[M.B.] v. Certas Direct Insurance Company, 2019 CanLII 130372

Citation: [M.B.] vs. Certas Direct Insurance Company, 2019 ONLAT 18-011816/AABS

Released Date: 12/16/2019

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:

[M.B.]

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[M.B.], Applicant

Patrick Sonoski, Counsel

For the Respondent:

Robynn Pounder, Claims Adjuster

Tripta Sood, Counsel

Dagmara Mroczkowska, Student-at-Law

HEARD: In-Person:

September 16, 2019

REASONS FOR DECISION

OVERVIEW

1This is a decision on a preliminary issue hearing about whether the applicant was involved in an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the Schedule).

2The applicant was injured on May 20, 2018 while loading a refrigerator onto a trailer attached to a parked vehicle. The applicant maintains that this caused serious injuries and impairments. He applied for statutory accident benefits from the respondent.

3The respondent denied accident benefits to the applicant on the basis that there was no “accident” as defined in the Schedule. The respondent maintains that the applicant’s injuries and impairments were caused by the malfunction of a moving apparatus (specifically, a dolly) to which the refrigerator was attached and that the injuries occurred on the trailer so that the incident was not directly caused by the use or operation of an automobile.

ISSUE

4The preliminary issue to be determined is whether the May 20, 2018 incident is an “accident” as defined in s. 3(1) of the Schedule.

RESULT

5For the reasons that follow, I find that the applicant did not demonstrate on a balance of probabilities that the May 20, 2018 incident is an “accident” as defined in s. 3(1) of the Schedule.

THE LAW

6Under s. 3(1) of the Schedule an “accident” is defined as:

…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.

7In Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, (“Amos”), the Supreme Court of Canada set out a two-part test to determine if a person was involved in an accident. The two-part test is as follows:

a. The purpose test – did the accident result from the ordinary and well-known activities to which automobiles are put?

b. The causation test – was there a causal relationship between the applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?¹

8The causation test has since been modified to satisfy the strict wording of the Schedule that the injuries must be “directly” caused by the use or operation of an automobile. In Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, (“Chisholm”), the Ontario Court of Appeal used the following definition: “The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new independent source”.²

9In Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (C.A.), (“Greenhalgh”), the Ontario Court of Appeal reviewed the existing case law and held that in order to be involved in an accident under the Schedule an insured must meet the purpose test as set out in Amos and the causation test as set out in Chisholm. The Court set out an amended two-branch causation test as follows:

a. Was the use or operation of the vehicle a cause of the injuries?

b. 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"?³

THE PARTIES’ SUBMISSIONS

10The respondent submits the applicant does not meet the test because the use or operation of the vehicle was not the direct cause of the injuries suffered by the applicant and because there was an intervening act – specifically the loss of control of the dolly by the applicant. That is, the dolly − not the trailer or the automobile to which it was attached − malfunctioned and caused the applicant’s injuries. The respondent argues that the trailer was simply the venue for the incident and not a cause of same as the dolly might have malfunctioned at any point in the moving of the refrigerator from inside the applicant’s house, to the loading of the trailer. In the respondent’s view, the inclusion of the trailer attached to the automobile was essentially coincidental.

11The applicant argues that the vehicle is essential to the injuries sustained. He was loading a trailer with a refrigerator, sold online to a third party. In so doing, the dolly to which the refrigerator was attached malfunctioned. The applicant was injured. The applicant maintains that this all occurred in the loading of the truck, which is an ordinary and well-known use for an automobile. He further submits that the parked vehicle directly caused his injuries.

12I agree with the respondent for the reasons that follow and find that the applicant did not meet his onus to show that his injuries were the result of an “accident” as defined by the Schedule.

EVIDENCE

13The parties presented written and oral submissions as well as an agreed statement of facts, books of documents and case law. The applicant testified as did the owner of the automobile and the owner’s spouse. No expert medical or engineering evidence regarding the causation of the injuries or physical logistics of the incident was provided.

14Most of the facts are not in dispute. The applicant listed a refrigerator for sale online and received an inquiry from Mr. A by telephone. Mr. A attended the applicant’s house before the sale was completed to inspect the refrigerator. Mr. A returned to the applicant’s house on May 20, 2018 with his spouse, Ms. W, to take possession of the refrigerator.

15The parties did not agree as to whether the applicant identified in the advertisement that he was unwilling to assist in moving the refrigerator. However, whether he advertised that he would help or that the buyer must move the refrigerator independently, there is no dispute that the applicant participated in moving the refrigerator on May 20, 2018.

16The refrigerator was located in the applicant’s kitchen up a flight of stairs from the entrance to the house. After a second inspection and discussion of the terms of sale, Mr. A and the applicant finalized the sale. The refrigerator was attached to a dolly and was moved down the stairs and out of the door without incident.

17Mr. A brought an automobile to the applicant’s house to transport the refrigerator. The automobile was parked on the street in front of the house and was not on or running. It is possible that the automobile was moved to accommodate easier loading of the refrigerator, but in either case during the loading process it was parked at the curb of the street and was turned off. There were no occupants of the automobile while it was loaded.

18There is some dispute as to who was involved and where the parties were located during the loading of the trailer. There is also some dispute as to what the applicant was doing with the dolly when it failed (jiggling or moving it, or simply standing beside it). However, the parties agree that the applicant was standing on the trailer, directly beside the dolly, when one of the dolly’s tires failed. There was a loud bang. The applicant noticed that his leg was bleeding and was taken to hospital to treat his injuries.

19Although there are some disparities between the applicant’s recollection of the incident and the recollection of Mr. A and Ms. W about the specifics of the incident, the overall description is consistent in that the refrigerator was loaded onto the trailer while attached to the dolly, and while atop the trailer, the dolly failed injuring the applicant.

ANALYSIS

20To determine whether this incident is an “accident” under the Schedule, I must address the following questions:

a. Does the incident satisfy the purpose test?

b. Does the incident satisfy the causation test?

The Purpose Test

21The purpose test requires a determination as to whether the incident resulted from the ordinary use or operation of the vehicle. In this case, the vehicle was parked on the street. The applicant was injured while loading the trailer after selling an appliance and as the appliance was moved. There is no dispute that the trailer is a vehicle. I find that loading a utility trailer such as this with items and moving the same is not only an ordinary use but its primary purpose. If the trailer were not loaded and items were not moved in the trailer, it would serve no function. This is not an aberrant or unusual use that is intended to be excluded from consideration.

22Thus, I find the incident described by all witnesses in this case satisfies the purpose test.

The Causation Test

23In order to conclude there is an accident as defined in the Schedule, the evidence must show a clear causal link between the use or operation of the vehicle and the impairment. This, the respondent argues, has not been done. However, in applying the modified causation test, and the principles as set out in Greenhalgh, I find that there is a direct causal link between the use of the vehicle and the applicant’s injuries.

24The insured must establish that the use or operation of an automobile was a cause of the injuries to succeed in this aspect of the test. If this is established, then the insured must also demonstrate that there was no intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”.

25The respondent argues that the malfunction of the dolly is an intervening act that is not a part of the “ordinary course of things”. The applicant argued that this is not so.

(a) Was the use or operation of the vehicle a direct cause of the injuries?

26The first part of the causation test asks whether the use or operation of the vehicle is a cause of the injuries. I find that this aspect of the causation test is not met. Based on the evidence provided at this hearing, while the applicant’s injuries were caused while loading the vehicle, an ordinary use of the same, I find on a balance of probabilities that the applicant’s injuries were caused by the failure of the dolly, and not the use or operation of the vehicle.

(b) Direct causation

27The respondent correctly argued that the causation of the applicant’s injuries must be direct to proceed to a hearing on the merits in this matter. That is, the applicant must satisfactorily address the application of the “but for”, “intervening act”, and “dominant feature” principles as set out in the case law.⁴

28The applicant acknowledged that the injuries were associated with the failure of the dolly but submitted that the incident met the causation test. He submitted that the use of the vehicle is the dominant feature, and that there was no intervening act or event.

29The respondent submitted that the trailer is simply the venue or location of this incident and did not directly cause any injury as the vehicle submitted no force on the applicant. In other words, the trailer was simply an object on which an injury took place.

The but for principle:

30As stated in Chisholm, the “but for” principle is used to eliminate factually irrelevant causes from consideration.⁵ Legal entitlement to automobile accident benefits depends on the facts meeting the direct causation test – including an unbroken chain of events between the use or operation of the vehicle and the impairment.

31The primary cause of the applicant’s injuries is acknowledged to be the failure of the dolly used to load the refrigerator in this instance. However, this occurred during the loading of the vehicle and entangled with the trailer’s intended use.

32The injury would not have happened but for the failure of the dolly, but I also recognize that the dolly would not have been utilized but for the need to transport the refrigerator.

33As a result, I find that the use of the dolly during the loading of the vehicle to transport the refrigerator is the factual cause of the applicant’s injuries. As the failure of the dolly and the loading of the trailer were intermingled, I find that the “but for” principle does not determine the direct causation question.

The intervening act principle:

34The intervening act principle addresses whether there is a clear chain of causation between the use or operation of the vehicle and the impairment, or whether there was an intervening cause which broke that chain and resulted in the outcome.

35The respondent argued that the failure of the dolly is an intervening act that directly caused this incident regardless of the use of the vehicle. I agree with this position.

36The applicant entered into an agreement to sell a refrigerator. The purchaser and the applicant required the refrigerator to be moved. The refrigerator was attached to a dolly to maneuver. The dolly was placed on the trailer/vehicle. The refrigerator was repositioned as necessary. The dolly failed, and the applicant was injured.

37In this instance, it is the dolly that failed, and that failure caused the applicant’s injuries. That is, the applicant suffered injuries only as a result of the failure of the dolly. The dolly’s failure was not caused by operation or use of the vehicle. The vehicle remained stationary throughout the incident.

38Therefore, I find that there was an intervening act independent of the vehicle’s use or operation that caused the applicant to suffer injuries.

39In Chisholm, the court explained direct causation as “when one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest fall down without the assistance of any other act.” In that instance, the court held that the injuries were caused by a drive-by shooting rather than the use or operation of a vehicle. The court found that the shooting constituted an intervening act − independent of the vehicle's use or operation − which clearly broke the chain of causation, thus disentitling the plaintiff to accident benefits.

40I find the present circumstances similar although there was no intervention by a rogue third party because the vehicle was tangential to the injuries sustained. The impairment was caused by the failure of the dolly. The failure of the dolly was an intervening act − independent of the vehicle's use or operation − which broke the chain of causation.

The dominant feature principle:

41In Greenhalgh, the court held that “in some cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct".⁶ A factor is a "dominant feature" where it is the aspect of the situation that most directly caused the injuries.⁷

42The parties agree that the applicant’s injuries were caused when the dolly failed. There was no persuasive evidence that the vehicle caused or in any way contributed to the failure of the dolly. It appears that the dolly simply failed during its use to move an item from one location to another. This might have occurred in any place and in this instance happened to occur atop a trailer. It follows that in this case, I find the dominant feature of the applicant’s injuries is the use of the dolly to move the refrigerator. Therefore, the dominant feature is not the use or operation of the vehicle.

CONCLUSION

43While I find that loading the refrigerator on the trailer was within its ordinary use as a vehicle, I find that the chain of causation between the use of the vehicle and the impairment was broken by the intervening act of the failure of the dolly holding the refrigerator. Therefore, the applicant has satisfied the purpose test but failed to meet the causation test in order to establish that the incident is an “accident” under the Schedule.

ORDER

44The May 20, 2018 incident does not constitute an “accident” as defined in s. 3(1) of the Schedule. The applicant is therefore not entitled to automobile accident benefits under the Schedule.

45The application is dismissed.

Footnotes

1. 1Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, at para. 17.
2. 2Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, at para. 30.
3. 3Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (C.A.), at para. 36.
4. 4Greenhalgh, at paras. 37-49.
5. 5Chisholm, at para. 25.
6. 6Greenhalgh, at para. 47.
7. 7Greenhalgh, at para. 49.