DECISION AND ORDER
Released Date: 10/22/2020
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:
V. B.
Applicant
and
Economical Insurance Company
Respondent
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Ovidiu E. Klein, Paralegal
For the Respondent:
Riley McIntyre, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant ("V.B.") sustained injuries when he slipped and fell while getting out of his vehicle in an icy parking lot on March 3, 2019 ("the incident"). When the respondent ("Economical") denied his application for accident benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"), V.B. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for a resolution of the dispute.
ISSUES IN DISPUTE
2I am to decide the following issue:
i. Is the incident of March 3, 2019 an "accident" as defined under the Schedule?
RESULT
3On a balance of probabilities, I find that the incident that occurred on March 3, 2019 was an "accident" as defined under the Schedule. V.B.'s use or operation of his vehicle, namely disembarking his vehicle, directly caused his impairment.
ANALYSIS
Background
4On March 3, 2019, V.B. parked his vehicle in a grocery store parking lot. He opened the driver side door, placed his feet on the ground, and pulled himself up into a standing position with his right hand on the handle of the door. As he shifted his weight onto his left foot and prepared to shut the door, V.B. slipped on an accumulation of ice, landing on the ground on the right side of his body. V.B. sustained a hip fracture and soft tissue injuries in the fall.
5The parties disagree on whether the incident that occurred on March 3, 2019 falls within the definition of "accident" in the Schedule.
The definition of "accident" in the Schedule
6Section 3(1) of the Schedule defines the term "accident" as follows:
"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
7The test governing the interpretation of "accident" under the Schedule has two parts:
- Did the incident arise out of the use or operation of an automobile? ["the purpose test"]; and if so,
- Did such use or operation of an automobile directly cause the impairment? ["the causation test"]1
8An applicant must satisfy both parts of the test for an incident to be considered an "accident" under the Schedule.
9For the following reasons, I find that the March 3, 2019 incident arose out of the use or operation of an automobile, and that the use or operation of the automobile directly caused V.B.'s impairment. As such, the incident falls within the definition of an "accident" under the Schedule.
Purpose test: Did the incident arise out of the use or operation of an automobile?
10In Amos v. Insurance Corp. of British Columbia,2 the Supreme Court of Canada articulated the purpose component of the governing test as: did the accident result from the ordinary and well-known activities to which automobiles are put? V.B. submits that the incident occurred while he was getting out of his vehicle, which in his submission is an ordinary use to which automobiles are put.
11Economical submits that at the time of the incident, V.B. was merely standing next to his vehicle, and that the automobile had no involvement in his injuries. It submits that V.B. had long since parked his vehicle and had already exited it. Economical submits that the incident occurred while V.B. was walking away from the vehicle. The vehicle was no longer in use.
12Economical relies on S.B. v. Aviva Insurance Co. of Canada,3 when this Tribunal determined that a slip and fall at a gas station was not an accident because the use of the vehicle ended prior to the fall.
13V.B. contests Economical's assertion that he had already exited the vehicle and was walking away from it when the fall occurred. He submits that he was in the process of disembarking and had not stepped away from it. In S.B., the applicant fell after closing the door and walking away from her vehicle.
14The evidence before me does not support Economical's position that the incident occurred while V.B. was walking away from the vehicle. In an examination under oath on July 23, 2019, V.B. described his attempt to disembark from his vehicle immediately before the fall:
Q: Okay, so if I can just take you back to the actual fall, I want to make sure I have it right. So, you try to get out of the car and you grab the door with your right hand - -
A: Well, I always had – yes, well I mean it's winter time, right, you don't want it to fly open and I wanted to see if it was going to meet the median. So yes, I am sitting sideways and I was hesitant getting out, like I am sitting and the car is here and my hand is on the door so it was not going to come back and slam me in the legs or anything right? Yes, to control it. Yes, from there, I pulled myself up. They give you handles, so I might as well use it, I mean that is the deal, you know?
Q: Yes, so you pull yourself up with your right hand and you are facing away from the car.
A: Yes. [...] And I go down.4
15V.B.'s sworn statement is that he was holding the interior handle on the driver's side door while disembarking from his vehicle. This case is factually distinct from the cases Economical relies upon where the Tribunal has determined the incidents not to be accidents because an applicant slipped and fell while walking away from the vehicle.
16Disembarking from a vehicle is an ordinary and well-known use to which automobiles are put. V.B.'s evidence is that his right hand was in contact with the interior of the driver's side door when he fell. There is no evidence for Economical's submission that V.B. had already exited and was walking away from his vehicle when the incident occurred.
17V.B. has satisfied the purpose test. The incident arose out of the use or operation of an automobile.
Causation test: Did such use or operation of an automobile directly cause the impairment?
18For an incident to be considered an "accident" under the Schedule, the use or operation of an automobile must directly cause the impairment or damage in question.
19The Ontario Court of Appeal held in Chisholm v. Liberty Mutual Group5 that a direct cause establishing legal entitlement to accident benefits is "the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new independent source": see Chisholm at para. 30. (emphasis added).
20To satisfy the direct causation test, an applicant must establish that there was an unbroken chain of events involving the use or operation of an automobile that led to his impairment.
21The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. set out three guiding considerations that may be of use in determining causation:
i. the "but-for" consideration; ii. the "intervening act" consideration; and iii. the "dominant feature" consideration.6
22While not determinative, the "but-for" consideration may assist in screening out irrelevant causes. In some cases, the presence of "intervening acts" may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile. In other cases, it may be useful to ask if the use or operation of the automobile was the "dominant feature" of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called "direct".
23Relying on Greenhalgh v. ING Halifax Insurance Co.,7 Economical argues that the link between the use or operation of the motor vehicle and V.B.'s impairment was not the dominant feature of the incident; it is too remote to be direct. Economical submits that the snow and ice on the pavement outside V.B.'s vehicle cannot be said to be part of the ordinary course of use or operation of an automobile, and therefore amounted to an intervening act that broke the link of causation.
24V.B. relies on the Ontario Court of Appeal's observation in Chisholm that reasonably foreseeable risks related to operating a motor vehicle will not break the chain of causation. He submits that slipping and falling while getting out of a vehicle is a reasonably foreseeable risk of operating a motor vehicle. Slipping and falling on the ice was not an intervening event outside the ordinary course of the use or operation of the vehicle capable of breaking the chain of causation.
25Economical submits that in V.B.'s case, the automobile had no involvement in his injuries. The involvement of the automobile was only tangential, and this should break the chain of direct causation.
26I have found as a fact that V.B. was holding onto the interior handle of the driver's side door, having used it immediately prior to pull himself up into a standing position, when he fell. As the Court of Appeal held in Chisholm, factors that are reasonably foreseeable risks of operating an automobile will not break the chain of causation:
An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car -- if it is "part of the ordinary course of things".8
27In the circumstances of this case, slipping and falling on ice was not an intervening act capable of breaking the chain of causation between the use or operation of the vehicle and the impairment.
28In the ordinary course, automobile door handles may be used to assist an occupant of a vehicle in disembarking. While snowy and icy conditions on the pavement below could be considered an intervening force "starting and working actively from a new independent source," (per Chisholm), in the present case, I find that losing one's footing on the pavement while exiting a vehicle is a reasonably foreseeable risk of operating an automobile. The risk of falling on unstable road surfaces (due, for example, to snow or ice) is a normal incident of the risk created by the use or operation of a vehicle. The law is clear that intervening acts that can fairly be considered a normal incident of the risk created by the use or operation of the vehicle may not absolve an insurer of liability for benefits under the Schedule.
29For these reasons, V.B. has satisfied the causation test.
Conclusion
30Applying the tests of purpose and causation, I find that V.B.'s use or operation of his vehicle directly caused his impairment. V.B. has met his onus of establishing, on a balance of probabilities, that the March 3, 2019 incident is within the meaning of an "accident" under the Schedule.
ORDER
31The incident of March 3, 2019 is an "accident" as defined in the Schedule.
Released: October 22, 2020
Theresa McGee
Vice-Chair
Footnotes
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) at para. 10.
- 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405.
- 2019 CanLII 22211 (ON LAT).
- EUO at p. 17.
- 2002 CanLII 45020 (ON CA).
- 2004 CanLII 21045 (ON CA).
- 2004 CanLII 21045 (ON CA) at para. 12.
- 2002 CanLII 45020 (ON CA) at para 29.