Reeves v. Motor Vehicle Accident Claims Fund, 2022 CanLII 106442

Citation: Reeves v. Motor Vehicle Accident Claims Fund, 2022 ONLAT 20-010860/AABS – PI

Licence Appeal Tribunal File Number: 20-010860/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:

Paul Reeves

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

PRELIMINARY ISSUES DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Michael Lee, Counsel

For the Respondent:

Todd Wasserman, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1Paul Reeves (the “applicant”) was injured on June 16, 2018 when he rode over a spill on the road. The respondent denied payment of the benefits on the basis that the incident did not fall under the definition of an “accident” as defined by subsection 3(1) of the Schedule. As a result of his injuries, the applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2020 (the “Schedule”)¹.

PRELIMINARY ISSUE

2I have been asked to decide the following issue:

i. Whether the applicant was involved in an ‘accident’ as defined in s. 3(1) of the Schedule.

RESULT

3The applicant’s injuries sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.

FACTS

4On June 16, 2018, the applicant was riding his electric motorized bike (‘e-bike’) in the curb lane northbound on Yonge Street near the intersection of Industrial Road. The applicant alleged that he rode over a patch of motor oil which was left on the road. This caused his e-bike to skid. He lost control and fell off of his e-bike. As a result, he fractured his left knee and sustained injuries to his shoulder, neck and back.

PARTIES’ POSITIONS

5The applicant submitted that the motor oil that caused him to lose control of his e-bike was spilled during the ordinary use or operation of an automobile and that motor oil directly caused his injuries. The applicant submitted that the purpose and causation test has been satisfied on a balance of probabilities and as a result, the applicant was involved in an “accident” as defined in section 3(1) of the Schedule and thus is entitled to statutory accident benefits.

6The respondent’s position is that all of the information related to the substance on the roadway is based on the applicant’s self-reporting. The police information, the rehabilitation records and the in-home assessment were all based on the description provided by the applicant more than a week after the incident. Moreover, the respondent submitted that there were no witnesses to the incident involving the applicant.

7Furthermore, the cause of the spill is not addressed in the report provided by the City of Richmond Hill. The respondent submitted that:

The City’s records do not provide significant detail regarding the spill except to note that the informant advised that the spill was located in front of the plaza which continues around the corner; the crew on scene advised that the spill goes from Yonge to Enford on Industrial. Even if we accept the applicant’s description that the spill was 20 feet at noon, the spill was the width of a city block by 1:44 p.m. when it was reported to the City of Richmond Hill. This suggests that the spill continued for some time and was not simply the result of a passing truck.

8The respondent asserted that there were many automotive related businesses in the vicinity of the incident which are more likely to be the source of the spill.

LAW

9Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.²

10The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

ANALYSIS

Was the incident an “accident”?

11For the following reasons, I find that the applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.

12The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows³:

a. Purpose test: did the incident arise out of the use or operation of an automobile, and

b. Causation test: did the use or operation of an automobile directly cause the impairment.

13The first stage or purpose test is a determination of whether the incident involves “the ordinary and well-known activities to which automobiles are put”.⁴ Said another way, for what “purpose” was the vehicle being used at the time of the incident?

14The second stage or causation test 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.⁵

• 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”.

15The application of this test to the facts of this case follows.

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

16The applicant conceded that the e-bike is not a motor vehicle. However, he submitted that the motor oil was spilled during the ordinary use or operation of an automobile and that motor oil directly caused his injuries. The applicant is relying on Petrosoniak v. Security National Insurance Company (1998), F.S.C.O. A98-000198 (‘Petrosoniak’) in support of his case. In Petrosoniak, the applicant was a cyclist who was injured from hydraulic fluid leaking from a vehicle. In Petrosoniak, Arbitrator Novick stated that:

Although there was no direct evidence of where that fluid came from, in my view, it is reasonable to conclude that it was emitted from a motor vehicle that drove southbound on Warden Avenue in the curb lane…In arriving at this conclusion, I have considered the fact that the substance in question lay exclusively on the roadway and not on the curb…Although it would have been preferable to have more conclusive evidence on this point, I am persuaded by the factors set out above that on a balance of probabilities, the liquid in question did emanate from a truck.

17It was submitted that the reasons and analysis of Arbitrator Novick should be considered as persuasive in this matter as it is identical to the factors decided in Petrosoniak. However, the applicant did not provide cogent submissions or an analysis as to why and how he met the purpose and causation tests. Rather it was stated that he did.

18The respondent submitted that this case is distinguishable from Petrosoniak. In Petrosoniak, the applicant was able to demonstrate that the incident took place near the construction of Highway 407, and that there were many dump trucks travelling over the incident location. The arbitrator found that even though it would have been preferable to have conclusive evidence of where the fluid came from, she was persuaded that the fluid came from a truck. It is the respondent’s position that in his case, there is no direct evidence about the character of the substance involved in the incident.

19The onus is on the applicant to prove that the use or operation of a vehicle caused his injuries. Counsel for the applicant submitted that the applicant was unable to provide an affidavit because he passed away on May 25, 2021. It should be noted that the parties agreed that no affidavits would be exchanged as the Case Conference Report and Order of Adjudicator Hines dated March 2, 2021. Moreover, the parties had until May 12, 2021 to disclose any items that have not been previously disclosed, but which they intended to present as evidence at the hearing.

20If it was determined by the applicant’s counsel that an affidavit needed to be filed and the respondent consented, the applicant’s counsel had the opportunity to obtain an affidavit before the applicant passed away. I also note that there is no motion order that speaks to an affidavit being filed. Although it is quite unfortunate the applicant has passed away, I am not persuaded by the explanation provided by the applicant’s counsel in relation to the lack of an affidavit.

21With respect to the evidence that the applicant is relying on in support of his case, I find that the information found in the York Regional Police Occurrence Hardcopy, the Initial Intake and Assessment of North Toronto Rehab and the In-Home Assessment Report of Simranjeet Singh Mann, R.N. is based on the applicant’s self-reporting of the incident. Moreover, he did not report the incident to the police until a week after. Other than these documents, the applicant did not provide any evidence that supports his position. There is nothing that ties the spill to the use or operation of an automobile.

22The respondent is relying on records from the City of Richmond Hill. Under the Remarks section, it is noted that there was a minor oil spill on the road in front of the Shoppers Drug Mart Plaza. It was found that the spill was from Yonge St to Enford Rd on Industrial Rd. Crews were sent to apply Absorball. It is documented that it was a gasoline or fuel related incident. The report does not establish where the spill originated from.

23Both parties made submissions that were speculative in nature and not grounded in the facts or evidence as to the origins of the spill. Based on the evidence before me, I am unable to make a finding that the spill came from the use or operation of an automobile. Moreover, I am not bound by the decision in Petrosoniak. This case is distinguishable from Petrosoniak because the applicant hasn’t established that the spill was from an automobile. The onus is on the applicant to prove his case. I find that he did not. Therefore, the purpose test has not been met.

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

24The Court of Appeal for Ontario has found the following considerations to be useful in determining whether direct causation has been established⁶:

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.

25As I have found the purpose test has not been met, further analysis concerning the direct causation test is not necessary.

CONCLUSION AND ORDER

26For 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 as amended.
2. 2Supra note 1.
3. 3Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA) at para 17; Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (Greenhalgh)at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
4. 4Greenhalgh.
5. 5Ibid, at paras. 37 – 49.
6. 6Supra note 4 at paras 37-49