K.B. v. Intact Insurance Company, 2017 CanLII 63622

Date: 2017-09-27

Tribunal File Number: 16-004096/AABS

Case Name: 16-004096 v Intact Insurance Company

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

Between:

K.B.

Applicant

And

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Daniel J. Holland, Counsel

For the Respondent: Sean T. Miller, Counsel

HEARD: In writing and in person on August 24, 2017

OVERVIEW:

1K.B. (the “applicant”) was involved in an incident on January 23, 2016, wherein she was injured, and applied for accident benefits to Intact Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).

2This is a preliminary issue hearing. The parties filed written submissions and books of authorities and an in-person hearing was held on August 21, 2017, where the applicant provided oral evidence and the parties made closing submissions. If the applicant is unsuccessful at this hearing, she will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident on January 23, 2016.

ISSUE IN DISPUTE:

3I have been asked to decide the following issue:

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

RESULT:

4For the reasons that follow, the applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, the applicant is not entitled to claim accident benefits under the Schedule.

FACTS:

5Both parties agreed on the facts pertaining to the description of the incident that occurred on January 23, 2016. On this date, the applicant had driven her kids to a birthday party at Sky Zone and parked her minivan in their parking lot located at 45 Esander Drive in Toronto. Upon leaving Sky Zone, while walking through the parking lot, she tripped in a pothole a few steps away from her minivan and fell to the ground onto her right arm.

6At the hearing, the applicant testified that at the time of the fall she was holding her daughter`s hand and had her keys in her other hand. She let go of her daughter’s hand when she fell. The applicant testified that the sole purpose of being in the parking lot was to reach her vehicle to drive herself and her family home. At no time did the applicant make physical contact with her mini-van as she fell.

7The applicant sustained a total rotator cuff tear to her right arm. She has gone for physiotherapy, laser therapy and has had two surgeries. While the parties agree on the facts with respect to how the incident occurred, they disagree on whether the incident falls within the description of an accident as defined by the Schedule.

THE LAW AND ANALYSIS:

8Section 3(1) of the Schedule provides the following definition 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.

9In order for the applicant to have been involved in an accident, the Court of Appeal has set out the following two-part test, in which both requirements must be satisfied¹:

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

10The applicant argued that the incident of January 23, 2016 meets the definition of accident as driving her vehicle to Sky Zone, and parking it in their parking lot constitutes a regular activity to which automobiles are put. Furthermore, she submits that there need not be contact with a vehicle to constitute an accident, for example, leaving or approaching a parked car can qualify.

11The respondent argued that the fall was not a “direct cause” of the use or operation of the applicant’s motor vehicle. The applicant was simply walking to a parked car, the keys were not in the ignition and the vehicle was not in use. Further, the respondent contends that it was not the applicant’s vehicle that “directly” caused her injury but the pothole. Therefore, the incident does not satisfy either the purpose or causation test.

12For the reasons that follow, I agree with the respondent.

13First, the two decisions by the Financial Services Commission of Ontario (“FSCO”) in Gligoric and Economical Mutual Insurance Company and Mariano and TTC Insurance Company Limited, submitted by the applicant as authority, were either outdated or involved a unique fact scenario not relevant to the present case. In Gligoric, the insured approached his vehicle in a parking lot and while reaching out his key to unlock the door, he slipped and fell on some ice injuring himself. He had not yet touched the car.² The arbitrator found that this qualified as an accident. However, Gligoric was written in 1997 and involved a different version of the Schedule that included a broader definition of “accident”.

14Prior to November 1996, the definition of accident was expanded to include injuries that were caused either directly or “indirectly” by the use of an automobile.³ The applicant asked that I take a broad approach to applying the current legislation to the facts of her case. However, the fact that the legislation was amended to remove the word “indirectly” limits my ability to apply that broad definition as done by the arbitrator in Gligoric.

15Unlike the present case, Mariano involved a public transit vehicle.⁴ The insured was dropped off onto an unlit roadway because the bus could not stop at the bus stop due to an illegally parked car. The claimant tripped on a raised hump of asphalt while crossing the roadway and injured himself. The arbitrator found that disembarking from a bus is an ordinary and well-known activity to which buses are put. By stopping on the roadway instead of the bus stop, the TTC bus set in motion an unbroken chain of events that led to his injuries. Ultimately, the arbitrator found the dominant cause of the accident was the bus.

16Second, the applicant heavily relied upon the Licence Appeal Tribunal decision of D.S. and TD⁵ in support of her position that parking a vehicle is a well-known use or activity in using a vehicle. In this case, the insured was running down the street, tripped and fell headfirst into a parked vehicle suffering catastrophic injuries. Adjudicator Makhamra followed the reasoning set out in the Court of Appeal decision of Caughy in coming to the determination that a parked vehicle meets the purpose test.⁶ The applicant argued that her case is more compelling than that of D.S. because she owned the vehicle that she was travelling towards in the Sky Zone parking lot.

17What I find distinguishable between the present case and that of D.S. and Caughy was that the insureds involved in those accidents made direct contact with the parked vehicles, which resulted in their injuries. In the present case, the applicant did not make contact with her vehicle when she fell – she hit the ground.

18Finally, I found the case law submitted by the respondent more relevant and in line with the current legislation. The decisions of Mahadan and Co-Operators General Insurance Co.⁷, Nickerson and Security National Insurance Co.et al.⁸, Banos v. Jevco Insurance Co.⁹ and Newey v. Dominion of Canada General Insurance Co.¹⁰ all involved insureds who had parked their cars and sustained injuries by intervening forces whether that be slipping on ice or a crack in the pavement. The arbitrators in these four decisions found the parked car scenario weak in meeting the purpose test. Further, the arbitrators determined that the only causal link the motor vehicles had to the incidents was the fact that they transported the insureds to the location where the incidents occurred. I agree with these decisions that simply walking towards a parked car does not satisfy the purpose test. If I am wrong in applying the purpose test, I do not find that the applicant’s incident meets part two of the causation test.

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

19The Court of Appeal in Greenhalgh¹¹ narrowed the causation test to include the following considerations:

“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?”

20I do not find that the applicant has satisfied that this incident meets the causation test. In fleshing out whether an incident meets the causation test, the decision makers in many of the cases submitted by the parties looked at other factors such as time, proximity and risk when analyzing whether a motor vehicle directly caused an applicant’s impairment. Therefore, I have looked at these factors in my analysis.

Time and proximity

21With respect to the timing of the incident, the applicant had been away from her parked car for a couple of hours at a birthday party. The activity the applicant was engaged in was walking towards her parked car. Having her car keys in her hand did not cause her to fall, nor did she trip while exiting or getting into her vehicle. The applicant was close in proximity to the parked car when she fell. However, this in my view is not enough to meet the test.

Risk

22Regarding risk, is tripping in a pothole a reasonable risk associated with motoring? In my view, it is not. The minivan was not the dominant cause of the applicant’s injuries; it was tripping in the pothole. I find that the applicant tripping in a pothole was an intervening act, and not the motor vehicle, which resulted in the direct cause of her injuries.

23In the present case, I find that there was a broken chain of causation between the use and operation of the vehicle and the injuries the applicant sustained. There was an intervening act, namely the tripping on the pothole, which resulted in the applicant’s injuries. Therefore, the incident which the applicant was involved in does not fall within the definition of an “accident” as per the Schedule.

Conclusion:

24For the above reasons, the application is dismissed.

Footnotes

1. 1Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.
2. 2Gligoric and Economical Mutual Insurance Company (OIC A96-001588) December 19, 1997
3. 3The Statutory Accident Benefit Schedule – Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93.
4. 4Mariano and TTC Insurance Company Limited (FSCO A05-002112) September 15, 2006
5. 5D.S. and TD Insurance Meloche Monex, 2017 CanLII 43837 (ON LAT)
6. 6Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226.
7. 7Mahadan and Co-Operators General Insurance Co., FSCO A00-000489 (March 15, 2001)
8. 8Nickerson and Security National Insurance Co.et al, FSCO A11-0011753 (November 1, 2012)
9. 9Banos v. Jevco Insurance Co., 2015 CarswellOnt 13763 (FSCO)
10. 10Newey v. Dominion of Canada General Insurance Co., 2016 CarswellOnt 8252 (FSCO)
11. 11Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (Ont. C.A.)