Citation: M. R. vs. Wawanesa Insurance, 2020 ONLAT 19-007921/AABS

Released Date: 09/11/2020

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. R.

Applicant

and

Wawanesa Insurance

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

M. R., Applicant

Mikolaj T. Grodzki and Sig Pantazis, Counsel

For the Respondent:

Oleksandera Amigud, Claims Representative

Daniel M. Himelfarb, Counsel

Arabic Interpreter

Rana Alumari

HEARD: by Teleconference:

June 10, 2020

PRELIMINARY ISSUE REASONS FOR DECISION AND ORDER

OVERVIEW

1On April 4, 2017 the applicant, M. R., decided it was time to remove the winter tires from his car and install summer tires. Swapping tires seasonally was something he felt competent to do himself. As he was in the process of doing so, he felt a pain in his back, and has had back pain ever since. He takes the position that he was in an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). He asserts that seasonally changing tires constitutes the normal use and operation of a motor vehicle, and he sought no-fault benefits from the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”).

2Wawanesa disagrees with Mr. R. It takes the position that the type of activity in which he was involved falls outside the statutory definition of “accident” set out in s. 3(1) of the Schedule and, thus, Mr. R is not entitled to benefits. The parties agreed to address the question of whether the incident on April 4, 2017 was an “accident” in a preliminary issue hearing.

PRELIMINARY ISSUE

[3] The preliminary issue in dispute is:

(i) Whether the incident on April 4, 2017 was an “accident” as defined in s. 3(1) of the Schedule.

RESULT

4The incident on April 4, 2017 was not an accident as that term is defined in s. 3(1) of the Schedule.

FACTS

5The parties agreed on the core facts of the case and produced an agreed statement of facts. I also heard evidence from Mr. R in a teleconference hearing that cleared up several non-material inaccuracies in the agreed statement of facts and further explored his practice of changing his tires seasonally by himself instead of going to a garage to have that work performed. At the end of the day, the core facts are not in dispute. While removing his winter tires and installing summer tires, Mr. R seriously injured his back.

6During the teleconference hearing, questioning focussed on the tools Mr. R used, his experience in changing tires and whether many Canadians seasonally changed tires themselves as opposed to taking it to a mechanic to do it for them. With respect, I do not think Mr. R is competent to give an opinion on the general practice of many of Canadians when it comes to seasonally changing tires. Nor do I think that the contents of Mr. R’s tool box have a major impact on this analysis. The analysis focuses on whether the action of carrying out regularly scheduled maintenance falls within the definition of “accident” in the Schedule.

DEFINITION OF ACCIDENT

7The relevant definition of an accident in s. 3(1) of the Schedule is: “an accident is an incident in which the use or operation of an automobile directly causes an impairment.” This definition has been subject to extensive judicial and adjudicative review over the years and has generated a body of case law that is often difficult to reconcile. Both parties have referred me to that case law in support of their positions. In the end, the question remains whether carrying out regular seasonal maintenance function is part of the use or operation of a motor vehicle. I conclude that it is not.

8The decision of the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405 (“Amos”) identified two components of the applicable test: did the accident result from the ordinary and well-known activities to which automobiles are put, and is there some nexus or causal relationship between the insured's injuries and the ownership, use or operation of the vehicle? The first component is known as the purpose test, while the second component is known as the causation test.

9In this matter, the agreed facts disclose that Mr. R was injured in the act of replacing his winter tires with summer tires. If that activity passes the purpose test, there is no evidence of any circumstance that would sever the nexus between that action and the injuries suffered. He did not slip in ice, trip over uneven pavement, or suffer an assault or any other intervening event. He simply reached for and lifted a tire into position when he suffered his injury. In other words, if he meets the purpose test, he meets the causation test. My focus will be on the purpose test.

ANALYSIS

10The parties have both provided extensive caselaw briefs with cases as far back as 1975, long before there was a no-fault accident benefits scheme in Ontario. The cases appear superficially confusing with similar fact situations leading to opposite conclusions. To resolve the confusion, I have applied two filters to the cases: chronology and jurisdiction. Applying these filters, I have noted that in Ontario there has been a narrowing of the definition of “accident” starting in 1996. This narrowing distinguishes the more recent Ontario cases from the line of British Columbia cases and the pre-1996 Ontario caselaw. That narrowing received further tightening in the Supreme Court of Canada’s holding in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 SCR 373 at para. 4 (“Vytlingam”) that “insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer.”

The British Columbia Cases

11The BC cases, including Amos, must be approached with some caution. The applicable legislation sets out a very broad approach to entitlement to benefits. Specifically, benefits were payable under the relevant scheme “in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle.”

12Both before and after Amos, there was a line of cases applying the broad wording and finding benefit coverage:

(i) Shelton v. Insurance Corp. of British Columbia, 1991 CanLII 2142 (BC SC). The court held that draining fuel from a motorbike is the normal use or operation of a motor vehicle.

(ii) Elias v. Insurance Corp. of British Columbia, 1992 CanLII 762 (BC SC). The court held that the work being done, namely body work, fell within the use or operation of the vehicle. The court stated at paragraph 28 that “[t]he law cannot be drawn so fine that it distinguishes between one sort of repair and another — say changing the oil.”

(iii) Amos. Mr. Amos was driving in a van down a street in California. He was attacked by a gang and ended up shot and seriously injured as he made his escape. Both the BC trial court and Court of Appeal held that a criminal attack of this nature does not engage the ownership, use or operation of a motor vehicle. On successful appeal, the SCC formulated the tests and found that the shooting was the direct result of the assailants' failed attempt to gain entry to the appellant's van and arose out of the appellant's ownership, use and operation of his vehicle.

(iv) Passmore v. Sherrell, 1999 CanLII 3656 (BC SC) (“Passmore”). The plaintiff had removed wheels from his car and taken them some distance to his neighbour’s farm. Just after the neighbour’s son, DS, had replaced one of the tires, it exploded, injuring Passmore. The question was whether DS’s auto insurer was required to indemnify DS. The court held that DS was involved in the “use” of the vehicle and, thus, was covered under his policy.

Pre-1996 Ontario Caselaw.

13Prior to 1996, the definition of “accident” in the Schedule was “an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment.” This was generally considered equivalent to the wording “arising out of” in Amos:

(i) Gramak Ltd. et al. v. State Farm Mutual Automobile Insurance Co., 1975 CanLII 427 (ON SC) (“Gramak”). This case involved policy wording that stated there was coverage if the incident involved the “ownership, use or operation of a motor vehicle.” A vehicle caught fire while being modified to install a trailer electrical connection and burned down the plaintiff’s premises. The court held that there is a distinction between use and operation. Motor vehicles are regularly used for pulling trailers so rigging wiring to the trailer falls with the “use” definition. SF was liable to indemnify the owner and pay the damages. Ownership was not argued as a ground of recovery.

(ii) Kracson et al. v. Pafco Insurance Co. Ltd., 1981 CanLII 1687 (ON SC) (“Kracson”). In another third-party liability case interpreting the same wording as in Gramak, S, the insured, held an insurance policy on his motorcycle. While effecting repairs, S burned down the premises of his landlord, Kracson. Kracson got judgment against S and looked to S’s auto insurer, Pafco, to pay the judgment. The court held that this type of maintenance is part of the normal use and operation of a motor vehicle, so S was covered under his automobile policy, and Pafco had to pay the judgment.

(iii) Strickland v. Miller, [1998] O.J. No. 2762 1998, RM changed the tires on his daughter’s car. As his 2^nd daughter was driving the car back to college after the weekend, a wheel came off and injured the plaintiff. The plaintiff sued both daughters, driver and owner, and the owner’s insurer defended. Her insurer took the position that RM was at fault for the accident and started a 3^rd party proceeding. RM argued that changing winter/summer tires is an ordinary use to which automobiles are put so he was covered under his daughter’s policy. The court accepted RM’s submission that changing tires is a normal use of automobiles. Two points of note in this case. The court uses the phrase “arising out of” from the BC legislation which has never been part of the Ontario Schedule. Also, the Ont. Schedule at the time had the “directly or indirectly causes damage” wording, subsequently changed in the 1996 SABS.

Ontario Cases since 1996

14In 1996, the definition of “accident” was amended by removing the word “indirectly.” The new definition, which remains unchanged to this day, provides that an “accident” is “an incident in which the use or operation of an automobile directly causes an impairment. In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), while maintaining the two-part purpose and causation analysis, the Court of Appeal eschewed the liberal interpretation in Amos that that there only need be “some nexus or causal relationship between the plaintiff's injuries and the ownership, use or operation of his car, or was the connection merely incidental or fortuitous.” That is to say, the Ontario test is now more stringent. The Court of Appeal set out its reasoning as follows:

18 Chisholm submits that the Amos test should apply to the interpretation of "accident" under the 1996 Schedule and that he meets this test. In my view, the Amos test does not apply, and even if it did, I am dubious whether Chisholm could satisfy it.

19 This court did apply the Amos test to the definition of "accident" under the 1994 Schedule. Although the British Columbia regulation provided for the payment of benefits "in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle" and accident under the 1994 Schedule meant "an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment," this court held that language of the two provisions was enough alike to use the Amos test to interpret the meaning of accident under the Schedule. See Vijeyekumar v. State Farm Mutual Automobile Insurance Co. (1999), 1999 CanLII 1640 (ON CA), 44 O.R. (3d) 545 (Ont. C.A.), Saharkhiz v. Non-Marine Underwriters, Lloyd's London (2000), 2000 CanLII 5719 (ON CA), 49 O.R.(3d) 255 (Ont. C.A.).

20 But the stringent causation requirement - "directly causes" - in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition. Indeed, Major J.'s reasons in Amos say as much. In setting out the causation part of the test, Major J. explicitly stated, at para. 17, that the required nexus or causal relationship between a plaintiff's injuries and the ownership, use or operation of his or her car was "not necessarily a direct or proximate causal relationship."

15Following Chisholm, the Financial Services Commission of Ontario (“FSCO”) considered this central issue in several decisions. The first decision was Saad and Federation Insurance Company of Canada (2003) (FSCO P03-00017) (“Saad”). Driving home in the early hours of a winter’s morning, Mr. Saad had stopped at a gas station to fill up. He decided to check his tire pressure. As he was returning to his car from hanging up the air hose, he slipped on ice and sustained injuries. At first instance and again on appeal to the Director, FSCO held that he had been in an accident. FSCO held that filling tires at a gas station is a normal use and operation of a motor vehicle.

16In the second case, Umer v. Non-Marine Underwriters, Lloyd's London, 2003 CarswellOnt 6491 (“Umer”), Mr. Umer took his taxi to a garage to replace the fuel pump. He was standing in the work bay, where he was not supposed to be, when gasoline spilled from the vehicle and caught fire as the mechanic removed the fuel tank to access the pump. Mr. Umer fell as he tried to flee the blaze and sustained burns. Arbitrator Sapin held that taking a vehicle to the garage for maintenance was a normal use and operation of a motor vehicle and that he was entitled to benefits.

17In Seale v. Belair Insurance Co. 2003 CarswellOnt 5452, [2003] O.F.S.C.I.D. No. 8 (“Seale”), Mrs. Seale lost control of her vehicle on an icy hill. A passerby came to help. Mrs. Seale pushed the car while the passerby sat in the driver’s seat. When the car started to slide downhill on the ice, Mrs. Seale followed to tell the passerby to try and stop the car, a futile exercise on an icy slope. She slipped and broke her arm. FSCO determined that she was entitled to accident benefits since freeing a car stuck in snow and ice is part of the Canadian winter experience and part of the normal use and operation of the vehicle.

18Both Saad and Seale address incidents that arose in the course of driving home. They address the question of how far the ring of liability extends in the course of driving. As Director’s Delegate Draper stated in Saad: “This result, while it may have been close to the line, was within the Arbitrator’s authority. I find no error of law.” In my view, Umer is problematic. The result may flow from the concession of the parties that the purpose test was satisfied. I am not convinced that it was. While I concede that driving to the garage for repair is part of the normal use and operation of a motor vehicle, staying to watch the repair is not.

19I also have difficulty with the finding of an unbroken chain of causation. In this case, the taxi was on the hoist while the mechanic removed the fuel tank. The mechanic’s negligence caused the fire that injured Umer, not Umer’s act of driving to the garage for repairs.

Vytlingam and the Common-Sense Revolution

20In October 2007, the Supreme Court of Canada released its decision in Vytlingam. Interestingly, the case did not address the applicability of the Schedule. Mr. Vytlingam was deemed to be catastrophically impaired under the Schedule and his insurer paid no-fault benefits. The case dealt with Mr. Vytlingam’s right to inadequately insured motorist coverage. The applicable policy provision was broad, covering “bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.” The court found that, despite that broad coverage, Mr. Vytlingam was not entitled to inadequately insured motorist coverage.

21The facts in Vytlingam are bizarre. Mr. Vytlingam and his mother and sister were driving on an interstate highway in North Carolina. Two men, Farmer and Raynor, drunk and possibly high on drugs, decided that it would be a good idea to load Farmer’s car with boulders, drive to a highway overpass, and drop the boulders onto the passing traffic. One of the boulders hit the Vytlingam car, causing serious injuries to the occupants. Neither Farmer nor Raynor had assets, but Farmer had a $25,000 limit auto insurance policy. Mr. Vytlingam was awarded $960,765.70 in tort damages and sought to recover the shortfall under his own insurance policy’s inadequately insured motorist coverage. The question for the court was whether Farmer’s use of his automobile to drive to the scene of the crime brought his actions within the ambit of the insurance coverage – that is, whether Mr. Vytlingam’s injuries arose “directly or indirectly” out of the use or operation of an automobile. The court determined that it did not.

22The analysis in Vytlingam follows a classic chain of causation path in analyzing Farmer’s actions. The court held that, while Farmer used his motor vehicle to reach the scene of the crime, Farmer’s use of the vehicle was not actually part of the crime. The crime was Farmer dropping boulders onto the highway. Farmer was not acting as a motorist when the incident occurred. As the Court concluded:

There is no question that Farmer was inadequately insured. The question is whether the tort that caused the Vytlingams' injuries was sufficiently connected to the use and operation of Farmer's car for it to be concluded that the claim is based on a tort committed by a "motorist". The courts in Ontario, citing Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (S.C.C.), found that the Vytlingams were entitled to the compensation claimed ((2004), 2004 CanLII 95286 (ON SC), 23 C.C.L.I. (4th) 267 (Ont. S.C.J.), aff'd (2005), 2005 CanLII 19659 (ON CA), 76 O.R. (3d) 1 (Ont. C.A.), but I do not think the "inadequately insured motorist" coverage can be stretched so far, despite the undisputed and highly sympathetic facts. Insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC), [1993] 1 S.C.R. 252 (S.C.C.), at p. 269. I would allow the appeal. [emphasis added]

23It is the last sentence of the above quote that has resonated most comprehensively through Ontario’s no-fault benefits jurisprudence. Following Vytlingam, adjudicators have taken notice of the reasonable expectations of the insurer as well as the expectations of the insured. There appears to have been a sea-change in the approach of adjudicators.

24Shortly after Vytlingam, FSCO released the decision in Khan and Certas (2008) (FSCO A06-002205) (“Khan”). Mr. Khan was repairing his wife’s vehicle when a fire erupted and he sustained burns. In his analysis, Adjudicator Richards stated: “In Vytlingam, the Court appears to narrow the jurisprudence concerning use and operation of an automobile and suggests a common sense approach.” He then went on the find that, since Mr. Khan had rendered the vehicle inoperative at the time of the incident, his actions could not be considered the “use or operation” of the vehicle. He found: “Mr. Khan’s activities were those of a repairman, not of a motorist.”

25Khan was followed by Olesiuk and Kingsway (2011) (FSCO A10-002609) (“Olesiuk”). In this case, Mr. Olesiuk was working late, doing bodywork repairs on his employer’s pick-up truck with no-one else around. He was found in a pool of blood early the next morning in circumstances that the adjudicator accepted indicated that he had fallen from the hood of the truck while repairing the roof of the cab. Arbitrator Feldman defined “use” of a vehicle in terms that I find persuasive:

Vehicles are used primarily to transport people and things from one place to another. They can also be used to store goods. They can be used to tow another vehicle or a trailer. Some vehicles are intended to be used as a temporary place in which to sleep. As vehicles and technologies change, the types of uses to which vehicles may be put will no doubt expand.

When one is repairing a vehicle, however, he or she is not actually using the vehicle. While repairs and maintenance may be integral to one’s ability to safely use and operate a vehicle, such activities are not, in and of themselves, a use of the vehicle.

26A similar approach was taken by this Tribunal in C.C. vs. Intact Insurance Company, 2019 ONLAT 18-003343-AABS (“C.C.”). In C.C., two brothers were replacing a fuel pump when a fuel leak resulted in a fire, seriously injuring the brothers. The insurance company took the position that the incident did not meet the definition of accident in the Schedule. The Tribunal held at paragraph [62]:

62I am of the view that on the facts of this case the repair undertaken by the applicant’s is not an ordinary and well known use of a vehicle by an insured which is covered by the Schedule. I do not see any connection between the Monte Carlo being used for a motoring purposes and the repair by R and C undertaken in the R’s garage several days after the vehicle was last used for motoring purposes. In my view the no fault automobile benefits provided in the Schedule are not meant to be available to a person whose only connection to the vehicle is that of a repairman.

27The preponderance of post-Vytlingam caselaw finds that carrying out maintenance or repairs does constitute “use or operation” for the purposes of the definition of “accident”. The applicant, however, points me to the case of Davis v. Aviva Canada Inc., 2017 ONSC 6173 (“Davis”). He also points me to statements in Olesiuk in support of his position that the seasonal task of changing tires is “use and operation.”

28Davis is a decision of the Ontario Superior Court of Justice. In paragraph [3], the court sets out the facts:

3The plaintiff was injured when the hood of her vehicle collapsed on her while she was refilling her windshield washer fluid. The car was parked in her driveway, the engine was off and the plaintiff was not planning to go anywhere. It was her practise [sic] to check the vehicle’s fluid levels from time to time.

29The court goes on to conclude at paragraph [13] that topping up fluids is a normal use to which automobiles are put:

13In my respectful opinion the suggested distinction between repair and maintenance as doing something “to a vehicle”, verses use and operation of a vehicle, is not determinative. Caughey reminds us that active use of the vehicle is not a requirement and that the relevant question is whether the incident arose from the ordinary and well known activities to which automobiles are put. I view routine maintenance like checking and topping up fluid levels, checking tire pressure and filling the gas tank as satisfying the purpose test.

14On the other hand these cases turn on their own facts and no doubt some accidents arising out of auto repairs, depending on the venue and other surrounding circumstances, could well fall outside of the parameters of “ordinary and well known activities to which automobiles are put”. This however is not such a case.

30In Olesiuk, while finding that carrying out bodywork was not “use or operation,” the arbitrator went on to consider circumstances where some maintenance activities might be caught by the definition:

It is conceivable that the use or operation of a vehicle could start a chain of events that led to necessary repairs that then result in an impairment. Imagine, for example, a driver, en route to some destination, who suddenly “blows” a tire. He stops at the side of the road, turns off the engine and exits the vehicle. He begins to remove the flat tire in order to replace it with the spare “donut”. In the process, he gets injured. At the exact moment of the injury, it is difficult in a strict sense to say that the driver was either operating or using the vehicle but his use or operation of the vehicle started a chain of events that led to the repair of the tire. Without deciding the issue, it is at least arguable, even under the stricter “direct causation” test, that this might constitute an “accident” under the Schedule. Similar situations might arise where a person sustains impairments as a direct result of other routine activities that flow uninterrupted from the use or operation of a vehicle (such as pumping gas, putting air in tires, topping up the fluids and so forth).

31To paraphrase the quote above, it is conceivable that performing “running repairs” while operating an automobile may fall within the definition. I am of the view that Davis falls within this category of running repairs despite the fact that Mrs. Davis had no immediate plans to drive. In the same vein, Saad and Seale involve situations relating to ongoing operation of the vehicle.

32The question raised in Vytlingam remains: what were the reasonable expectations of the parties? Is it reasonable to expect insurance coverage simply because a motor vehicle was involved in some manner in the injury? The more recent cases reviewed above, for the most part, establish limits on the reasonable expectations of the parties. They create a distinction between injuries sustained in the course of driving from A to B, such as repairing a blown tire, gassing up, or topping up fluids, and planned maintenance, such as occurred in this case. In my view, it was not within Mr. R’s reasonable expectations that he was covered by his automobile insurance policy when he parked his car in the driveway and proceeded to change the tires. I accept the reasoning in Olesiuk, that, “While repairs and maintenance may be integral to one’s ability to safely use and operate a vehicle, such activities are not, in and of themselves, a use of the vehicle.”

CONCLUSION

33In consideration of the above, I conclude that the incident on April 4, 2017 was not an accident as defined in s. 3(1) of the Schedule. In coming to this conclusion, I note the cases finding that active use of an automobile is not a prerequisite to recovery. For instance, in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), Mr. Caughy tripped over a motorcycle parked across a pathway and sustained serious injuries. The Court of Appeal held that parking was a normal use and operation of a motor vehicle. At paragraph [21] the Court states “There is no active use component in the purpose test.” Caughy was followed by this Tribunal in 16-000131 v TD Insurance Meloche Monex, 2017 CanLII 43837 (ON LAT) where the injured party tripped into a parked car. By contrast, the Court of Appeal distinguished Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92 where Mr. Prest suffered injuries after parking his car to wash it. As he went to the rear of the car, and while still in contact with it, he tripped and fell. The Court in that case found that Mr. Prest met neither the purpose or causation test.

34What distinguishes Caughy in my view, is that Mr. R had disabled the vehicle such that it was no longer operative. Its wheels were off. It is his expectation of having insurance coverage while performing maintenance that is in issue and that I find not to be a reasonable expectation.