Buckley v. Wawanesa Insurance, 2022 CanLII 106443

Licence Appeal Tribunal

Citation: Buckley v. Wawanesa Insurance, 2022 ONLAT 20-006683/AABS – PI

Licence Appeal Tribunal File Number: 20-006683/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:

Delores Buckley

Applicant

and

Wawanesa Insurance

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Delores Buckley, Applicant

Oliver Lau Moon Lin, Counsel

For the Respondent:

Wawanesa Insurance

Nicholas Wine, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1This proceeding concerns a dispute between an insured person (the ‘applicant’) and an insurer (the ‘respondent’) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)¹ arising out of an alleged motor vehicle accident on March 4, 2020.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

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 March 4, 2020, the applicant was leaving her home and walking towards her car. She was holding her car key in her left hand. As she was about 10 to 15 feet from the motor vehicle, she slipped and fell on ice. As a result, she fractured her hip. She was on the ground for some time when her neighbour discovered her. Her neighbour helped her get into the car. The applicant then drove to McDonald’s to pick up her husband. Her husband then took her to the hospital.

PARTIES’ POSITIONS

5The applicant submitted the incident constitutes as an accident as per the Schedule. The applicant was clearly in the process of entering her vehicle at the time of the accident. She had commenced the process of entering the vehicle as she had her key positioned in her left hand. Although she did not reach the vehicle at the time of the accident, she was within 10 to 15 feet of the car at the time of the accident. Moreover, entered the vehicle and drove it following the accident.

6The applicant stated, “the transport to McDonald’s and the walk to the vehicle must be considered part of the same transaction – she was in the parking lot in an attempt to enter her vehicle and that attempt was in fact completed, albeit sometime later than what was originally intended by the Applicant.”

7The respondent submitted that the applicant has failed to meet both prongs of the tests and has therefore failed to meet her burden in proving that the incident constitutes as an accident within the meaning of the Schedule.

LAW

8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”².

9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

ANALYSIS

Was the incident an “accident”?

10For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.

11The 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.

12The first stage 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?

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.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”.

14The 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)?

15The applicant submitted that the car was being used for the ordinary and well-known activity of driving the vehicle. She was clearly in the process of entering her vehicle at the time of the accident. She had commenced the process of entering the vehicle as she had her key positioned in her left, dominant hand. Although she had not reached the vehicle at the time of the accident, she was within 10-15 feet of the car at the time of the accident. The applicant is relying on Caughy, where the Court of Appeal indicated that there was no requirement for the vehicle to be in active use at the time of the accident.

16The respondent submitted that the applicant does not meet the purpose test because she was not using her vehicle in its ordinary sense at the time of the slip and fall. The applicant was simply walking towards her vehicle when she fell on some ice. The applicant did not engage with her parked vehicle but, rather, she slipped and fell on ice as she walked to her vehicle, which was 10-15 feet away. She made no contact with her vehicle prior to the incident. Her injuries did not arise out of the use of her vehicle. Her vehicle was not implicated in her fall.

17I must first determine whether the incident arose out of the use or operation of the vehicle. I am satisfied on a balance of probabilities that the purpose test has been met because the incident arose out of the ordinary and well-known activities for which automobiles are put. I agree with the applicant that the use and operation of the car began as she was in the process of entering her vehicle. The only purpose of the applicant walking from her home towards her car was to pick up her husband. She had her key in her left hand. There was a clear intention of entering the vehicle when she slipped and fell on ice. I am not persuaded by the respondent’s position that she was simply walking towards the vehicle.

18However, I do not find the applicant meets the second stage of the Greenhalgh framework

The Causation Test

19Within 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.

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

20The applicant is relying on Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ON LAT), (‘Duah’) and submitted that “in the instant case, it is clear that but for the act of attempting to unload the groceries, the injuries would not have occurred. The Applicant would not have slipped on the ice had she not been in the process of approaching her vehicle to unload it, and indeed she would not have even entered the parking garage.” This submission is inconsistent with respect to the evidence that was provided. There is no mention made of the applicant unloading groceries and entering a parking garage, nor was this the fact pattern in Duah.

21The respondent is relying on D.M. v. Certas Direct Insurance, 2018 CanLII 76693 (ON LAT) (‘D.M.’), where the adjudicator held that the causation test was not satisfied. Under the but-for inquiry, the adjudicator found that but-for the slush on the ground, the applicant would not have slipped and fell, sustaining injuries. The applicant’s vehicle played no role in the incident and is irrelevant.’ The respondent is of the view that this can be said in the case at hand.

22Moreover, the respondent submitted that the facts in Duah are significantly different to the case at hand. The respondent stated “In Duah, the applicant reached his car door when he slipped and fell on ice, striking his knee on the vehicle. He was not simply walking to his vehicle but had been actively involved in entering his vehicle and had a true interaction with it.” In this case, the applicant was still approximately 10-15 feet away from her vehicle.

23Based on the facts and evidence before me, I agree that she might have not sustained these injuries “but for” her need to enter the vehicle to go pick up her husband. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in Chisholm, 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.”⁷

24The applicant’s submissions are not helpful in determining whether she meets the but-for test. However, based on the facts, the applicant was approximately 10-15 feet away from the vehicle when she fell. In my view, the applicant being proximate to the automobile when allegedly injured is not determinative of causation. Moreover, there was no interaction with the vehicle. 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.

Was there an intervening cause?

25The applicant submitted that “it is anticipated that the respondent will rely on one of several cases, such as R.M. v. Certas in which a slip in [sic] fall occurred in proximity to a parking spot where the Applicant attempted to enter her vehicle was found to constitute an intervening act that broke the chain of causation. Indeed, R.M. has been expressly rejected in a number of subsequent decisions.”

26The applicant provided excerpts from Edmonds v. COSECO Insurance Company, 2021 CanLII 19490 (‘Edmonds’) and R.M v. Certas, 2020 CanLII 19575 (‘R.M.’) The applicant did not make explicit submissions on how these two cases apply to her case. What I have gleaned from the submissions is that the applicant is arguing that the slip and fall was not a separate event from the process of getting into the vehicle.

27The respondent submitted that the slip and fall was the intervening act, which would break the chain of causation. The respondent is relying on R.M v. Certas and Banos v. Jevco Insurance, 2015 CarswellOnt 13763 (FSCO) (‘Banos’). In R.M, the adjudicator held that the ice was an intervening cause, and “not a foreseeable risk of motoring”. It was held to have broken the chain of causation. Moreover, the adjudicator found that that there was no evidence that the applicant’s car contributed in any way to causing the applicant to fall or to her injuries. There was no evidence in the case that anything other than the ice in the parking lot caused the applicant to slip and fall, and no evidence to support a finding of concurrent cause.

28In Banos, the applicant slipped and fell on ice approximately 30 feet away from his car while walking towards his car after he had refueled. It was found that though refuelling the car may qualify as an integral kind of maintenance to the applicant’s driving, it was the slip and fall that was the sole cause of his injury and not the use or operation of the vehicle.

29I find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. Rather, I find that her injuries were caused by an intervening cause, which is the ice on the ground. The ice initiated the slip and fall that led to her injuries, not the use or operation of her automobile. Although the vehicle was physically near the ice, it did not cause the slip and fall.

30The ice on the ground and the applicant’s slip and fall constitutes an independent intervening event that broke the chain of events. It started with her leaving her home and heading towards her vehicle for the purposes of picking up her husband and ended with her slipping and falling. The ice and the resulting slip and fall occurred independent of the automobile’s use or operation. The icy conditions in the driveway, and the applicant’s consequent slip and fall caused the applicant’s injuries.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

31As 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.”⁸ 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.”⁹

32The applicant submitted that “it is anticipated that the Respondent will rely on the Divisional Court’s decision in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 [‘Porter’].” The applicant submitted that her case is distinguishable from Porter on the facts. In Porter, the applicant was not interacting with her vehicle in any way. She did not own the vehicle and she did not have the keys to the vehicle. She was merely approaching the vehicle which happened to be at the end of her driveway when she slipped and fell. She had not taken any positive steps towards interacting with the vehicle, such as placing keys in her dominant hand. Moreover, the applicant never in fact entered the vehicle and was never transported in the vehicle.

33In this case, the applicant was in the process of entering her vehicle when she fell, she entered her vehicle after she fell and went to McDonald’s in her vehicle. The use or operation of the vehicle cannot be properly characterized as ancillary if the applicant in fact entered the vehicle within the same transaction.

34The applicant submitted that the facts are more similar to those in Duah. The applicant had moved from the act of walking towards her vehicle to the act of getting into the vehicle. She had her keys in her hand and was only 10-15 feet away from the vehicle at the time of the slip and fall. She entered her vehicle subsequent to the slip and fall and drove the vehicle. Her attempt to enter the vehicle was eventually completed, which is something that did not occur in either Porter or Duah. As such, the dominant feature of the accident was the applicant’s entry into the vehicle.

35The respondent submitted that the applicant has not demonstrated that her vehicle was a “dominant feature” that caused her injuries. She has failed to meet her burden in this regard. The respondent argued that in R.M., the adjudicator held that the dominant feature of the applicant’s slip and fall were the icy conditions of the parking lot, and not the operation or use of the vehicle itself.

36With respect to Porter, the respondent argued that it is analogous to the case at hand. The applicant in Porter had more interaction with the Lyft vehicle, was closer in proximity and out her hand to touch the hood to help stabilize her. The applicant in this case was 10-15 feet away from her vehicle and was simply walking towards it. She did not physically interact with it before the accident, she did have her keys, but that was the extent of her engagement with the vehicle.

37The respondent is also relying on Ritchie v. Economical Insurance, 2021 CanLII 134534 (ON LAT) (‘Ritchie’), where the adjudicator held that he was bound by the Divisional Court’s decision in Porter. In Ritchie, it was found that the causation test had not been met even though the applicant had activated her key fob to unlock the vehicle when she fell. The respondent submitted that “in other words, in Ritchie, the Applicant was much closer in proximity to her vehicle than 10-15 feet, and had already unlocked the vehicle, and yet the LAT still held that an accident did not occur and was bound by the Porter decision.”

38The respondent submitted that the Tribunal is bound by the Porter decision. The respondent stated that, “It is submitted that she will not meet the Causation Test given that her injuries were caused by an intervening factor which was the ice on the driveway. The nexus between the incident and the use of her vehicle is far too remote. She has not established a clear link between her injuries and her use or operation of the vehicle.”

39I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries. The dominant feature of the applicant’s injuries was the ice on the driveway which caused her to slip and fall as she approached her automobile. In my view, the dominant feature of the accident was not the applicant’s entry into the vehicle as suggested by the applicant. Nor was the direct cause of her injuries 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. Moreover, falling on ice is a foreseeable and common risk when walking in parking lots during the winter.

40I am not persuaded that this matter is different from the facts in Porter and that she was in the process of entering her vehicle at the time of her slip and fall. Although she was walking towards her vehicle in the parking lot, I do not find that her proximity to the vehicle or the fact that her key was in her dominant left hand demonstrates that she was in use or operation of the vehicle as suggested by the applicant. Furthermore, 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.

41According 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.

42As a result, I find that the incident does not meet the causation test of an “accident”. This is the applicant’s burden to prove, and she has not done so. Therefore, any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule.

ORDER

43The applicant has not demonstrated the incident on March 4, 2020 constituted an “accident”, as defined in s. 3(1) of the Schedule.

44The application is dismissed.

Footnotes

1. 1O. Reg 34/10
2. 2Supra note 1 at 1
3. 3Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
4. 42004 CanLII 21045 (ON CA).
5. 5Ibid, at paras. 37 – 49.
6. 6Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).
7. 7Supra note 6 at 5
8. 8Greenhalgh at para. 49.
9. 9Ibid.