Citation: ML vs. Intact Insurance Company, 2020 ONLAT 19-000607/AABS

Released Date: 01/24/2020

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:

M.L.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

John Groves, Counsel

For the Respondent:

Sabina Arulampalam, Counsel

HEARD: In Writing

October 7, 2019

1The applicant (“M.L.”) was involved in an incident on January 17, 2017. He had arranged for an Uber pick-up from a restaurant parking lot in the city of Waterloo. M.L.'s last pre-accident memory was walking within the parking lot while waiting for his Uber. M.L.’s next recollection was awakening to find himself lying on the ground and seriously injured. M.L.'s loss of consciousness has contributed to his having no memory of the specific actions which gave rise to his injuries.

2M.L. applied for accident benefits from the respondent, Intact Insurance Company (“Intact”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The issue I have to decide is: was the incident an “accident” as defined in the Schedule?

3Since this is a preliminary issue hearing, if M.L. is unsuccessful at this stage, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.

PRELIMINARY ISSUE

4Pursuant to the Order of Adjudicator Kowal dated October 2, 2019, the following preliminary issue is in dispute:

i. Do M.L.’s injuries sustained as a result of an incident that occurred on January 17, 2017 meet the definition of an “accident” as defined under the Schedule?

RESULT

5For the reasons that follow, I find M.L. was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, M.L. is not entitled to claim accident benefits under the Schedule.

BACKGROUND

6M.L.’s version of events is the only one about the incident on January 17, 2017. There was no other witness to the incident. As such, M.L.’s version of the events is the only one presented to me.

7M.L. testified that on January 17, 2017, at approximately 1:30 a.m., he arranged for an Uber driver to pick him up from a staff Christmas party at a restaurant and bring him home. M.L. later determined via the Uber mobile application that his Uber ride was cancelled by the Uber driver at approximately 1:57 a.m.¹

8M.L. was found laying in the parking lot by two city workers. No bystanders witnessed the mechanism of his injury. At approximately 2:30 a.m., M.L. was transported via ambulance to hospital where he remained in a coma for two days. M.L. was discharged from the hospital over a month later on February 21, 2017.

9M.L. submits that all his ongoing injuries and impairments are as a result of this incident. In his Statutory Declaration², M.L. testified about the injuries he sustained in the incident.³

LAW

10Section 3 (1) of the Schedule provides the following definition of an “accident”:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment ...

11The onus is on M.L. to show that the use or operation of the vehicle directly caused his injuries. (my emphasis)

ANALYSIS

12The Court of Appeal has set out a two-part test in order to establish whether an insured was involved in an “accident”, both parts of the test must be established:⁴

a. Purpose test: Did the incident arise out of the use or operation of an automobile?

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

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

13M.L. submits that the purpose test is satisfied because he was in the parking lot where he was injured because he was waiting for his Uber automobile to arrive. M.L. contends that the Uber driver was using his motor vehicle for the now ordinary well-known activity of offering a paid ridesharing service. As a consequence of this particular use of an automobile, M.L. was injured while travelling to or waiting in his designated pick-up area. He argues on this basis that the use of an automobile for an ordinary and well-known activity resulted in this accident and the "purpose test" has been met.

14Intact argues that the purpose test is not satisfied as M.L. submits that “he is unsure to what extent the Uber vehicle or Uber driver may have been involved with his accident”.⁵

15I find that M.L. has not satisfied the purpose test because there is no evidence that establishes the Uber vehicle or driver was present at the time M.L. sustained his injuries. Further, there is no evidence that the incident arose out of the use or operation of a vehicle.

16In his statutory declaration, M.L. explains the conditions of the parking lot, that he fell, and was knocked unconscious. There is no mention of any vehicle parked or otherwise that M.L. indicates was involved in the incident. The reports from the emergency services personnel that tended to M.L. refer to a slip and fall. I find these reports to be persuasive due to the experience of the emergency services personnel that would be familiar with such incidents and would be able to reasonably assess the likely cause of the injuries that M.L. presented with.

17Intact submits that there is no objective documentation that establishes the Uber vehicle or driver, or any other vehicle was involved in the incident. Intact notes that M.L.’s accounts of the incident refer to a slip and fall due to the surface conditions in the parking lot of the restaurant and make no reference to the involvement of a vehicle.

18I find that M.L.’s description set out in the statutory declaration are consistent with the reports from the police, ambulance service and hospital. In my view, M.L.’s reference to the surface conditions in the parking lot suggests it was the cause of his fall, and thus, the cause of his injuries.

19The purpose test is intended to answer the question of whether, through ordinary use, a vehicle was involved in the incident. The facts and evidence, including M.L.’s self-reporting of the incident, establishes on a balance of probabilities that the process of a vehicle being put to an ordinary use had not started, as there is no evidence that the Uber vehicle was present, or if it was present, that it had been involved in the incident that caused the injuries.

20I find that M.L. has not satisfied his onus to meet the purpose test to show that the incident resulted from an ordinary and well-known activity to which automobiles are put.

Causation test: Did the use or operation of an automobile directly cause M.L.’s injuries?

21I find that the lack of evidence that the use or operation of an automobile directly causing M.L.’s injuries does not satisfy the causation test. Arranging for transportation via a ride-share application does not automatically commence the use or operation of a vehicle.

22The Court of Appeal has set out the criteria in order to determine causation:

“If the use or operation of a vehicle was a cause of the injuries, 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”. In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?”⁶

23I find that M.L. has not met his burden to establish that this incident meets the criteria set out in the causation test. M.L.’s statutory declaration, the Waterloo Police report⁷, the Waterloo Ambulance Call report⁸ and Disability Certificate⁹ indicate the injuries were the result of a slip and fall. There is no evidence that establishes a vehicle, Uber or otherwise, were the direct cause of M.L.’s injuries.

24The courts have developed a three-part analysis to determine causation:

a. The “but for” consideration;

b. Was there an “intervening act”; and

c. Was the vehicle the dominant feature?

A. The “but for” consideration

25The but for consideration is an exclusionary test used to screen factors that were incidental to the incident. As a stand-alone criterion, the “but for” consideration does not determine causation. The subject incident does not satisfy this measure; “but for” the parking lot not being properly maintained after a snowfall, the incident and any injuries M.L. sustained may not have occurred. M.L. likely would not have fallen and sustained injuries if the parking lot had been plowed, salted and maintained; none of which involve injuries directly caused by a vehicle.

B. Was there an intervening act?

26I find there was no intervening act, as the injuries were the result of a slip and fall. Based on the evidence, I am unable to determine that the use or operation of a vehicle contributed to M.L.’s injuries. I find the condition of the parking lot after a snowfall caused M.L.’s injuries. There is no evidence of a vehicle being involved in the incident, therefore the incident did not occur through the normal use or operation of a vehicle.

27M.L. stated in his statutory declaration, that his injuries were sustained when he slipped and fell and was knocked unconscious in the parking lot. His slip and fall after exiting the restaurant therefore, is the cause of his injuries. There is no intervening act, as there was no established chain of causation.

C. Dominant feature

28M.L. argues that it was the use and operation of the motor vehicle that satisfies the causation and purpose tests. I disagree. As was set out in Chisholm and Greenhalgh, “[i]t is not enough to show that an automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury”.¹⁰ The dominant feature was the slip and fall that took place. There is no evidence that M.L.’s injuries were directly caused by the use or operation of a vehicle.

29M.L. contends that the operation of the vehicle was the dominant feature of the incident because the chain of events commencing with requesting an Uber, was not broken. M.L. contends that once he requested the Uber and proceeded to the designated waiting area, there was no intervening act. M.L. relied on Economical Mutual Insurance Company v Caughy¹¹ in support of his position that there does not need to be an “active” use of a vehicle to meet the purpose test. Further, that a vehicle being parked, is engaging in an ordinary and well-known activity to which vehicles are put.

30I do not find the Caughy case relevant. In the Caughy case, the Court determined that a parked vehicle constituted the ordinary use of a vehicle. In the present case, M.L. has not established his injuries were caused in any part by a parked vehicle or that the Uber vehicle was present and the cause of his injuries.

31The evidence does not persuade me that a vehicle was the dominant feature of the subject incident. There is no evidence submitted that establish that M.L.’s injuries were caused by the normal use or operation of the vehicle, outside of any intervening act. I find the slip and fall was the dominant feature of the incident, not a vehicle.

Purpose and Causation Tests Not Met

32In my view, the statutory accident benefits scheme was not intended to be so broadly interpreted or applied to the extent that arranging for a vehicle through a ridesharing application meets the definition of the “ordinary use or operation of a vehicle”. A vehicle’s use or operation is not established through arrangement via a ridesharing application, until that vehicle is present, and an insured is in the process of commencing or intending to engage in the ordinary use and operation of the vehicle. I find M.L.’s position to be a gross stretch of the definition where there is no evidence of the presence of a vehicle. Without the presence of a vehicle, neither the purpose or causation tests can be met.

33In addition, the lack of persuasive evidence that the Uber vehicle was in the vicinity during the incident does not put the onus on Intact to refute that the incident was an “accident”; as M.L. seems to suggest in his submissions. The onus remains on M.L. to establish that the incident was an “accident” as defined in the Schedule, which he has failed to do.

CONCLUSION

34For the reasons above, the application is dismissed.

Released: January 24, 2020