S.B. v. Aviva Insurance Company of Canada, 2019 CanLII 22211

Tribunal File Number: 18-003869/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:

S.B.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

PANEL:

Amanda Fricot, Adjudicator

APPEARANCES:

For the Applicant:

Victoria Polyakevich, Counsel

For the Respondent:

Thomas R. Hughes, Counsel

HEARD In Writing on:

December 10, 2018

OVERVIEW

1S.B. (“the applicant”) sustained injuries when she slipped and fell after refuelling her car at a gas station on November 28, 2017 (the “incident”). When Aviva Insurance Company of Canada (“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 is a preliminary issue hearing to determine whether the incident is an “accident” as defined by the Schedule. After the respondent had filed its Written Submissions and Evidence (“the respondent’s Submissions”), the applicant filed a Motion to compel production of further documents from the respondent and to exclude other documents. The Motion was heard at the preliminary issue hearing.

ISSUES IN DISPUTE

Preliminary Issue

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

(i) Is the incident on November 28, 2017 an accident within the meaning of section 3(1) of the Schedule?

The Applicant’s Motion

4The applicant seeks the following relief in her Motion dated November 16, 2018:

(i) an order compelling the respondent to provide all photographs they are relying on, with date and time stamp visible with precision to a second;

(ii) an order excluding photographs 5 and 6 submitted by the respondent, as they were not from the surveillance video from the gas station taken on November 28, 2017 and was a video from the next day and was never produced to the applicant;

(iii) an order excluding all other respondent evidence that is inaccurate, irrelevant or misleading; and

(iv) all other and further relief the Tribunal finds reasonable and just.

RESULT

5For the reasons that follow, I find that:

(i) The applicant’s Motion dated November 16, 2018 is denied.

(ii) 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 November 28, 2017 the applicant arrived at a gas station, put gas in her car, retrieved her purse from the front passenger seat of her car, closed the car door, turned to walk away, and then fell to the ground. All of this was recorded on a video filed by the respondent¹.

7In her statement² the applicant described what happened after she closed the car door as follows:

“I then slipped on something that was on the floor, with the first and second step I took. On my third step my legs then became tangled with the longer strap of my purse that was hanging down.... I do not recall if it was both of my legs that were tangled up into my purse. I was not able to catch myself from stopping myself from falling…My front passenger’s side door was closed when I had my fall…The fall took place in front of my vehicle and I had no contact with my car. I do not know what I slipped and fell on.”³

8There is no evidence of what the applicant slipped on. The video relied upon by the respondent is not clear enough to establish whether there was or was not anything on the ground. The photographs relied upon by the respondent that were taken after the incident are undated and are of no evidentiary value in determining what, if anything, was on the ground at the time the applicant started to slip. There is no dispute that at some point the applicant’s leg(s) got tangled in her purse strap, that she fell and that she was injured as a result of that fall. The applicant did not fall on her car nor did any portion of her body hit her car.

9The parties disagree on whether what occurred on November 28, 2017 falls within the definition of “accident” in the Schedule.

The Applicant’s Motion

10By Motion dated November 16, 2018 the applicant sought an order compelling the respondent to provide all photographs they are relying on with date and time stamp visible with precision to a second, and also sought to exclude two photos (photos 5 and 6) and other unspecified evidence that is “inaccurate, irrelevant and misleading”.

11In support of her Motion, the applicant relies upon material filed as part of the respondent’s Case Conference Summary, a copy of which was filed with the applicant’s Motion material. The respondent’s Case Conference Summary was not reviewed by me as to do so would be inappropriate without first hearing submissions from the respondent, given the settlement privilege that may attach to portions of a Case Conference Summary.⁴ I have not considered any of the applicant’s submissions on the Motion that relate to the respondent’s Case Conference Summary or the evidence or positions alleged to have been advanced by the respondent at the Case Conference.

12Paragraph 3 of the respondent’s submissions states that “There is nothing on the ground around her vehicle in the video to suggest she slipped on anything. There is nothing in the photos taken after the incident either.” In support of that submission the respondent filed 11 photos which are identified as “Still Photos of Incident”⁵ and includes photos from the video and from the following day and 4 photos of the ground near the gas pump that are not dated or time stamped.

13As the photographs that are undated are of no evidentiary value in determining what, if anything, was on the ground at the time the applicant started to slip, I will not compel the respondent to provide copies with date and time stamp visible with precision to a second as requested by the applicant.

14Photos 5 and 6 filed by the respondent are two photos depicting the applicant on the day after the incident. It is apparent from the portion of the date stamp on photo 5 that it is dated November 29, 2017 not November 28, 2017. Although I find no basis to exclude these photos, I do not find them to be relevant to the preliminary issue hearing and have not considered them in reaching my decision.

15Referring to the 11 photos filed by the respondent, the applicant alleges that in “the Respondent’s pictures time and date is not visible, pictures are organized [in] random, inaccurate order, two pictures from the next day are added to support a version of an intervening event, date and time is cut or missing in most of the Respondent’s photos”⁶. The applicant further alleges that “at best mismanagement of the seminal evidence in this matter by the Respondent is borderline misleading the tribunal, the respondent’s behaviour in proceedings was extremely inappropriate and thus contrary to Rule 19.1 of the LAT Rules of Practice and Procedure”⁷, and that the applicant was “severely prejudiced by the Respondent’s failure [to] provide entire evidence as directed by the tribunal order and by Respondent’s systemic inaccurate statements before and during these proceedings, including the order in which photos in their Submissions were used”⁸

16I have considered the admissible portions of the applicant’s Motion material, together with the respondent’s Submissions and Evidence, including the video of the applicant’s fall and the photos filed by the respondent. When the photos and video are viewed together, particularly when the respondent’s Submissions state that the video of the incident matches the description provided in the applicant’s statement, I find no merit in the applicant’s suggestion that the respondent is “borderline misleading the tribunal”. The applicant has not particularized any other “inaccurate, irrelevant or misleading” evidence that she seeks to have excluded, and I find that there is none.

17I further find that there is no evidence to support the applicant’s allegation that the respondent “failed to provide entire evidence as directed by the tribunal order” or that the applicant was prejudiced by the same. The Tribunal Order dated August 9, 2018 ordered the respondent to provide the applicant with a copy of the video of the November 28, 2017 incident (the “video”) by September 10, 2018. The applicant’s Motion Record confirms that the video was provided to applicant’s counsel “after August 15, 2018 on a CD together with the software for viewing said videos”⁹ and that the “Applicant and her counsel analysed the videos provided to them shortly after August 15, 2018”¹⁰. The applicant therefore had the video footage relied upon by the respondent at least two months prior to receipt of the respondent’s Submissions and Evidence and I find that there is no evidence of any prejudice to the applicant.

18The applicant’s request for the relief sought in the November 16, 2018 Motion is denied.

Preliminary Issue

19Section 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.

20The Ontario Court of Appeal¹¹ set out the following two part test for determining whether an accident has occurred for the purposes of the Schedule. 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?

21For the reasons that follow, I find that the applicant has not satisfied either the purpose test or the causation test.

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

22The applicant submits that the purpose test is satisfied as the incident resulted from an ordinary and well-known activity to which automobiles are put, namely putting gas in her car. The applicant submits that her ordinary use of her car continued from when she started putting gas in her car until the time she fell.

23The respondent does not dispute that filling a car with gas is an ordinary use to which automobiles are put¹², but submits that the purpose test is not satisfied as the applicant was not filling her car with gas at the time she fell. The respondent submits that she was walking away from her car when she fell.

24The applicant relies on the Court’s comment in Davis¹³ that routine maintenance, like checking and topping up fluid levels, checking tire pressure and filling the gas tank satisfy the purpose test. In Davis, however, the applicant was injured when the hood of the car collapsed on her while she was refilling her windshield washer fluid, unlike in this case where the applicant had completed refuelling and was walking away from her car at the time she was injured.

25The applicant relies on Caughy¹⁴ for the proposition that there is no requirement that the vehicle be in active use to satisfy the purpose test. In Caughy the applicant tripped over a parked motorcycle and hit a parked truck and the court concluded that parking a vehicle is an ordinary and well-known activity to which vehicles are put. Caughy is distinguishable and not relevant because in this case the applicant had no contact with any parked vehicle when she fell, nor had contact with a parked vehicle caused her to fall.

26I agree with the respondent that the applicant was not filling her car with gas when she fell but rather she was walking away from her car. The applicant’s fall occurred after she had retrieved her purse and closed her car door, and for that reason I reject that applicant’s submission that proximity in time to the ordinary use of a vehicle satisfies the purpose test where, as here, the use of the vehicle had ended prior to the fall.

27The respondent relies on 16-004096 v. Intact¹⁵, a case in which the applicant tripped on a pothole in the parking lot a few steps away from her vehicle when she was returning to her parked vehicle which had been parked for some time. Although I disagree with the respondent’s submission that 16-004096 v. Intact is factually indistinguishable from this case, I find the adjudicator’s conclusion that simply walking towards a parked car does not satisfy the purpose test to be consistent with my finding in this case. In both cases the ordinary use to which the vehicles had been put in both cases had ended prior to the falls by the applicants.

28I find that the applicant has not established that the incident arose out of the use or operation of an automobile

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

29In Greenhalgh¹⁶ the Ontario Court of Appeal set out the following considerations that may be useful in determining whether the direct causation required by the Schedule has been established:

(i) the “but for” test

(ii) the intervening causes inquiry; and

(iii) the dominant feature inquiry.

30As noted in Chisholm¹⁷, a direct cause is the “active, efficient cause that sets in motion a train of events that brings about a result without the intervention of any force started and working actively from a new and independent source”. To 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.

31The applicant submits that there was an unbroken chain of events that began when she started putting gas in her car and ended when she fell, and that she was actively involved in activities with her car throughout that time.

32The respondent submits that the applicant was injured as a result of an intervening act, her slip and fall, and not as a result of the use or operation of her car. The respondent submits that the use or operation of her car was not a dominant feature as her car was not involved in her fall.

33For the reasons that follow, even if the applicant had satisfied the purpose test, I find that the incident is not an accident as the applicant has not satisfied the causation test.

“But for” Test

34Although mentioned by both parties, neither party made submissions on the applicability of the “but for” test in this case. Analysis of the “but for” test is not necessary to reach a decision in this case given the conclusions reached following consideration of the intervening causes analysis and the dominant feature analysis.

Intervening Causes Analysis

35The applicant refers to a number of cases where a person has fallen outside a parked car, and the factors considered in determining whether there had been an intervening event. I find that those cases support a finding that the applicant’s fall in this case was an intervening act. In Banos¹⁸, the applicant had refuelled, paid for his gas and was injured when he slipped walking back to his vehicle. The arbitrator concluded that “a common sense view of the facts in this case militates against a parked car that has already been refuelled as constituting a “use” in terms of the two-fold test” and held that the slip and fall on ice was the sole cause of injury, not the use and operation of the vehicle. In 16-004096 v. Intact¹⁹ the adjudicator concluded that it was the applicant tripping in a pothole, and not the motor vehicle, that was an intervening act and the direct cause of her injuries. In 17-000180 v. Certas²⁰, the applicant slipped in slush when she was returning to her car after shopping and fell next to the passenger door. The adjudicator concluded that the fall resulted from an intervening cause, the slippery conditions on the ground, and not by the use or operation of her vehicle.

36The Porter²¹ decision relied upon by the respondent is persuasive. In that case the applicant, who had been shopping, returned to her car and loaded her trunk. She then walked over to return her cart and when she turned to go back to her car, with her key in her hand, her leg got caught in a piece of strapping that was on the ground in the parking lot and she fell. The arbitrator noted that to establish causation “the evidence must show a clear link between the use or operation of the vehicle and the person’s injuries”²². He then concluded that the intervening act and “direct cause of her injuries was when Ms. Porter became entangled in the strapping on the ground” and that “the use of her automobile was not a direct cause of her injuries”.²³

37In this case, whether or not the applicant slipped on something prior to getting her leg(s) tangled in her purse strap, I find that the applicant’s fall was an intervening act and that the fall, and not the use or operation of her automobile, was the direct cause of her injuries.

Dominant Feature Analysis

38The applicant submits that the use or operation of an automobile was the dominant feature of the incident, and relies upon the same cases referenced in relation to the intervening causes analysis. The respondent submits that the use or operation of an automobile was not the dominant feature of the applicant’s injuries and did not cause them.

39I find that although the applicant’s fall was very close to her car, she did not come in contact with her car when she fell, nor did the car cause her to fall. At the time of her fall she had finished putting gas in her car and any use or operation of her car had ended. In these circumstances I find that the use of her car was neither a dominant feature in her fall nor did her car or the use or operation of that car cause her to fall. Proximity in time or location to a vehicle at the time of a fall is not sufficient to render the use or operation of that vehicle the dominant feature of the fall.

40I find that the applicant has not established that use or operation of an automobile directly caused the applicant’s injuries.

ORDER

41For the reasons set out above, I find that:

(i) the applicant’s Motion dated November 16, 2018 is denied; and

(ii) this Application is dismissed.

Footnotes

1. 1Respondent’s Submissions, Tab 2.
2. 2Statement of Applicant to the Respondent taken on January 10, 2018, Respondent’s Submissions, Tab 1.
3. 3Ibid.
4. 4Safety, Licensing Appeals & Standards Tribunal Ontario, Common Rules of Practice & Procedure, October 2, 2017, Rule 14.4.
5. 5Respondent’s Submissions, Tab 3, Still Photos of Incident
6. 6Motion Record of the Applicant, dated November 16, 2018, at paragraph 33.
7. 7Ibid, para 34
8. 8Ibid, para 35.
9. 9Ibid, at paragraph 9.
10. 10Ibid, at paragraph 10.
11. 11Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA); and Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
12. 12Respondent’s Submissions, paragraph 7.
13. 13Davis v. Aviva Canada Inc., 2017 ONSC 6173, at paragraph 13.
14. 14Economical Mutual Insurance Co. and Caughy, 2016 ONCA 226.
15. 1516-004096 v. Intact Insurance Company, 2017 CanLII 63622 (ON LAT).
16. 16Supra, footnote 11 at paragraph 12.
17. 17Supra, footnote 11 at paragraph 30.
18. 18Banos v. Jevco Insurance Co., 2015 CarswellOnt 13763 (FSCO).
19. 19Supra, footnote 15.
20. 2017-000180 v. Certas Direct Insurance Company, 2018 CanLII 76693 (ON LAT).
21. 21Porter and Dominion, June 2017 (FSCO A16-00055500).
22. 22Ibid, at page 10
23. 23Ibid, at page 11.