J.F. v. Aviva Insurance Company of Canada, 2018 CanLII 141000

Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service

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Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile

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RECONSIDERATION DECISION

Before: Jonathan Batty, Associate Chair Date: June 7, 2018 File: 16-004503/AABS Case Name: J.F. v. Aviva Insurance Company of Canada

Written Submissions By: For the Applicant: Samia M. Alam For the Respondent: Cara L. Boddy

Overview

[1]. This request for reconsideration from the applicant, J.F., concerns the preliminary issue determined by the Licence Appeal Tribunal (the “Tribunal”) as to whether or not he was involved in an “accident” as that term is defined under section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Applying the framework that the Court of Appeal for Ontario outlined in Chisholm v. Liberty Mutual Group¹, the Tribunal found that J.F. had not been involved in an “accident” and, thus, was not entitled to benefits under the Schedule.

[2]. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this reconsideration request.

[3]. For the reasons below, I refuse to reconsider the Tribunal’s decision and find the opposite.

The Facts

[4]. Whether or not a motor vehicle accident resulting in injuries is properly considered an “accident” under the Schedule is a highly fact specific inquiry. The basic facts in this case are undisputed.

[5]. J.F. is a tow truck driver. On August 19, 2012, he received a call to tow a broken down taxi cab to [an auto body shop]. He did just that. Once at [an auto body shop], he parked in front of the garage’s second bay door, which was closed, unhooked the cab, and pulled slightly away, thereby removing the truck’s wheel lift from under the cab. The cab was now free to be pushed into the garage.

[6]. By that point, [the auto body shop owner] himself had stepped outside to talk to J.F. J.F. got out of the truck, leaving it running. The two men talked briefly, during which [the auto body shop owner] paid J.F. for delivering the cab. J.F. then walked back to his truck to leave.

[7]. Before getting there, however, [the auto body shop owner] asked him for help. [The auto body shop owner], who was elderly and without anyone else to assist, could not open the garage’s second bay door by himself. [The auto body shop owner] asked J.F. to open the door for him. J.F. agreed. During an examination under oath, J.F. stated that this was an unusual request, but that he decided to help given [the auto body shop owner’s] advanced age and lack of other help.

[8]. [The auto body shop owner] went inside to unlock the bay door. Waiting outside, J.F. eventually heard a loud click. Thinking the door was now unlocked, he grabbed its bottom with his left hand, and rested his right hand higher on one of door’s glass panes for balance. As J.F. attempted to lift the door, the glass pane under his right hand broke. As a result, he suffered lacerations to his right hand and forearm, which went through the broken pane. Approximately 10 minutes had passed between his arrival at [the auto body shop] and the injury.

[9]. After the accident, J.F. applied to Aviva Insurance Company of Canada (“Aviva”) for an income replacement benefit under the Schedule. Aviva refused. In response, J.F. applied to the Tribunal. The preliminary matter before the Tribunal was whether J.F.’s injuries resulted from an “accident” as defined under the Schedule.

Decision and Reasons

[10]. In their submissions for both the preliminary issue hearing and this request for reconsideration, both parties limited their submissions to whether J.F. had been involved in an “accident” with respect to his use or operation of the tow truck, not the cab. I have addressed this matter accordingly.

[11]. The test for determining whether an accident falls under the definition of “accident” under the Schedule arose out of the Supreme Court of Canada’s reasoning in Amos v. Insurance Corp. of British Columbia² and has two components. The first, the purpose test, asks whether the accident resulted from an ordinary and well-known activity to which automobiles are put.³ The second, the causation test, was refined in Chisholm and in Greenhalgh v. ING Halifax Insurance Co.⁴ and asks whether the accident was directly caused by the use or operation of an automobile. The causation test begins with a but-for test aimed to exclude factors that were incidental to the accident. Following the but-for test, the intervening factor inquiry is used to identify whether any intervening causes or events broke the chain of causation between the use or operation of the vehicle and the accident, and the dominant feature inquiry asks whether the use or operation of the vehicle was the dominant feature of the accident.

The purpose test

[12]. J.F. claims the Tribunal erred in law by misstating the purpose test and also by considering causation in the context of the purpose test. I agree with J.F. that the purpose test is correctly phrased as “whether the accident resulted from the ordinary and well-known activities to which automobiles are put.”⁵ I also agree with J.F. that whether a vehicle contributed to an injury should be considered under the causation test, not the purpose test.

[13]. The aim of the purpose test is to exclude aberrant uses of motor vehicles⁶ and to limit coverage to situations where “the motor vehicle is being used as a motor vehicle.”⁷ In the context of the purpose test, the nature of the vehicle is a relevant consideration.⁸ In this case, J.F., a tow truck driver, was operating a tow truck to deliver a broken down taxi cab to [the auto body shop]. Opening a garage bay door in the course of moving a broken down vehicle inside an auto-shop is not an aberrant use of a tow truck. That neither the tow truck nor the broken down taxi cab contributed to J.F.’s injuries or that J.F. did not intend to tow the cab inside are not relevant to the purpose test but should be considered during the causation test. Therefore, I find that the purpose test was satisfied in the context of J.F.’s use of the tow truck.

The causation test

[14]. I also agree with J.F. with respect to the but-for test, the first step of the causation test, that he would not have suffered his injuries but-for having operated the tow truck to tow the broken down taxi cab to [the auto body shop] on that day. The but-for test is an exclusionary test used to screen factors that were incidental to the accident. There may be, and often are, multiple factors that satisfy the but-for test for any given accident. In this case, both the operation of the tow truck and the opening of the garage bay door satisfied the but-for test.

[15]. It is in the intervening factor and dominant feature inquiries where I must disagree with J.F.’s position. J.F. claims that the Tribunal erred by finding him attempting to open the garage bay door was an intervening act and by incorrectly distinguishing Dittmann.⁹

[16]. The intervening act inquiry asks whether “there was a perfect chain of causation, or whether there was an ‘intervening cause’ which broke the chain and resulted in the outcome under consideration.”¹⁰ In his examination under oath, J.F. stated that each time he tows a vehicle he goes through the same repetitive process: pull in, back up, drop the car, pull forward, get out, get paid, and leave. J.F. also stated [the auto body shop owner’s] request for help was an unusual one and his decision to help arose from circumstantial conditions including [the auto body shop owner’s] age and him not having any mechanics to help because it was Sunday. If the chain of events had continued in their ordinary course, J.F. would have left [the auto body shop] after receiving his payment. Therefore, [the auto body shop owner’s] request for help was an intervening act which broke the chain of events and resulted in J.F. getting hurt while attempting to open the garage bay door.

[17]. In Dittmann the Plaintiff was injured after the coffee she purchased from a drive-through window spilled. J.F. claims the Tribunal erred in distinguishing Dittmann by failing to consider that both the coffee spill and the financial transaction were found to be a part of the chain of events in Dittmann. I disagree with J.F.’s position. Unlike the spill in Dittmann, J.F.’s attempt to open the garage bay door did not flow from his use of the tow truck, but from [the auto body shop owner’s] request for help. Similarly, that the financial transaction was found to be part of the continuous flow of events in Dittmann is irrelevant. In this case, the Tribunal did not have to rely on J.F. having been paid to determine an intervening act altered the course of events, because J.F.’s statement indicated he would have left [the auto body shop] had [the auto body shop owner] not asked for his help.

[18]. J.F. also claims that the Tribunal erred by failing to consider the Supreme Court’s decisions in Godbout v. Page¹¹ and Westmount (City of) v. Rossy¹². I disagree. The term “accident” is defined differently under the Quebec legislation than under Ontario’s. This difference was outlined by the Supreme Court in paragraph 49 of Rossy:

Finally, the provisions at issue in Amos and Vytlingam were worded differently from the one in the case at bar. In Amos, the issue was whether the injuries were "caused by an accident that arises out of the ownership, use or operation of a vehicle". In Vytlingam, the Court had to determine whether an at-fault motorist's actions had led to damage "arising directly or indirectly from the use or operation of an automobile". This appeal turns on whether the incident that killed Mr. Rossy was an "accident" within the meaning of the Act, that is, whether it was an event in which there was "any damage caused by an automobile, by the use thereof or by the load carried in or on an automobile".

[19]. The Tribunal’s refusal to rely on decisions interpreting a different legislation did not amount to an error.

Conclusion

[20]. This request for reconsideration is denied.

Jonathan Batty Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Released: June 7, 2018

Footnotes

1. 12002 CanLII 45020 (ON CA), 60 OR (3d) 776.
2. 21995 CanLII 66 (SCC), [1995] 3 S.C.R. 405.
3. 3The Parties have provided considerable jurisprudence in their submissions. With respect to the purpose test, these included 16-000131 v. TD Insurance Meloche Monex, 2017 CanLII 43837 (ON LAT) [16-000131/AABS], Dittmann v. Aviva Insurance Co. of Canada, 2016 ONSC 6429, Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226, and Kasman v. Security National Insurance Co., [2014] O.F.S.C.D. No. 207. With respect to the causation test, these included TD Insurance Meloche Monex, Dittmann, Kasman, Chisholm, Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, and Dominion of Canada General Insurance Co. v. Prest, 2013 ONSC 92.
4. 42004 CanLII 21045 (ON CA), [2004] O.J. No. 3485.
5. 5Greenhalgh, supra at 3, at para 11.
6. 6Examples of aberrant uses include: using a car as a diving platform, storing dynamite in an old truck, or negligently using a truck as a permanent prop to shore up a drive shed [Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, at para 19].
7. 7Vytlingam, supra at 6, at para 19.
8. 8Whipple v. Economical Mutual Insurance Co., [2011] O.F.S.C.D. No. 85, at para 15; Bouder v. ING Insurance Co. of Canada, [2008] O.F.S.C.D. No. 110, at para 43.
9. 9Dittmann, supra at 3.
10. 10TD Insurance Meloche Monex, supra at 3, at para 50.
11. 112017 SCC 18
12. 122012 SCC 30