Citation: A.S. v. BelairDirect, 2021 ONLAT 19-000539/AABS

Release date: 2021/03/11

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:

[AS]

Applicant

and

BelairDirect

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Maurice Benzaquen, Counsel

For the Respondent:

Tom Yen, Counsel

Deanna Miller, Counsel

HEARD:

by way of written submissions

OVERVIEW

1[AS] (“applicant”) was allegedly injured on February 21, 2018 when he tripped and fell on a raised ledge at an auto show near a displayed vehicle (the “incident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2BelairDirect (“respondent”) denied benefits claimed by the applicant. The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

4By Order made August 22, 2019, the Tribunal ordered that the preliminary issue below be heard. For the purpose of this hearing, “automobile” and “vehicle” hold the same meaning.

PRELIMINARY ISSUE

5The preliminary issue to be decided is:

i. Do the applicant’s injuries arise out of the use or operation of an automobile and meet the definition of an “accident” as defined in s. 3(1) of the Schedule?

RESULT

6The applicant was not involved in an “accident” as defined in the Schedule. The application is dismissed.

LAW

7Section 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 damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

8The courts have established a two-part test to determine whether an insured was involved in an accident: whether the use or operation of an automobile was involved in the incident (the purpose test) and, if so, whether such use or operation directly caused the claimant’s injuries (the direct cause test).²

9If it can be established that the use or operation of an automobile was the cause of the injuries, then it must be established that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the “ordinary course of things”. The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”³

10The application of this test to the facts of this case is as follows.

ANALYSIS

Positions of the Parties:

11The applicant submits that he was injured in an “accident” and that both the purpose test and the direct cause test are met because his attempt to enter into a parked vehicle for purposes of checking it out was an ordinary and well known activity to which automobiles are put and his injury was caused by crashing into a display for parked vehicles. The applicant also submits that there was some nexus or causal relationship between his injuries and the ownership, use or operation of this vehicle. The applicant submitted into evidence his OCF-1 (application for accident benefits), the transcript of his July 23, 2018 examination under oath (“EUO”), the April 15, 2019 report of Walters Forensic Engineering, photographs and a 2014 scientific article. Further, the applicant submits that he meets the definition of “insured person” in s. 3(1) of the Schedule because he was an “occupant” of the KIA van at the time of the accident as defined in s. 224 (1)(c) of the Insurance Act.⁴ The applicant also relies on Economical Mutual Insurance Company v. Caughy⁵ and Amos v. Insurance Corp. of British Columbia.⁶

12The respondent’s position is that the incident does not meet the purpose test because the vehicle was on stationary display at an auto show and the applicant brought forward no evidence that he or anyone intended to use or operate it. On the causation test, the respondent submits that the applicant’s injuries were not directly caused by the use or operation of the automobile but the raised ledge on which he tripped and fell. Therefore, the incident is not an “accident” as defined in s. 3(1) of the Schedule.

Did the applicant’s injuries arise out of the ordinary or well-known use or operation of an automobile (the purpose test)?

13After reviewing the evidence and submissions of both parties, I find the purpose test is not met because the applicant’s injuries did not arise out of the use or operation of an automobile.

14Although the applicant submitted his OCF-1, the application is not evidence that the applicant’s injuries were caused by an “accident” as defined in the Schedule but a statement of the applicant’s claim. Further, although the applicant states in his OCF-1 that he was “on my way to enter a vehicle at the show when…I tripped and fell on a raised ledge”, he did not testify he was going to enter the vehicle in his EUO.

15The 2014 scientific article is not evidence to which I am able to assign any weight. At most the article constitutes discussion of a general proposition that an individual’s speed increases as he or she focuses on a target. This is insufficient to establish, as the applicant suggests, that his narrowed attention on the KIA van increased his speed and contributed to the incident and alleged resulting injuries.

16The April 15, 2019 report of Walters Forensic Engineering concludes that viewing the KIA van was a contributing factor to the applicant’s incident and increased risk of tripping, falling and being injured. I give this report little weight. Firstly, it was prepared more than one year after the incident. Secondly, the source of the factual basis for the engineering analysis is not stated and the authors of the report do not state they have interviewed the applicant as to what happened. The factual basis for the opinion stated has not been established and the conclusion is therefore speculative. Thirdly, the legal test is not whether viewing the vehicle was a contributing factor to the incident but whether the applicant’s injuries arose out of the use or operation of the automobile (the purpose test) and whether the use or operation of the automobile directly caused the applicant’s injuries (the causation test).

17At his EUO, the applicant admitted that as he was on his way to the KIA display at the auto show, following the signs, he came around the corner and there was a raised area to the left that was difficult to see because it was the same colour as the floor. He didn’t notice it and the next thing he knew he was flying forward. The applicant also admitted that where he tripped was not part of the KIA display, no part of his body made contact with the KIA van at any time, when he landed he was in the KIA booth a few steps from the van and that he never actually had anything to do with the KIA van other than that he could see it in front of him. The applicant testified that “I was almost there and then boom”.

18The ambulance report and the hospital emergency department records both note the applicant tripped on an uneven floor. Dr. Baum, the applicant’s family physician, noted on February 22, 2018 that the applicant had a fall at the auto show. Dr. Theodoropoulous, the applicant’s orthopaedic surgeon, noted on February 27, 2018 that the applicant had a fall at the auto show. None of these medical records note the involvement of a motor vehicle. Although the applicant argues in reply that it is “obvious” that the purpose of going to an auto show is to enter vehicles for the purpose of checking them out, the lack of a record of the applicant’s involvement with an automobile at the time of injury leaves me with a lack of corroborating documentary evidence of the applicant’s position.

19The photograph taken by the employee of the applicant’s counsel a day after the incident only shows the general location of the incident and is of little assistance.

20The weight of the evidence is clear that the applicant’s injuries did not arise out of the use or operation of an automobile and I so find. The applicant tripped and fell.

21I find unpersuasive the applicant’s submission that the purpose test is met because his attempt to enter into a parked vehicle for the purpose of checking it out was an ordinary and well known activity to which automobiles are put and his injury was caused by crashing into a display for parked vehicles. The display of a vehicle at an auto show does not constitute ordinary use or operation of an automobile. Further, there is no evidence that the applicant attempted to enter the vehicle. The applicant fell before he got to the vehicle.

22The applicant relies on the Economical and Amos cases which I find are not helpful here given that the applicant did not trip over a parked vehicle as in Economical or make contact with the vehicle during the incident.

23The applicant’s submission that he is an “insured person” under s. 3(1) of the Schedule because he was an “occupant” of the KIA van at the time of the accident as defined in s. 224(1)(c) of the Insurance Act and s. 3(1)(c) of the Schedule is not persuasive. Section 224(1)(c) of the Insurance Act defines an “occupant” as “a person getting into or on or getting out of or off the automobile”. The definition of an “insured person” in s.3(1)(c) of the Schedule includes an occupant of the insured automobile who is or was a resident of Ontario 60 days before the accident, if the accident occurs outside Ontario, making it clear that for an “occupant” to be an “insured person” under the Schedule, an “accident” must have taken place. The focus of the legal analysis here is whether an “accident” has taken place. This is correctly identified as the issue in the Tribunal’s August 22, 2019 Order. Whether the applicant was an “occupant” of the KIA van is only relevant if there has been an “accident”.

24I find unpersuasive the applicant’s submission that there was some nexus or causal relationship between the applicant’s injuries and the ownership, use or operation of this vehicle. Section 3(1) of the Schedule does not refer to ownership. Further, the fact that the applicant fell near the vehicle is not enough to establish that his injuries arose from the use or operation of an automobile despite the applicant’s submissions to the contrary. To meet the definition of “accident” in s. 3(1) of the Schedule the use or operation of an automobile must directly cause an impairment or damage, not just be nearby.

Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?

25The Court of Appeal for Ontario⁷ has found the following considerations to be useful in determining whether direct causation has been established:

i. whether the incident would have occurred “but for” the use or operation of the automobile;

ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and

iii. whether the use or operation of the automobile was the dominant feature of the incident.

26As I have found the purpose test has not been met, further analysis concerning the direct causation test is not necessary.

ORDER

27For the reasons above, I find that the applicant was not involved in an “accident” as defined in the Schedule. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, 1995 CanLII 66 (SCC) [Amos]; Chisholm v. Liberty Mutual Insurance Group, 60 OR (3d) 776, 2002 CanLII 45020 (ONCA) [Chisholm]; Greenhalgh v. ING Halifax Insurance Company, 72 OR (3d) 338, 2004 CanLII 21045 (ONCA) [Greenhalgh]; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 [Economical]. The causation test in Amos has been altered by Ontario courts to account for the requirement of direct causation in the Schedule (Chisholm at para 20; Greenhalgh at paras 23-24; Economical at para 14).
3. 3Economical, supra note 2 at para 14.
4. 4R.S.O. 1990, c. I, s. 224 (1)(c).
5. 5Economical, supra note 2.
6. 6Amos, supra note 2.
7. 7Chisholm, supra note 2; Greenhalgh, supra note 2 at paras 12, 35-36.