C.K.D. v. Wawanesa Mutual Insurance, 2020 CanLII 80305

Citation: C.K.D vs. Wawanesa Mutual Insurance, 2020 ONLAT 18-006988/AABS

Released Date: 09/22/2020

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:

C.K.D. Applicant

and

Wawanesa Mutual Insurance Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Alexander Voudouris, Counsel

For the Respondent: Darrell March, Counsel

HEARD IN WRITING

OVERVIEW

1This matter arises from an incident that occurred on December 28, 2017, when the applicant fell and was seriously injured. At the time of his fall, he was in the process of getting into his vehicle. The applicant claimed that the incident is an automobile “accident” as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and, thus, sought benefits thereunder.

2The respondent denied the benefits on the basis that the applicant was not involved in an “accident” within the meaning of the Schedule. Instead, it argued, the incident was a slip and fall.

3The parties have sought a preliminary issue determination on whether the applicant was involved in an “accident” and, thus, entitled to statutory accident benefits under the Schedule.

RESULT

4I find that the applicant was involved in an “accident” as defined in the Schedule. He is therefore entitled to statutory accidents benefits.

FACTS

5On December 28, 2017, the applicant left his house, and drove to a nearby gas station to purchase a lottery ticket. He parked his vehicle adjacent to the station’s store, got out of his car, and walked into the store, where he purchased a lottery ticket. After making the purchase, he then left the store. The applicant then walked back over the same walkway toward his car.

6The applicant’s evidence was that the ground was wet and, indeed, was covered in at least some respect by snow, as it had snowed days before. Although it was not raining or snowing at the time, he was wearing snow boots. In walking to his car, he did so at what he described as his usual pace. Approaching his car, he held the FOB for the vehicle in his right hand. When close to the vehicle, he pressed the FOB to unlock the doors.

7He then walked in front of the vehicle to get to the driver’s side. Once on the driver’s side, he reached out to open the door with his left hand. However, he then slipped and fell before he could open the door. He said that he slipped when he was about “to touch the open door area”, which he later clarified was the door handle.

8The applicant fell before re-entering the vehicle. He could not remember if he touched the vehicle when he fell or at all. He stated that he fell just by the side of the vehicle or next to it. His head struck the ground. He was subsequently taken to hospital by ambulance. He suffered serious injuries, requiring extensive hospitalization and rehabilitation as a result.

9There were no witnesses to the incident, and there was no video recording as there were no cameras at the incident’s location. The only account of what happened that day was provided by the applicant during his Examination under Oath (“EUO”) on April 13, 2018. As evidence of the events, the applicant relies solely on the transcript of the EUO.

ANALYSIS

What qualifies as an automobile accident under the Schedule?

10For the incident to be considered an “accident,” the applicant must prove on a balance of probabilities that it meets the definition according to s. 3(1) of the Schedule, which defines an “accident” as “an impairment 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.”

11The Court of Appeal in Greenhalgh v. ING Halifax Insurance¹ (“Greenhalgh”), stated that the language of this provision sets out the test as involving a consideration to the following two questions:

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

ii. Did such use or operation of an automobile directly cause the impairment? (the causation test)

12As such, there is a two-part test to the definition of an “accident”: what is commonly referred to as the purpose test and the causation test. Whether the incident here satisfies the purpose and causation tests is fact-dependent and determined in light of the particular circumstances, such as: what the applicant was doing at the time of the incident and whether he was operating his vehicle; the timing of the events that led to the injuries and whether the vehicle was involved; the location of the applicant in relation to the vehicle; and whether the injuries he suffered were directly caused by his operation of the vehicle.

The Purpose Test

Submissions of the Parties

13The applicant submitted that the incident satisfies the purpose test because he was in the process of getting into his vehicle, a well-known ordinary use or operation of a motor vehicle. He argued that his attempt to get into the vehicle began when he unlocked it using the FOB in his hand.

14The respondent submitted that the incident was a slip and fall, one unrelated to the vehicle.

Analysis

15The first question I must answer is whether the incident arose out of the use or operation of the vehicle. Based on the applicant’s account of the incident under oath, I find that, after unlocking his vehicle, he was reaching for the door handle as part of his attempt to re-enter his vehicle, when he fell. As the act of entering a vehicle is an ordinary use of a vehicle, I find that the incident satisfies the purpose test.

16The applicant’s answers during his EUO relayed a sequence of events beginning with unlocking his vehicle to his attempt to re-enter it. He stated that he left the store and began walking back to his vehicle. His evidence, which I accept, was that he was wearing snow boots, that he did not need glasses for walking, and that he was walking at his “usual” pace, which he clarified as slow – not fast – for someone his age. When close to the vehicle, he pressed the FOB to unlock the doors. With the FOB in one hand, he reached out to open the door on the driver’s side with his left hand. He said that he slipped when he was about “to touch the open door area” – that is, the door handle. More specifically, he said: “I reached out and prepared to open the door, and then I slipped right away." He could not remember if he touched the car when he fell or at all.

17Counsel gave a breakdown of the applicant’s actions that mirror his statements under oath, and which I found helpful:

At all material times, [C.K.D] was walking immediately beside his car with the sole purpose of getting into it. He utilized the car's FOB which unlocked the car doors. These days a FOB is an extension of the car and replaces the need to physically touch the car and insert a key to unlock the door. Unlocking a locked car door with the intention of entering the vehicle is clearly the commencement of the process of getting into the car, which involved being in proximity to the car, unlocking the car door, opening the door, placing oneself in the car and closing the door. All five steps are essential elements in getting into a car and once initiated, create the relationship between [C.K.D] 's actions and the car. As [C.K.D] fulfilled the first two and was in the uninterpreted [sic] process of completing the next element, that of actually opening the door, he meets the Propose [sic] Test.”

18I accept this line of reasoning, and, therefore, I find the applicant has established that the purpose test was met.

The Causation Test

Submissions of the Parties

19The applicant submitted that the incident also met the causation test. His arguments are, in essence:

• the incident satisfied the “but for” test because he would not have been injured “but for” attempting to get into his vehicle;
• there was no intervening cause breaking the chain of events between opening his vehicle and the injuries he suffered; and
• the dominant feature was his attempt to enter his vehicle.

20In support of his position, the applicant relied on cases with incidents of a slip and fall involving direct contact, and no contact with a vehicle. It is his position that causation does not require direct contact with the vehicle. Relevant to his case are: Belair and Seale² (“Seale”), wherein the insured slipped and fell on ice while chasing a vehicle down a hill; Grewal and Dominion,³ in which the applicant tripped and fell on his stairs after hearing an accident outside his house; and Petrosoniak,⁴ in which the applicant fell from his bicycle as a result of oil spilled from a vehicle.

21The respondent submitted that the incident was a slip and fall that occurred outside the vehicle, that the vehicle did not increase the likelihood of injury, and that falling on ice is a common risk in Canada, regardless of whether a vehicle is involved. As such, the respondent argued, the use or operation of the vehicle did not directly cause the applicant’s injuries, as required in Greenhalgh.

22The respondent also argued that the applicant did not make direct contact with the door or the vehicle and, when he fell, his head struck the ground and not the vehicle. Given that there was no contact, the respondent submitted that this incident was a slip and fall and does not qualify as an “accident” under the Schedule.

23The respondent relied on cases in which the injuries were found to be a direct result of winter weather conditions, as in Greenhalgh, a trip and fall and a slip and fall, and not from the operation of the vehicle. What these cases have in common with the applicant’s case, the respondent submitted, is the fact that the injuries were found to be directly caused by an incident that had no link to the use of the vehicle, supporting its position that the applicant was in a slip and fall incident, and not in an automobile accident.

Analysis

24According to Greenhalgh, the causation test asks the following: 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?

25In addition, there are three principles that can assist in determining if the use of the vehicle was a direct cause of the injury:

i. The but-for principle, an exclusionary test that does not establish legal causation but eliminates factually irrelevant causes; ii. The intervening act principle; and, iii. The dominant feature principle.

26For the reasons provided in the next paragraphs, I am satisfied that the use and operation of the vehicle was a direct cause of the injuries. I find that the incident was an accident within the meaning of the Schedule, and the applicant is entitled to claim benefits under the Schedule.

27The “but-for” consideration confirms that the applicant would not have been injured “but for” being in the process of re-entering his vehicle. While the “but for” principle assists with screening out factors that made no difference to the outcome, my analysis of the intervening act and the dominant feature principles leads me to the same result.

28The intervening act analysis is necessary to rule out any event in the incident that did not arise from the normal risk created by the use or operation of the vehicle.⁵ First, I accept the applicant’s consistent account: when in close proximity, on the vehicle’s driver’s side, and having unlocked the vehicle with the FOB, he reached for the door handle with his left hand and, in so doing – that is, in attempting to get into the vehicle – he slipped and fell to the ground. According to him, he was next to the vehicle, although he may not have come into contact with it, when he fell.

29Second, based on this account, I find that the incident consisted of one continuous chain of events with no intervening act to break the chain of causation, which began when he unlocked the vehicle with the FOB and walked toward the vehicle to re-enter it. In other words, when the applicant fell and suffered his injuries, he was in a continuous process of getting into the vehicle.

30I have considered whether the slip and fall was an intervening act that would disqualify the incident from being an “accident”. In other words, was the slip and fall a separate event with no connection to the operation of the vehicle? I find that it was not a separate event. The applicant was not simply walking in the parking lot or walking in any direction other than toward his vehicle or engaged in any activity other than getting into his vehicle when he slipped and fell.

31The applicant’s evidence was that he slipped on snow and fell. Does this indicate that the slip and fall was an intervening act? I do not believe so. Factually, the applicant did slip on snow and fell. However, in my view, there were two direct causes of the accident, the snow-covered condition of the walkway, and the fact that the vehicle was parked in a location with some snow covering on the ground. I believe it was reasonably foreseeable that, if the applicant had to walk down the walkway toward his vehicle to re-enter it, he might slip and fall and be injured. On the specific facts of this case, slipping and falling on snow formed part of the normal risk created by the use or operation of the vehicle. In other words, I am satisfied that one direct cause of the accident was a result of the use and operation of the vehicle that was parked in that gas station under those conditions.

32Further, the applicant’s use of the FOB in the immediate moments leading up to the incident is relevant. I found the account from the applicant’s counsel to be quite compelling on that point, as it demonstrates that the applicant had clearly moved from the act of “walking through the parking lot” to the process of “getting into the vehicle”.

33The decision in Seale, which was discussed with approval in Greenhalgh, provides a scenario which I found helpful. Seale involved a slip and fall on an icy road as the insured in that case chased after her runaway vehicle. The arbitrator examined the events and found that the incident was an automobile accident. The arbitrator outlined factors she considered relevant, including time, proximity, activity and risk, all of which led her to conclude that the events were one unbroken chain that led to the insured’s injuries. In my view, the applicant’s incident here is similar in that there was no single separate event between the instance he began to re-enter the vehicle to when he fell to the ground and was injured.

34In Greenhalgh, the Ontario Court of Appeal suggested that “in some cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". A factor is a "dominant feature" where it is the aspect of the situation that most directly caused the injuries”⁶. The court also stated that this is not a test but rather a consideration that may be a useful analysis. Accordingly, the dominant feature of the incident is the applicant’s attempt to get into his vehicle, which confirms direct causation. While there is no dispute that the slip and fall caused the injuries, this was secondary to the fact that the applicant was getting into the vehicle, the very act that initiated the incident.

35The respondent reiterated that the applicant fell backwards before touching the vehicle door and could not recall whether any part of his body touched the vehicle as he fell. The respondent relied on cases where the incident was not found to be an accident because the injuries were not directly caused by the use of the vehicle. The respondent submitted that the incident at issue is analogous to these cases. I disagree. The cases cited can be distinguished because they involved scenarios where the use of the vehicle had ended. I refer to some of these cases in the next paragraphs.

36In Mahadan v. Co-operators⁷ the insured was found not to have be in an "accident" when he injured himself after his foot got stuck in a groove in the pavement in his parking lot; he had already exited the vehicle. The applicant’s case can be distinguished because he had not ended the use or operation of his vehicle when he slipped and fell and suffered his injuries. In Diane Webb v. Lombard,⁸ the insured got out of a taxi cab and slipped on the ice at the rear of the cab. The insured’s fingertips touched the bumper, but she was unable to break her fall. Delegate Makepeace found that the incident did not arise from the use or operation of a vehicle. The applicant’s case can be distinguished because, unlike Ms. Webb, his involvement with the vehicle had not ended.

37In Sylvie v. Security National,⁹ the insured suffered a fractured right ankle after slipping and falling on the icy pavement of a parking lot. The arbitrator found that the fall was an incident separate from the use or operation of the vehicle that occurred after the claimant used her vehicle to get to the store and before she returned to the vehicle. The applicant’s case can be distinguished because his use of the vehicle had not ended.

38In Dominion of Canada v. Prest,¹⁰ the insured parked his vehicle and then was washing it when he tripped over a curb sticking out from a wall. He claimed his right hand was touching the vehicle when he fell. Justice McNamara of the Ontario Superior Court of Justice found that, at the time of the incident, the vehicle was neither being used nor operated as it was parked. The judge found that the vehicle’s use had ended without injury, and the trip and fall was an intervening act. Again, the applicant’s case can be distinguished because his use of the vehicle had not ended when he slipped and fell.

39In Bus v. State Farm Mutual Automobile Insurance,¹¹ the claimant slipped on ice and fell after leaving the vehicle as she walked toward the bank. The Arbitrator found that the incident did not arise from the use or operation a vehicle and the ice was an intervening factor completely independent from her use or operation of the motor vehicle. Like the above cases, the applicant’s use of the vehicle had not ended when he slipped and fell.

40The respondent also relied on 16-004096 K.B. v. Intact Insurance Company,¹² a case decided by the Tribunal. The respondent argued that it is analogous to this case. The case involved a woman who parked her vehicle, attended a function, and later tripped and fell while walking towards her parked vehicle. The Adjudicator considered the facts to be the same as in cases involving parked vehicles but found that walking towards a parked vehicle did not satisfy the purpose test. The applicant’s case is distinguishable from the incident in 16-004096 because here the applicant satisfied the purpose test; he was not just walking towards his vehicle but, instead, was indeed attempting to get into his vehicle when he slipped and fell.

41Significantly, these cases are all distinguishable on the facts. In the case at issue the applicant began getting into his vehicle when he unlocked it with the FOB, and the slip and fall occurred while he was still getting into his vehicle.

CONCLUSION

42I find that the applicant was indeed operating his vehicle when he fell and was injured, and that his injuries were directly caused by the operation of his vehicle. As a result, I find that he was involved in an “accident”, under the Schedule.

Footnotes

1. 1(2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338.
2. 2Belair Insurance Co. Inc. v. Cassandra Seale, [2003] O.F.S.C.I.D. No. 8.
3. 3Grewal v. Dominion of Canada General Insurance Company, [2003] O.F.S.C.D. No. 20
4. 4Petrosoniak and Security National Insurance Company, 1998 CarswellOnt 6227, (FSCO A98-000198, November 2, 1998).
5. 5Chisholm v. Liberty Mutual Insurance Group, at para. 29.
6. 6Greenhalgh, at para 49
7. 7Mahadan v. Co-operator's General Insurance Company, 2001 Carswell Ont 6129, [2001] O.F.S.C.I.D. No. 40
8. 8Diane Webb v. Lombard General Insurance Company of Canada, FSCO P06-00038, October 5, 2007
9. 9Sylvie v. Security National, [2012] O.F.S.C.D. No. 154.
10. 10Dominion of Canada v. Prest, [2001] O.J. No. 18.
11. 11Bus v. State Farm Mutual Automobile Insurance Co., [2016] O.F.S.C.D. No. 157.
12. 1216-004096 v. Intact Insurance Company, 2017 Canlll 63622 (ON LAT).