Tribunal File Number: 17-000942/AABS
Case Name: 17-000942 v Aviva Insurance 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:
I. S.
Applicant
and
Aviva Insurance Canada
Respondent
AMENDED DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
Paralegal for the Applicant: Robert H. Romero
Counsel for the Respondent: Nabila Majidzadeh
HEARD: Written Hearing: May 24, 2017
Overview:
1The applicant, I. S., was involved in an incident on January 20, 2016, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant’s claim for non-earner benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
2This is a preliminary issue hearing, brought by the respondent in this matter. If the applicant is unsuccessful at this hearing, she will not be entitled to any benefits sought under the Schedule that relate to the incident that took place on January 20, 2016.
Issues in Dispute:
3The issues to be decided at this hearing are:
a. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
b. Is the respondent entitled to their costs of this proceeding?
Result:
4The applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. As such, the applicant is not entitled to benefits under the Schedule.
5The respondent is not entitled to their costs of this proceeding.
Facts:
6The parties, in essence, agreed on the facts of this case, relying on the testimony of the applicant at an Examination Under Oath which took place on August 24, 2016. According to the applicant’s testimony, on January 20, 2016, the applicant was a passenger who disembarked from a vehicle which stopped to drop her off in front of her building of residence.
7According to the applicant, she was dropped off a “little bit down” from the drop off area at her residence. She closed the car door and then took three to four steps towards the front of the building, when she tripped over an uneven curb. The applicant sustained injuries to her right wrist, right fifth finger, right hand, right shoulder and low back.
8The applicant states that the curb that goes “right around the building” was in need of repair, which inevitably was done a week post- incident. On the day of the incident there was a sign which read “WATCH YOUR STEP” on top of an orange pylon on the sidewalk where she was dropped off.
ANALYSIS:
“Accident” defined:
9Section 3(1) of the Schedule provides the meaning of an “accident”:
“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.
Direct cause and Intervening act:
10In order for the applicant to have been involved in an accident, the impairment she sustained must have been directly caused by the use or operation of an automobile.
11The intent of the legislature was to narrow the scope of accidents to those which had a direct cause to the resulting impairment. This is clear in that the term “indirectly” was disposed of in the Schedule, as of November 1, 1996.
12The parties agreed that Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 2002 ONCA 45020 (Ont. C.A.), [2002] O.J. No.3135, is a leading Court of Appeal decision on the causation test which is to be applied in defining an “accident”.
13In this decision, Justice Laskin states:
“The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry’s liability to pay no fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car.”
14The Court of Appeal Decision in Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (Ont. C.A.), identifies two questions which the Chisholm test sets out:
Was the use or operation of the vehicle the cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening 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?
15Based on the causation test in Chisholm and Greenhalgh, as stated above, it is not sufficient to link the direct cause of the injury to the vehicle involved, merely by the fact that it brought the applicant to the location of the incident. On the contrary, it is the use or operation of the automobile that must have directly caused the injury. If the chain of causation is broken by an intervening act, it cannot be said that the use or operation of the vehicle was the direct cause of the injuries, which I find to be the circumstance in this case.
16The applicant submits that she did not have a choice as to where she was dropped off and as such this added to the risk that befell the applicant.
17Further, the applicant submits that the trip on the uneven curb did not break the chain of causation and that tripping subsequent to getting out of the vehicle was an uninterrupted chain of events, resulting in the injuries. Essentially, the use and operation of the vehicle was the direct cause of the injuries.
18The applicant argued that, but for her being compelled to exit in an unsafe drop off area, where there was a clear warning sign, she would not have sustained injuries. I disagree. While it may easily be said that ‘but for’ the fact that the applicant was dropped off by a vehicle, she would never have tripped and fallen on the curb, this is, in itself, insufficient to establish direct causation.
19The applicant cited two FSCO decisions involving disembarkment from public transit vehicles, on which they relied, however, I am not persuaded by these cases and find them to be distinguishable from the case before me.
20Victor Mariano and TTC Insurance Company (FSCO: A05-B-002112), dated September 15, 2006, and affirmed on appeal in TTC insurance Company and Victor Mariano (FSCO Appeal: P06-00032), dated April 28, 2008, involved a public transit vehicle. Public transit vehicles have an obligation to drop off their passengers at the designated stops, which does not apply to this case. In Mariano, The claimant was dropped off away from the bus stop and onto an unlit roadway, and as such, his journey was not complete when he disembarked the bus. The claimant, in that case, was injured while crossing the roadway. This is unlike the case before me, where the applicant disembarked a private vehicle and in addition, where I find that the applicant was injured after her journey had ended, as a result of an intervening act, the uneven curb.
21In Clementina Pinarreta and ING Insurance Company of Canada (FSCO: A04-001734), dated November 17, 2005, the claimant was descending from the bus when she slipped and fell on snow which had piled right at the bus stop. The claimant did not get off the bus without incident, but rather she fell as she was disembarking the bus. The use and operation of the vehicle, namely getting off the bus, was the direct cause of uninterrupted chain of events which ultimately led to her injuries. These are unlike the facts in the case before me.
22I agree with the respondent, that these are characterized as interrupted journey cases, whereas based on the facts before me in this case, I find that the journey ended upon the applicant disembarking the vehicle, and an intervening act caused the injuries.
23The respondent argued that the use or operation of the vehicle was not a direct cause of her impairment but rather, the uneven curb was the intervening feature that ultimately caused her injury. I am inclined to agree.
24The respondent went on to argue that the applicant completed her journey, as she got out of vehicle without incident and fell only after she began walking toward the door. The respondent submitted that the vehicle did not play a direct role in the incident.
25The respondent relied on the case of Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92, wherein the Superior Court found that the only role played by the vehicle involved, was that it was driven by the defendant to the general location where the incident occurred. Furthermore, if the curb which the claimant tripped on is dangerous, that is an occupier’s liability issue.
26Likewise in this case, I see that the only role the vehicle played in this incident was that it was the vehicle which brought the applicant to the location where the incident occurred. I echo the notion that danger created by an unmaintained sidewalk/curb, is not one to be dealt with under automobile accident benefits, but rather likely falls on the property owners and managers etc., as an occupier’s liability issue.
27I am persuaded that the facts of this case are similar to that of Lombard General Insurance Company of Canada and Diane Webb (FSCO Appeal: P06-00038), dated October 5, 2007, where in that case the claimant disembarked a taxi cab at the main entrance of a hotel and as she reached the back of the cab and turned towards the hotel, she slipped on ice and fell.
28Although not binding, I agree with Director’s Delegate Makepeace, in that, the location and orientation of the vehicle in which the applicant disembarked, even with the possibility of it creating an obstacle of some form, is not enough to shift the nature of the liability from occupier’s liability to an automobile accident benefits issue.
29The respondent also relied on the case of Mahadan v. Co-operators General Insurance Company (FSCO: A00-000489), dated March 15, 2001. In Mahadan, the applicant exited the vehicle, walked away and tripped on a crack in the pavement. Again, although not binding, I am persuaded by the reasoning on appeal in this decision, in that the extent of the vehicle’s involvement was that it led the claimant to the location of injury. However, the crack in the pavement, due to the construction work being done, was the intervening feature which ultimately caused the injuries, and not the direct use or operation of the vehicle.
30In my view, there was a broken chain of causation between the use and operation of the vehicle which the applicant disembarked, and the injuries she sustained in this case. The evidence shows that the applicant did not slip and fall immediately upon disembarking. There was an intervening act namely the tripping on an uneven curb, which resulted in the applicant’s injuries. There was a separation in distance and time from the disembarkation from the vehicle and the subsequent slip and fall. The location, use and operation of the vehicle were not the direct cause in this case.
31Therefore, the incident which the applicant was involved in does not fall within the definition of an “accident” as per the Schedule.
Costs:
32In their submissions, the respondent sought their costs for this proceeding.
33Although the Tribunal has the authority to award costs to a party, under rule 19.1 of the LAT Rules, The respondent did not provide any evidence that the applicant acted unreasonably, frivolously, vexatiously or in bad faith within this proceeding. Accordingly I find that the respondent is not entitled to costs.
Order:
34The application is dismissed. The respondent is not entitled to costs.
Released: September 14, 2017
Meray Daoud, Adjudicator