Tribunal File Number: 18-003072/AABS
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:
E. C.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Tullio A. D’Angela, Counsel
For the Respondent: Thomas R. Hughes, Counsel
HEARD: In writing on April 3, 2019
OVERVIEW
1The applicant was involved in an incident on December 29, 2017 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent refused to accept that the applicant was injured as a result of an automobile accident. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
3For the purpose of this hearing, automobile and vehicle hold the same meaning.
ISSUE
4Was the applicant involved in an accident as defined by the Schedule?
RESULT
5The applicant was not involved in an accident as defined by the Schedule.
BACKGROUND & FACTS
6On the morning of the incident, the applicant drove to work and parked in a public parking lot. The applicant reversed into the parking spot, exited the vehicle and circled around to the trunk to retrieve items. The applicant opened the trunk, removed the items, and closed the trunk. At some point either during the process of closing the trunk or shortly thereafter, the applicant slipped and fell, which caused injuries.
7The parties disagree on the timing of the injury-causing incident. The applicant submits the incident occurred during the process of closing the trunk. The applicant claims the momentum from the motion of closing the trunk caused the applicant to slip and fall, causing the injury. The respondent holds the applicant had unloaded the vehicle and closed the trunk and the fall occurred as a result of the applicant attempting to walk away from the vehicle after it was unloaded.
PRELIMINARY ISSUE
8The respondent raised an issue with respect to the applicant’s reply submission. The respondent submits the applicant’s reply submissions exceed the page limit and amount to the applicant’s counsel giving evidence in place of the applicant. The respondent asked that certain paragraphs in the applicant’s reply be struck as a result. The applicant did not respond to this issue. I have reviewed the submissions in question and find they do not warrant being struck from the record. My reasons are as follows.
9I find the applicant’s reply submissions do not prejudice the respondent because they only exceed the page limit by one sentence. I find this is too insignificant a breach to warrant the penalty of striking part of the submissions.
10Regarding the paragraphs referenced by the respondent, I find they do not amount to the applicant’s counsel giving evidence in place of the applicant. I find the paragraphs are the submissions on how the applicant feels the evidence should be interpreted in light of the respondent’s submissions. The submissions refer to, and comment, on evidence previously submitted and I see no reason to strike the paragraphs from the record.
HOW IS AN ACCIDENT DEFINED UNDER THE SCHEDULE?
11For the purpose of this hearing, and pursuant to section 3(1) of the Schedule, an accident is defined as an incident in which the use or operation of an automobile directly caused an impairment.
12Case law has established a two-part test to determine whether an insured was involved in an accident; whether the use or operation of an automobile was involved in the incident “the purpose test” and, if so, whether such use or operation directly caused the claimant’s injuries “the direct cause test”1.
THE PURPOSE TEST
13The purpose test asks: did the incident result from the ordinary use or operation of the vehicle?
14The applicant submits the act of closing a trunk after retrieving cargo from within is an ordinary and well-known activity to which automobiles are put.
15The respondent submits the applicant was not using or operating the vehicle at the time of the incident. The respondent submits the applicant finished unloading the vehicle and fell during the process of stepping away from the vehicle.
16I have reviewed the evidence and for the following reasons, find the incident was not as a result of the ordinary use or operation of the vehicle.
17There are three pieces of evidence relevant to this hearing. They are identified as follows with the relevant information;
i. Signed statement of (the applicant) dated February 2, 2018. “…I went to my trunk and got my purse and lunch bag; I had one on each hand and my tea in my mouth and then I closed the trunk with my hand and then I slipped and fell and landed on my tailbone. There was snow on the ground. I was on the sidewalk when I closed my trunk and as I went to step I fell onto the ground...”
ii. Application of Benefits dated February 27, 2018: “I was getting items out of my trunk. When closing my trunk, I slipped and fell on the ice.”; and
iii. Transcript of the Applicant’s Examination Under Oath dated May 8, 2018. (“EUO”).
A. So, the right hand was carrying my purse, the left hand was carrying my lunch bag.
Q. Okay. An which did you use to close the trunk?
A. Left hand, yeah.
Q. Okay. So, you told me that the trunk was closed when you fell. Do you have any sense of if you had turned to go to your workplace before you fell?
A. No. No.
Q. And how long was it between closing the trunk and when you fell?
A. Seconds. Like, you close the trunk and I fell. So, it wasn’t… ---
Q. And when you fell, was your – you were still touching the car?
A. I cannot remember that part. I was sitting there in shock, going what just happened?
18With respect to the evidence before me, the applicant submits the information in the written statement is not correct and the testimony in the EUO is a more accurate representation of the incident. The applicant submits the evidence infers the fall occurred during the process of closing the trunk because the applicant had not yet turned away from and was still facing the vehicle.
19The respondent disagrees and submits the signed statement dated February 2, 2018 indicates the applicant fell during an attempt to step away from the vehicle, after the use of the vehicle ended.
20I find the signed statement from February 2, 2018 is the best determinate of the events of the incident because it was created at a time closer to the incident than the other two documents and because the applicant had an opportunity to review and revise the statement for accuracy. There are some instances in the written statement where the applicant marked up the document to correct inaccuracies however, the applicant chose not to correct the statement “... and as I went to step I fell onto the ground...”
21I find the statement highlighted above indicates the applicant has completed the use and operation of the vehicle prior to the fall because the applicant had retrieved items from the trunk and closed it. The applicant then started a new task of walking from the vehicle to the workplace on a slippery sidewalk.
22I have reviewed the caselaw provided by the parties and find the applicant’s situation is similar to the ones in 18-003869 v. Aviva Insurance Company of Canada2 (“18-003869”) and 17-000942 v Aviva Insurance Canada3 (“17-000942”). In 18-3869, the applicant S.B., had finished filling the vehicle with gas, retrieved a purse from the front passenger seat, closed the door, turned away from the car and tripped and fell when the purse became tangled with her legs. It was determined S.B.’s use or operation of the vehicle ended after closing the door and prior to the incident. Likewise, in 17-000942 the applicant I.S., disembarked the vehicle as a passenger, closed the door and tripped while proceeding to the final destination. It was determined I.S.’s use or operation of the vehicle ended once I.S. closed the door. It was a new incident, tripping on a curb, which caused the injuries.
23Similar to 18-003869 and 17-0009942, where it was determined the applicants had ended their use of their respective vehicles, the applicant’s use of the vehicle ended when the trunk was closed. Following this, a new event, the journey from the vehicle to the workplace, commenced. The applicant’s incident occurred during this part of the journey.
THE DIRECT CAUSE TEST
24The direct cause test asks: was the use or operation of the vehicle the direct cause of the injuries? If so, was there an intervening act which breaks the chain of causation?
25I have found the incident occurred after the applicant’s use of the vehicle ended. The purpose test has not been met and an assessment of the direct cause test is unnecessary as a result.
CONCLUSION AND ORDER
26The applicant was not involved in an accident as defined by the Schedule.
27The application is dismissed.
Released: October 18, 2019
___________________________
Brian Norris
Adjudicator
Footnotes
- Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 [SCC]; [1995] 3 S.C.R. 405; Chisholm v. Liberty Mutual Insurance Group, 2002 CanLiI 45020 (ON CA); 2002 CarswellONT 2652, [2002]; and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA); 2004 ONCJ 125, 2004 CarswellOnt 3426, [2004] O.J. No. 3135
- 18-003869 v. Aviva Insurance Company of Canada, 2019 CanLII 22211 (ON LAT)
- 17-000942 v Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT)