., FSCO, March 15, 2001, at p. 6.
15. 15Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92, at paras. 8-10.
16. 16Exhibit 5, Clinical Notes and Records of Dr. Vockentanz, Arbitration Document Brief of the Respondent, Tab 3.
17. 17Exhibit 6, Clinical Notes of Dr. Lawendy, Arbitration Document Brief of the Respondent, Tab 6.
18. 18Exhibit 2, Clinical Notes of Dr. LeBel, Arbitration Document Brief of the Respondent, Tab 7.
19. 19Exhibit 1, Tab 10, Personal Statement of Ms. Ronalee Porter.