C.S. v. Certas Home and Auto Insurance, 2019 CanLII 51302

Date: May 14, 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:

C.S.

Appellant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Counsel for the Applicant: Anna Szczurko

Counsel for the Respondent: Tripta Sood

HEARD in Writing: December 11, 2018

OVERVIEW

1CS was involved in an incident on March 4, 2015 (“the incident”). CS sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule'') and commenced her appeal when her claim was denied by Certas.

2Certas asserts that the incident was not an “accident” within the meaning prescribed by s. 3(1) of the Schedule. CS contends the opposite, that she was involved in an accident as defined by the Schedule and is therefore entitled to claim accident benefits from Certas.

3If Certas is correct, then I must dismiss the applicant’s claim.

PRELIMINARY ISSUE

4Was the incident in this matter an “accident” as defined by section 3(1) of the Schedule?

FINDINGS

5The incident in this case is not an accident as defined by the Schedule.

6CS’s appeal is dismissed, without costs.

REASONS

Background

7The facts of the incident are set out in an affidavit sworn by CS on April 10, 2015 and replicated in parts in her submission. These facts are uncontested by Certas.

i. CS drove a car to a shopping center between 9:40 and 9:50 on March 4, 2015.

ii. CS parked her outside a Walmart, next to a van, and turned off the ignition. She locked its doors.

iii. Conditions in the parking lot were icy and slippery.

iv. CS exited her vehicle and took about two to three steps away from it. CS’s legs went out from under her and she fell onto her middle back.

v. CS expressly states, “I did not touch my vehicle during my fall”. Her affidavit makes no mention of any contact with any vehicle.

vi. CS went to the emergency centre at a local hospital at around 14:30 that afternoon, where medical imaging revealed a fracture of her T12 (thoracic) vertebra.

vii. CS spoke with an insurance adjuster for Walmart five days after the accident, who advised her to contact her auto insurer.² After her insurer sent her claim documents, CS that she didn’t have any intention to complete them because she “did not feel that my auto insurance should be involved considering my vehicle had nothing to do with this incident”.

8The nature and extent of CS’s injuries are uncontested, as is the fact that they were inflicted by her fall on March 4, 2015.

Determining whether an incident is an “accident” as defined by the Schedule

9Section 2(1) of the Schedule prescribes that the benefits it sets out “shall be provided […] in respect of accidents ...”

10Section 3(1) of the Schedule defines “accident” as an “incident in which the use of an automobile directly causes an impairment. […]”

11The Schedule does not say that an automobile must be the exclusive cause of the injury, only that it must be a cause.

12The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 set out a two-part test for determining whether an incident constitutes an “accident” under the Schedule; in order to establish coverage, the claimant must satisfy both:

i. The “purpose test”: did the incident arise out of the ordinary and well-known activities for which automobiles are used? and

ii. The “causation test”:

a. Did such use or operation of an automobile directly cause the impairment?

b. 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

13Both the purpose and the causation test must be met before I can determine that CS’s injuries were caused by an accident. If I find that the incident that caused CS’s injuries does not meet the causation test, an analysis of the "purpose test" will not be necessary.

14To determine causation, I will frame the causation test as follows:

i. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or 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?

ii. “Dominant feature”: was the use or operation of the automobile the primary cause of the impairment?⁴

iii. It is not enough to show that an automobile was involved in the incident giving rise to the impairment, rather the use or operation of the automobile must have directly caused the injury.⁵

iv. An intervening act may break the chain of causation and disentitled the applicant to benefits unless the intervening act is considered a normal risk created by the use and operation of a motor vehicle.⁶

Certa’s Position

15Certas relies on CS’s own statements, in an affidavit noted above, about how the incident occurred.

16Certas submits additional evidence that CS herself did not believe that she was involved in an automobile accident, including her account of the incident to her doctor,⁷ her handwritten account in an OCF-3 on May 13, 2015 and her description of the incident in a plaintiff’s Statement of Claim dated April 28, 2016 against the owner of the parking lot, Walmart. That Statement of Claim relies on the Occupiers’ Liability Act and the Negligence Act – with no reference to the Insurance Act, the Schedule or the Highway Traffic Act.

17Certas contends that the applicant’s injury was caused by a slip and fall. It submits that the incident is not an “accident” because:

i. The use and operation of an automobile is not the dominant feature in CS’s injuries. She slipped and fell after she exited her vehicle. There is no evidence that any automobile, including CS’s own, directly (or even indirectly) caused her alleged injuries.

ii. The presence of ice and snow on the ground was a “clear intervening act”.

18Certas urges me to follow the reasoning and conclusions in a number of similar-fact cases in which adjudicators have found that a mishap was not an "accident" for accident benefits purposes, because a condition of the surface on which a claimant fell (in this case, icy and slippery) was considered an intervening act that broke the chain of causation. In all these cases, the incident did not qualify as an accident under the Schedule. For example:

i. In Prest⁸, the Court of Appeal found “no accident” where the Claimant exited his parked car to wash it and, while still touching it, tripped on a concrete curb.

ii. Madahan and Cooperators⁹ -- a crack in pavement caused the claimant to fall after he exited his vehicle to remove groceries from the trunk.

iii. KB and Intact ¹⁰– a pothole which tripped the claimant when she was a few steps from her car, a “mere proximity to [a] parked car” was not enough to establish causation.

iv. IS and Aviva¹¹, -- the claimant tripped on an uneven curb after disembarking from a vehicle; the uneven curb broke the chain of causation.

v. DM and Certas¹² -- slush was the intervening factor that caused the claimant’s fall and injuries, as she exited her car to clean the passenger-side wing mirror.

CS’s position

19CS’s case rests on her assertion that:

i. Caughey establishes that an incident involving a parked car can indeed be ruled an accident.¹³

ii. Contact with a vehicle is not required to establish that an accident took place. In the cited case, NP and MVACF¹⁴ the claimant was roller blading and was injured when she took action to evade being struck by a car.

iii. In Samad¹⁵, the court found again that exiting a vehicle and slipping on ice into a ditch, without striking the vehicle, was an accident, despite the fact that an assault by a passenger contributed to the claimant’s fall and injury.

20The cases led by CS were unpersuasive to me because they were distinguishable from this case. For example:

i. In Caughey the claimant’s injuries were caused by tripping over a parked motorcycle and striking a parked car. While contact with a vehicle may not be essential to a finding of “accident”, it was relevant in that case, especially as there was no apparent intervening factor. A vehicle was a direct cause of injury.

ii. In Samad the claimant, a taxi driver, slipped while exiting his cab to close a door left open by a passenger – an act required for him to continue operating the vehicle. The claimant was leaning in to close the cab door when he was pushed and fell. I find this distinct from CS’s having exited and moved away from a parked, locked car. The vehicle in Samad was directly involved in the sequence of events leading to injury.

iii. The vehicle in NP was a dominant cause of injury, despite the lack of impact or contact, because it caused the claimant to move evasively and thereby crash and fall, leading to injury. In such a case, the car is actively engaged in causing the accident. CS’s stationary vehicle played no such role in her injury.

21I find that that the incident was not an accident within the meaning of the Schedule. Unlike the cases that I find persuasive in this matter, neither CS’s vehicle itself nor any action associated with actually operating it was a factor in the injuries she sustained. This persuades me that any chain of causation between the operation of her car and the incident was broken.

Is the Respondent estopped from denying that the incident was an accident?

22CS asserts that Certas is “estopped” (i.e. blocked, barred or precluded) from taking its position that the incident in which she was injured was an “accident”. CS asserts that this is so because:

i. Certas has paid benefits to her for over three years until this proceeding commenced, despite full knowledge of the circumstances of the incident. Certas first raised this issue in the case conference in July, 2018.

ii. Certas’s payment of benefits led CS to rely on an assumption that her case involved an accident, and her expectation of continuing coverage influenced her decision in the tort claim arising from this incident.

iii. Allowing Certas to resile from its commitment to CS to cover her injury at this late date will prejudice her severely and unfairly, contrary to the intent and purpose of the Schedule in providing consumer protection and timely access to accident benefits.

23I find that the Tribunal cannot impose estoppel on Certas because:

i. Estoppel is an equitable remedy that the Tribunal has no authority to grant.¹⁶

ii. Before the Tribunal’s lack of jurisdiction was established, adjudicators found – and I agree – that an insurer’s decision to pay benefits does not constitute a waiver of its right to dispute entitlement at a future date. Moreover, both parties to dispute resolution proceedings are permitted to raise new issues not identified in the early adjustment of the claim.¹⁷ I find that, even if permitted, imposing estoppel in response to Certa’s early silence on this matter would frustrate the remedial objectives of the accident benefits scheme, which is intended to encourage ongoing communication between an insured person and his or her first-party insurer, resulting in prompt payment of ongoing periodic benefits by insurers, and in early resolution of disputes.

iii. The courts have ruled that prejudice cannot be said to occur if the plaintiff is required to repay or is denied benefits that she may have never been entitled to in the first place.¹⁸ The ruling applied to a change of statement of defence, from admitting that the plaintiff had been involved in an accident to denying that the plaintiff had been in an accident.

iv. CS’s assertion that she relied on Certa’s conduct in making decisions relating to tort actions is unsupported by any evidence.

COSTS

24Rule 19.1¹⁹ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

25Certas requests that the Tribunal impose costs of this preliminary hearing on CS.

26Certas provides no evidence or argument to support any contention that the prescribed criteria for costs have been met. Accordingly, its cost request is denied.

CONCLUSIONS

27The incident in this case is not an accident as defined by the Schedule.

28CS’s appeal is dismissed.

29Certas’s cost request is denied.

Released: May 14, 2019

___________________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O.Reg. 34/10
2. 2State Farm Insurance at the time.
3. 3Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA), para. 11, submitted by the respondent.
4. 4ibid, para.36, – see also Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, submitted by Certas
5. 5Downer v. Personal Insurance Company, 2012 ONCA 302 para.39.
6. 6Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA), para. 46, submitted by Certas.
7. 7Clinical notes and records of Dr. P.Leung, CS’s personal physician, dated March 16, 2015 and April 20, 2015.
8. 8Dominion of Canada, General Insurance Company v. Prest, 2013 ONSC 92
9. 9Mahadan and Co-operators, A00-000489, FSCO, March 15, 2001.
10. 10K.B. and Intact, 16-004096/AABS, LAT, August 24, 2017.
11. 11IS and Aviva, 17-000942/AABS LAT, May 24, 2017.
12. 12DM and Certas, 17-000180/AABS, July 4, 2017, 2018 CanLII 76693
13. 13Economical v. Caughy, 2016 ONCA 226 at para. 17
14. 14NP and Motor Vehicle Accident Compensation Fund, 2018 CanLII 83540 at paras. 6 and 23.
15. 15North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (“Samad”)
16. 16J.T. and Aviva Canada Inc., 2018 Can LII 8097 (ON LAT), which was upheld on reconsideration, and upheld again on appeal in Taylor v. Aviva Canada Inc., 2018 ONSC 4472, all led by Certas
17. 17York and Zurich Insurance, FSCO A00-000126, July 30, 2001, led by Certas
18. 18Howell-Lillepool v. Lillepool et al., 2012 ONSC 4385
19. 19All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)