Citation: K.P. vs. Aviva General Insurance, 2020 ONLAT 19-004361/AABS

Released Date: 04/17/2020 File Number: 19-004361/AABS

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:

[K.P.]

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

VICE CHAIR:

Susan Mather

APPEARANCES:

For the Applicant:

[K.P.], Applicant

Vahe Avagyan, Counsel

For the Respondent:

Frank A. Benedetto, Counsel

HEARD: In Writing

December 16, 2019

1The applicant was injured on January 25, 2019 when she slipped and fell on ice in the driveway of her parents’ home. At the time of her fall she was walking down the driveway to get in a ride sharing vehicle (“Lyft”) that was waiting in the driveway to take her to a medical appointment. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent (“Aviva”) denied the applicant benefits on the basis that she was not involved in an accident within the meaning of the Schedule¹. The parties agreed to have the preliminary issue of whether the circumstances giving rise to the applicant’s injuries constitute an accident within the meaning of the Schedule heard by a written hearing.

PRELIMINARY ISSUE

3Was the incident an accident within the meaning of section 3(1) of the Schedule?

RESULT

4For the reasons provided below, I find that the applicant’s impairments were the direct result of an accident within the meaning of the Schedule. The application may proceed.

FACTS

5On January 25, 2019, the applicant used the Lyft app to summon a Lyft vehicle to her parents’ home to take her to a medical appointment. It was a stormy day with freezing rain, ice and an accumulation of snow. The driveway of her parent’s home was icy and not shovelled.

6The Lyft vehicle (“car”) arrived and parked less than half-way up the driveway requiring the applicant to navigate the icy driveway to get into the car. The applicant was concerned about falling as she made her way to the car. She put out her hand to touch the hood of the car to help stabilize her on the ice. Before she was able to get in a position to open the door of the car, she slipped and fell on the ice, breaking her left leg in two places. She was seriously impaired by the incident and spent three weeks in hospital following surgery to her leg. At the time of the Examination under Oath (EUO) in April 2019, she was still in a wheelchair.

THE LAW

7The Schedule provides no-fault benefits to an insured who is impaired in an automobile accident. The Schedule defines an “accident” to be “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”. ²

8In 1995, the Supreme Court of Canada (“SCC”) in deciding Amos v. ICBC³ (“Amos”) adapted a two-part test to be used to determine whether an incident is an accident covered by no-fault statutory automobile benefits. Amos established that, in the context of no-fault benefits, the expectation of the parties is that no-fault benefits will be available when an accident occurs during the “ordinary and well-known uses of their vehicles”.

9The two tests adopted by the SCC in Amos are known as the “purpose test” and the “causation test”.

10The causation test established in Amos was narrowed by the Ontario Court of Appeal (“ONCA”) in Chisholm v. Liberty Mutual Group (“Chisholm”)⁴ . In Chisholm, the ONCA concluded that the definition of accident in the Schedule requires not just that the use or operation of a motor vehicle be a cause of the injuries, it must be a “direct cause”.

11The OCA considered the causation test again in Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”)⁵, In Greenhalgh, the ONCA found that there was good reason to retain the Amos purpose test and the causation test as set out in Chisholm. The ONCA found that the definition of “accident” in the Schedule involves the consideration of two questions:

Purpose Test

Was the use or operation of the vehicle a cause of the injuries?

Causation Test

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?

12In Greenhalgh, the ONCA stated that what will amount to direct causation will depend much on the circumstances. The ONCA set out three considerations that provide useful guidance in determining if the use of the vehicle was a direct cause of the injury.

(a) The “but for” consideration;

(b) The “intervening act” consideration; and

PARTIES POSITIONS

13The applicant submits that her incident meets the requirements of both the purpose test and the causation test. She submits that “but for” the car arriving in her driveway, she would not have been injured. She submits that the icy driveway was not an intervening factor because it was icy before the car arrived and that icy driveways are a normal risk in Canadian winters. She further submits that in denying her claim, Aviva failed to account for the circumstances arising in the context of ridesharing services. According to the applicant, the accident was a direct result of the Lyft driver accepting her ride request and, as such, was a direct result of the use and operation of the car.

14Aviva argues that the applicant has not met either test. In the alternative, Aviva argues that even if the applicant has met the purpose test, she has not met the causation test because the icy driveway was an intervening factor and the direct cause of the accident was the ice in the driveway not the use and operation of the car.

ANALYSIS AND FINDINGS

15The burden of proof rests with the applicant to show on a balance of probabilities that she was injured as a result of an accident pursuant to subsection 3(1) of the Schedule. For the reasons provided below, I am satisfied that the applicant has satisfied her burden of proof.

Purpose Test

16I am satisfied on the balance of probabilities that the purpose test has been met because the incident arose out of the use or operation of a vehicle. I agree with the applicant that the use and operation of the car began when the Lyft driver accepted her ride request and ended when the ride was cancelled by the driver. Included in this chain of events is the applicant’s attempt to enter the car.

17The applicant’s only purpose in walking down the ice-covered driveway was to get into the car and be transported to her doctor. I find no merit in Aviva’s submission that the applicant has not met the purpose test because even though she put her hand on the vehicle to guide her, the car door was not yet open, and she had to get past the car door before she could enter the vehicle. There is no doubt that the use and operation of the car began when the Lyft driver accepted the ride request and continued through the applicant’s attempt to get into the car. The applicant’s only purpose in going down the driveway and touching the car to steady herself was to get into the car.

18I fail to see how the fact that she did not reach the position to open the door before she fell changes the fact that she was attempting to enter the car which I am satisfied is the normal use of a vehicle.

19My conclusion on the purpose test is supported by:

(i) The provisions of the Aviva policy for rideshare drivers which provides that the policy is in effect through the post acceptance period and ending when the last ridesharing passenger departs from the automobile or a trip is cancelled, whichever is later.

(ii) The recent decision of the Tribunal 18-000468 v. Certas Direct Insurance Company (R.M. v. Certas), which found that the applicant satisfied the purpose test after she walked towards her parked car and had started the process of opening her car door with her key fob. ⁶ The adjudicator was satisfied that the act of getting into the car was an ordinary use of a car.

(iii) The provisions of the Insurance Act which provide that an automobile insurance policy covers persons who are occupants of a vehicle and defines an occupant of a vehicle to include a person getting into or on or getting out of an automobile. ⁷

The Causation Test

20The applicant argues that, to meet the causation test, it is sufficient to say that the acceptance of the rider by the Lyft driver was one of the direct causes which set in motion a train of events leading to the injury. The applicant argues it was the only direct cause of the injury.

21Aviva argues that the icy driveway was an intervening factor which broke the chain of causation and was the direct cause of the injury.

22For the reasons provided below, I am satisfied on the balance of probabilities that the use and operation of the car was a direct cause of the injuries. I find that the incident was an accident within the meaning of the Schedule and the applicant may make a claim for benefits under the Schedule.

23The ONCA in Chisholm confirmed that the use and operation of a motor vehicle must not only be a cause of the applicant’s injuries, it must be a direct cause.

24In reaching my conclusion that the use and operation of the Lyft car in this case was a direct cause of the applicant injuries, I have followed the guidance given by the ONCA in Greenhalgh.

25There is no doubt that “but for” the applicant heading down the driveway to get into the car the incident causing the applicant’s impairment would not have happened. This finding however does not establish legal causation for the purpose of the Schedule.

Intervening Cause Analysis

26The applicant must establish that there was an unbroken chain of events involving the use or operation of the car that led to her injury. Where an intervening act falls outside the normal risk associated with the use or operation of a car, it will break the chain of causation. ⁸

27The applicant submits that the icy driveway was not an intervening cause that broke the chain of causation that she submits began when the Lyft driver accepted her ride request and ended when the Lyft driver cancelled the ride. She further submits that it is a foreseeable risk in Ontario that a passenger might slip while entering a vehicle and not an intervening cause. She submits that the driver could not get to the entrance and the applicant was compelled to walk under time pressure across the precarious driveway to get to the car.⁹

28Aviva submits that the facts of this case fall squarely within the line of cases that clearly establish that the ice or snow is an intervening act that breaks the chain of causation so that the use or operation of the car was not the direct cause of the applicant’s injuries. ¹⁰

29The facts in this case are similar to the facts in R.M. v. Certas except that, in R.M. v. Certas, the applicant was getting into her own car, not a rideshare car. The adjudicator found that the applicant met the purpose test because the applicant’s car was being put to an ordinary use as she put her hand on the car door handle as she was preparing to get into the vehicle. The adjudicator went on to find, however, that the causation test had not been met because there was no evidence that the applicant putting her hand on the door handle as she was getting ready to get into the car contributed in any way to her fall.

30The adjudicator also considered whether the accident resulted from concurrent causes, namely the normal use and operation of her car and the icy parking lot. She acknowledged that an accident might result from two causes she found, however, there was no evidence that the applicant’s car contributed in any way to cause the applicant to fall or her injuries.

31The adjudicator found that the ice in the driveway was the intervening cause and not a foreseeable risk of motoring that broke the chain of causation.

32The same analysis is applicable in this case. I find that the facts of this case are, however, distinguishable from the facts of R.M. v. Certas. In this case, the Lyft driver could not pull up the entrance, requiring the applicant to walk down the icy snow-covered driveway to make her way to the car.

33In my view there were two direct causes of the accident, the icy snow-covered condition of the driveway and the fact that the Lyft driver could not pull the car up to the entrance of the house. I think it was reasonably foreseeable that if the applicant was required to walk a distance down the driveway to get into the vehicle, she might slip and fall and be injured. For that reason, I am satisfied that one direct cause of the accident was a result of the use and operation of the car that stopped less than halfway up the driveway.

Dominant Feature Analysis

34The applicant submits that it was the use or operation of the Lyft car that was the dominant feature of the accident. I agree. While there is no doubt that the slipping and falling on the ice caused the injuries, this was ancillary to the fact that the Lyft driver stopped the car less than half-way up the driveway requiring the applicant to walk down the driveway in order to enter the vehicle. I find a dominant feature of the accident to be the distance the applicant was required to travel in order to get into the car. Aviva makes no submissions in this regard other than referring to the decision in D. M. v. Certas Direct Insurance Company where the adjudicator found the dominant feature of the applicant’s injuries was the slip and fall itself. ¹¹

CASE LAW

35To support her argument that the acceptance of her ride request by the Lyft driver was a direct cause of the accident, the applicant relies on three decisions of the Financial Services Commission of Ontario (FSCO) where the applicants were injured when they fell after exiting a bus.¹² My determination that the applicant’s injuries are a direct result of the use and operation of the Lyft car is supported by these cases.

36In all three cases the applicants were injured when they got off a public bus onto a road or sidewalk that had snow banks or bumpy asphalt. The FSCO arbitrators found the snow banks, road conditions and bumpy asphalt were not intervening causes interrupting the chain of causation. The applicants’ injuries were found to be a direct result of the use and operation of the buses. The passengers were required to exit the buses into unfavourable conditions.

37In my view, the facts of this case are similar except that the applicant was entering the car in unfavourable conditions rather than getting out of the car.

38Aviva relies on more recent cases decided by the Tribunal to support its position that the icy driveway was an intervening factor that broke the chain of causation. I have commented on the decision in R.M. v. Certas above. The facts in R.M. v. Certas are the most similar to the facts of this case. ¹³

39While I am not bound by the decisions of my fellow Tribunal adjudicators, the other cases relied on by Aviva, in my view, are distinguishable on the facts.

40In B.Y. v. T.D. Meloche Monnex, the applicant fell on black ice after he got out of his vehicle in a hospital parking lot.¹⁴ The evidence as to whether the applicant was touching the car when he fell was equivocal. The adjudicator found that even if the applicant was touching the vehicle, the black ice was an intervening cause and the only cause of the accident. In the present case I am satisfied that there was more than one direct cause of the accident.

41In I.S. v. Aviva Insurance Canada, the applicant was dropped off “a little bit down” from the drop-off area of her residence.¹⁵ She took three or four steps before tripping on an uneven curb. There was a “Watch Your Step” sign posted near the curb. The applicant argued that she did not have a choice as to where she was dropped off. The adjudicator found that the journey had ended when the applicant was dropped off and the use of the automobile was not a direct cause of the accident. The adjudicator agreed with Aviva that the maintenance of the curb was not a matter for automobile benefits but rather an occupier’s liability issue. In the present case the journey had not ended.

42In the case before me Aviva also submits that there is an occupier’s liability issue and points to the fact that the applicant has also sued her father in a civil claim. I do not agree with Aviva that the applicant has conceded that her claim lies with the homeowner by issuing her tort claim. In my view the decision on any tort liability rests with the civil courts.

43In D.M. v. Certas Direct Insurance Company, the applicant slipped and fell because of slush in a parking lot as she was heading to her car to clear it of snow before getting in the car to drive away.¹⁶ The adjudicator found that the applicant had not met the purpose test because the use and operation of the vehicle had not resumed when the applicant went to clear the car of ice and snow. The adjudicator went on to consider the causation test and found that the applicant’s slip and fall had nothing to do with the use of her vehicle. Here, the purpose test remains intact because the applicant was making her way to the Lyft car and the trip had begun.

44In J.D. v. Certas Home and Auto Insurance, the applicant was a pedestrian who was jogging on an icy road.¹⁷ She argued that a vehicle startled her as it moved forward at a stop sign and she fell and injured herself.

45The applicant did not mention a vehicle being involved in the accident to the physicians who treated her until some time had elapsed after the accident. The adjudicator did not find the applicant’s evidence to be credible and found that there was no evidence that the use or operation of a vehicle was a direct cause of the accident.

46In my view these cases are all distinguishable on the facts. In the case before me the trip started when the Lyft driver accepted the applicant’s request for a ride. The applicant’s slip and fall occurred while the driver of the Lyft car was waiting to continue the trip. In the cases relied upon by Aviva either the trip had either not started or the trip had ended.

ORDER

47For the reasons provided above I am satisfied that the application may proceed to a hearing and I ORDER:

The application may proceed to a hearing on the merits of her claim for benefits.
The application is adjourned to a Case Conference to be arrange by the Tribunal in consultation with the parties as soon as practicable after thirty days from the date of release of this decision.

Released: April 17, 2020