Citation: Mahoney vs. Co-Operators General Insurance Company, 2020 ONLAT 19-007708/AABS

Released Date: 12/31/2020

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:

Karrieanne Mahoney

Applicant

and

Co-Operators General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Peter Dye, Counsel

For the Respondent:

Aly Pabani, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Karrieanne Mahoney (“applicant”) was injured December 7, 2018 while exiting her automobile (“incident”). The applicant sought non-earner benefits (“NEB”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Co-Operators General Insurance Company (“respondent”) denied NEB. The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule. The applicant’s position is the opposite.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

4At the case conference, the Tribunal ordered that the preliminary issue below be heard with the substantive issue below. I will consider the preliminary issue first.

PRELIMINARY ISSUE

5The preliminary issue to be decided is:

i. Was the applicant involved in an “accident” as defined within s. 3(1) of the Schedule?

SUBSTANTIVE ISSUE

6The substantive issue to be decided is:

ii. Is the applicant entitled to NEB in the amount of $185.00 per week, from January 23, 2019 to date and forward?

RESULT

7Any impairment the applicant may have sustained as a result of the incident did not result from an “accident” as defined by the Schedule. As the Schedule’s benefits are predicated on an “accident” and NEB is such a benefit, the applicant is therefore not entitled to NEB. The application is dismissed.

LAW

8Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”

9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused the applicant’s injuries.²

ANALYSIS

Was the incident an “accident”?

10For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.

11The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows:³

a. Purpose test: did the incident arise out of the use or operation of an automobile, and

b. Causation test: did the use or operation of an automobile directly cause the impairment.

12If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the ‘ordinary course of things.”⁴ The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”⁵

13The application of this test to the facts of this case follows.

Did the applicant’s injuries arise out of the use or operation of an automobile (the purpose test)?

14The applicant submits that she was involved in an accident because she was injured while stepping out of her automobile. The applicant submits that she put her purse on her arm and was in the process of closing the door when she slid on ice and suffered a compound fracture of her left ankle, which required surgery. The applicant submitted no evidence at the hearing. The applicant relies on several decisions of the Financial Services Commission of Ontario in support of her position.⁶

15The respondent accepts that the events which took place immediately prior to the slip and fall including parking the applicant’s automobile outside of a motel are ordinary and well-known activities to which the applicant’s vehicle was put.⁷ The respondent submits that the issue here is whether the applicant’s automobile was a direct cause of the applicant’s injuries.

16I find that the purpose test is satisfied based on the respondent’s concession that that the events which took place immediately prior to the slip and fall including parking the applicant’s automobile outside of a motel are ordinary and well-known activities to which the applicant’s vehicle was put.

17I agree with the respondent’s submission that the issue here is whether the applicant’s vehicle was a direct cause of the applicant’s injuries and therefore will address the balance of the test.

Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?

18Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal:⁸

i. whether the incident would have occurred “but for” the use or operation of the automobile;

ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and

iii. whether the use or operation of the automobile was the dominant feature.

19The applicant submits that, “While stepping out of the vehicle the applicant put her purse on her arm and was in the process of closing the door when she slid on ice and suffered a compound fracture of her ankle...”⁹

20The respondent submits that the applicant’s automobile was not the direct cause of the applicant’s injuries and, therefore, the incident was not an “accident” as that term is defined in s. 3(1) of the Schedule. The respondent submits that the applicant’s injuries arose from the interaction of her body with ice beneath her feet when she proceeded to get out of her automobile, which constitutes a slip and fall, but not an “accident” as defined by the Schedule. The respondent submits that slipping on ice cannot be said to fall within the “ordinary course of things” or a normal risk of using or operating an automobile. Instead, the ice was an independent and intervening event which broke the chain of causation. As such, the dominant cause of the applicant’s alleged injuries was the intervening ice, not the use or operation of her vehicle.

21The applicant’s arguments are not persuasive and the applicant submitted no evidence to support them. In her statement to the respondent, filed by the respondent, the applicant said that while her automobile was parked at a motel, the applicant proceeded to get out of the truck. She did not realize there was black ice beneath her feet and slipped and fell. She said she was exiting the vehicle and remembers her “…foot hitting, going on to the ground, like stepping out of my truck. I remember getting ready to shut the door and the next minute I was on the floor, on the ground…I was stepping out and my feet, I believe both feet were now on the ground…” The applicant’s body did not strike the vehicle as she fell.

22The fact that she was transported to an icy parking lot in her automobile and slipped on the ice upon exiting the vehicle does not make the incident part of the ordinary course of the use or operation of the automobile. The applicant’s ordinary and regular use of her automobile ended once she started to exit it. The automobile itself was not the cause of the injury. The applicant’s body did not strike the vehicle as she fell.

23The case law cited by the applicant is not helpful here. The McIntosh and Seale decisions not binding on me and I decline to follow them. Further, both of these decisions are factually different from this case in that the use of the automobile had not ended in those cases. In McIntosh, the applicant left the automobile to retrieve something from the automobile before continuing. In Seale, the applicant was pushing the automobile down an icy and snowy incline.

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

24Based on the respondent’s concession referred to above, I find that but for the applicant being in her automobile just prior to the incident, any injuries she may have sustained in the incident would not have occurred. The respondent did not seriously challenge this in submissions but instead submitted that the “but for” test is an exclusionary test, the purpose of which is to eliminate factually irrelevant causes and screen out factors that make no difference to the outcome. The respondent also submits that that the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability.

25I agree with the respondent’s submissions on the “but for” test. As Laskin J.A. noted in Chisholm,¹⁰, the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation.” Here, the applicant being in her automobile just prior to the incident and being proximate to the automobile when allegedly injured is not determinative of causation. Legal entitlement to accident benefits “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”¹¹

Was there an intervening cause?

26I find that the applicant’s alleged injuries were not a consequence directly caused by the use or operation of the automobile but were caused by a later intervening cause, specifically that she slipped on ice on the ground. It was the ice that initiated the slip and fall that led to the applicant’s alleged injuries, not the use or operation of the automobile. The automobile was the means of transportation to the icy parking lot and the automobile was physically near ice but not the cause of the slip and fall. I find that the ice and the slip and fall caused the applicant’s alleged injuries, not her use or operation of her automobile.

27The ice and slip and fall constitute an independent intervening event which broke the chain of events which started with the applicant being transported in her automobile and ended with her slipping and falling as she exited the automobile. The ice and slip and fall occurred independent of the automobile’s use or operation. It is the black ice and consequent slip and fall that caused the alleged injuries, not the fact that the alleged injuries took place while the applicant exited her automobile.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

28I find that the use or operation of the automobile was not the dominant feature of the applicant’s alleged injuries. The dominant feature of the applicant’s alleged injuries was the ice which caused her to slip and fall while exiting the automobile.

29I find that the incident does not meet the causation test of an “accident”. This is the applicant’s burden to prove and she has not done so.

30Therefore, any impairments the applicant may have sustained as a result of the incident did not result from an “accident” as defined by the Schedule. As a result, the applicant is not entitled to NEB.

ORDER

31For the reasons above, the application is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.).
3. 3Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
4. 4Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 36; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
5. 5Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
6. 6McIntosh v. McKillop Mutual Insurance Co., FSCO A09-000504 (OFSC); Seale v. Belair Insurance Co., FSCO A01-000635 (OFSC); Belair Insurance Company v. Seale, FSCO P02-00005 (OFSC-Director Delegate)
7. 7Respondent’s submissions, para 11.
8. 8Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 33-35.
9. 9Applicant’s submissions, para 4.
10. 10Supra note 3 or 14, para 25.
11. 11Ibid., para 26.```