R. M. v. Certas Direct Insurance Company, 2019 CanLII 22204

Date: 2019-02-22

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:

R. M.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the Applicant: Ovidiu Klien, Paralegal

For the Respondent: Nadia Costantino, Counsel

Written Hearing on: October 22, 2018

OVERVIEW

1R.M. (“the applicant”) sustained injuries when she slipped and fell beside her parked car on February 14, 2017 (the “incident”). When Certas Direct Insurance Company (“the respondent”) denied her application for accident benefits under the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”), the applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2This written hearing was scheduled to determine the preliminary issue of whether the incident is an “accident” as defined by the Schedule, and the substantive issues in dispute listed below. Both parties filed written submissions that address only the preliminary issue. As I have determined that the incident is not an accident, submissions on the substantive issues are not required.

ISSUES IN DISPUTE

Preliminary Issue

3The preliminary issue to be decided at this hearing is:

(i) Is the incident that occurred on February 14, 2017 an accident within the meaning of section 3(1) of the Schedule?

Substantive Issues

4The substantive issues in dispute are:

(i) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $850.00 for physiotherapy services recommended by [Physiotherapy] in a treatment plan submitted on August 22, 2017 and denied on October 30, 2017?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $2,390.03 for physiotherapy services recommended by [Physiotherapy] in a treatment plan submitted on May 19, 2017 and denied on June 5, 2017?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

(v) Is the applicant entitled to receive an award pursuant to section 10 of Ontario Regulation 664, R.R.O 1990?

RESULT

5For the reasons that follow, I find that:

(i) The applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, the applicant is not entitled to claim accident benefits under the Schedule and this Application is dismissed.

ANALYSIS

Background

6On February 14, 2017, as the applicant walked towards her parked car, she unlocked it using her key fob. She placed her hand on the car door handle and, at that point, slipped on ice and fell beside the driver’s side door, tearing a tendon in her left shoulder. The applicant submits that she was in the process of boarding her parked car when she fell and that the incident was an accident as defined in the Schedule.

7The respondent submits that the applicant was walking to her car when she slipped and fell on the ice, and that the use or operation of her car had not yet commenced at that point. The respondent submits that the applicant’s fall was not an accident as defined in the Schedule.

Preliminary Issue

8Section 3(1) of the Schedule defines the term “accident” as follows:

“accident” means 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.

9The Ontario Court of Appeal set out the following two-part test for determining whether an accident has occurred for the purposes of the Schedule. ¹ Both parts of the test must be satisfied for an incident to be an accident:

1. Purpose Test: Did the incident arise out of the use or operation of an automobile?

2. Causation Test: Did such use or operation of an automobile directly cause the impairment?

10For the reasons that follow, although the evidence satisfies the purpose test, it does not satisfy the causation test. For this reason, I find that the incident is not an accident as defined by section 3(1) of the Schedule.

Purpose Test: Did the incident arise out of the use or operation of an automobile?

11The applicant submits that the purpose test is satisfied because her car was parked at the time of the incident, and because the incident arose out of usual and ordinary uses of her car, namely unlocking and boarding her car.

12The respondent submits that the purpose test is not satisfied as the applicant was walking towards her car when she slipped and fell. The respondent submits that the applicant’s use or operation of her car had not yet commenced at the time she fell.

13For the reasons that follow I find that the applicant has satisfied the purpose test because I find that, at the time she fell, she had already started the process of opening her car door, which I find to be a usual and ordinary use of her car.

14In her affidavit sworn October 15, 2018,² the applicant states that she had put her hand “on the handle of the driver’s side door to open it” and, at that point, “slipped and fell as a result of the presence of ice on the parking spot surface.” In her contemporaneous statement in her March 7, 2017 Application for Accident Benefits,³ she also refers to falling “while trying to get into my car.”

15The respondent submits that there is no reference in the objective documentation to the applicant boarding her car. The respondent notes that the applicant’s contemporaneous accounts of the incident as recorded by her care providers, refer to a slip and fall on ice and make no reference to her car. The respondent also notes that in the applicant’s February 15, 2017 letter to her landlord⁴ the applicant makes no mention of being in the process of getting into her car when she fell, but rather states that she was walking to her car and fell as a result of the parking lot not being salted and sanded.

16I do not find that the applicant’s descriptions set out in the letter to her landlord and recorded in the notes of her care providers are necessarily inconsistent with the applicant also having started the process of opening her car door at the time of the incident. I interpret the applicant’s reference to the ice in the parking lot in the letter to her landlord and as recorded by her care providers as a reference to the cause of her fall. The absence of a reference to her hand being on the car door handle is evidence that the applicant felt the cause of her slip and fall was the ice in the parking lot. There would have been no need for her to provide the information that the respondent indicates is missing.

17The purpose test is intended to answer the question of whether a vehicle that was being put to an ordinary use was involved in the loss.⁵ When taken together, the evidence, including the fact that she was close enough to the car to hit her foot on the car tire when she fell, establishes on a balance of probabilities that the applicant had started the process of opening her car door at the time of the incident. I find that the applicant’s car was being put to an ordinary use when she put her hand on the car door handle with the intention of opening the car door.

Other Submissions

18While, as noted above, I find that the applicant had placed her hand on the car door handle for the purpose of opening the door and entering the car, I agree with the respondent that the evidence does not establish that she had actually commenced boarding the car at the time she fell.

19I do not agree with the applicant’s submission that remotely unlocking a car with a key fob while walking towards the car constitutes use or operation of a vehicle. Although doing so is evidence of an intention to use her car, intention to use a car does not constitute use or operation of the car. No cases were provided which suggest that the meaning of “the use or operation of an automobile” should be extended to this activity.

20Finally, while parking a vehicle has been found to be an ordinary and well-known activity to which vehicles are put,⁶ the parked car cases on which the applicant relies are distinguishable. In those cases, it was the parked vehicle that caused the applicants to fall and/or caused the injuries. In this case, there is no evidence that the parked car caused the applicant to fall. Although the applicant’s foot contacted the car’s tire after she slipped, there is no evidence that this incidental contact with her parked car caused any injury.

Conclusion – Purpose Test

21As noted above, I find that applicant’s car was being put to an ordinary use when she put her hand on the car door handle. I therefore find that the incident arose out of the use or operation of an automobile and the purpose test is satisfied.

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

22For the reasons that follow, although the applicant has satisfied the purpose test, I find that the incident is not an accident as the applicant has not satisfied the causation test.

23In determining whether the causation test has been met, both the intervening causes analysis and the dominant feature analysis must be considered.

Intervening Causes Analysis

24To satisfy the direct causation test, the applicant must establish that there was an unbroken chain of events involving the use or operation of her car that lead to her injury. As noted in Chisholm,⁷ where an intervening act falls outside the normal risk associated with the use and operation of a car, it will break the chain of causation.

25The applicant submits that the icy parking lot is not an intervening cause that breaks the chain of causation, which, she submits began when she unlocked her car with her key fob and/or when she put her hand on the door handle to open the car door, and ended when she fell. She further submits that slipping and falling beside a car in the winter while in the process of boarding a car is a normal and foreseeable risk of motoring, not an intervening cause that breaks the chain of causation.

26The respondent submits that the applicant was injured as a result of her slip and fall while walking, and not as a result of the use or operation of her car. The respondent submits that the fall on the icy pavement was an intervening cause, independent of the use and operation of the applicant’s car.

27The facts in this case are similar to those in the cases referred to by the respondent where something unrelated to the vehicle, such as a curb or slippery pavement, caused the applicant to trip and fall. For example, in Prest⁸ the applicant had parked his car in its usual parking space, intending to wash it. After he had exited the car he tripped over a curb near his car. The curb, and not the use of the car which had ended, was found to be an intervening act. In Fedrizzi⁹ the applicant fell as she approached a streetcar intending to board it. She did not fall as a result of shifting her weight in the process of approaching or preparing to board the streetcar. The streetcar was found to have played no role in the incident, other than that it was the applicant’s destination. The cause of the fall was held to be the slippery condition of the platform.

28In this case, there is no evidence that the applicant putting her hand on the driver’s side door handle in any way caused or contributed to her fall. The applicant’s affidavit evidence is clear. She states that she “slipped and fell as a result of the presence of ice on the parking spot surface.”¹⁰

29The applicant also submits that her injuries were directly caused by concurrent causes, namely the normal use and operation of her car and the icy parking lot. Although I agree that an accident may result from concurrent causes, there is no evidence that the applicant’s car contributed in any way to causing the applicant to fall or to her injuries. There is no evidence in this case that anything other than the ice in the parking lot caused the applicant to slip and fall and no evidence to support a finding of concurrent causes.

30I find that in this case the ice in the parking lot was an intervening cause, and not a foreseeable risk of motoring, that broke the chain of causation. It was ice in the parking lot, and not the use or operation of her car that was the direct cause of her injuries.

Dominant Feature Analysis

31The applicant submits that the use or operation of her car was the dominant feature of the incident. The respondent disagrees and submits that the use or operation of an automobile was not the dominant feature or the cause of the applicant’s injuries.

32Many of the cases referred to by the parties recognize that time, proximity, activity, and risk are relevant factors to consider when determining whether the use or operation is the dominant feature and direct cause of an injury. In this case there is no evidence that the applicant’s proximity to her car at the time she fell in any way caused or contributed to her fall. There is no evidence that the applicant’s contact with her car door handle in any way caused her to fall or caused her injuries. Proximity in time and/or location alone are not sufficient to render the use or operation of that car the dominant feature of the fall where the car played no role in either causing her to fall or in her injuries.

33I find that the direct cause and the dominant feature of the applicant’s fall and her injuries was the icy condition of the parking lot and not the use or operation of a car.

Conclusion – Causation Test

34I find that the ice in the parking lot was the intervening and dominant cause of the applicant’s fall and her injury. The applicant has not established that the use or operation of her car directly caused the incident or her injury.

Conclusion

35Although the applicant has satisfied the purpose test, I find that the incident is not an accident as the applicant has not satisfied the causation test.

ORDER

36For the reasons set out above, I dismiss this Application.

Footnotes

1. 1Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
2. 2Applicant’s Reply Submissions, attaching the Applicant’s Affidavit, sworn October 15, 2018.
3. 3Applicant’s Book of Evidence, Tab 1.
4. 4Applicant’s Book of Evidence, Tab 5, Applicant’s February 15, 2017 letter to G.H. Capital Corp.
5. 5Seale v. Belair, FSCO A01-000635 (January 31, 2002) at page 7.
6. 6Economical Mutual Insurance Co. and Caughy, 2016 ONCA 226; D.S. and TD, 16-000131/AABS.
7. 7Chisholm v. Liberty Mutual, 2002 CanLII 45020 (ON CA) at paragraphs 29 and 30.
8. 8Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92.
9. 9Supra, footnote 6.
10. 10Supra, footnote 2.