S.B. v. Aviva Insurance Company of Canada, 2019 CanLII 63363

RECONSIDERATION DECISION

Before: Amanda Fricot, Adjudicator

Date: May 31, 2019

File: 18-003869/AABS

Case Name: S.B. v. Aviva Insurance Company of Canada

Written Submissions by: For the Applicant: Victoria Polyakevich, Counsel For the Respondent: Thomas R. Hughes, Counsel

OVERVIEW

1The applicant filed a Request for Reconsideration of the February 19, 2019 Decision (“the Decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that Decision, I dismissed the application for accident benefits after finding that the applicant was not involved in an “accident” as defined by the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The applicant submits that I made errors of law and fact, and seeks an order cancelling the Decision. The Request for Reconsideration alleges errors in my determination that the applicant was not involved in an “accident”. In her Reply¹, the applicant also appears to challenge the denial of her request to exclude certain documents. The applicant’s motion to compel production of certain documents and to exclude other documents that were heard at the preliminary issue hearing and denied.

3The respondent submits that the Decision should be upheld and the Request for Reconsideration dismissed. The respondent further submits that the applicant’s Reply should not be accepted by the Tribunal and/or that most of the paragraphs in the Reply should be struck.²

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5The applicant’s Request for Reconsideration is dismissed.

BACKGROUND

6The applicant sustained injuries when she slipped and fell at a gas station after putting gas in her car on November 28, 2017 (the “incident”). She claimed entitlement to benefits under the Schedule. When those benefits were denied, the applicant submitted an appeal to the Tribunal. A written hearing was held to determine the preliminary issue of whether the incident is an “accident” as defined by the Schedule. I concluded that the incident is not an “accident” and dismissed the applicant’s claim for accident benefits. The applicant seeks reconsideration of that Decision.

7The respondent’s objections to the Reply filed by the applicant will be addressed as a preliminary issue in this Reconsideration Decision.

ANALYSIS

Preliminary Issue

Should the Applicant’s Reply be considered by the Tribunal, and if so, in whole or in part?

8The respondent objects to the applicant’s Reply being accepted by the Tribunal on the grounds that it refers to new evidence, contains evidence given by counsel, and contains arguments unrelated to the issues at hand.

9Having reviewed the applicant’s Reply submissions,³ I find as follows:

a. Paragraphs 5 to 30; 41-46; and 56 to 61 relate to the respondent’s initial approval of treatment plans submitted by the applicant, the subsequent denial of the same, and to the request for the applicant to repay benefits. These are issues that were not before me at the preliminary hearing and the information and documentation referred to in these paragraphs is not relevant to issues raised in the Request for Reconsideration. These paragraphs will not, therefore, be considered by me in reaching my decision on this Request for Reconsideration.

b. Paragraphs 31 to 39 and paragraph 49 relate to what the applicant refers to as the respondent’s “mismanagement of the visual evidence of the incident”. It is not clear whether the applicant is challenging the denial of her request to have certain documents excluded. If she is, as this was not raised in the Request for Reconsideration or in the respondent’s submissions, I find it is inappropriate for it to be added by way of Reply submissions. These paragraphs will not, therefore, be considered by me in reaching my decision on this Request for Reconsideration.

c. Paragraphs 1 and 2 appear to advance new arguments not raised in the Request for Reconsideration or in the respondent’s submissions, but it is unclear how the arguments apply in this case. These paragraphs will not, therefore, be considered by me in reaching my decision on this Request for Reconsideration.

d. Paragraphs 47, 48 and 50 to 55 appear under the heading “Grounds for Reconsideration”. Not all of these paragraphs are technically the proper subject matter of a Reply, and many are simply restatements of arguments advanced in the Request for Reconsideration. In some paragraphs, the applicant misstates findings made by me. However, as I do not find that these paragraphs add new evidence or arguments, and as the respondent has not requested that these paragraphs be struck, they will be considered by me in reaching my decision on this Request for Reconsideration.

Request for Reconsideration

10The grounds upon which a Request for Reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure⁴. The ground that the applicant submits applies in this case is Rule 18.2(b), which states:

“The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.”

11Specifically, the applicant submits that I erred:

a. in fact and in law, by failing to consider the explanation given by the courts in respect of the two-part accident definition test and thus erred in the application of the legal test to a number of facts; and

b. in dismissing the application contrary to the terms of the Tribunal’s August 9, 2018 Order.

12I am not persuaded by the submissions of the applicant that I made any error in law or in fact. I find that I applied the correct legal test, as set out in the Schedule and in the case law, when analyzing the evidence and determining whether the incident is an “accident”.

The proper legal test for determining whether an accident occurred was applied

13In support of her position that I erred in law, the applicant refers to the two-part test for determining whether an “accident” occurred, as articulated by the Supreme Court of Canada in the 1995 decision in Amos.⁵

14At paragraph 19 of the Decision, I reference the definition of “accident” in s. 3(1) of the Schedule. At paragraph 20 of the Decision, I set out the two-part test applied by the Ontario Court of Appeal in Chisholm⁶ (2002) and Greenhalgh⁷ (2004), which test I applied in determining whether an accident had occurred.

15The first part of the test, the purpose test, requires a determination of whether the incident resulted from an ordinary and well-known activity to which automobiles are put. The purpose test set out in the Amos decision is the same purpose test referred to in the Ontario Court of Appeal decisions that I applied in reaching my conclusions.

16The second part of the test, the causation test, requires a determination of whether the use or operation of the automobile directly caused the impairment. In Chisholm, the Court referred specifically to the definition of “accident” in the 1996 Schedule, which is the same as the definition in s. 3(1) of the Schedule. The Court went on to conclude that:

“But the stringent causation requirement – “directly causes” --- in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition.”⁸

17The decision in Greenhalgh notes that:

“… the Amos causation test does not apply to the 1996 legislation whereby the legislature clearly shortened the link between the use of an automobile and the occurring of the impairment….the insured must meet the purpose test as set out in Amos and the causation test as set out in Chisholm.”⁹

18Contrary to the applicant’s submissions, I find that I applied the correct two-part test and the relevant case law when analyzing the evidence and reaching the conclusion that an accident as defined by the Schedule had not occurred.

The law was properly applied to the facts in this case

19The applicant submits that I erred in the application of the two-part legal test for determining whether an accident occurred to the facts in this case. Most of the applicant’s submissions, however, simply reiterate the evidence and arguments considered at the hearing, and then argue that I reached the incorrect conclusions, rather than pointing to errors of law or fact. A request for reconsideration is not an opportunity to re-litigate the matter, which is essentially what the applicant is attempting to do. Contrary to the applicant’s submissions, I do not find any error in the application of the law to the facts in this case for the reasons that follow.

Purpose Test

20The applicant argues that I erred in concluding that the incident did not arise from the use or operation of an automobile and submits that she was in the process of refuelling her car when she fell. This same argument was made at the hearing. The applicant’s argument and the evidence was fully considered and rejected at paragraphs 6, 22 and 26 of the Decision. At paragraph 23 of the Decision, I note that it was not disputed that “filling a car with gas is an ordinary use to which automobiles are put”. At paragraph 26 of the Decision, after considering the evidence and the case law, I conclude that the applicant had completed filling her car with gas, was walking away from her vehicle at the time she fell, and that her use of her vehicle had ended prior to her fall. I find that I made no error in reaching the conclusion that the purpose test is not satisfied in this case.

21Contrary to the applicant’s submissions in her Request for Reconsideration that “the Adjudicator was not persuaded that the Applicant walked away from her car”¹⁰, and in her Reply that “the Tribunal was unsure whether the Applicant abandoned her vehicle at the time she started falling”¹¹, I specifically find at paragraph 26 of the Decision that the applicant was walking away from her car at the time she fell.

22Contrary to the applicant’s submissions, I did not find that active use of the vehicle was necessary to satisfy the purpose test. As referenced in paragraphs 24 and 25 of the Decision, I considered the decisions in Davis¹² and Caughy¹³ and found them factually distinguishable from the facts in this case.

I find no error in the assessment of the evidence or the application of the purpose test to the facts of this case.

Causation Test

23In her Request for Reconsideration, the applicant repeats her argument that there was an unbroken chain of events that began when she arrived at the gas station and that was continuing at the time she fell, when she was in the process of going to pay for her gas. She argues that I made a number of errors in reaching the conclusion that her fall was an intervening act and the direct cause of her injuries. The applicant’s arguments were considered and rejected at the hearing. I find that I made no error in reaching the conclusion that the causation test is not satisfied in this case for the following reasons.

24The applicant alleges that I ignored the evidence of the activities she was engaged in prior to her fall. She alleges that I ignored the proximity in time between when she fell and when she closed her gas tank, opened the front passenger door, retrieved her purse and closed the car door. That evidence is considered at paragraphs 6, 7, 8, 16 and 39 of the Decision.

25Contrary to the applicant’s argument that “the Tribunal had no relevant or persuasive evidence of an intervening act”, the evidence referred to in paragraphs 6, 7, 8 and 39 of the Decision support the finding of an intervening act. This includes reference at paragraph 7 of the Decision to the applicant’s own statement that after she closed the car door, “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...” At paragraph 30 of the Decision, the test for an intervening act is set out. The cases relating to intervening acts that were referred to by the parties are considered at paragraphs 35 and 36 of the Decision, where the factual distinctions between those cases and the facts in this case are discussed.

26The applicant’s submits the Tribunal had no “evidence to decide that the purse was the dominant cause of the Applicant’s injuries”. At paragraph 37 of the Decision, I find that it was the applicant’s fall that was the cause of her injuries. Contrary to the applicant’s submission, I did not find that her purse was the dominant cause of her injuries.

27In her Request for Reconsideration, the applicant alleges that I erred in failing to consider all evidence in its entirety and instead predominantly relied on the statement of the respondent that “the video matches the Applicant’s statement”. In her Reply, the applicant alleges that the video of the incident provides more accurate and more favorable evidence for the applicant. At paragraph 16 of the Decision, in the context of determining whether the photos filed by the respondent constituted “borderline misleading the tribunal”, reference is made to the fact that “the video of the incident matches the description provided in the applicant’s statement”. The video evidence, including the time stamped pictures from the video, were considered by me, as is noted in paragraphs 6, 12, 15 and 16 of the Decision. When the Decision is read in its entirety, it is clear that all of the evidence was considered and weighed.

28In her Request for Reconsideration, the applicant submits that the video shows that the applicant is a “plus size person”, wearing a jacket and that her car is parked too close to the gas pump “to allow her to walk…without touching her car”. Similar submissions are made in her Reply. The argument that the way the car was parked played a role in causing the applicant to fall was raised for the first time in the Request for Reconsideration. As this argument could have been made at the hearing, having failed to do so, it is not open to the applicant to raise it for the first time on Reconsideration. In any event, the evidence relied upon in support of this argument is the same evidence that was considered at the hearing. In the applicant’s own statement, reproduced at paragraph 7 of the Decision, she states that she had no contact with the car. There is no evidence in this case that the way the applicant’s car was parked played any role in her fall.

29I find no error in the assessment of the evidence or the application of the causation test to the facts of this case.

The dismissal of the application was not contrary to the Tribunal’s August 9, 2018 Order

30The applicant submits that I dismissed her application contrary to the Tribunal’s Order issued August 9, 2018, which states:

“Within 30 days of the release of the decision on the preliminary issue, the parties shall contact the Tribunal to schedule a case conference to address the substantive issues in dispute, if required.” [emphasis added]

31The applicant alleges that as the respondent has not revoked its claims for repayment of benefits, she will be seriously prejudiced if her application is dismissed and she is not allowed to address the substantive issues. I note that the issue of repayment of benefits was not an issue before me at the hearing.

32Having concluded that the applicant was not involved in an “accident” as defined by the Schedule, a further case conference is not required. I do not find any error in having dismissed the application, nor do I find that the dismissal of this application is contrary to the Tribunal’s August 9, 2018 Order.

CONCLUSION

33For the reasons set out above, I find that the applicant has failed to establish any error of law or of fact. I therefore dismiss the applicant’s Request for Reconsideration.

Amanda Fricot, Adjudicator

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Applicant’s Reply to the Respondent’s Response, dated April 30, 2019.
2. 2Respondent’s letter dated May 2, 2019.
3. 3The documents attached to the Reply were not reviewed as none of them relate to paragraphs 47, 48 and 50 to 55, the only paragraphs that were considered by me in reaching my Reconsideration Decision.
4. 4Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
5. 5Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC).
6. 6Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
7. 7Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
8. 8Supra, footnote 6, at para 20.
9. 9Supra, footnote 7, at para 32.
10. 10Request for Reconsideration, dated March 11, 2019, at paragraph 23.
11. 11Applicant’s Reply to the Respondent’s Response, dated April 30, 2019, at paragraph 48.
12. 12Davis v. Aviva Canada Inc., 2017 ONSC 6173.
13. 13Economical Mutual Insurance Co. and Caughy, 2016 ONCA 226.