Citation: GR vs. Economical Mutual Insurance Company, 2019 ONLAT 18-010779/AABS

Released Date: November 28, 2019

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:

G. R.

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Derek Grant

For the Applicant: Alexa Duggan, Counsel

For the Respondent: Sonia Fabiani, Counsel

HEARD: In Writing July 29, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("G.R.") was involved in an incident on December 27, 2017. He was clearing snow off his parked vehicle and fell sustaining injuries.

2G.R. applied for accident benefits to the respondent, Economical Mutual Insurance Company ("Economical") under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the "Schedule"). The question I must decide is: was the fall an "accident" as defined in the Schedule?

3Since this is a preliminary issue hearing, if G.R. is unsuccessful at this stage, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.

4If G.R. is successful at this stage, the Tribunal will notify the parties, and a case conference will be scheduled to address the substantial issues in dispute.

PRELIMINARY ISSUE

5Pursuant to the Order of Adjudicator Pinto dated April 10, 2019, the following preliminary issue is in dispute:

a. Do G.R.'s injuries sustained as a result of an incident that occurred on December 27, 2017 meet the definition of an "accident" as defined under the Schedule?

RESULT

6For the reasons that follow, I find G.R. was involved in an "accident" as defined by section 3(1) of the Schedule. As a result, G.R. is entitled to claim accident benefits under the Schedule.

BACKGROUND

7G.R. submits that on December 27, 2017, he cleared the snow off the passenger side of the vehicle. He had started to remove snow from the hood of the passenger side and worked his way to the passenger side rear of the vehicle. He had removed the snow off the trunk on the passenger side and then attempted to walk behind the vehicle to remove the snow starting at the driver's side rear.

8As G.R. moved from the passenger side of the car around to the driver's side behind his car, in an attempt to finish removing snow from the driver's side, he slipped and fell causing injuries.

9As a result of the fall, G.R. sustained a concussion, head trauma, memory loss, dizziness and neck strain. He continues to deal with symptoms of headache, dizziness, nausea, difficulty concentrating, balance problems, mood swings, and ongoing neck pain.

LAW

10For the reasons that follow, I find that G.R. was involved in an "accident" within the meaning of the Schedule and is entitled to accident benefits.

11Section 3 (1) of the Schedule provides the following definition of an "accident":

a. "accident" means an incident in which the use or operation of an automobile directly causes an impairment ...

12The onus is on G.R. to show that the use or operation of the vehicle directly caused his injuries.

ANALYSIS

13The Court of Appeal has set out a two-part test in order to establish whether an insured was involved in an "accident", both parts of the test must be established:¹

a. Purpose test: Did the incident arise out of the use or operation of an automobile?

b. Causation test: Did the use or operation of an automobile directly cause the impairment?

14The parties agreed that the purpose test was met in the subject proceeding. Therefore, I am asked to determine if the causation test has been satisfied.

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

15The Court of Appeal has set out the criteria in order to determine causation with the following:

"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?"²

16I find that G.R. has met his burden to establish that this incident meets the criteria set out in the causation test. The fall took place while G.R. was engaged in the ordinary course of the use of the vehicle. Therefore, the use or operation of the vehicle has not ended at this point.

17G.R. submits that his intent was to clear the snow off of his vehicle in order to safely drive to work. In the subject proceeding, I find that the use or operation of the vehicle is still in effect even though G.R. did not make direct contact with the vehicle at the time he fell. However, G.R. was still in the process of using the vehicle, which satisfies the causation test.

18The courts have developed a three-part analysis to determine causation:

a. The "but for" consideration;

b. Was there an "intervening act"; and

c. Was the vehicle the dominant feature?

A. The "but for" consideration

19The "but for" consideration is used as a "process of elimination" measure to eliminate scenarios that are not relevant. As a stand-alone criterion, the "but for" consideration does not determine causation. I agree with G.R. that the subject incident satisfies this measure; "but for" G.R. cleaning the snow off of his vehicle, the incident and any injuries he sustained would not have occurred. G.R. would not have slipped and fallen on snow that was on the ground as a result of him cleaning off his vehicle.

B. Was there an intervening act?

20I find the fall was not an intervening act, and therefore there is no break in the chain of causation which lead to G.R.'s injuries. Based on the evidence, I am able to determine that the use or operation of the vehicle contributed to G.R.'s injuries. I find the fall was not an intervening act, which resulted in G.R.'s injuries. Although G.R. did not make direct contact with the vehicle, the act of clearing snow of the vehicle is an act which is considered a part of the normal use of the vehicle.

21Economical relies on several cases in support of its position that G.R. sustained injuries as a result of a slip and fall and not an accident. In the Financial Services Commission of Ontario ("FSCO") decision of Webb and Lombard General, the applicant exited a taxicab without incident. She fell on ice after she began to make her way towards a hotel entrance. It was held that the incident fell outside the scope of "accident". Further, it was opined that, "the risk, at some point, must shift from a normal incident of using an automobile and become a risk associated with walking."³

22In the Webb and Wawanesa appeal, the applicant parked her vehicle, exited it, locked it, walked up the side of the car, proceeded to an access point a foot ahead of the front bumper of the car, and then fell. She was not in the process of actually alighting from the vehicle when the incident took place and was not intending to momentarily return to her vehicle. At no time during the incident did she touch her car.⁴

23In Nickerson and Security National Insurance Co., the applicant slipped and fell in a parking lot while returning to her vehicle to retrieve an item. The FSCO Arbitrator opined that "slipping on ice and falling is not a risk normally associated with motoring." The cause of her injury was the slip and fall on the ice in the parking lot. This was not an "accident."⁵

24In Dominion of Canada General Insurance Company v. Prest, the applicant tripped and fell on a curb while washing his car in its regular parking spot. Justice McNamara found that the incident did not arise from the ordinary and well-known activities to which automobiles are put. Justice McNamara found that the use of the car ended prior to the injury and that the applicant's fall had been caused by an intervening act, namely, the curb that "stuck out".⁶

25Economical also submits 17-000180 v. Certas Direct Insurance Company bears a striking similarity to this proceeding. The applicant walked towards the passenger side of her vehicle with the intent to clear snow from her side view mirror before getting in. However, before she could get to the snow, she slipped and fell on slush on the ground. This Tribunal held that the applicant was not using or operating the vehicle at the time of the accident, notwithstanding her intent to flick the snow off the mirror or her intent to get in the car thereafter. She suffered injuries due to a slip and fall, which had nothing to do with the use or operation of her vehicle. She had not been involved in an accident.⁷

26The case law relied on by Economical does not persuade me that G.R. was not involved in an accident. I am not bound by FSCO decisions or previous Tribunal decisions and find that this matter is distinguishable from the previous case law.

27For instance:

a. In Webb and Lombard, the applicant was walking away from her vehicle when she slipped and fell. I agree that matter was a case of slip and fall. The applicant ended her use and operation of the vehicle when she was walking away from it and fell. G.R. was still engaged in the use of his vehicle, as he was clearing snow off it.

b. In Webb and Wawanesa, similar to Webb and Lombard, the applicant was walking away from her vehicle and fell. I agree that the use and operation of the vehicle had also ended in this case when the fall occurred. However, G.R. was not walking away from his vehicle, he was walking around it, while still in the process of clearing snow off it. Thus, he was still engaged in the normal use and operation of the vehicle.

c. Nickerson is also distinguishable from this matter, in that the applicant, although walking toward her vehicle, had not yet engaged in any established use or operation of the vehicle when she fell. G.R. was already engaged in the use and operation of his vehicle at the time of his fall.

d. Dominion v. Prest is a more similar case, where Prest was engaged in the use or operation of his vehicle, however, there was an intervening act, namely, the curb that "stuck out". There was no curb that G.R. tripped over, although Economical appears to contend that a curb and snow on the ground are similar 'intervening acts'. I disagree with this position, since the curb is a permanent fixture, and could not be considered a part of the normal use or operation of a vehicle. However, clearing snow off a vehicle, and slipping on that same snow, as a result of the normal use and operation of a vehicle, I find, is not an intervening act.

e. The final case, 17-000180 v. Certas, I find to be distinguishable from this proceeding, in that there is no evidence that the accumulation of snow on the vehicle in the Certas matter was similar to the circumstances of G.R.'s fall. I find that clearing snow from a side mirror of a vehicle would not produce the same amount of snow on the ground as cleaning off an entire vehicle. The sheer volume of snow that can accumulate on the surface area of a vehicle is substantially more than that of a side mirror. Thus, I find the potential for a fall from snow cleaned off a vehicle is significantly higher than clearing snow from a side mirror.

28G.R. contends that the operation of the vehicle was the dominant feature of the incident because if he had not been cleaning snow off his vehicle, he would not have slipped on the snow and fallen. G.R. relied on Gligoric⁸ in support of his position that there does not need to be one, single direct cause of injury/impairment, and that the direct cause does not need to be the most immediate cause.

29In Gligoric, the applicant was approaching his motor vehicle in a parking lot. As he reached out with his key to unlock the door of the car with his left hand, he apparently slipped and fell on some ice, thereby injuring himself. Prior to falling, Mr. Gligoric had not yet touched the car.⁹ Attempting to unlock a car door is an ordinary and well-known activity to which an automobile can be put.¹⁰ The ice, in combination with Mr. Gligoric attempting to enter his vehicle caused the incident which directly or indirectly caused his injuries. Therefore Mr. Gligoric was involved in an accident.¹¹

30I am persuaded by the Gligoric case. In the present case, G.R. was cleaning snow off his vehicle and slipped on the snow. Both Gligoric and G.R. sustained injuries as a result of a fall on ice/snow during the act of the ordinary use of a vehicle. Whether that ordinary use is attempting to unlock the vehicle or cleaning snow off, both activities are accepted as part of the definition of normal and ordinary use of a vehicle. Legislation¹² dictates that a driver is required to clear off any excess snow before operating a vehicle on a roadway. Thus, this legislative requirement supports the position that clearing snow off a vehicle is part of the normal use and operation.

31As such, I find that the fall does not break the chain of causation and is not an intervening act.

C. Dominant feature

32G.R. argues that the dominant feature aspect was satisfied in the subject proceeding. The dominant feature being the aspect of the situation that most directly caused the injuries. G.R. contends the dominant feature was the use or operation of a vehicle. I agree. Had G.R. not needed to clear snow off his vehicle, he would not have fallen. In addition, walking to another side of the vehicle to clear of the snow, was a continuation of the ordinary use of the vehicle.

33I am persuaded by the evidence that G.R.'s injuries were as a result of an accident. G.R.'s injuries were caused by the normal use or operation of the vehicle, outside of any intervening act. I find cleaning snow off the vehicle meets the definition of normal and ordinary use and as such, the vehicle was the dominant feature of the incident.

CONCLUSION

34For the reasons above, G.R. was involved in an accident as defined in the Schedule.

ORDER

35By the power vested in me by this Tribunal, I order that a case conference be scheduled to address the substantive issues in dispute.

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. 2Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426 (Ont. C.A.)
3. 3Webb and Lombard General-Appeal, FSCO Appeal P06-00038 (October 5, 2007) at p 11, TAB 5 – Respondent submissions
4. 4Webb, Daphna and Wawanesa -Appeal, FSCO Appeal P11-00015 (July 18, 2012) at p 17, TAB 4 – Ibid
5. 5Nickerson and Security National Insurance Co., FSCO A 11-001753 (November 1, 2012) at p 2, TAB 6 - Ibid
6. 6Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92 at para 10, TAB 7 - Ibid
7. 717-000180 v Certas Direct Insurance Company, 2018 Canlll 76693 (ON LAT) at paras 28 to 29, TAB 13 - Ibid
8. 8Gligoric v Economical Mutual Insurance Co., [1997] OICD No 229, File No OIC A96-001588,
9. 9Ibid at p 9.
10. 10Ibid at p 9.
11. 11Ibid at p 10.
12. 12Highway Traffic Act – section 181.1 (1)