R.M. v. Certas Direct Insurance Company, 2019 CanLII 94132

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Amanda Fricot, Adjudicator

Date: August 22, 2019

File: 18-000468/AABS

Case Name: [R.M.] v. Certas Direct Insurance Company

Written Submissions by:

For the Applicant: Aron Zaltz, Counsel

For the Respondent: Nadia Costantino, Counsel

OVERVIEW

1The applicant filed a request for reconsideration of the February 22, 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 significant errors of fact and law in reaching the conclusion that the applicant was not involved in an “accident” and is seeking an order cancelling the Decision. The respondent submits that I considered and weighed the evidence and correctly applied the law and submits that the Decision should be confirmed and the request for reconsideration dismissed.

3Pursuant 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

4The applicant’s request for reconsideration is dismissed.

BACKGROUND

5The applicant sustained injuries when she slipped and fell beside her parked car on February 14, 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 was an “accident” as defined by the Schedule. I concluded that the incident was not an “accident” and dismissed the applicant’s claim for accident benefits. The applicant seeks reconsideration of that Decision.

ANALYSIS

Request for Reconsideration

6The 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 Procedure¹. 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.”

7Specifically, the applicant submits that the conclusion at paragraph 34 of the Decision that “the ice in the parking lot was the intervening and dominant cause of the applicant’s fall and her injury” constituted:

a. an error of fact, because that finding was made in conflict with accepted evidence; and

b. an error of law, because that finding resulted from an incorrect application of the causation test, specifically the application of the intervening causes and dominant feature analysis.

8I am not persuaded by the arguments advanced by the applicant that I made any errors of fact or law for the reasons that follow.

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

9At paragraph 8 of the Decision I reference the definition of “accident” in s. 3(1) of the Schedule. At paragraph 9 of the Decision I set out the two-part test applied by the Ontario Court of Appeal in Chisholm² (2002) and Greenhalgh³ (2004). I find that I properly applied the causation test set out in the Schedule and in the case law when analyzing and weighing the evidence to determine whether an accident had occurred.

10The 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. At paragraph 21 of the Decision I found that the applicant’s car was being put to an ordinary use when she put her hand on the car door handle, and as the incident arose out of the use or operation of an automobile, the purpose test is satisfied.

11The second part of the test, the causation test, requires a determination of whether the use or operation of the automobile directly caused the impairment. I found that the ice in the parking lot was the intervening and dominant cause of the applicant’s fall and her injury, and that the applicant had not established that the use or operation of her car directly caused the incident or her injury. I therefore concluded that the causation test had not been satisfied and the incident was not an accident. It is this finding that the applicant submits constitutes both an error of fact and an error of law.

Error of Fact

12The applicant submits that my conclusion that “the ice in the parking lot was the intervening and dominant cause of the applicant’s fall and her injury” constitutes an error of fact. Contrary to the applicant’s submissions, I do not find that this finding conflicts with accepted evidence, nor do I find that it constitutes an error of fact for the reasons that follow.

13The applicant submits that my conclusion conflicts with the evidence that the applicant fell in the process of opening her car door, with her hand on the handle, and refers to the following findings in the Decision:

a. at paragraph 13: “…at the time she [i.e. the Applicant] fell, she had already started the process of opening her car door”; and

b. at paragraph 18: “the applicant had placed her hand on the car door handle for the purpose of opening the door and entering the car”.

14The applicant submits that I had before me evidence that the Applicant had sustained a torn left supraspinatus tendon, which the applicant submits is “probative on the balance of probabilities of the fact that it was the Applicant’s left hand which had been placed on the car door handle for the purpose of opening the door and entering the car.”⁴ The applicant submits that but for her having been in the process of opening her car door when she slipped and fell on the ice adjacent to her car, she would not have sustained this injury. The applicant therefore submits that it was the use and operation of her car that directly caused this impairment.

15The respondent submits that there is no factual or medical basis which would suggest that the applicant’s injury was sustained because of the applicant’s hand being on or near the door handle, or that absent that contact the applicant would have escaped injury.

16I do not find the applicant’s submission, that but for her having been in the process of opening her care door when she slipped and fell on the ice adjacent to her car she would not have sustained the injury she did, persuasive. As noted in Chisholm⁵, the “but for” test is only intended to eliminate from consideration factually irrelevant causes and does not conclusively establish causation.

17As noted by the applicant, at paragraphs 13 and 18 of the Decision I found that the applicant had started the process of opening her car door when she fell. That finding does not, however, preclude an intervening event from interrupting that process and independently causing the applicant to fall, which is what I concluded occurred in this case. In paragraphs 28 and 29 of the Decision, after having analyzed and considered all of the evidence, I find that there is no evidence that the applicant putting her hand on the door handle caused or contributed to her fall.

18I further find that there is no evidence that the car contributed in any way to causing the applicant’s fall or her resulting injuries. Accordingly, even if the applicant had placed her left hand on the car door handle and tore her left supraspinatus tendon when she fell, as I find that the fall that caused her injury was caused by the ice in the parking lot, I find no conflict between the factual findings made by me. The applicant having placed her hand on the car door did not directly cause her to fall, and as it was her fall that caused her injury, the use and operation of her car was not a direct cause of her injury.

19I do not find any conflict in the factual findings made, nor do I find that I made any error of fact.

Error of Law

20The applicant submits that my conclusion that “the ice in the parking lot was the intervening and dominant cause of the applicant’s fall and her injury” also constitutes an error of law, arguing that I incorrectly applied the law in reaching that conclusion. I do not find that I erred in law in reaching my conclusion for the reasons that follow.

Intervening Causes Analysis

21The applicant submits that I failed to consider the “modern approach to intervening causes” and that an intervening act may not necessarily break the chain of causation, if the intervention can be considered “a not abnormal incident of the risk created using the vehicle or is likely to arise in the ordinary course of things”⁶.

22At paragraph 24 of the Decision, I refer to the Ontario Court of Appeal’s decision in Chisholm⁷ , which notes that 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. I do not find the test articulated in the cases cited by the applicant in the request for reconsideration⁸ to be different from the test set out in Chisholm, although I find the facts in those cases distinguishable. At paragraph 27 of the Decision I note that the facts in this case are similar to those in other cases where something unrelated to the vehicle caused people to trip and fall. Having considered the law and evidence, I specifically found, at paragraph 30 of the Decision, that the ice in the parking lot is not a foreseeable risk of motoring and, therefore, broke the chain of causation. Having found that the ice in the parking lot is not a foreseeable risk of motoring, I found that the slip and fall and the applicant’s injuries sustained in the fall were not foreseeable risks of motoring either. Although injuring oneself as a result of falling may not be an abnormal or unforeseeable risk, it is a foreseeable risk of falling, not a foreseeable risk of motoring.

23I do not find that I erred in law in the application of the intervening causes analysis to the facts in this case.

Dominant Feature Analysis

24The applicant further submits that I incorrectly applied the dominant feature analysis.

25The applicant submits that in finding that the ice in the parking lot was the dominant cause of the applicant’s fall and her injury, I failed to consider that the applicant’s injury resulted from the “combination of her [the applicant’s] hand on the vehicle, and the ice beneath her feet”. This argument was considered and rejected at paragraph 29 of the Decision, where I state that 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 her injuries” and that there is “no evidence to support a finding of concurrent causes”.

26At paragraph 32 of the Decision I note that the factors of time, proximity, activity and risk are relevant in determining whether the use or operation of the vehicle was the dominant feature and direct cause of the applicant’s injuries. Having considered those factors and analyzed the evidence, I conclude that 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”.

27I do not find the decision in North Farmer’s Mutual Insurance Co.⁹, relied upon by the applicant in her request for reconsideration, to be in “all respects comparable” to this case, as submitted by the applicant. In that case the driver’s contact with his vehicle was found to be one of the causes of injuries sustained. The driver had been injured when he slipped on ice and fell after having been shoved by a person who had been a passenger in his van. When he was shoved the driver had his hand on the van door and was leaning on the van door attempting to close it. In that case, unlike in this case, the arbitrator concluded that the evidence supported a finding that the driver’s contact with the vehicle had been one of several direct causes of the injuries sustained.

28I do not find that I erred in law in the application of the dominant feature analysis to the facts in this case.

CONCLUSION

29For 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.

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
2. 2Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
3. 3Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
4. 4The applicant relies on the Clinical Notes and Records of Port Union Medical Centre, Tab 4 of the Applicant’s Book of Evidence filed at the Written Hearing, in support of this submission.
5. 5Supra, footnote 2, at paragraph 25.
6. 6Applicant’s letter dated March 15, 2019 requesting reconsideration, at page 2, citing the following additional cases not referred to in her original Written Submissions: decisions in Derksen v. 539938 Ontario Ltd., 2001 SCC 72 at paragraphs 33 and 34; and Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47 at paragraph 13.
7. 7Chisholm v. Liberty Mutual, 2002 CanLII 45020 (ON CA) at paragraph 29 and 30.
8. 8Supra, footnote 6.
9. 9North Farmer’s Mutual Insurance Co. v. Samad, 2018 ONSC 2143.