Northbridge Personal Insurance Corporation v. Robinson, 2021 CanLII 62541

Citation and Parties

Citation: Northbridge Personal Insurance Corporation. v. Robinson, 2021 ONLAT 19-009743/AABS Released Date: 07/14/2021

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:

Northbridge Personal Insurance Corporation

Applicant

and

Kalob Robinson

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Linda Kiley, Counsel

For the Respondent: Edmond Paquette, Counsel

HEARD: By Way of Video Conference June 28 and 29, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Northbridge Personal Insurance Corporation ("applicant") has been paying accident benefits to Kalob Robinson ("respondent") as a result of an incident on December 20, 2018 ("incident") in which the respondent suffered injuries which rendered him a paraplegic. During the incident the respondent and two friends were attempting to load a 2005 GMC Sierra truck ("vehicle") onto a trailer in order to move it to another location to be repaired. The trailer was attached to a Dodge truck driven by one of the two friends helping the respondent.

2The applicant submits that it has been paying benefits to the respondent as a goodwill gesture only as the respondent's injuries are not a result of an "accident". The applicant seeks a determination of whether the incident meets the definition of an "accident" as defined under s. 3(1) of the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

3The Tribunal's February 24, 2020 case conference Order ("Order") ordered that the preliminary issue below be heard. For the purpose of this hearing, automobile and vehicle hold the same meaning.

PROCEDURAL ISSUE RAISED BY RESPONDENT AT OUTSET OF HEARING

4The respondent requested that this application be dismissed without a hearing because the issue "Was the respondent involved in an "accident" as defined in the Schedule (s. 3(1)) relating to the vehicle insured by the applicant?" is too narrowly framed by the Order given that there is a priority dispute between the applicant and insurers not parties to this application in another forum.

5The applicant opposed the respondent's request because the hearing concerns a threshold issue which the applicant is entitled to have determined as provided for in the Order. The priority issue with other insurers will be determined in another forum.

6I deny the respondent's request to dismiss the application without a hearing. The preliminary issue, as framed in the Order and confirmed in several post-case conference Tribunal Orders, is a threshold issue to the dispute between the two parties to this application and is properly before me for determination. The determination of issues between the applicant and/or respondent and/or other insurers who are not parties to this application is not before me. I confine my determination to the preliminary issue as outlined in the Order.

PRELIMINARY ISSUE

7The preliminary issue to be decided is:

i. Was the respondent involved in an "accident" as defined in the Schedule (s. 3(1)) relating to the vehicle insured by the applicant?

RESULT

8The respondent was not involved in an accident as defined in s. 3(1) of the Schedule relating to the vehicle insured by the applicant.

LAW

9Section 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 prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

10The 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 ("purpose test") and, if so, whether such use or operation directly caused the claimant's injuries ("direct cause test").²

11If 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 thing". The question is whether it can be said that the use or operation of the automobile was a "direct cause" of the injuries."³

12The application of this test to the facts of this case is as follows.

ANALYSIS

Positions of the Parties:

13The applicant's position is that the incident does not meet either the purpose test or the causation test because the respondent's injuries were not the direct result of the use and operation of the vehicle because it was not roadworthy, had not been operational for some time prior to the incident and the respondent's injuries occurred while he and others were loading the vehicle onto a trailer. Therefore, the incident is not an "accident" as defined in s. 3(1) of the Schedule.

14The respondent submits that he was injured in an "accident" and that both the purpose test and the direct cause test are met because the respondent was injured when he was attempting to move the vehicle onto a trailer attached to a Dodge truck. The respondent submits that a trailer is a vehicle. The trailer was attached to an operable Dodge truck. Therefore the Dodge truck and the trailer caused the accident because although the vehicle contacted the respondent's body and injuries resulted, the injuries would not have occurred "but for" the use of the trailer attached to the Dodge truck and the respondent's injuries are a direct result of the use of the vehicle.

15Otherwise, the respondent submits, he may have to reapply to other insurers who are not parties to this application as the Dodge truck and the trailer may have other insurers. The respondent submits that this is not the purpose of the Schedule. While the applicant is only interested in having a determination as to whether or not the vehicle it insured was in an accident, the respondent submits that this is too narrow and the Order is too narrowly worded. The respondent submits that I should determine whether an accident took place. The rest will be figured out in the insurer's priority dispute proceeding. The fact that the vehicle was inoperable doesn't really matter. The question to be determined, in the respondent's view, is "did an accident take place?"

Did the respondent's injuries arise out of the use or operation of an automobile (the purpose test)?

16Having considered the evidence, submissions and case law submitted by both parties, I find the purpose test is not met because the respondent's injuries were not the direct result of the ordinary use or operation of the vehicle insured by the applicant.

17The applicant's evidence, including the testimony of the respondent, clearly establishes that the vehicle at the time of the incident, was missing many parts, was not roadworthy and not driveable under its own power.

18Greg Smith Sr., the owner of the vehicle, testified that he had provided the vehicle to his son for the son's use and when he visited his son they talked about the vehicle. About one month before the incident, Greg Smith Sr. became aware that the vehicle had become totally inoperable because the rear differential and rear drive shaft were gone, the left front axle had failed, the front and rear wheels did not work and the rear hydraulic brake had been disabled. The vehicle could not move under its own power on the date of the incident.

19The respondent confirmed in his testimony that the vehicle was not driveable on the date of the incident. He testified that when he and his two friends wanted to put the vehicle on the trailer, they could not drive it onto the trailer but had to push it into the street and then get it up onto the trailer using a tool called a come-along.

20Constable McLean, the investigating officer at the scene of the incident, testified that there was no evidence to indicate the vehicle was driven onto the trailer and from his observations made at the scene of the incident he believes that the vehicle was pulled onto the trailer with a come-along. When Constable McLean arrived at the scene the front end of the vehicle was on the trailer and the back end was on the ground and the respondent was pinned underneath until freed by EMS.

21The applicant's mechanical engineers at HRYCAY Consulting Engineers Inc. opined in their June 17, 2021 supplemental report that due to its mechanical issues the vehicle was inoperable at the time of the incident as it would not be able to move under its own power.

22The respondent's injuries occurred while he and others were loading the vehicle onto a trailer to move it to another location with the intent of repairing it.

23The moving of a vehicle incapable of motoring does not constitute in my view the ordinary use or operation of the vehicle. The vehicle was inoperable as clearly established by the applicant's evidence and admitted by the respondent. It could not be used for its ordinary purpose, motoring, because it could not move or be operated under its own power. The vehicle had ceased to be a motor vehicle that could be motored in and became an object that used to be a motor vehicle.

24I find unpersuasive the respondent's submission that he may have to reapply to other insurers who are not parties to this application depending on the outcome of this hearing. The respondent submits that this is not consistent with the consumer protection purpose of the Schedule. The respondent submits that I should determine whether an accident took place. The rest will be figured out in the insurer's priority dispute proceeding. The respondent submits that the fact that the vehicle was inoperable doesn't really matter. The question to be determined, in the respondent's view, is "did an accident take place?"

25I disagree with the respondent. This submission does not take into account the prescribed legal test, namely whether the respondent was involved in an accident related to the vehicle insured by the applicant as defined in s. 3(1) of the Schedule. The analysis required to determine if an accident took place as defined in s. 3(1) has been set out by the Court as described above. Here, the analysis must be confined to whether an accident took place as defined in s. 3(1) relating to the vehicle insured by the applicant. That is the issue referred to me for determination in the Order.

26I also find unpersuasive the respondent's submission that the Dodge truck and the trailer caused the accident because although the vehicle contacted the respondent's body and injuries resulted, the injuries would not have occurred "but for" the use of the trailer attached to the Dodge truck and so the respondent's injuries are a direct result of the use of the vehicle. The "but for" consideration is part of the direct cause test. As noted by Laskin, J. noted in Chisholm⁴, the purpose of the "but for" test of causation is an exclusionary test which serves to "eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation."

27Here, the "but for" test does not assist with the analysis of whether the purpose test is met. If the purpose test is not met, the "but for" submission is not relevant. Even though the respondent was in the process of moving the vehicle onto a trailer, legal entitlement to accident benefits "requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause."⁵ Manually moving the vehicle with human power assisted by tools is not equivalent to operating the vehicle but instead is the opposite of operating it. At the time of the incident the respondent and his two friends were moving the vehicle with their own strength and know how precisely because the vehicle could not move under its own power.

28Taken in totality, the weight of the applicant's evidence is clear that the respondent's injuries did not arise out of the ordinary use or operation of the vehicle and I so find.

29To 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. In other words, the purpose test must be met. If so, the causation test set out below must also be met. Here, the purpose test is not met for the foregoing reasons.

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

30Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal⁶:

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.

31As I have found the purpose test has not been met, further analysis concerning the direct cause test is not necessary.

ORDER

32For the reasons above, I find that the respondent was not involved in an accident as defined in s. 3(1) of the Schedule relating to the vehicle insured by the applicant.

Footnotes

1. 1O.Reg. 34/10
2. 2Amos 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 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA); Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.
3. 3Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 para 14.
4. 4Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA).
5. 5Ibid., para 26.
6. 6Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).