K.P. v. Aviva General Insurance, 2020 CanLII 51278

Tribunals Ontario Safety, Licensing Appeals and Standards Division 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 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

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

Before: Susan Mather, Vice-Chair

Date: July 23, 2020

File: 19-004361/AABS

Case Name: K.P. v. Aviva General Insurance

Written Submissions By:

For the Applicant: Vahe Avagan, Counsel

For the Respondent: Frank A. Benedetto, Counsel

OVERVIEW

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'').

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.

3I considered the question of whether the applicant’s injuries were a result of an accident within the meaning of the Schedule at the written hearing on this preliminary issue. In my written decision, released on April 15, 2020, I found that the applicant’s injuries were as a result of an accident within the meaning of the Schedule and for that reason the applicant was entitled to the benefits available under the Schedule.

4Aviva has requested a reconsideration of my decision on the basis that I made an error of law and fact such that I would likely have reached a difference conclusion if the errors had not been made.

5These grounds are criteria set out in Rule 18.2(b) of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission, Version I (October 2, 2017) (the “LAT Rules”), which are the Rules applicable to this reconsideration.

6Aviva asks for an order cancelling my decision and varying my order to state that the applicant was not involved in an “accident” as defined in section 3(1) of the Schedule and her application cannot proceed.

7The applicant opposes this request for reconsideration. The applicant submits that I correctly found that the applicant’s only purpose in going down the driveway and touching the car to steady herself was to get into the car, which is the normal use of a vehicle. The applicant submits that Aviva’s interpretation of the purpose test is restrictive, contrary to common sense and runs afoul of the spirit of the Schedule, which is consumer protection legislation. The applicant submits that much of Aviva’s argument is a re-argument of the same issues addressed in my written decision from the preliminary hearing.

8The applicant submits that Aviva’s argument on the causation test is “quintessentially a strawman created out of mischaracterizations and phantom findings.“

9Effective February 7, 2019, Rule 18.1 of the LAT Rules permits a request for reconsideration to be heard by the same Member whose decision is the subject of the request.

RESULT

10For the reasons provided below the request for reconsideration is dismissed.

ERRORS OF LAW AND FACT

11It is settled law that the determination of whether there has been an accident within the meaning of the Schedule requires the consideration of two questions.² The two tests are clearly set out in my decision and recognized by Aviva in its request for reconsideration submissions.

Purpose Test

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

Causation Test

2. 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 the case of Greenhalgh v. ING Halifax Insurance Co.³, the Ontario Court of Appeal (“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

(c) The “dominant feature” consideration.

13Aviva submits that in arriving at my conclusion I erred:

a. in fact and law, by conflating the “purpose” and “causation” elements of the legal test;

b. in fact and law by finding that the operation of a motor vehicle caused the applicant’s impairment because the Lyft computer application had been activated;

c. in mixed fact and law by failing to consider whether there was anything about the way in which the Lyft driver operated his vehicle was actually a cause of the injury;

d. in law by incorrectly relying on the immaterial fact of the distance the applicant had to walk on a driveway to get to the vehicle;

e. in fact and law by incorrectly making a distinction between cases involving people getting out of, as opposed to getting into, vehicles; and

f. by misapplying the test in Greenhalgh.

Purpose Test Errors

14Aviva submits that I made three main legal errors in applying the purpose test:

1. I erroneously concluded that the use and operation of the car began when the Lyft driver accepted the applicant’s ride request and ended when the rider was cancelled by the driver.

2. I made an error of law by considering the applicability of insurance to support my conclusion that the purpose branch of the test was met.

3. I made an error of law in concluding that approaching a vehicle or preparing to use a vehicle is a use and operation of a vehicle.

15For the reasons provided below, I am satisfied that I did not make any legal errors in applying the purpose test to the facts of this case such that I would likely have reached a different conclusion had the error not been made.

16The purpose test requires a determination of whether the incident arose out of the normal use and operation of a vehicle. I found that the use and operation of the Lyft car began when the Lyft driver accepted the applicant’s ride request and ended when the ride was cancelled by the driver. I found that included in this chain of events was the applicant’s attempt to enter the car. I stated that I failed to see how the fact that the applicant did not reach the position to open the door before she fell changes the fact that she was attempting to enter the car. I stated that I was satisfied that attempting to enter the car was a normal use of a vehicle.

17I supported by my conclusion by referring to the following:

• 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;

• The decision of the Tribunal in 18-000468 v. Certas Direct Insurance⁴ (R.M. v. Certas); and

• The provisions of the Insurance Act⁵ which provide that an automobile insurance policy covers persons who are occupants of a vehicle and defines an occupant to include a person getting into or out of an automobile.

18Aviva submits that when dealing with public vehicles or taxis or otherwise the legal analysis concerning the interpretation of the purpose branch of the test has never considered the origin or termination of a trip without considering the physical presence of the user, because a trip in itself is irrelevant. Aviva submits that the role played by the vehicle in being driven to and from the general location of the incident is a separate and distinct function from the proper use and operation of a vehicle as it relates to a person claiming to be in an accident.

19Aviva submits that I mis-directed myself when I engaged in consideration of how the ride-share insurance works.

20Aviva also submits that I made an error of law by considering the applicability of insurance to support my conclusion that the purpose branch of the test is met and suggests that I confused the priority of insurance with the use and operation of a vehicle.

21I do not find that I made an error of law such that I would have reached a different conclusion on the purpose test if I had not considered the terms of the Lyft insurance policy. I accepted the applicant’s submission that the purpose test was met because the operation of the Lyft vehicle began when the Lyft driver accepted her ride request and ended when the ride was cancelled by the driver. I also clearly stated that included in the chain of events following the Lyft driver’s acceptance of the applicant’s ride request was the applicant’s attempt to enter the vehicle which I found to be a normal use of a vehicle. My finding that attempting to enter a vehicle is a normal use of a vehicle was all that was required for the applicant to meet the purpose test.

22I did not need to refer to the Lyft insurance policy to make this finding. I referred to the Lyft policy in order to address the submissions of the applicant that that the use and occupation of the Lyft vehicle began once the ride was accepted. Aviva’s hearing submissions made no reference to the submissions the applicant made with respect to the Lyft insurance policy and when the use or operation of the vehicle began.

23To support my conclusion on the purpose test I also considered the hearing submissions the applicant made with respect to the provisions of the Insurance Act.⁶ The applicant submitted that the fact that the Insurance Act⁷ provides that automobile insurance covers persons who are occupants of a vehicle and defines an occupant of a vehicle to include a person getting into or out of a vehicle supports the conclusion that the act of entering a vehicle is a normal use and occupation of a vehicle. I do not find my reference to the Insurance Act to be an error of law. In my view this provision of the Insurance Act supports my conclusion on the purpose test that getting into or out of a vehicle is a normal use of a vehicle. Again, Aviva did not address this submission of the applicant in its hearing submissions.

24I also cited the Tribunal decision in R.M. v. Certas Insurance⁸ (R.M. v. Certas) to support my finding that the purpose test had been met. In R.M. v. Certas the adjudicator 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. The adjudicator was satisfied that this was an ordinary use of a car. Aviva’s reconsideration submissions on the purpose test do not recognize this finding in R.M. v. Certas although Aviva relies on R.M. v. Certas to support its arguments on the causation test.

25I remain satisfied that the purpose test is met because the applicant was injured while attempting to get into the Lyft vehicle, which is an ordinary use of a vehicle.

Causation Test

26Aviva submits that, in any event, I made errors of law in considering the causation branch of the test. It submits that I did not follow the ONCA guidance given in Greenhalgh. Aviva submits that, as in Mahadan (a case cited by the Court of Appeal in Greenhalgh), the factor that physically caused the injuries was the weather that was unrelated to the use or operation of the motor vehicle.⁹

27Aviva submits that parties have an expectation that a Tribunal’s decision will be made on the evidence, not a lawyer’s submissions or allegations. Aviva submits that I erred in making findings of fact without evidence, namely that the weather was related to the use or operation of the Lyft vehicle.

Application of the Greenhalgh Decision

28Aviva’s criticism of my application of the causation test from Greenhalgh is extensive.

29I have reviewed the Greenhalgh decision. I do not agree with Aviva that I misapplied Greenhalgh to the facts of this case.

30In Greenhalgh the applicant’s car broke down on a country road and the applicant and her friend decided to leave the vehicle and walk back along the route to seek help. They became disoriented in the darkness and strayed off the road. The insured fell into a river that was covered with ice and lost her boots. As a result of her exposure to the extreme cold during the night, the insured suffered severe frostbite which required the amputation of her fingers and legs below the knees. The ONCA found that the use of the car had ended without injury being suffered. In this case, I found that the use of the car had not ended because the applicant was attempting to get into the vehicle when she fell.

31In reaching my decision in this case I analyzed the facts using the three considerations that the ONCA offered as useful guidance in ascertaining whether the causation test has been established.

32Aviva has not raised any objections to my application of the “but for” test. I found that but for the applicant’s attempt to get into the vehicle the accident would not have occurred.

Intervening Cause Analysis

33In Greenhalgh the ONCA found that in some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use of the automobile. Aviva submits that the weather in this case was an intervening cause and objects to my conclusion that while the weather was a cause of the applicant’s injuries, it was not an intervening cause in the events leading to the applicant’s injuries.

34Aviva compares this case to Mahadan and R.M. v Certas¹⁰.

35In Mahadan, the insured turned off his vehicle and got out of the car. He went to the trunk to get five bags of groceries. As he turned away from the trunk, his left foot twisted in a groove in the pavement and he fell on his left side and sustained injuries.

36The Financial Services Commission of Ontario (FSCO) arbitrator held that while the motor vehicle led Mr. Mahadan to the location of his injuries, his injuries were sustained from a new and independent cause – the crack in the pavement. The arbitrator stated that the crack in the pavement had nothing to do with the use and operation of the motor vehicle and was there because of the construction work being done in the parking lot.

37Aviva submits that “As in Mahadan, the factor that physically caused the injuries, in the present case the weather, was unrelated to the use or operation of the motor vehicle”.

38I find that the facts in this case are distinguishable from the facts in the Mahadan case. In this case the weather was not the only factor that caused the applicant’s injuries. The distance the applicant was required to enter the vehicle was a factor. The applicant testified during her Examination Under Oath (“EUO”) that the weather was crazy the day of the accident. There was freezing rain and ice and an accumulation of ice and snow – tons of snow. ¹¹ She stated “When the Lyft driver got there on my driveway she only pulled up less than halfway up the driveway, so I had to walk down the stairs to go” ¹² (emphasis added). There is a photograph of the driveway in Aviva’s reconsideration submissions. During her EUO the applicant marked an “X” on the photograph where the Lyft driver stopped on the driveway.¹³ There is no doubt from the photograph that the Lyft vehicle stopped less than half-way up the driveway. From the applicant’s description in her EUO of where the Lyft driver stopped the vehicle, I understood that the applicant was expecting the Lyft driver to pull further up the driveway so that the applicant could enter the vehicle from the front step. From the photograph, this appears to be possible as the step is not very high.

39The Mahadan case is distinguishable from this case because while the weather conditions in this case were one cause of the accident, I did not find them to be an intervening cause. The weather conditions were undeniably poor the morning of the accident and it was reasonably foreseeable that a passenger might slip and fall while entering a vehicle.

40Aviva also relies on the case of R.M. v. Certas where the applicant unlocked her car door with her key fob as she was walking towards her parked car. She placed her hand on the car door handle and at that point slipped on ice and fell beside the driver’s side door. The adjudicator found that there was no evidence that the applicant’s contact with her car door handle in any way caused her to fall or caused her injuries. The adjudicator stated that proximity in time and/or location alone are not sufficient to render the use or operation of the car the dominant feature of the fall where the car played no role in either causing her to fall or in her injuries. The ice in the parking lot was found to be the intervening and dominant cause of the applicant injuries.

41In R.M. v. Certas the 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 concluded, however, that there was no evidence that the applicant’s car contributed in any way to cause the applicant to fall or her injuries.

42I found that the facts of this case are distinguishable from the facts of R.M. v. Certas. because in this case there were two direct causes of the accident: the icy, snow-covered driveway and the fact that the Lyft driver could not pull up the car closer to the entrance of the house, requiring the applicant to walk down the icy, snow-covered driveway to make her way to the car. The Lyft vehicle contributed the applicant’s injuries because the car stopped less than half-way up the driveway.

43In its reconsideration reply submissions, Aviva submits that there can only be one direct cause of the accident. I do not agree. In Greenhalgh, the ONCA pointed out that in Chisholm v. Liberty Mutual Group (Chisholm) Justice Laskin seemed to accept that in certain cases there will be more than one direct cause.¹⁴ In Chisholm, Justice Laskin held that an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the car.¹⁵

44I do not find the icy and snowy driveway to be an intervening cause in this case because it can fairly be considered a normal incident of the risk created by using and operating a motor vehicle in stormy winter conditions.

45Aviva submits that there is no evidence before me on which to conclude that there was a second direct cause of the accident. The only evidence before me on the state of the driveway or where the Lyft driver stopped the car is the EUO of the applicant. As I have already stated I understand the applicant’s statement in her EUO to mean she expected that the Lyft driver would stop the car closer to the house.

46I have reviewed the EUO and I am satisfied that the distance that Lyft driver stopped the car from the step increased the risk that the applicant would fall on the icy, snow-covered driveway. As the applicant stated “she only pulled up less than half-way up my driveway so I had to walk down the stairs to go”.

47In my decision I stated “the Lyft driver could not pull up to the entrance, requiring the applicant to walk down the icy snow-covered driveway to make her way to the car” (emphasis added). I found 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”.

48Aviva is correct in its submission that there was no strong evidence as to why the Lyft vehicle stopped where it did. The only evidence is that of the applicant in her EUO which I understood to mean that the Lyft driver did not pull up as far in the driveway as the applicant expected she would.

49Aviva submits that it has no obligation to provide any evidence in response to the applicant’s submissions on whether there was an accident within the meaning of the Schedule because the applicant has the burden of proof. In my view the applicant met her burden of proof with her EUO evidence. Based on the EUO evidence of the applicant, I am satisfied on the balance of probabilities that the Lyft driver could have pulled further up the driveway.¹⁶

50Aviva’s reconsideration submissions do not mention the three FSCO cases relied on by the applicant in her hearing submissions. In 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 adjudicators found that the road conditions were not intervening causes interrupting the chain of causation. The applicants’ injuries were found to be the direct result of the use and operation of the buses. The passengers were required to exit the buses in unfavourable conditions. In my view the facts of this care are similar except that the applicant was required to walk more than half-way down the driveway to enter the vehicle in unfavourable winter conditions.¹⁷

51Aviva submits that the applicant was not required to enter the vehicle--she could have cancelled the ride. The applicant submits that once a Lyft ride is accepted by a rider, the provisions of the ride share agreement between the rider and the ride sharing company require the rider to be ready to enter the vehicle and provides for a penalty if a ride is cancelled. I find no merit in Aviva’s submission. The fact that the applicant could have cancelled the ride may have some bearing in a tort action but does not change the fact that the Lyft driver stopped less than half way up the driveway requiring the applicant to navigate the driveway to get into the car.

52In reaching my conclusion I gave no weight to the applicant’s hearing submissions that the provisions of the recently new agreements between ride share providers and their riders have changed the landscape for liability for users of ridesharing services. The fact that that the vehicle was a Lyft vehicle makes no difference to my analysis of the facts. It does not matter whether the vehicle was a taxi, a Lyft car or a friend’s vehicle. The fact that the Lyft driver parked less than halfway up the driveway requiring the applicant to navigate the driveway in a snow storm is a direct cause of the accident.

53Aviva cites the Tribunal case of I.S. v. Aviva¹⁸ where Adjudicator Daoud held that based on the causation test in Chisholm and Greenhalgh it is not sufficient to link the direct cause of the injury to the vehicle involved merely by the fact that it brought the applicant to the location of the accident. It is the use or operation of the automobile that must have directly caused the injury. In I.S. v Aviva the applicant was a passenger in a vehicle that stopped to drop her off in front of her residence, where she tripped on an uneven curb as she walked towards the front of her building. Adjudicator Daoud found that the journey had ended when the applicant was dropped off. Aviva submits that I misdirected myself in applying I.S. v. Aviva by trying to distinguish it by saying in the case before me the journey had not ended.

54I do not agree. In my view the facts of this case are distinguishable from I.S. v. Aviva. In this case the applicant was actively trying to enter the vehicle. The journey had not ended.

Dominant Feature Analysis

55Aviva also submits that I erred in the application of the “dominant” feature consideration. At the hearing the applicant submitted that the use or operation of the Lyft car was a dominant feature of the accident. In my decision I agreed. As stated in my decision Aviva’s only submission on this issue was to refer to the decision in R.M. v. Certas where the adjudicator found that the dominant feature of the applicant’s injuries was the slip and fall itself.

56I found a dominant feature of the accident to be the distance that the applicant was required to travel in order to get into the car. The further the applicant was required to walk to get into the car, the greater the risk of injury.

57In the event that I misapplied the dominant feature consideration, it does not change the outcome of the application because for the reasons stated above I am satisfied that the use and operation of the Lyft vehicle was a direct cause of the applicant’s injuries.

Mistakes of Fact

58Aviva argues that I made many errors of fact such that if I had not made the errors I would have reached a different conclusion.

59I agree that I made an error of fact when I concluded that a direct cause of the accident was the fact that the Lyft car could (emphasis added) not get closer to the door of the house. Aviva is correct that there is no evidence to support this conclusion. I do not, however, find that this error of fact leads me to change my decision that the position that the Lyft car stopped on the driveway was a direct cause of the accident.

60Aviva submits that there was no evidence:

• to suggest that it was more slippery on the driveway than the steps

• in the hearing record on which I could have found it was negligent of the driver to stop where he did

• there is no evidence either way on where it was more or less slippery

• from the Lyft driver

• that the weather conditions were related to where the Lyft driver parked the vehicle

• that there was enough room for the Lyft driver to pull up right beside the steps or for the Lyft car’s passenger door to be right besides the steps

• that even if the car or its passenger door was beside the steps the applicant would have been able to get in the car because of the position of the car door beside the elevated steps

• whether the applicant asked the Lyft driver to move the car

• as to whether the Lyft driver had the ability to change where the car was parked

• either way on why the Lyft driver stopped and remained where she did in the driveway

• as to why the applicant chose to embark on her journey toward the car, rather than cancel her doctor’s appointment

• that the applicant was aware at the time of the slip and fall of the Lyft cancellation policy and where that even factored into her decision to make her way outside

• from the applicant in the form of an affidavit in addition to the viva voce testimony give at the applicant’s Examination Under Oath

• that the applicant asked the Lyft driver to move the car and no evidence as to whether she had the ability to change where the car was parked.

61Aviva submits that the important point is that there is no evidence either way on why the Lyft car stopped and remained where it did in the driveway.

62In my decision I stated that the Lyft driver “arrived and parked the car less than half-way up the driveway requiring the applicant to navigate the icy driveway to get into the car.” I also stated that the applicant was concerned about falling as she made her way to the car.¹⁹

63These facts are found in the transcript of the Examination Under Oath (“EUO”) of the applicant that was submitted as evidence by the applicant.²⁰

64As already stated I read the EUO of the applicant to mean that the applicant expected the driver to pull up closer to the house step. There is no evidence that this was not possible.

65I found that it was reasonably foreseeable that if the applicant was required to walk a distance down the drive way to get into the vehicle she might slip and fall and be injured. I found that one of the direct causes of the accident was as a result of the use and operation of the car that stopped less than halfway up the driveway.

66I did not:

• find that it was more slippery on the driveway than the steps

• find that it was negligent of the driver to stop where he did²¹

• make any finding on whether the driveway was more or less slippery closer to the house

• attribute any evidence to the Lyft driver

• find there was any evidence that the applicant asked the Lyft driver to move the car

• find that there was any evidence either way on why the Lyft driver stopped and remained where it did in the driveway

• find there was any evidence as to why the applicant chose to embark on her journey toward the car, rather than cancel her doctor’s appointment

• find that the applicant was aware at the time of the slip and fall of the Lyft cancellation policy and where that even factored into her decision to make her way outside

• find that there was any evidence aside from the viva voce testimony give at the applicant’s EUO

• find there was any evidence that the applicant asked the Lyft driver to move the car

• find that there was evidence as to whether she had the ability to change where the car was parked

67I have acknowledged that I made a mistake of fact in finding that the Lyft driver could not pull further up the driveway. There is no evidence that the weather conditions were related to where the Lyft driver stopped the car. I do not find that this mistake of fact has any effect on my conclusion that there were two direct causes of the accident or that I would have reached a different conclusion if I had not made this mistake.

68I am satisfied from the photograph of the driveway where the applicant marked where the Lyft car stopped that there was room in the driveway for the Lyft driver to have pulled up closer to the house. I accept the EUO testimony of the applicant that she expected the driver to pull up beside the step. There is no evidence that this was not possible.

69In her reconsideration submissions, the applicant submits that Aviva could have obtained the evidence that it states is missing from the Lyft driver and submits that an insurer’s duty to act in good faith in adjusting a claim required Aviva to do so.

70Aviva submits in its reconsideration reply submissions that the burden of proof is on the applicant to show that she was injured as a result of an accident within the meaning of the Schedule. Aviva submits that the burden does not shift to the respondent. Aviva submits that there is no requirement for Aviva to provide any evidence as to why the Lyft driver parked where she did.

71I agree with Aviva that there was no requirement for it to provide any evidence at the preliminary issue hearing. That being said, I am satisfied that the applicant met her burden of proof to show on the balance of probability that the use and operation of the Lyft car was a direct cause of her injuries with her evidence in her EUO that the Lyft driver stopped the vehicle less than one-half up the driveway. Aviva has offered no evidence to refute the applicant’s statement that she was required to go down the driveway to get into the car.

Lyft Insurance and Lyft Policies

72In her hearing submissions the applicant submitted that in denying the applicant’s claim for accident benefits Aviva had failed to account for the circumstances arising in the context of ride sharing services and incorrectly applied reasoning from bygone days of regular taxi cabs.

73Aviva did not address this submission in its hearing submissions and I did not give it any weight in determining that the use and operation of the vehicle was a direct cause of the accident.

74Aviva addresses this issue in its reconsideration reply submissions. My decision on this application placed no weight on either the terms of the Lyft Insurance policy with Aviva or the terms of use applicable to Lyft drivers and riders. I am not convinced by the applicant’s submissions that terms of the automobile insurance policy for Lyft vehicles or the terms of use for Lyft drivers and riders affects the definition of accident for the purposes of the Schedule.

75For the reasons provided above I do not find that I made any errors of law or mistakes of fact such that if the errors and or mistakes have not been made I would have reached a different conclusion. The request for reconsideration is denied and my order finding that there was an accident within the meaning of the Schedule is confirmed.

Susan Mather Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1S. 3(1), O. Reg. 34/10
2. 2Citadel General Assurance Co. v. Vytlingam 2007 SCC 46, [2007] 3 S.C.R. 373 (“Vytlingam”); Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) (“Greenhalgh”)
3. 3Greenhalgh, supra
4. 42019 CarswellOnt 4419, 2019 CanLII 22204 (ON LAT) (“R.M. v Certas”)
5. 5R.S.O. 1990, chap I.8, s.239 and s. 224
6. 6R.S.O. 1990, chap I.8
7. 7R.S.O. 1990, chap I.8, s. 239 and s.224(1)
8. 8R.M. v. Certas, supra
9. 9Mahadan v. Co-operators General Insurance Company, [2001] O.F.S.C.I.D. No. 40 (Ont. Fin. Serv. Comm.) (F.S.C.O. A00-00489, March 15, 2001)
10. 10R.M. v. Certas, supra
11. 11Page 15, Lines 20-22, transcript examination under oath of applicant, Tab 10, Aviva’s reconsideration submissions
12. 12Page 15, Lines 24 and 25 and Page 15, Lines 1 and 2, transcript of EUO of the applicant, Tab 10, Aviva’s reconsideration submissions.
13. 13The photograph was introduced at the applicant’s EUO to have the applicant identify how far the Lyft vehicle pulled into the driveway.
14. 142002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (CA) (“Chisholm”) at para 31; Greenhalgh, supra at para 38.
15. 15Chisholm, supra at para. 29.
16. 16I acknowledge that in my decision I found that the Lyft driver could not travel further up the driveway. This mistake is discussed later in the decision.
17. 17Pinarreta v. ING Insurance Co. of Canada, 2005 CarswellOnt 6926; Mariano v. TTC Insurance Co., 2006 CarswellOnt 5837; and Ecclestone v. Guarantee Co. of North America, 2004 CarswellOnt 4713
18. 182017 CanLII 62174 (ONT LAT)
19. 19Paragraph 6
20. 20Tab 1, applicant’s submissions original hearing
21. 21While Aviva referred to the driver as a “he” the evidence is that the driver was female.