D.M. v. Certas Direct Insurance Company, 2018 CanLII 76693

Date: 2018-01-30

Tribunal File Number: 17-000180/AABS

Case Name: 17-000180 v Certas Direct Insurance Company

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:

D.M.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Khizer Anwar

APPEARANCES:

For the Applicant: Marilyn Snow, counsel For the Respondent: Julie Ferreira, counsel

HEARD IN WRITING ON: July 4, 2017

OVERVIEW

1This is a preliminary issue hearing brought by Certas Direct insurance Company (“the respondent”) to the Licence Appeal Tribunal (the “Tribunal”) to determine whether the accident in question was an automobile accident

2D.C. (“the applicant”) sustained injuries on January 21, 2016, after she slipped and fell next to the rear side passenger door of her parked car, due to slush on the ground. After leaving Shoppers Drug Mart, the applicant walked towards the passenger side of her car with the intent to clear the light slush of snow sitting on the arm of the side view mirror before getting into the car. However, before she could get to the snow, she slipped and fell, sustaining injuries to her wrist (collectively “the incident”).

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

4The respondent denied the applicant the benefits she sought, as it determined that the incident did not qualify as an “accident” under the Schedule. The applicant submitted an application for dispute resolution services to the Tribunal.

ISSUES TO BE DECIDED

5The 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

6Based 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

7Both parties have submitted case law to support their respective positions, including relevant cases heard and decided at the Financial Services Commission of Ontario (“FSCO”). Even though I am not bound by FSCO decisions, wherever relevant and persuasive, I will consider the principles highlighted in these cases.

1. The Law

8The term “accident” is defined in section 3(1) of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment . . .”

9In order to determine whether an accident took place, a two part analysis is required, the framework for which is explained by the Ontario Court of Appeal in Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (Ont. C.A.) (“Greenhalgh”). 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?

10The applicant must successfully meet both these tests in order to establish that she was involved in an accident, as defined under the Schedule. Hence, I will analyze both these tests separately in the coming sections.

2. The Purpose Test: Did the incident arise out of the use or operation of an automobile? Did the incident arise out of the ordinary and well-known activities to which automobiles are put?

a. The respondent’s position

11The respondent submits that the applicant fails to meet both of the tests. With respect to the purpose test, the respondent contends that the incident did not arise out of the use or operation of an automobile. The respondent asserts that at the time of her fall, the applicant had left Shopper’s Drug Mart after completing an “unrelated non-motorist task” and her fall was caused by slush in the parking lot. The applicant’s resulting injuries are not a result of an ordinary and well- known activity to which vehicles are put. The applicant’s vehicle was parked and turned off, and she was neither operating her vehicle nor was she in the process of using or operating her vehicle at the time of her fall.

12The respondent further submits that the applicant was also not in the process of repairing, or refueling her vehicle. However, even if it is found that she was, that in and of itself does not necessarily constitute use or operation of a vehicle.

13To support its position, the respondent relies on three cases decided at FSCO:

1. Banos and Jevco Insurance, August 31, 2015 (“Banos”)¹
2. Nickerson and Security National, November 1, 2012 (“Nickerson”)²
3. Newey and Dominion of Canada General Insurance, May 16, 2016 (“Newey”)³

Banos

14In Banos, the applicant slipped and fell on ice approximately thirty feet away from his car while walking towards his car after he had refueled and made his payment. While employing a common sense approach in Banos, Arbitrator Savage found that even though refueling the car may qualify as an integral kind of maintenance to Mr. Banos’s driving, it was the slip and fall that was the sole cause of his injury, and not the use and operation of the vehicle.

Nickerson

15Arbitrator Savage in Banos drew on the reasoning in Nickerson. Having parked her car in a Canadian Tire parking lot and visited the store already, the applicant slipped and fell while she was walking back to her car to retrieve a broken wiper blade. In Nickerson, Arbitrator Muzzi found that the applicant’s injuries were not directly caused by a repair or by her attempt to repair either the vehicle or the wiper blade, but rather, were caused by a fall while she was walking back to her parked car. Arbitrator Muzzi was of the view that even if repairing a vehicle qualified as “use or operation of a vehicle”, Ms. Nickerson was not in the course of repairing her vehicle.

Newey

16The decision of Newey is the most recent decision in the list of cases before me. In this case, the applicant sustained injuries after she slipped and fell on a patch of ice at a gas station while walking around her vehicle to refuel her car.

17The applicant argued that refueling her vehicle was an ordinary activity related to the use or operation of an automobile and that her fall was part of an uninterrupted sequence of events that occurred as a result of the use or operation of her vehicle. In response, the respondent stated that repair and maintenance, including fueling, does not constitute use or operation of a vehicle. In the alternative, if it did constitute use or operation, the applicant had failed to meet the second test, as her injuries were caused by an intervening factor, i.e: a slip and fall caused by the buildup of ice on the ground.

18Arbitrator Musson was of the opinion that slipping and falling on ice after the vehicle has been turned off and the occupant has safely exited the vehicle is not a risk normally associated with the use or operation of a motor vehicle.

b. The applicant’s position

19The applicant does not make specific submissions addressing the purpose test. What the applicant does submit is that she was injured in the course of clearing snow from her vehicle on January 21, 2016, and at the time of the incident, was in the immediate vicinity of her vehicle for “the stated and expressed purpose of engaging in snow clearing activities before going around to other side to enter the vehicle and drive the vehicle.” The applicant, hence, claims that her injuries arose out of the use or operation of a motor vehicle.

20The applicant relies on two FSCO cases to support her position:

1. Salamone and Aviva, June 15, 2015 (“Salamone”)⁴
2. Saad and Federation Insurance Company of Canada, February 11, 2003, (“Saad”)⁵

Salamone

21In Salamone, the applicant sustained a heart attack while driving his vehicle, causing him to lose control of the vehicle, which led to the applicant sustaining injuries. It seems to me that the applicant has submitted this case primarily to bring my attention to the interpretation of the concept of intervening act, delineated originally in Greenhalgh.

22The facts of the case, otherwise, are distinguishable from the applicant’s case at hand and the arbitrator in Salamone found there to be no accident as defined under the Schedule. Hence, when considering the concept of intervening act as part of my analysis in the next section, I need not address Salamone and will draw upon the principles and analysis found in Greenhalgh, if necessary.

Saad

23The applicant also relies on Saad to argue that at the time of the incident, she was engaged in the ordinary use or operation of her vehicle. In Saad, the applicant sustained injuries due to a slip and fall on icy pavement after he had refueled his car and had stopped momentarily to fill air in the tires. The arbitrator found this incident to be an accident under the Schedule, as in his opinion, the icy pavement did not break the link in the chain of causation.

24While analogizing Saad with her own circumstances, the applicant submits that she meets the purpose test because the incident occurred as part of a sequence of events directly related to cleaning snow from her vehicle. She walked to the passenger side of the vehicle for the purpose of cleaning snow off the mirror and her fall was consistent with her carrying out an ordinary and routine function of clearing snow off the vehicle.

c. Finding

25I disagree with the applicant and find Saad to be unpersuasive and distinguishable from the facts before me. I also find Banos, Nickerson and Newey to be more persuasive and applicable to the facts at hand.

26The applicant in Saad was found to have sustained injuries while he was engaged in an ordinary activity of filling his car with gasoline and then his tires with air. The arbitrator found that the applicant’s actions in relation to the use or operation of his vehicle had created a chain of events and the subsequent contributing cause (an icy pavement) did not break this chain of causation. The journey had commenced once the applicant drove towards the air pump and left the car running when he disembarked to fill air in tires, which was a significant factor to consider in the chain of causation. Therefore, based on this set of facts, the arbitrator found there to be an accident.

27This, however, is not the case in this matter. While the applicant did use her vehicle in its ordinary and well-known sense by driving to the parking lot of Shoppers Drug Mart and this use of the vehicle was ordinary while it lasted, I find that such use ended prior to the incident that caused her injuries. Particularly, the ordinary use ended when the applicant turned the car off, exited the car and walked into Shoppers Drug Mart, where she spent several minutes before returning.

28I am of the opinion that the use or operation of the vehicle did not resume at the time of the incident, notwithstanding the applicant’s intent to flick the snow off the side view mirror, or her intent to get in the car thereafter. Therefore, to me, unlike in Saad, the applicant was not involved in an unbroken chain of events with respect to the use or operation of her vehicle, but rather much like Nickerson, suffered injuries due to a slip and fall, which had nothing to do with the use or operation of her vehicle.

29As such, the use of the applicant’s vehicle did not contribute directly to her injuries either dominantly, significantly or directly. Rather, it was the slush on the ground that caused her to slip and fall, causing her injuries. I, therefore, find that the applicant has not met the purpose test and was not involved in an accident as defined under the Schedule.

30While 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

31The framework for the causation test, as outlined in Greenhalgh, 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

32This 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.

33Neither party made specific submissions with respect to the “but-for” test. The focal point of their submissions remained the intervening act inquiry and the dominant feature inquiry. Based on my analysis and review of the facts in the previous section, however, I have sufficient information to rule out factually irrelevant causes. I find that but-for the slush on the ground, the applicant would not have slipped and fell, sustaining injuries. The applicant’s vehicle played no role in the incident and is irrelevant.

ii. The Intervening Act / Cause Inquiry

a. The respondent’s position

34To support its position that the causal link between the applicant’s injuries and the use or operation of her vehicle is weak, if not absent, the respondent relies on the factors discussed in Banos. First, the respondent submits that after parking the vehicle, turning the engine off and exiting it unharmed, the applicant spent significant time away from her vehicle while she was in Shoppers Drug Mart. Second, she did not touch the car prior to or during the fall. Third, it argues that the applicant was walking back to her vehicle when she fell. There was no use or operation of her vehicle involved and the vehicle was not being put to its ordinary and well-known use at the time of the incident. Lastly, the respondent argues that slipping on slush while walking back to her vehicle does not qualify as a risk normally associated with the use or operation of the vehicle.

35The respondent submits that the applicant’s injuries were caused by an intervening factor, namely the slip and fall on slush in the parking lot. It argues that the applicant fails the causation test, as she fails to establish: 1) a clear link between her injuries and her use or operation of the vehicle, and 2) an unbroken chain of events stemming from the applicant’s use or operation of her vehicle, as was the case in Saad.

c. The applicant’s position

36The applicant submits that the incident constitutes an accident as defined under the Schedule because it occurred as part of a sequence of events directly related to clearing snow from her vehicle, which is an ordinary and well-known activity involving the use and operation of a motor vehicle. The applicant relies on the finding in Saad to support its position. The facts of Saad have been discussed above.

37The arbitrator in Saad found that the applicant was injured as a result of an “accident” as defined under the Schedule. She found that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation, as there was a sufficient nexus between the use and operation of a motor vehicle with an unbroken chain of events. The use and operation of the motor vehicle was found to be the dominant feature of the incident in Saad.

d. Finding

38I disagree with the applicant’s use of Saad above and again, find the facts in it to be distinguishable. I find that the applicant in this matter sustained injuries due to a new act, independent of the use or operation of her vehicle. In my opinion, unlike in Saad, the applicant in this matter was not part of a chain of events. The applicant’s use of her vehicle ended prior to the injury, her vehicle did not contribute to her injuries and there was a temporal separation between the end of the use of her vehicle and the slip and fall that caused her injuries.

39I reject the applicant’s claim that she sustained injuries during the course of cleaning snow off her car. In the alternative, even if I were to accept the applicant’s claim, she has failed to put forth convincing evidence and case law that would support her contention that either her act of cleaning the snow qualifies as putting her vehicle to its ordinary and well-known use, or her slip and fall is part of an unbroken sequence of events. As a result, I find that the incident had nothing to do with the use and operation of the applicant’s vehicle. The incident resulted from the slippery conditions on the ground and not by the use or operation of her vehicle.

40I 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 slush on the ground to be the intervening cause or, in the alternative, a 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

41The applicant does not make specific submissions addressing the dominant feature inquiry. The respondent relies on Banos to submit that in order to be successful under this inquiry, the applicant must prove that the use or operation of the vehicle played a continuing causal role and remained a “dominant feature” of the incident that caused injuries to the applicant.

c. Finding

42In applying a common-sense approach to the facts and answering whether it was an automobile, or some other factor, that most closely caused an injury to the applicant, I find that the dominant feature of the applicant’s injuries was the slip and fall itself. I reject the applicant’s overall position that her vehicle was closely involved in this incident, causing injuries to her.

43As I have found throughout my decision, I find that the applicant’s vehicle did not play a direct or even a significant role in the applicant’s injuries and the journey had come to an end once the applicant had fully exited the car and walked into Shoppers Drug Mart. The journey had neither resumed nor had a new one commenced at the time of the incident. As was the case in Banos, any connection between the “use or operation” of the applicant’s vehicle and her injuries is remote at best.

CONCLUSION

44Based on the 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

45As a result of my finding above, the applicant’s appeal is dismissed.

Footnotes

1. 1Banos and Jevco Insurance, August 31, 2015, FSCO A14-001846
2. 2Nickerson and Security National, November 1, 2012, FSCO A11-001753
3. 3Newey and Dominion of Canada General Insurance, May 16, 2016, FSCO A15-005569
4. 4Salamone and Aviva, June 15, 2015, FSCO A14-006236
5. 5Saad and Federation Insurance Company of Canada, February 11, 2003, FSCO A02-001279