Citation: Ritchie v. Economical Insurance, 2021 ONLAT 20-013296/AABS-M

Licence Appeal Tribunal File Number: 20-013296/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Melissa Ritchie

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Ian Maedel, Vice Chair

APPEARANCES:

For the Applicant: Gordon W. Harris, Counsel

For the Respondent: Ashleigh Leon, Counsel

HEARD In Writing: August 23, 2021

BACKGROUND

1The applicant was injured in an incident on March 3, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”).

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was conducted on May 26, 2021 before Adjudicator Johal. A written hearing was scheduled for January 31, 2022.

4The substantive issues in dispute include attendant care benefits, three occupational therapy treatment plans, an award, and interest.

MOTION

5On June 1, 2021, the respondent filed a Notice of Motion and raised the following preliminary issue in dispute:

i. Was the incident that occurred on March 3, 2020 an “accident” as defined in s. 3(1) of the Schedule?

INCIDENT

6The incident occurred on March 3, 2020.

7The applicant was walking to her motor vehicle parked in her apartment building parking lot. She was approaching the vehicle on the walkway leading to the parking lot. She had just walked past the front of the vehicle and was turning left toward the driver’s side door. She activated the key fob to unlock the vehicle when she fell on ice.

8She fell on her left side, fracturing and dislocating three bones in her left ankle. She laid next to and partially underneath her vehicle for approximately ten to fifteen minutes. Eventually she was able to regain her bearings and was able to pull herself into a seated position, using the vehicle for leverage. She was eventually able to pull herself into the driver’s side of the motor vehicle and drive herself to her partner’s home.

9She later attended Soldier’s Memorial Hospital in Orillia, Ontario, where it was determined her fractures required surgical intervention. During the subsequent surgery on March 12, 2020, a metal plate and three screws were inserted into her ankle. Bone grafting of the fibula fracture and removal of a fracture hematoma were also required as part of the surgery.

10The applicant submits she continues to suffer ongoing pain, stability issues, an altered gait, difficulty sleeping due to discomfort, increased pain depending on the dampness or weather, psychological effects due to the loss of independence, difficulty with daily tasks and personal care, chronic fatigue, increased depression, anxiety, and feelings of vulnerability.

DEFINING AN “ACCIDENT”

11Subsection 3(1) of the Schedule defines an “accident” as 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, prothesis or other medical or dental device”.

12If the incident is not found to be an “accident”, then the applicant cannot apply for accident benefits through the Schedule.

13Both parties cite the Court of Appeal for Ontario’s decision in Greenhalagh v. ING Halifax Insurance Co. (“Greenhalagh”)¹ in reference to the two-part framework adjudicators should consider when making this determination:

i. Did the incident arise out of the use or operation of an automobile?

ii. Did this activity directly cause the impairment?

14This first stage is a determination of whether the incident involves the “ordinary and well-known activities to which automobiles are put”. Or, in another way, for what “purpose was the vehicle being used at the time of the incident?”

15The second state then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the impairments. Though there is no mechanistic means of conducting this stage of the analysis, the case law generally focuses on the following factors: the “but for” consideration; the “intervening act” consideration; and the “dominant feature” consideration.

• The “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments;

• The “intervening act” consideration asks the adjudicator to determine if some other event took place that can better explain the cause of the impairments; and

• Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity at issue is what “most directly caused the injury”.

16Overall, the case of Webb v. Wawanesa Mutual Insurance Company Co., reminds the decision-makers to apply the definition of an “accident” in a common-sense fashion that focuses “on the nature of the risk covered by automobile insurance”².

ANALYSIS

17The evidentiary burden of establishing whether this incident was an “accident” remains on the applicant, despite this preliminary issue being raised by the respondent.

Purpose Test

18I am satisfied the incident arose from the ordinary and well-known activities for which automobiles are put. There is little dispute that the applicant was walking toward her vehicle with the key fob in hand, with the clear intention of entering the vehicle when she slipped and fell on ice. I find the incident comprised the larger activity of entering the vehicle. Clearly, the actions of the applicant indicated her intention to enter the vehicle at the time of her slip and fall.

19However, I do not find the applicant meets the second state of the Greenhalgh framework.

Causation Test

20Again, there is no mechanistic analysis at play in this second stage, such that meeting a certain number of the three considerations will render an event to be an “accident”. Instead, these tools are meant to be used in a common-sense fashion to allow a decision-maker to effectively analyze the particular factual matrix at issue. Further, I am not bound by the Tribunal case law before me, as these cases are highly fact specific. Otherwise, I have reached my own conclusions based on a comprehensive review of the facts before me—an analysis guided, in part, by the past findings of fellow colleagues.

21First, similar to the line of reasoning used by the adjudicator in K.P. v Aviva General Insurance³ at paragraph 25, I find the applicant has met the low threshold of the “but for” test. As the applicant stated in her submissions, the incident and subsequent impairments would not have happened “but for” the applicant’s need to enter her vehicle. However, as noted in Greenhalgh, the “but for” test does not conclusively establish legal causation⁴.

22I then find there is no “intervening act” in determining the causation of this incident. The applicant submits there was no intervening act, as her use of the key fob to unlock the vehicle is part of the ordinary course of use and operation of a motor vehicle.

23The respondent relies on R.M. v. Certas⁵, in which the applicant was using a key fob to unlock a vehicle, reached out to grab the door handle and slipped and fell on ice. In that matter, it was found the ice in the parking lot was the intervening act that served to break the chain of causation.

24I do not find the intervening act analysis helpful with regard to the factual matrix of this matter. This is especially in light of the applicant’s submissions regarding the continual sequence of events, including the proximity of the automobile and the incident.

25I would also add that few would argue that the risk of ice is not a foreseeable in the operation of a motor vehicle, say, for instance, on the highway.

Dominant Feature Consideration

26However, despite the above findings, I conclude that the “dominant feature” consideration is the most helpful tool in determining whether this particular incident is an “accident”. That is, I am satisfied that to answer this incident is an “accident”, it is helpful to determine if the operation and use of the motor vehicle was the “dominant feature” of the incident in the icy parking lot.

27As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.”⁶ For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident” Justice Labrosse found, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”⁷

28I am satisfied the dominant feature of this incident was the applicant slipping on the ice. The applicant submits her proximity to the vehicle is a determining factor in this case, unlike in Greenhalgh, who ended up leaving her vehicle to find help. Here the applicant was unlocking her vehicle and was directly beside the automobile when she slipped and fell. She even fell partially underneath the vehicle before she was able to regain her bearings. She then used the support of the vehicle to enter the driver’s seat and drive away. However, as in Chisholm v. Liberty Mutual Group⁸ I find the applicant’s proximity to the vehicle ancillary to the events that caused her injuries.

29I cannot conclude the dominant feature of this incident was the use or operation of the automobile. I am not persuaded this matter is dissimilar to the facts in Porter v. Aviva Insurance Company of Canada (“Porter”)⁹, where the Divisional Court found that ice was the cause of the insured person’s injuries. In that matter, she fell on ice while walking towards a Lyft vehicle parked half-way up her parent’s driveway. The applicant submits these facts in Porter are distinguishable because she was maneuvering around the Lyft vehicle and had placed her hands on the hood of the vehicle to steady herself. The applicant submits she had not yet begun the process of entering the vehicle at the time of her fall in Porter.

30I am not persuaded the present applicant was in the process of entering the vehicle at the time of her slip and fall. While I do not dispute that she was in the parking lot and walking toward her vehicle with the intention of entering it, I cannot conclude her use of the key fob somehow caused her to slip and fall on the ice. Although I am not bound by the Tribunal decision in R.M. v. Certas, like Adjudicator Fricot, I too find that neither the proximity to the vehicle nor the use of the key fob to unlock the vehicle caused her to fall¹⁰.

31Upon examining the facts of this matter, it is clear the direct cause of the applicant’s injuries was not the use and operation of the vehicle. The applicant had not yet reached her vehicle when she fell on the ice. The ice was the “dominant feature” of this incident. The nexus between the use or operation of the motor vehicle is simply too remote. I am not otherwise persuaded that her walking towards the vehicle activating the key fob was an unbroken chain of events related to her entry into the vehicle.

32I find this matter distinguishable from the events in C.K.D. v. Wawanesa (“C.K.D.”)¹¹, where the applicant was reentering his vehicle after buying lotto tickets at a gas station and it was determined it was an “accident”. Here, there was no continuous journey, nor was the applicant reentering the vehicle. Unlike the finding in C.K.D., I cannot conclude in these circumstances that the applicant’s slip and fall was secondary to the applicant’s entry into the vehicle¹².

33Similarly, I find this matter distinguishable from the Tribunal decision in Duah v. Wawanesa Mutual Insurance Company¹³. With respect, I have reached a different conclusion than Adjudicator Gosio, in that I cannot otherwise conclude that a slip and fall outside of a vehicle is a normal risk created by the use and operation of a motor vehicle. Rather, falling on ice is a foreseeable and common risk when walking in parking lots in the winter, regardless of whether a motor vehicle is involved. Put another way, the ice in this matter was the dominant feature of the fall, not the use or operation of the motor vehicle.

34Similarly, I also reject the applicant’s submissions that ice and snow around an automobile are a foreseeable risk related to the use and operation of a motor vehicle, as anticipated by manufacturers. While motor vehicles are designed with features like windshield wipers, window defrosters, all season tires and other standard safety features to assist in winter driving, the risk of walking towards your vehicle in an icy parking lot cannot be equated with driving a motor vehicle on a snowy highway. The risk of ice in the parking lot would have been present regardless of whether the vehicle was parked there or not

35As in Duncan v. The Cooperators General Insurance Company¹⁴, the only role of the vehicle in this case was to bring the applicant to the location of the slip and fall. While I generally agree that causation should be liberally applied in relation to the use and operation of a motor vehicle, a liberal interpretation has its limits. I am bound by the decision in Porter where the Court stated that direct causation requires more than the motor vehicle simply being the reason or destination for why the applicant was present at this location when the slip and fall occurred.

36Ice in the parking lot was the clear and independent cause of the applicant’s injury. This is further supported by the clinical notes and hospital records provided by the applicant. Nowhere in these records does it cite any reference to the vehicle as a cause of her injuries. However, there are entries in the records to her slipping on ice.¹⁵ Clearly, the applicant’s self-reporting cited her slip and fall as the cause of her injuries. Only the Occupational Therapy Report (dated June 11, 2020, i.e., several months after the incident) makes any reference to the vehicle.¹⁶

37I have utilized the tools from Greenhalgh to permit a fulsome analysis of this factual matrix. Any analysis is contextual and based largely on the facts of each individual case. While I do not dispute the applicant was in the parking lot for the sole purpose of entering her vehicle that date, the direct cause of her injuries was not related to her intended entry into the vehicle. Her injuries were due to ice in the parking lot, which was the “dominant feature” of this incident. The location of the vehicle was ancillary, as the ice would have been present regardless of the location of the vehicle.

38According to the facts in this case and the test from the applicable case law, I cannot conclude the use or operation of an automobile directly caused the applicant’s injuries. Thus, this incident does not meet the definition of an “accident” as per s. 3(1) of the Schedule.

ORDER

39The applicant has not demonstrated the incident on March 3, 2020 constituted an “accident”, as defined in s. 3(1) of the Schedule.

40The written hearing scheduled for January 31, 2022 shall be cancelled.

41The application shall be dismissed, and the Tribunal file shall be closed.

Footnotes

1. 12004 CanLII 21045 (ON CA).
2. 2[2012] O.F.S.C.D. No. 102, at para. 70.
3. 32020 CanLII 35505 (ON LAT).
4. 4Greenhalgh at para. 37.
5. 52019 CanLII 22204 (ON LAT).
6. 6Greenhalgh at para. 49.
7. 7Ibid.
8. 82002 CanLII 45020 (ON CA) at para. 34.
9. 92021 ONSC 3107.
10. 102019 CanLII 22204 (ON LAT) at paras. 19-20, 32.
11. 112020 CanlII 80305 (ON LAT).
12. 12Ibid. at para. 34.
13. 132021 CanLII 19484 (ON LAT).
14. 142021 CanLII 18914 (ON LAT).
15. 15Dr. Raaj Vora Consultation Note March 9, 2020, Soldiers Memorial Hospital Emergency Record March 3, 2020, Outpatient Clinic-OL Fracture Clinic Soldier’s Memorial Hospital March 9, 2020. Tabs 2 and 3a of the Applicant’s Submissions.
16. 16Occupational Therapy Report dated June 11, 2020 by Claudia Maurice. Tab 1 of the Applicant’s Submissions at pages 1-2.