Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481

Citation: Sinnicks v. Northbridge General Insurance Company, 2022 ONLAT 21-010989/AABS – PI

Licence Appeal Tribunal File Number: 21-010989/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:

Suzanne Sinnicks

Applicant

and

Northbridge General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Suzanne Sinnicks, Applicant Gordon Harris, Counsel

For the Respondent: Northbridge General Insurance Company Amanda Lennox, Counsel

HEARD: In Writing

REASONS FOR DECISION [AND/OR 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 January 12, 2021.

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 January 12, 2021, the applicant went to the Ridgehill Ford dealership. She parked her vehicle near the entrance of the showroom, turned off the ignition and proceeded to exit her vehicle. She stepped on the side rail of her F-150 to exit her vehicle. When her feet touched the ground, she fell on the pavement which was slippery and icy. She slid under the vehicle beside her. She sustained bruises on various parts of her body. After she fell, two salesmen came out and asked if they could help her. One of the salesmen went back in and threw blue ice melter between the two vehicles. Her brother came to the dealership to get her. She left her vehicle in the parking lot and left with her brother.

PARTIES’ POSITIONS

5The applicant submitted that she was involved in a motor vehicle accident as per the definition of “accident” on January 12, 2021. On this date, there was a qualifying incident or event in which the use or operation of an automobile directly caused impairments to her.

6The respondent submitted that the applicant was not involved in an accident pursuant to s. 3(1) of the Schedule and is therefore not entitled to statutory accident benefits arising from the slip and fall on January 12, 2021.

LAW

7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”².

8The 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”?

9For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.

10The 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.

11The 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?

12The 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”.

13The 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)?

14The respondent concedes that this incident meets the purpose test. On this basis, I find that the purpose test is satisfied. I will address the balance of the test.

The Causation Test

15Within 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?

16The applicant is relying on B.Y. v. TD Insurance Meloche Monnex, 2019 CanLII 27893 (ON LAT) and submitted that the incident would not have occurred “but for” the use or operation of her vehicle, which includes parking and exiting. It is her position that “but for” stepping out of her vehicle, she would not have fallen and sustained the injuries that she did. Thus, the incident and impairments would not have occurred but for the use of her vehicle and the vehicle was a necessary cause of her impairments.

17The respondent submitted that the applicant being in her vehicle just prior to the incident and being proximate to the vehicle when injured is not determinative of causation. Legal entitlement to accident benefits requires not just that the use or operation of the vehicle be a cause of injuries, but that it be a direct cause. Furthermore, more is required than establishing that the car brought the applicant to the location of the incident, and more is required than the car being the reason why the applicant was at the location where the incident occurred.

18Based on the facts and evidence before me, I agree that she might have not sustained these injuries “but for” her need to exit her vehicle. 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

Was there an intervening cause?

19The applicant submitted that there is no intervening event that breaks the causal link resulting in her injuries. She was in the process of disembarking from her vehicle, part of the ordinary course of the use and operation of an automobile, and there was a continuous chain of events preceding her fall and subsequent injuries.

20The applicant is relying on V.B. v. Economical Insurance Company, 2020 CanLII 87992 (ON LAT) (‘V.B.’). The applicant submitted that the icy parking lot does not constitute an intervening act. In V.B., the Tribunal found that “losing one’s footing while exiting a vehicle is a reasonably foreseeable risk of operating an automobile.” The applicant argued that the facts of her accident are strikingly similar to the facts of V.B., where it was determined that it was an accident. The Tribunal noted that “in the ordinary course, automobile door handles may be used to assist an occupant of a vehicle disembarking.”

21The applicant submitted:

The placement of these assistive structures demonstrates that the manufacturers recognized that it was reasonably foreseeable that occupants of an F-150 pick up truck, like Suzanne’s, would require these structures to provide greater stability while exiting the large vehicle… The applicant submits that the ice was a reasonably foreseeable risk of motoring in Suzanne’s case, as demonstrated by the assistive structures installed in Suzanne’s F-150 pickup truck. These assistive structures indicate that the manufacturers reasonably foresaw that occupants of the vehicle would require extra stability when exiting the vehicle because of the height of the vehicle, but also because of the wide variety of footing that the occupants would foreseeably be required to step onto when exiting the vehicle. A pickup truck is recognized and advertised for its ability to traverse a multitude of terrain, such as mud, snow, and rocky surfaces, which indicates an acknowledgement that pickup trucks are designed with the intention of allowing drivers to safely access and exit the vehicle on a wide variety of terrain, including ice. Indeed, if manufacturers did not consider varieties of terrain and weather conditions, we would not have winter tires, and manufacturers, government authorities and insurers all recommending their use. Indeed, on this Respondent’s website, for their Christmas themed top 12 list for winter driving tips, the very first tip is installing winter tires! There is no part of Ontario that is not affected by winter driving conditions, and where it is not an anticipated issue for at least four months per year.

22The applicant stated that “The law is clear that intervening acts that can fairly be considered a normal incident of the risk created by the use or operation of the vehicle may not absolve of liability for benefits under the Schedule.”

23The respondent submitted that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile, but were caused by a later intervening cause, specifically that she slipped on ice on the ground. It was the ice that initiated the slip and fall that led to the applicant’s injuries, not the use or operation of her automobile. The automobile was the means of transportation to the icy parking lot and the automobile was physically near the ice but not the cause of the sip and fall.

24The respondent stated that “it has been consistently held by this Tribunal and more recently, the Divisional Court, that ice in a parking lot is an intervening cause of a fall which breaks the chain of causation as an icy parking lot is not a foreseeable risk of motoring.

25In support of its case, the respondent is relying on 17-000180 v. Certas Direct Insurance Company, 2018 CanLII 76693 (ON LAT), 18-003463 v. Certas Home and Auto Insurance, 2019 CanLII 51302 (ON LAT), 16-004096 v. Intact Insurance Company, 2017 CanLII 63622 (ON LAT), 18-000468 v. Certas Direct Insurance Company, 2019 CanLII 22204 (ON LAT), 18-001537 v. TD Insurance 2021 CanLII 19498 (ON LAT), Khamis v. Unifund, 2021 CanLII 19498 (ON LAT), Porter v. Aviva Insurance Company, 2021 ONSC 3107, Racey v. The Co-operators General Insurance Company, 2022 CanLII 2764 (ON LAT) and Oram v. Aviva General Insurance, 2022 CanLII 4527 (ON LAT).

26In 17-000180, it was found that the applicant’s use of her vehicle ended prior to the injury, her vehicle did not contribute to her injuries and there was a temporal separation between the end of the use of her vehicle and the slip and fall that caused her injuries. The slush on the ground was found to be the intervening cause or a feature that broke the chain of causation and ultimately caused injuries to the applicant.

27In 18-003463, it was found that neither the vehicle nor any action associated with operating the vehicle was a factor in the applicant’s injuries. It was found that any chain of causation between the operation of the car and the incident was broken.

28In 16-004096 and 18-000468, it was found being close or touching an automobile would not mean that an accident took place. In 18-001537, it was found that even if the applicant touched the vehicle, the black ice was the intervening cause.

29In Khamis v. Unifund, the applicant slipped on ice in the parking lot and fell outside of his vehicle with the left side of his body hitting the parking lot surface. It was found that the icy parking lot was the intervening act, which was not a foreseeable risk, that severed the chain of causation between the use or operation of the motor vehicle and the applicant’s accident and injuries.

30In Porter, it was found that the use and operation of the car did not cause the injuries. The dominant factor that physically caused the injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was at best ancillary. In Racey and Oram, the Tribunal found that Porter was binding.

31The respondent submitted that the icy parking lot was the intervening cause and not a foreseeable risk of motoring. This intervening cause broke the chain of causation between the use and operation of the vehicle and the applicant’s falls.

32I 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.

33I am not persuaded by the applicant’s argument that the icy parking lot does not constitute an intervening act. The 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 going to the dealership for the purposes of completing a safety check and buying out her lease. It ended with her with her slipping and falling in the dealership’s parking lot. The ice and the resulting slip and fall occurred independent of the automobile’s use or operation. The icy conditions in the parking lot and the applicant’s consequent slip and fall caused the applicant’s injuries.

34The case law cited by the applicant is not helpful here. The V.B. decision is not binding on me, was released prior to the Divisional Court’s decision in Porter and I decline to follow it. Instead, I prefer to follow the reasoning of the Divisional Court in Porter. The dominant factor that physically caused the applicant’s injuries must be determined and here, it was the icy driveway, as in Porter.

35Furthermore, I find the submissions regarding the assistive structures in the F-150 and the manufacturer’s intent to be speculative and not supported by any evidence. The case law presented by the applicant is not binding on me and nor am I persuaded by it.

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

36As 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

37The applicant submitted that the events associated with the accident were wholly centered on her use of her vehicle. The use and operation of her vehicle was the dominant feature. Immediately before the incident, she drove her vehicle to the dealership to attend a meeting. Her vehicle was used for its ordinary purpose of transportation, and that disembarking from the vehicle falls within the scope of ordinary use. Her injuries were caused at least in part by contact with her truck as she fell. The applicant stated “Indeed, the entire reason for being at the dealership in the first place was related to the use and operation of her vehicle – she had to get a safety check and was then going to buy out her lease. There was no aspect to this visit that was not related to the use, operation, maintenance and ownership of her truck.”

38The applicant is relying on D.S. v. TD Insurance Meloche Monnex, 2017 CanLII 43837 (ON LAT), where it was found that the applicant’s injuries were caused by making contact with the parked vehicle and the contact with the vehicle constituted as a direct and dominant cause of the applicant’s injuries. The applicant also relies in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 22, where it was found that a parked vehicle is included in the scope of a vehicle’s ordinary use.

39The applicant argued that her case is distinguishable from Khamis because she sustained injuries when she fell backwards and struck her vehicle before hitting the ground. She is also relying on North Waterloo Farmers Mutual Insurance Co v. Samad, 2018 ONSC 2143, and submitted that even though she sustained injuries from falling on the ground, this should not detract from the fact that her vehicle was a direct and dominant feature that caused her injuries. If she had not fallen against her vehicle, her injuries may have been very different because she only would have suffered from the impact with the ground as opposed to the violent impact with her side bar and then striking the ground.

40The applicant also argued that the Edmonds v. Coseco Insurance Company, 2021 CanLII 19490 (ON LAT) decision was wrongly decided. Rather, her case is similar to Montesano v. Western Assurance, 2021 CanLII 54817 (ON LAT). It was submitted that even though she slipped on black ice as she was exiting her vehicle, her body striking the side bar of her vehicle as well as the adjacent vehicle remains the direct cause of her injuries. While the ice was a factor that set the events of the fall into motion, the ice cannot be considered to be a direct cause of her injuries.

41The respondent submitted that the use or operation of the applicant’s vehicle cannot be said to be the dominant feature of the incident or the applicant’s injuries. The icy driveway caused the applicant’s fall and resulting injuries. The respondent is relying on Porter, Edmonds and Oram in support of its case. The respondent argued that the ice and the resulting slip and fall occurred independent of the use or operation of the applicant’s vehicle. The icy condition of the parking lot caused the slip and fall and injuries and therefore is an intervening event/cause. The dominant feature of the incident was the applicant slipping on ice. It was not the use or operation of the vehicle.

42I 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 exited her vehicle. 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. However, I do not find it to be a foreseeable risk of motoring.

43Furthermore, with respect to sustaining injuries from the vehicle, the evidence from the Examination under Oath dated April 1, 2021 suggests that she could not recall the accident. When asked if she thought she hit her back on her vehicle and her knees on the vehicle beside her, she stated “possibly, yet.” When asked “But you’re not entirely sure?”, she stated “I don’t remember. I don’t remember. I was – when I came to – when I realized what was going on, I was petrified. Half of me was under another vehicle. I can’t remember falling, I can’t remember getting up. All I can remember, I was in excruciating pain. That’s all I remember. I remember opening my truck, putting my feet on the ground, and falling. That’s what I- and after that, I don’t know. I can’t remember.”

44While it is recognized that the applicant sustained a concussion and may have difficulties with memory, it is unclear whether or not she hit her vehicle. The applicant’s submissions on this point are a bit inconsistent with the evidence from the Examination under Oath. Regardless, I find that the ice was the dominant feature, not the vehicle. Moreover, 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.

45According 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.

46As 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

47The applicant has not demonstrated the incident on January 12, 2021 constituted an “accident”, as defined in s. 3(1) of the Schedule.

48The 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 4
8. 8Greenhalgh at para. 49.
9. 9Ibid.