Motor Vehicle Accident Claims Fund (MVACF) v. Z.M.H., 2020 CanLII 30369

Citation: Motor Vehicle Accident Claims Fund (MVACF) vs. Z.M.H., 2020 ONLAT 18-011392/AABS

Released Date: 04/07/2020

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:

Motor Vehicle Accident Claims Fund (MVACF)

Applicant

and

[Z.M.H.]

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Andrew Choi, Counsel (MVACF)

Julianne Brimfield, Counsel for Economical Insurance Company

For the Respondent:

Michael Salehi, Counsel

Shelley Yu, Counsel

Interpreter

[F.S.], Kachchi language

Court Reporter:

[A.S.] (Networking Reporting)

HEARD: In-Person:

August 8, 2019

OVERVIEW

1Z.M.H. (the “respondent”) was involved in an incident on June 26, 2016, wherein she was injured. She applied for accident benefits to MVACF (the “applicant”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).

2The parties attended a case conference; however, they were unable to resolve the issues in dispute. The matter proceeded to this preliminary issue hearing in which I have been asked to decide whether there was an “accident” as defined by the Schedule. An in-person hearing commenced on August 8, 2019, where I heard the testimony of the respondent, R.M. (the “respondent’s son”) and the third-party driver (“K.V.”). If the respondent is unsuccessful at this hearing, she will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident. The onus is on the respondent to prove that she was involved in an accident. If the applicant is successful it can proceed with its application seeking repayment from the respondent as it claims the respondent made a willful misrepresentation in her application for accident benefits.

ISSUE IN DISPUTE

3I have been asked to decide the following issue:

(i) Was the respondent involved in an “accident” as defined in section 3(1) of the Schedule?

RESULT

4For the reasons that follow, the respondent was involved in an “accident” as defined by section 3(1) of the Schedule. As a result, she is entitled to claim accident benefits under the Schedule.

FACTS

5The parties do not agree on the facts pertaining to the incident that occurred on June 26, 2016. In fact, their respective version of events is drastically different.

6The respondent, a 79-year-old woman is a childhood friend of K.V.’s mother-in-law, (“S.B.”) who was a witness to the incident. On the day of the incident, the respondent, K.V. and S.B. had attended a baby shower for S.B.’s son.

7The respondent has a significant pre-existing medical history as she had undergone left and right knee replacement surgery in May and November of 2014 and suffers from diabetes. There is also evidence that supports that the she had an existing fracture in her right knee when the incident occurred. Consequently, her doctor recommended that she use a walker for ambulation for safety. However, on the date of the incident, she was using a cane for mobility.

Respondent’s Version of Events

8The respondent testified that K.V.’s wife S.V. drove her and S.B. to the baby shower. On the way to the party, she sat in the front passenger seat because it is easier for her to get into the vehicle when she uses a cane. S.V. dropped the two ladies off at the entrance of the condominium and they waited for her while she parked the car. They were at the baby shower for two to three hours. It was arranged that K.V. would drive the respondent and S.B. home. Instead of waiting at the entrance to be picked up, they all took the elevator to the basement parking lot. The respondent and S.B. waited by the door to the visitor parking lot while K.V. went to get the car to pick them up. K.V. pulled the car up and the engine was on. The respondent maintains that she proceeded to get into the back-passenger seat of the car and had her left leg inside the vehicle, when K.V. accidentally released his foot from the brake. The car moved forward resulting in her falling on her right knee. She maintains that both of her legs ended up underneath the vehicle.

9The respondent contends that K.V. did not get out of the car to help her. She shouted for help and an unknown man came to her aid and assisted her into the front seat of K.V.’s car. Neither party knew the identity of this man and as a result he was not called to testify. The respondent maintains that K.V. proceeded to drive her and S.B. home. Once at her apartment, K.V. asked her to exit the vehicle and she could not because she was in so much pain and could not walk because of her injury. K.V. then took her to the hospital and registered her with the emergency department because she does not speak English. He called her son and advised that she was in the hospital and left shortly after.

Applicant’s Version of Events

10By contrast, K.V., testified that he drove the respondent and S.B. to and from the baby shower. He testified that, when they departed from the baby shower, the respondent was walking through the underground parking lot towards his parked car when she fell several yards away from the vehicle. He maintains that the vehicle was not in any way involved in the incident. He stated that he and another man helped the applicant into the front passenger seat, and he proceeded to drive the respondent and S.B. home. Once there, the respondent was unable to walk so K.V. drove the applicant to the hospital and registered her with the emergency department as she does not speak English.

11The applicant sustained a patella fracture to the right knee and fibular fracture and had to undergo emergency surgery. She remained in the hospital for one month and was discharged to a rehabilitation facility for physiotherapy for four months. The parties not only disagree on the facts regarding how the incident occurred, they disagree on whether the incident falls within the description of an “accident” as defined by the Schedule.

PROCEDURAL ISSUE

Raised by the Respondent

12The respondent opposed the applicant’s submission of a statement signed by S.B. and book of authorities as these documents were not served by the deadline (July 5, 2019) provided for in the Tribunal’s case conference report and order. Instead, these documents were served on the respondent on July 22 and 30, 2019. Further, the respondent contends that it would not be procedurally fair to allow the admission of the statement of S.B. as this witness is not available for cross-examination. Therefore, the contents of this document are unable to be tested.

13The applicant submitted that the signed statement of S.B. should not be excluded as it is relevant to the issues in dispute as S.B. is the only other witness to the incident. In addition, it was served in accordance with Rule 9 of the Licence Appeal Tribunal’s Rules of Practice and Procedure (“Rules”). Further, the applicant asserts that, due to health issues, S.B. is unable to attend in-person to be cross-examined because she suffers from severe anxiety and mental health issues.

14I allow the admission of the statement of S.B. as I find it is relevant to the issue in dispute. Although it was not served in compliance with the Tribunal’s order, it was served 10 days in advance of the hearing date pursuant to the Rules. I find that although this document was served late, if the respondent were prejudiced by it, she could have requested an adjournment of the hearing or requested the Tribunal to issue a Summons to Witness to have S.B. attend the in-person hearing to be cross-examined. I also admit the applicant’s book of authorities as it was served on the respondent eight days in advance of the hearing. Therefore, the respondent is not prejudiced by it. Further, I agree with the applicant that Rule 9 deals with the disclosure of evidence a party intends to rely upon at a hearing and case law does not fall under this category.

Brought by the Applicant

15The applicant objected to the respondent’s submission of a one-page document with two text messages sent from the respondent’s son to K.V. requesting his insurance information on the basis that the document was not served in compliance with the Rules. The applicant submitted that it would be extremely prejudiced by the submission of this document as this is trial by ambush. The respondent argued that the document is relevant to the issues in dispute. I agree with the respondent that this document is relevant to the issue in dispute. Further, the applicant did not explain how exactly it would be prejudiced by this document. Therefore, I am not convinced that the applicant would be prejudiced by the admission of this document.

16The applicant objected to the respondent requesting an order for costs in her closing submissions pursuant to Rule 19 as this was not an issue listed in the Tribunal’s case conference report and order. I agree with the applicant that it is inappropriate for the respondent to raise the issue of costs in closing submissions as it is not procedurally fair. The applicant had a right to anticipate this as an issue so that it could defend its position and in this case was not able to do so. Therefore, the respondent’s request for costs is not added as an issue in dispute.

ANALYSIS

17Section 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 or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

18In order for the respondent to have been involved in an accident, the Court of Appeal has set out the following two-part test, in which both requirements must be satisfied¹:

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

19The applicant submits that the fall was not a “direct cause” of the use or operation of K.V.’s vehicle. The respondent was simply walking to a parked car and the vehicle was not close when she fell nor involved in any way. The applicant contends that the respondent has made a willful misrepresentation in her claim for accident benefits for the sole purpose of monetary gain. Finally, the applicant contends that it was not K.V.’s vehicle that “directly” caused the applicant’s injury but her pre-existing medical condition. Therefore, the incident does not satisfy either the purpose or causation test.

20The respondent submits that the incident of June 26, 2016 meets the definition of “accident” as falling while getting into a car constitutes a regular activity to which automobiles are put. Furthermore, she submits that there need not be contact with a vehicle and the vehicle need not be in active use to meet the purpose test. In addition, the incident meets the causation test as she sustained fractures to her right knee and leg when she fell from the vehicle that that had moved forward while she was trying to enter the vehicle. For the following reasons, I agree with the respondent and find that the incident meets both the purpose and causation tests.

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

21First, I find the incident meets the purpose test. Based on all of the evidence, with the exception of the wheel of the car running over the applicant’s right leg, I believe that the respondent fell while trying to get into K.V.’s vehicle because the vehicle accidentally moved forward. The respondent’s left leg was inside the vehicle and her right arm was on the car door when she was trying to get into it. The purpose of getting into the vehicle was so that she could be transported home. I agree with the respondent that this meets the purpose test as getting into a vehicle to be transported to another destination constitutes the regular use and operation of an automobile.

22I acknowledge that there were many problems and inconsistencies with the respondent’s testimony and evidence. Significant to my determination in this matter is the emergency hospital record on the date of the incident. The respondent does not speak English and both she and K.V. testified that K.V. was responsible for registering her with the emergency department at the hospital. In the emergency record it notes that the respondent “lost her balance when getting into the car. Patient fell on right knee. Right knee swollen and very painful.” In my opinion, if the respondent fell while walking through a parking garage then K.V. would not have mentioned the vehicle when he communicated with hospital staff. Further, I find it difficult to believe that K.V. would make two elderly women (including one walking with a cane) walk 50 to 100 yards to the parked car. In my view, a reasonable person would have the women wait (as per the respondent’s testimony) while the driver walked to pick up the parked car to bring it closer. Another hospital record a week later notes that the respondent fell after the car shifted gears which supports the respondent’s version of events.

23During cross-examination, the respondent acknowledged that the vehicle did not run over her right leg which she reported earlier in a signed statement. She also testified that she was not wearing glasses on the date of the incident; however, she reported to the insurer that her prescription glasses were broken when she fell. When asked about the discrepancies, she indicated “I am an old lady, I am not going to remember everything.” I agree with the applicant that as time progressed the respondent has embellished certain facts regarding the incident. However, these embellishments do not make me disregard the emergency hospital record on the date of the incident or the hospital records the week following.

24Much was made by the applicant about what was and what was not reported by the respondent to hospital staff. I find a lot of these inconsistencies can be explained by the applicant’s age and her inability to speak English as the communication documented in the hospital records was done through K.V. and the respondent’s son. The language barrier is significant in this case as it is difficult to ascertain what was reported by the respondent and what was communicated by her son to hospital staff.

25The applicant maintains that K.V.’s version of events has been consistent. This is supported by his examination under oath (EUO) taken on December 8, 2017 and the statement of S.B. However, significantly, the EUO was taken a year and half after the incident. Further, there was no effort taken by the insurer to have the respondent or S.B. attend an EUO. In my view, the applicant was very selective in which witnesses it sought EUOs from. I have also assigned the statement of S.B. little weight as it was written shortly before the hearing, and it was written by K.V.’s mother-in-law. Therefore, I question the neutrality of this document as K.V. and S.B. are family members. In this case, I have given the hospital records more weight because they were reported closer to the date of the incident. Finally, no explanation was provided by K.V. during his testimony to explain the discrepancy in the hospital’s emergency record from his version of events today. For all of these reasons, I am inclined to believe the respondent’s version of events that she fell while getting into R.V.’s vehicle as a result of K.V. accidentally shifting gears.

26For all of the above reasons, I find the incident meets the purpose test.

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

27The Court of Appeal has set out the criteria to consider in determining causation:² and the three-part analysis includes:

a) The “but for” consideration;

b) Was there an intervening act; and

c) Was the vehicle the dominant feature.

28I find that the respondent has satisfied that this incident meets the causation test.

a) The “but for” consideration

29The “but for” consideration is used to eliminate factually irrelevant scenarios. As a stand-alone criteria, it does not determine causation. I find that “but for” the respondent trying to get into R.V.’s vehicle that was going to transport her home that she would not have fallen and sustained the injuries that she did.

b) Was there an intervening act?

30I do not find that there was an intervening act that led to the respondent’s fall. When considering whether there was an intervening act, other decision makers have looked at factors such as time, proximity and risk when analyzing whether a motor vehicle directly caused an individual’s impairment.

31With respect to the timing and proximity of the incident, I find that the respondent was in direct physical contact with the vehicle as her left leg was inside the vehicle and her arm was on the vehicle when she fell. In this case, there is no evidence that there was an intervening act which caused the respondent’s fall. The applicant submitted several cases involving parked cars which I find distinguishable when compared to the facts before me. In all of the cases relied upon there was an intervening act which caused the insured’s impairments.³ For example, the claimants slipped on snow or ice and were not in close proximity to their vehicles. Or the individuals tripped on a curb or purse straps or fell into netting in a maintenance centre.

32In assessing risk, while an elderly person with a disability might be more at risk for falling, I find she was able to get into the vehicle to be transported to the baby shower without incident, she was able to attend the baby shower for three hours and walk to the basement parking lot without falling. Therefore, I find that there is some risk associated with falling when there is a vehicle involved.

33In the present case, there was no intervening act. I find that there was no break in the chain of causation between the use and operation of the vehicle and the injuries the respondent sustained as a result of the fall.

c) Was the vehicle the dominant feature of the incident.

34The applicant argues that the respondent fell because of her pre-existing medical condition not because of the vehicle. Therefore, the vehicle was not the dominant feature of the incident. For example, it maintains the respondent had poorly controlled diabetes which increased her risk of falls because of low blood sugar. However, no expert report was submitted to support that this is why she fell. In addition, the applicant asserts that there is evidence which supports that the respondent had an unresolved fracture in her right knee a year prior to the incident and her knees were fragile because of knee replacement surgery a few years prior. While there is evidence that the applicant had an existing fracture in her right knee, I find the doctor did not seem concerned about it as he did not recommend surgery or any follow up. Instead the doctor recommended that the respondent use a walker for ambulation for safety reasons.

35I find that the vehicle was the dominant cause of the injury as the respondent fell while getting into the vehicle when K.V. shifted gears and the car moved forward. As a result of this incident, the respondent sustained a serious fracture to her right knee which required emergency surgery and hospitalization for a month and four months of physiotherapy. In my view, this supports that the applicant sustained this injury when she fell getting into the vehicle and that the vehicle was the dominant feature in this incident.

36For all of the above reasons, I find the incident meets the causation test. Therefore, I find that the applicant was involved in an accident pursuant to section 3 of the Schedule.

CONCLUSION

37The respondent is entitled to claim accident benefits. The respondent’s claim for costs is dismissed.

38The applicant’s claim for repayment is dismissed.

Released: April 7, 2020

___________________________

Rebecca Hines

Adjudicator

Banos v. Jevco (FSCO A14-001846): insured slipped on ice coming out of a store 30 feet away from the car; 17-000180 v. Certas Direct Insurance Company, 2018 CanLII 76693 (ON LAT), 2018CanLII 76693 (ON LAT): insured slipped on slush and fell right next to the car while clearing snow; 17-009102 v. Western Assurance Company, 2018 CanLII 110946 (ON LAT): insured tripped and fell into netting in service bay area; 18-003869 v. Aviva Insurance Company of Canada, 2019 CanaLII 22211 (ON LAT): insured tripped on purse straps while pumping gas; 18-000468 v. Certas Direct Insurance Company, 2019 CanLII 22204 (ON LAT): insured slipped on ice in parking lot; 17-000942 v. Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT): insured slipped on an uneven curb after debarking from a vehicle.

Footnotes

1. 1Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.
2. 2Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA)
3. 3Nickerson v. Security National (FSCO A-11-001753): claimant fell on icy pavement in parking lot to retrieve broken windshield wipers;