Edmonds v. COSECO Insurance Company, 2021 CanLII 19490

Edmonds v. COSECO Insurance Company

Citation: Edmonds v. COSECO Insurance Company, 2021 ONLAT 20-006226/AABS Released: March 11, 2021 Tribunal File Number: 20-006226/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

Kelly Edmonds Applicant

and

COSECO Insurance Company Respondent

MOTION DECISION

Decision made by: Craig Mazerolle Date of decision: March 11, 2021 HEARD: By way of written submissions

OVERVIEW

1This decision concerns the preliminary issue raised by the respondent¹ during the November 27, 2020 case conference: whether the incident that occurred on February 22, 2019 was an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule (the “Schedule”)²?

2A determination that the incident constitutes an “accident” will entitle the applicant to receive accident benefits from the insurer.

3For the following reasons, I find that this incident does not constitute an “accident”.

INCIDENT

4There is no factual dispute between the parties.

5On the morning of February 22, 2019, the applicant left her home with the intention of driving to work. After placing her work bag in the trunk, the applicant began to move around her vehicle to get in the driver’s seat.

6At this time, the applicant noticed that the ground was icy. As such, the applicant stepped carefully, with her right hand moving along the driver’s side of the vehicle. Her right hand stayed on the vehicle throughout this entire, calculated movement, as she then attempted to use her left hand to open the driver’s seat door. Despite these efforts to keep herself upright, the applicant slipped on the ice, hit her head on the vehicle, and then her head, right shoulder, and right hip made contact with the ground.

7The applicant did not manage to open the driver’s seat door before falling.

8Considering this account matches the transcript from the applicant’s Examination Under Oath (conducted on July 26, 2019), I accept this description of the incident. I also note the applicant’s description of her injuries (as detailed in the Examination Under Oath) included a concussion, as well as pain in her neck, right shoulder, lower back, and right hip.

9Though I do not find this discrepancy is determinative for the reasons to follow, I do note that the Disability Certificate (signed by the applicant on April 12, 2019) makes no mention of hitting her head against the vehicle in the section entitled “Accident Description”.

DEFINING AN “ACCIDENT”

10Subsection 3(1) of the Schedule defines an “accident” as follows: “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”.

11Both parties cite the Court of Appeal for Ontario’s decision in Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”)³ for the two-part framework that adjudicators should consider when making this determination:

1. Did the incident arise out of the use or operation of an automobile?
2. Did this activity directly cause the impairment?⁴

12The first stage is a determination of whether the incident involves “the ordinary and well-known activities to which automobiles are put”.⁵ Said another way, for what “purpose” was the vehicle being used at the time of the incident?

13The second stage 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.⁶

• 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”.

14Overall, the case of Webb v. Wawanesa Mutual Insurance Company Co. reminds 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.”⁷

PARTIES’ POSITIONS

15Both parties agree that the incident involved “ordinary and well-known activities to which automobiles are put”, though the applicant has a more expansive version of this “purpose”. Briefly, the respondent conceded that the “purpose” test is met, as the applicant had placed her hand on the vehicle. In contrast, the applicant had a more fulsome account of the “purpose”, stating the incident involved the process of getting into the vehicle.

16Regardless, the parties’ main disagreement is over whether any of these activities were the direct cause of the applicant’s impairments. The respondent submits that the proximity of the applicant’s fall to her vehicle does not render this incident an “accident”. Though the vehicle was a part of the incident, the icy ground was the main cause of her fall and injuries. Put another way, the ice surrounding the vehicle was the “dominant feature” and “intervening act” that best characterizes the incident—not the incidental proximity of the vehicle.

17To support this analysis, the respondent provided the Tribunal with a number of cases where decision-makers concluded that falls brought on by slippery weather conditions are not “accidents”. Of particular note is R.M. v. Certas Direct Insurance Company (“R.M.”),⁸ as the respondent asserted that it shares “a near-identical factual matrix” with the present incident. Therefore, while past cases are not binding on the Tribunal, the respondent still submitted that “a different finding [in this case] … will result in unnecessary uncertainty.”

18In response, the applicant argued that the “dominant feature” of the incident was not the ice, but rather the fact that she was “leaving for work”—a goal that the required her to walk across the ice surrounding her vehicle. As such, the ice was a “secondary” aspect of the incident. In support of this position, the applicant cited several cases from the Tribunal where similar falls were considered “accidents”: i.e., C.K.D. v. Wawanesa Mutual Insurance (“C.K.D.”)⁹ and K.P. v. Aviva General Insurance (“K.P.”).¹⁰

19In C.K.D., the adjudicator found there was no intervening act, as the walk towards the vehicle, followed by the slip and fall, all “consisted of one continuous chain of events”.¹¹ Then, the adjudicator in K.P. found that the “dominant feature” of that slip and fall was “the distance the applicant was required to travel in order to get into the car.”¹²

20Additionally, the applicant highlighted D.S. v. TD Insurance Meloche Monnex (“D.S.”)¹³ for the proposition that injuring oneself when falling against a vehicle will establish, in her words, a “causal link” between the vehicle and one’s injuries.

ANALYSIS

21After reviewing the facts and case law, I am not satisfied that the “ordinary and well-known activities” that the applicant’s vehicle was put to on the morning of February 22, 2019 were the direct cause of the applicant’s impairments. As such, I find that this incident does not constitute an “accident” under the Schedule.

Purpose Test

22To start, I accept the applicant’s broader conception of the “purpose” at issue. As opposed to limiting my analysis to the act of placing a hand on the vehicle door, I find the incident rather comprised the larger activity of getting into the vehicle. Additionally, I do not find the fact that the driver’s seat door was not open to be determinative, as this action was clearly one of the overall intentions of the applicant in that moment.

23However, I do not find that the applicant meets the second stage of the Greenhalgh framework.

Causation Test

24Once again, 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, again, these cases are highly fact specific. Rather, I have reached my conclusion based on a comprehensive review of the facts before me—an analysis that is guided, in part, by the past findings of my colleagues.

25First, similar to the line of reasoning used by the adjudicator in K.P. at paragraph 25, I find that the applicant has met the low threshold of the “but for” test. Briefly, as the applicant stated in her submissions, the incident and subsequent impairments would not have happened “but for” the applicant’s need to enter the vehicle to drive to work.

26I then find that there is no “intervening act” at play. Relying on R.M., the respondent contended that the ice surrounding her vehicle amounted to an “intervening act”, as the process of entering the vehicle was interrupted by this unrelated event. However, if this logic was applied to other circumstances, could it not be said that a driver spinning out of control on an icy highway was not involved in an “accident”? Clearly such an interpretation would be absurd, and so I am not convinced that this line of reasoning is the best tool to understand this specific set of circumstances.

27Instead, I find that the “dominant feature” consideration is the most appropriate tool to help understand the relationship between this incident and the definition of an “accident”.

Dominant Feature Consideration

28As 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.”¹⁴ For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her car stuck on a country road. In dismissing the claim of an “accident”, Justice Labrosse found, inter alia, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure to the elements, and that the use of the motor vehicle was ancillary to that injury.”¹⁵

29One could argue that there is a closer proximity between the applicant and the vehicle in this case, since the insured person in Greenhalgh ended up leaving her car to find help. There is also the fact that the present applicant was in physical contact with the vehicle during the incident. However, these differences are, in my opinion, superficial. Instead, I find that the “dominant feature” of the incident before me is the applicant slipping on the ice. The presence of her vehicle is ancillary to the events that led to her injuries.

30In this same vein, I cannot say that the applicant falling against her vehicle was the most direct cause of her impairments. Beyond the aforementioned discrepancy between the Disability Certificate and her Examination Under Oath (i.e., the former did not mention hitting the vehicle during her fall), I find the case law presented by the applicant is distinguishable. That is, the applicant provided the case of D.S. to suggest that hitting a parked vehicle during a slip and fall creates a link between one’s injuries and the vehicle. However, upon reviewing the facts of D.S., I do not share this point of view. Instead, I again find the “dominant feature” consideration is of assistance.

31In the case of D.S., the applicant had been running in the early hours of the morning, when he tripped and fell headfirst into a parked automobile. According to one of the applicant’s experts, this series of events was akin to a diver’s head making contact with the bottom of a pool—a forceful impact that led to serious injuries. When considering this set of circumstances, I can accept that making headfirst contact with this parked automobile was the “dominant feature” of this incident. Put another way, without the vehicle, it seems likely that the slip and fall would have transpired in a very different fashion, e.g., the applicant might have fallen and slid across the ground.

32Therefore, even if I accept that the applicant hit her head on the vehicle, I am not satisfied that contact with her vehicle was the “dominant feature” of this incident and the related injuries. Instead, the incident would have likely transpired in a similar fashion had the vehicle not been as close—for instance, if she had fallen that same morning, but this time several meters away from her vehicle.

Applicant’s Case Law

33I understand that this conclusion is at odds with the cases presented by the applicant, notably C.K.D. and K.P. However, as stated above, every case involving the definition of an “accident” must be alive to the specific facts at play. In reaching my decision that this incident is not an “accident”, I have used the tools provided by the Court of Appeal in Greenhalgh, and I have reached a different conclusion than my colleagues. However, considering the weight that the applicant has placed on these cases, I will make a few comments about how I have distinguished these earlier findings.

34First, in K.P., the applicant was injured while walking to a waiting ride share vehicle. As noted above, I accepted the adjudicator’s conclusion that “but for” the need to approach the vehicle she would not have slipped on the ice, but I part ways over the “dominant feature” analysis [emphasis added]:

The applicant submits that it was the use or operation of the Lyft car that was the dominant feature of the accident. I agree. While there is no doubt that the slipping and falling on the ice caused the injuries, this was ancillary to the fact that the Lyft driver stopped the car less than half-way up the driveway requiring the applicant to walk down the driveway in order to enter the vehicle. I find a dominant feature of the accident to be the distance the applicant was required to travel in order to get into the car.¹⁶

35This conclusion conflates the determinations underlying the “but for” and “dominant feature” considerations. While the applicants in both K.P. and the present case argued that they were only on icy ground because of their need to approach these vehicles, I find their intentions for being in these situations are best captured under the “but for” consideration. Instead, similar to the adjudicator in K.P. as cited above, I find the icy conditions were the most direct cause of the applicant’s injuries. The most direct cause of an applicant’s injuries is the underlying finding that should ground the use of the “dominant feature” analysis, and so I am satisfied that my use of this consideration is sound.

36Moving to C.K.D., I again find this case is distinguishable from the present dispute. Beyond the significant weight the adjudicator placed on this applicant’s use of a FOB (an action not included in the present case); I again differ from my colleague over the use of the “dominant feature” consideration [emphasis added]:

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.¹⁷

Similar to K.P., the adjudicator appears to have conflated the “but for” and “dominant feature” considerations to find that the reason an applicant is present in a set of circumstances must, in turn, be the “dominant feature” of that incident.

37There is no mechanistic means for using the tools from Greenhalgh, as each adjudicator must use them in a manner that allows for a fulsome analysis of the factual matrix. However, even in light of their context-specific usage, I do not agree that the impetus for why an applicant is present in a certain situation must, necessarily, mean that this impetus is the direct cause for the injuries. Instead, I find that the slip and fall on the icy ground at issue was the direct cause of the applicant’s injuries, and so it is best understood as the “dominant feature” of the incident over the ancillary use of her vehicle.

CONCLUSION

38The applicant has not demonstrated that the incident on February 22, 2019 constituted an “accident” as defined under the Schedule.

Footnotes

1. 1The respondent’s submissions stated that it has been incorrectly referred to as the “Co-operators General Insurance Company”. Its correct name is “COSECO Insurance Company”.
2. 2Effective September 1, 2010, O. Reg. 34/10.
3. 32004 CanLII 21045 (ON CA).
4. 4Ibid, at para. 10.
5. 5Ibid, at para. 11.
6. 6Ibid, at paras. 37 – 49.
7. 7[2012] O.F.S.C.D. No. 102, at para. 70.
8. 82019 CanLII 22204 (ON LAT).
9. 92020 CanLII 80305 (ON LAT).
10. 102020 CanLII 35505 (ON LAT).
11. 11C.K.D., at para. 29.
12. 12K.P., at para. 34.
13. 132017 CanLII 43837 (ON LAT).
14. 14Greenhalgh, at para. 49.
15. 15Ibid.
16. 16K.P., at para. 34.
17. 17C.K.D., at para. 34.