J.F. v. Aviva Insurance Company of Canada, 2017 CanLII 145485

Date: 2017-09-25

Tribunal File Number: 16-004503/AABS

Case Name: 16-004503 v Aviva Insurance Company of Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J.F.

Applicant

And

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION & ORDER

ADJUDICATOR: Khizer Anwar

WRITTEN SUBMISSIONS BY: Samia Alam, Counsel for the applicant Cara Boddy, Counsel for the respondent

HEARD IN WRITING ON: April 27, 2017

OVERVIEW

1This is a preliminary issue hearing brought forward by the respondent to the Licence Appeal Tribunal (the “Tribunal”) for a finding that the incident in question was not an automobile accident.

2M.Z. (“the applicant”), a tow truck driver at the time of the incident, sustained injures on August 19, 2012, while opening the garage bay door at a mechanic’s shop (“the incident”). The applicant was at the location of the accident to drop off a broken down taxicab and upon the owner’s request, was opening the garage bay door to push the taxicab inside the garage.

3After sustaining the injuries, the applicant sought benefits from his auto insurer (“the respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

4The respondent denied the applicant income replacement benefits and the applicant submitted an application for dispute resolution services to the Tribunal.

[5]

ISSUES TO BE DECIDED

6The issue to be decided in this preliminary hearing is:

1. Was the applicant involved in an “accident” as defined under section 3(1) of the Schedule?

RESULT

7Based on the totality of evidence before me, I find that:

1. The applicant was not involved in an “accident” as defined under section 3(1) of the Schedule.

REASONS & ANALYSIS

8As this is a written hearing, the only evidence before me is in the form of documentary evidence and I have considered all of the documents submitted.

9Both parties have submitted case law to support their respective positions, including relevant cases heard and decided at the Financial Services Commission of Ontario (“FSCO”). As I am not bound by FSCO decisions, I will be making reference to FSCO cases only where I find them to be relevant and/or persuasive.

1. The Law

10The term “accident” has been defined in section 3(1) of the Schedule as “an incident in which the use or operation of an automobile directly caused an impairment or directly caused damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

11Both parties agree that in order to determine whether an accident as defined under section 3(1) of the Schedule took place, a two part analysis is required, a framework further established by the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 2002, CarswellOnt 2652 (ONCA) (“Chisholm”), The two part analysis entails:

1. The Purpose Test: Did the incident arise out of the use or operation of an automobile?

2. The Causation Test: Did the use or operation of an automobile directly cause an impairment?

12The applicant must successfully meet both these tests, in order to establish that he/she was involved in an accident, as defined under the Schedule.

2. The Purpose Test

a. The respondent’s position

13The respondent submits that the applicant fails to meet both the tests. With respect to the purpose test, the respondent argues that the incident did not arise out of the use or operation of an automobile. The respondent asserts that the tow truck simply transported the applicant to the location of the injury. Its ordinary and well-known use came to an end prior to the incident that caused injuries to the applicant.

b. The applicant’s position

14The applicant submits that he does meet the purpose test, as his injuries arose from ordinary and well-known activities to which automobiles are put. The applicant relies on a Court of Appeal case, Economical Mutual Insurance v. Caughy, 2016 ONCA 226, para 17 (“Economical”), to argue that active use of an automobile is not necessarily an element in the purpose test. In Economical, the applicant was running around his parked truck, playing with his child, when he tripped over a motorcycle parked beside his truck and sustained injuries. The Court of Appeal overturned the trial judge’s decision when Justice Nightingale opined that “[P]arking a vehicle is not aberrant to its use as a vehicle…I would conclude, therefore, that parking a vehicle is an ordinary and well-known activity to which vehicles are put.”

15While analogizing Economical with his own circumstances, the applicant states that he meets the purpose test because he was operating the tow truck in its ordinary sense and there was nothing aberrant about it.

c. Finding

16I disagree with the applicant and find Economical to be distinguishable to the facts before me. The applicant in Economical sustained injuries after coming into contact with a parked vehicle (motorcycle); hence the Court addressed the issue of parking vehicles not being aberrant to its use. Justice Nightingale’s comments contained in his trial decision further contextualize this when he remarks that “[t]he motorcycle was not just the venue where injuries occurred; the use or operation of the motorcycle in this case was the dominant feature, or at least a significant contributing or a direct cause of his injuries.” (Economical, 2015 ONSC 3251, para 32).

17While the applicant in this matter did use his tow truck in its ordinary and well-known sense (transported a broken down taxicab to the repair shop) and the use of the tow truck wasn’t aberrant while it lasted, I find that such use ended prior to the incident in question that caused his injuries. It ended when the applicant unhooked the taxicab from his tow truck after parking it and walked into the building to collect his payment from the owner of the repair shop, all of which took close to ten minutes.

18As such, neither the tow truck nor the broken down taxicab contributed to the applicant’s injuries, either dominantly, significantly or directly. I, therefore, find that the applicant has not met the purpose test.

19While the applicant has not satisfied the purpose test and I could, therefore, end my analysis here, I will nonetheless address the causation test.

3. The Causation Test

20The framework for the causation test inquiries was established by the Court of Appeal in Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (Ont. C.A.) (“Greenhalgh”), and entails the following prongs:

i. The But-For Inquiry

ii. The Intervening Act / Cause Inquiry

iii. The Dominant Feature Inquiry

i. The But-For Inquiry

21This inquiry questions whether the applicant would have sustained injuries but-for the use or operation of a vehicle. It is an exclusionary test which allows the trier of fact to rule out factually irrelevant causes. It does not determine legal causation. Therefore, after examining this line of inquiry, I will proceed to assess the remaining two prongs.

a. The respondent’s position

22The respondent submits that the applicant cannot satisfy this test because an automobile was not involved in the injury. It argues that existence of the applicant’s tow truck in the vicinity of the incident or the fact that the applicant used his tow truck to travel to the location where he sustained injuries is not enough.

b. The applicant’s position

23The applicant’s submissions were limited to the fact that “but-for Mr. Fitzsimmons operating his tow truck that day, he would not have sustained an injury on August 19, 2012.”

c. Finding

24I reject the applicant’s position and agree with the respondent that the applicant’s tow truck simply transported him to the location. Thereafter, it had no involvement in the incident that eventually caused injuries to the applicant. I find that “but-for the act of opening the garage bay door” the applicant would not have sustained injuries on August 19, 2012.

25Hence, I find that the applicant fails to successfully meet the “but-for” inquiry.

26I will now analyze the remaining two inquiries in the causation test: The Intervening Cause inquiry and the Dominant Feature inquiry.

ii. The Intervening Act / Cause Inquiry

a. The respondent’s position

27With respect to this inquiry, the respondent states that the tow truck merely transported the applicant to the location of his injury but his injuries were caused by a new and independent source, which was his act of opening the bay door at the request of the owner.

28The respondent submits that this inquiry involves a determination of whether an event, distinct from the use of the car, caused the injury and broke the chain of causation. It outlines three basic elements that establish that the chain of causation was indeed broken: 1) the use of the vehicle ended prior to the injury; 2) the vehicle did not contribute physically to the injury; and 3) there is a temporal separation between the end of the use of the vehicle and the alleged injuries.

29Applying these three elements to this case, the respondent submits that: 1) the applicant’s use of his tow truck had ended prior to him injuring his arm; 2) the applicant had fully exited his tow truck prior to getting injured while opening the garage bay door; and 3) there was a temporal separation between the end of the applicant’s use of his tow truck and injuries sustained of approximately 10 minutes.

30The respondent further supports its position by referring to the Ontario Superior Court of Justice case of Dominion of Canada General Insurance Co. v. Prest, 2013 CarswellOnt 197 (“Dominion”). In Dominion, the plaintiff parked his vehicle at his residence with the intention of washing it. He exited his vehicle and walked to the end of the curb when he tripped over the curb sticking out from the wall of a parking garage. The plaintiff testified that his hand touched the car when he tripped.

31The Court held that tripping over the curb, despite the claimant’s hand touching the vehicle while tripping, was an intervening act. At paragraph 10, the Court opined as follows:

“[h]ere 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…”

32The respondent argues that the circumstances of the Dominion case and the case at hand are analogous. The applicant was not injured as a result of direct interaction with the tow truck, rather as a result of an attempt to open a garage bay door. The applicant had completely exited the vehicle at the time of the incident and the only role of the tow truck was to transport the applicant to the location where he ultimately was injured.

b. The applicant’s position

33The applicant submits that on the day of the incident, he was putting his tow truck to an ordinary and well-known use of towing another motor vehicle and the incident that caused injuries to him was not an intervening event but a sequence of events that started with the use and operation of his tow truck.

34According to the applicant, once he had reached the drop-off location and unhooked the cab, he had every intention of returning to the truck after collecting his payment. Hence, he left the tow truck running. As such, the applicant reasons that the journey did not end and the chain of causation did not break with him opening the garage bay door and sustaining injuries.

35The applicant relies on a multitude of FSCO decisions to argue that there can be more than one direct cause of a victim’s injuries, and one of those direct causes must arise from the use or operation of a motor vehicle. The applicant also argues that the motor vehicle need not be the instrument of the injury, as long as the sequence of events, also known as the domino effect, is set in motion by an automobile and ultimately lead to damages without interruption.

36Much like the respondent, the applicant also outlines relevant factors important in determining the causal connection between the use or operation of the motor vehicle and the injuries sustained, which include time, proximity, activity and risk. The applicant argues that he satisfies all these factors.

37The applicant further draws on Chisholm to argue that an intervening act does not relieve an insurer of liability if the incident can be considered fairly normal in light of the risk created by the use or operation of a motor vehicle.

38While referring to an Ontario Superior Court matter of Dittman v. Aviva Insurance Company of Canada, 2016 ONSC 6429, paras 2-3 & 15 (“Dittman”), the applicant argues that incidents such as the one in this case are to be interpreted liberally. The applicant also analogises the facts of Dittman case with his own position to contend that the act of opening the garage bay door was not an intervening event. In Dittman, the plaintiff sustained injuries after spilling coffee on her thighs in a MacDonald’s drive-through. The Court found the incident to be an “accident” under the Schedule, as the injuries occurred as a result of an ordinary use or operation of a motor vehicle and the spill was a normal incident of risk created by that use. The Court did not consider the spill as an intervening event.

c. Finding

39I disagree with the applicant’s use of Dittman above and find it to be distinguishable, as I don’t find opening the garage bay door by a tow truck driver to be a normal incident of the risk created by the applicant’s ordinary use of his tow truck; rather the normal incident of the risk was created by the applicant’s act of opening the garage bay door. The applicant testified during his examination under oath that the request to open a garage door was not a usual one in the ordinary course of his business. He proceeded to help because the owner was old, had no staff working that day and that his action amounted to good customer service.

40I find that opening the garage bay door has nothing to do with the use and operation of the tow truck in this case. While I accept that the tow truck transported the applicant to the location of his injuries, the injuries themselves were caused by a new and independent action. The use of the vehicle had ended without any injury being suffered. The applicant had unhooked the car and the subsequent act of entering the building to collect the payment is suggestive of the end of that particular journey.

41I accept the applicant’s submission that a motor vehicle need not be the instrument of injuries sustained. However, in considering the totality of the circumstances in this case, I find the act of opening the garage bay door to be the intervening cause or feature that broke the chain of causation and ultimately caused injuries to the applicant. Accordingly, the applicant was not involved in an “accident” as defined under the Schedule.

iii. The Dominant Feature Inquiry

a. The respondent’s position

42The respondent submits that this inquiry pertains to the common-sense approach and asks whether it was an automobile, or some other factor, that most closely caused the injury.

43While referring to three separate Court of Appeal cases, namely Chisholm, Greenhalgh and Longley v. General Motors of Canada Ltd., 2009 CarswellOnt 5032, to support its position, the respondent argues, and I agree, that the dominant feature of the applicant’s injuries was his unsuccessful attempt to open the bay door, not the use or operation of his tow truck. In fact, the truck’s centrality in the events had receded once the applicant exited the vehicle unharmed.

b. The applicant’s position

44It is the applicant’s contention that his case is similar to the “uninterrupted journey” cases, as he had every intention to return to his vehicle after collecting his payment, which in turn should be sufficient to establish that the use or operation of the vehicle did not end. To this effect, the applicant even highlighted the fact that he had left the tow truck running. Hence, the motor vehicle should still be considered to be a dominant feature in causing injuries to him.

45The applicant’s submissions with respect to this inquiry were integrated with the submissions for the intervening event inquiry. The applicant relied on various FSCO cases to support its position, none of which I found persuasive.

c. Finding

46I agree with the respondent that the dominant feature of the applicant’s injuries was his unsuccessful act of opening the garage door and reject the applicant’s position that circumstances at hand are analogous to the “uninterrupted journey” cases.

47As I have found throughout my decision, here as well, I hold that the tow truck did not play a dominant, direct, or even a significant role in applicant’s injuries and the journey had come to an end once the applicant had unhooked the taxicab and walked into the building to collect his payment from the owner. The owner’s request to move the taxicab in the garage does not renew the journey.

48With respect to the act of leaving the engine running, through his own submission at his examination under oath, the applicant made it clear that the towing mechanism only functions when the tow truck is running, which is why the he left the tow truck running after parking. Beyond that, there is no evidence before me that highlights as to why the applicant left the tow truck running after unhooking the taxicab. Hence, I find that the applicant left the engine running because he needed to unhook the taxicab and for no other reason.

4. Reference to Quebec Legislation

49The applicant made reference to a Supreme Court of Canada case in which the Court considered the meaning of accident under Quebec’s no-fault legislation. I do not need to address this submission, as it is neither of consequence nor of relevance to my overall reasoning.

CONCLUSION

50Based on totality of evidence before me, the applicant has not met either the purpose or causation tests. I, therefore, find that the applicant was not involved in an “accident” as defined under section 3(1) of the Schedule.

ORDER

51As a result of my finding above, the applicant’s appeal is dismissed.