Released Date: 10/09/2020
Tribunal File Number: 19-008177/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Michael Moore
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Najma M. Rashid
For the Respondent: J.-C. Rioux
Heard by way of written submissions
OVERVIEW
1Michael Moore, the applicant, was involved in an incident on February 22, 2018 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2The respondent refused to accept that the applicant was injured as a result of an automobile accident. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUE
3Was the applicant involved in an accident as defined by the Schedule?
RESULT
4The applicant was not involved in an accident as defined by the Schedule.
BACKGROUND
5The applicant was working as a self-employed delivery driver at the time of the incident. His work involved using his own van to attend at various locations to pick up and drop off mail bags and parcels.
6The incident occurred during the applicant’s workday at a pick-up location, namely a commercial business. The applicant drove his van into the business’s rear parking lot and parked it near a garage door, where he would enter to retrieve the items identified for pick-up. He turned the van off, exited, went to the side of the van, and opened the van’s sliding door in anticipation of loading items for pick-up. The applicant then knocked on the business’s rear door. An employee opened the garage door next to the rear door to allow for the applicant’s entry. As the applicant went through the garage door, the door fell on his head. The applicant did not seek medical attention immediately following the incident, but the parties agree he sustained a head injury as a result of the incident. During an examination under oath on May 9, 2019, the applicant stated that he was not entitled to nor received any benefits from the Workplace Safety and Insurance Board.
7At issue is whether the incident meets the definition of an “accident” as set out in section 3(1) of the Schedule. Pursuant to section 3(1) of the Schedule, an accident is defined as an incident in which the use or operation of an automobile directly caused an impairment. The onus is on the applicant to establish that he was involved in an accident, as it is defined in the Schedule.
ANALYSIS
8Case law has established a two-part test to determine whether an insured was involved in an accident pursuant to the Schedule: whether the use or operation of an automobile was involved in the incident (i.e., “the purpose test”) and, if so, whether such use or operation directly caused the claimant’s injuries (i.e., “the causation test.”)1
The Purpose Test
9The purpose test asks whether the incident occurred during the ordinary use to which vehicles are put. The parties agree that the incident meets the purpose test. They agree that delivering parcels is one of the ordinary uses to which vans are put. As such, an analysis on the purpose test is not required.
The Causation Test
10The causation test asks: was the use or operation of the vehicle the direct cause of the injuries? If so, was there an intervening act which breaks the chain of causation? The purpose of the first question is to eliminate factually irrelevant causes. The purpose of the second question is to exclude incidents where the direct cause is independent of vehicle’s use or operation.2
11The applicant submits that the incident would not have happened had he not been using his vehicle for deliveries. He submits there is no other way for him to arrive at the pick-up location. He further submits that his use of the vehicle had not ended because, according to the applicant, he turned off his engine but did not park his vehicle nor lock it, and he opened the side door of his vehicle before entering the location.
12The applicant also submits that his use of the vehicle continued through the sequence of events from stopping his vehicle outside of the delivery area to when he walked under the garage door and it fell on him. He submits this is the reasoning used in in North Waterloo Farmers Mutual Insurance Co. v. Samad (“Samad”).3
13The applicant submits that walking under the garage door was part of the chain of events that involved his vehicle’s use. He notes that he did not attempt to enter the location through the main entrance, but instead used the garage door so he could load his van next to it. To him, the garage door is inextricably tied to the use and operation of his vehicle because using the garage door or loading dock is a hallmark of a delivery driver’s tasks. To the applicant, his use of the vehicle continued as he went into the location to pick up packages to load into the vehicle, like it continued in Mariano and TTC (“Mariano”).4 I will address Samad and Mariano below.
14The respondent submits that the garage door falling on the applicant’s head was the cause of his injury and not the operation of the vehicle. It submits that, rather than an automobile accident, this incident is an occupier’s liability case because the garage door is not meant to fall on people.
15I find on the facts and evidence that the applicant was not involved in an accident as defined in the Schedule.
16The applicant’s operation of the vehicle ended once he left his van to enter the building. The applicant parked and turned off his vehicle before exiting it. He opened the side door in order to later load packages into the vehicle and then attempted to go through the garage opening, when the door fell on him. Based on these facts, the applicant’s use of the vehicle ended after he left the side door open and went to retrieve the packages. At that point he intended to leave the vehicle, turned off and with the side door open, until he returned to use it again to load packages into it.
17While I appreciate that the applicant uses his vehicle during his duties as a delivery driver, such employment involves multiple independent journeys, or uses of a vehicle, that start and stop throughout the workday. Otherwise, any injury-causing incident which occurs during the applicant’s time inside the pick-up location would be considered an accident because, according to the applicant’s interpretation, it involves the use or operation of his vehicle.
18If I am wrong and the applicant’s use of the vehicle continued as he proceeded in to the building, I find that his injuries were caused by the garage door falling on him, which is an intervening incident that is independent of the use of a vehicle. In this incident, the garage door falling is independent of the vehicle’s use or operation. The vehicle had no influence on the garage door falling or any component of it which would cause it to malfunction. Likewise, the vehicle had no influence on the applicant’s injuries. The applicant was not actively loading or unloading the vehicle at the time of the incident. Rather, he left the vehicle and went to retrieve packages.
19I find the applicant’s incident is distinguishable from the cases he submitted. In Samad, the insured, Mr. Samad, was working as a taxi driver when he was assaulted by one of his passengers. Mr. Samad stopped the vehicle and the passengers exited it, leaving the rear passenger-side door open. Mr. Samad exited his taxi in order to close the door. He circled around the rear of the vehicle and put his hand on the door to close it when he was assaulted for the second time. The second assault combined with slippery ground conditions, caused Mr. Samad to fall, resulting in an injury. The Court determined that neither incident – the second assault or the slip and fall - could be isolated. As a result, the entire chain of events was tied to closing the rear passenger-side door, which was considered to be within the normal use and operation of the vehicle. In the applicant’s case, the garage door falling on him can be clearly isolated from the use or operation of the vehicle. While the applicant intended to load packages into his van, he was not using the vehicle at the time when the garage door fell. The garage door falling is an incident that can be isolated from the use of the vehicle. The garage door falling, and no other incident, caused the applicant’s injuries.
20In Mariano and TTC, Mr. Mariano was a passenger on a bus who exited one bus to transfer to another bus. The first bus was impeded by an illegally parked vehicle, which forced the driver to discharge the passengers onto the road. Mr. Mariano exited the bus and tripped on a bump on the road while walking towards the second bus. The Court found that the chain of events started with the departure from the bus and continued as Mr. Mariano stepped onto the roadway and tripped, causing his injuries. It was determined that the bus’s placement was relevant in that it created the risk as it was forced to discharge passengers onto the uneven road due to the illegally parked car. In the applicant’s case, the use of the vehicle added no risk. He was able to park his van as anticipated, exit it, and leave it with the sliding door open as he intended.
CONCLUSION
21Upon review of the evidence and submissions, I find the applicant was not involved in an accident as defined by the Schedule. Therefore, he is not entitled to any benefits from the respondent and, as a result, his application is dismissed.
Released: October 9, 2020
Brian Norris
Adjudicator
Footnotes
- Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405; Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA).
- Chisholm and Greenhalgh, supra note 1
- 2018 ONSC 2143
- FSCO A05-002112