RECONSIDERATION DECISION
Before:
Derek Grant
Licence Appeal Tribunal File Number:
20-000703/AABS
Case Name:
Clayton Madore v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Brian Cameron, Counsel
For the Respondent:
Patrick Baker, Counsel
BACKGROUND
1Clayton Madore’s (“C.M.”) Request for Reconsideration arises from a preliminary issue decision dated June 16, 2021. The Licence Appeal Tribunal (the “Tribunal”) found that the incident that occurred on June 25, 2019 did not constitute an “accident” as defined in s. 3(1) of the Statutory Accident Benefits Schedule- Effective September 1, 2010 (the “Schedule”).
2C.M. submits that I made significant errors of law such that the Tribunal would have likely reached a different decision had it not been made, arguing that I did not properly consider the elements of the causation test regarding whether accident had occurred. C.M. submits that the incident meets the definition of an “accident”, and that the decision should be varied accordingly.
RESULT
3C.M.'s request for reconsideration is dismissed.
BACKGROUND
4On June 25, 2019, C.M. brought his trailer home to get it ready to go on vacation. He was on the roof of his trailer checking the caulking on the roof and slide outs when he fell from the roof of the trailer onto the ground.
5There is no evidence that C.M. struck the pickup truck that the trailer was attached to or the trailer itself when he fell. C.M. has not adduced any evidence that he tripped on any part of the roof or that the trailer itself caused the fall.
6C.M. applied for accident benefits which were denied by Intact on the basis that the fall from the trailer did not cause his injuries, it was hitting the ground. Intact denied that C.M. was involved in an “accident” as defined in the Schedule.
7In a letter dated July 7, 2021, C.M. requested a reconsideration of my preliminary issue decision.
ANALYSIS
8The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). C.M.’s request relies on Rule 18.2(b): that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
9The test for reconsideration under Rule 18.2(b) involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence. In a similar vein, an adjudicator is not required to refer to every piece of evidence or submission before them.
10Essentially, C.M. submits that my errors of law are centred around the two branches of the causation test:
a. Did the use and operation of the automobile directly cause the impairment?
b. Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
Did the use and operation of the automobile directly cause the impairment?
11C.M. argues that the law has never required that there be contact with an automobile, so long as the use or operation of the automobile directly causes the impairment.
12Intact’s response is that C.M. is relying on case law and analysis that were not raised at first instance in his submissions or reply and is “not entitled to re-try his case on reconsideration with new argument and analysis.”
13I agree with Intact. The case law C.M. relies on is distinguishable in that there was a direct connection between the use or operation of the automobile in question and the injuries suffered as a result. In the present case, C.M. has never admitted or presented evidence to the contrary that he did not make any contact with the trailer which resulted in a fall or his injuries.
14Intact relies on the Divisional Court’s decision of Porter v. Aviva Ins. Co.1 wherein the Court affirmed the importance of the causation test analysis. In Porter, the insured slipped on ice on a driveway as she was making her way to a ridesharing car parked on that driveway. In the present case, C.M. lost his footing. The Court held at paragraph 15 that more is required than the vehicle being the reason the insured was at the location that the incident occurred. The use or operation of the vehicle must directly be the cause of the injuries sustained and a tangential connection is insufficient.
15The fact that C.M. was located on the top of his trailer is not enough to establish that his fall is a result of an accident that was directly caused by the trailer. There is no disagreement between the parties that there was no part of the trailer that caused C.M. to slip and fall, or that he made any connection with the trailer or attached truck in the fall.
16This is confirmed at paragraph 18, where I state:
The mere location on or near a vehicle at the time of an incident does not automatically meet the requirements of the causation test. Direct cause requires evidence that Clayton Madore’s fall was as a result of tripping on some part of the trailer and the injuries were directly caused by the trailer. In this matter, there is no evidence of either circumstance being the case.
17“Directly caused” is the crux of the argument in this case. The evidence and case law supports that “directly caused” requires that contact with an automobile has been made and maintained (no intervening act) and resulted in injuries. The evidence before me was there was no contact with the trailer causing the fall, and no contact with the trailer at any point during the fall that resulted in injuries. The injuries were sustained as a result of C.M. falling to the ground, the trailer happened to be the location that he fell from.
Intervening Act
18C.M. submits that slipping on the trailer was not an intervening act as he was engaged in the “ordinary course” of the use of the trailer. The parties agree on the activity of cleaning and inspecting the trailer being the ordinary course of things, but the disagreement arises in whether the subsequent slip and fall is an intervening act.
19C.M. argues that falling from a 12-foot trailer is a reasonably foreseeable consequence of cleaning/maintain a trailer. Intact posits that falling off the roof of a vehicle is not a usual activity to which automobiles are put, and more specifically to this matter, a sudden loss of footing is an intervening act that is not in the “ordinary course of things.”
20I agree with Intact. The fact has been well established that C.M lost his footing. There has not been any evidence to contradict this fact at first instance, nor has C.M., on reconsideration, provided any evidence or argument on reply to refute this fact. As was acknowledged at paragraph 19 of my decision, “
The incident was caused by Clayton Madore’s loss of footing on the roof of the trailer and the injuries were sustained as a result of landing several feet below on the ground. As I found previously, neither the truck nor the trailer directly caused the injuries. Further, the loss of footing, due to misfortune, is an intervening act and not at all directly caused by the trailer. This is confirmed in Clayton Madore’s statement and affidavit that he did not trip on any part of the trailer causing him to fall. Clayton Madore losing his footing on top of the trailer is not part of the “ordinary course of things”.
21The fact that the trailer is the situs of the incident is not enough to establish that the trailer directly caused the injuries or that slipping off the trailer was not an intervening act that led to injuries. I am not directed to any evidence or decision to support C.M.’s argument that his actions on top of the trailer, slipping off and being injured is sufficient to establish direct causation for the injuries sustained. At a minimum, there needs to be evidence that an insured’s injuries were directly caused by physical contact with the vehicle. In this case, had C.M. tripped on some part of the roof of the trailer and/or contact the trailer in the course of the fall, there would be a compelling argument that the trailer directly caused his injuries. Such evidence has not been provided, and the unfortunate fact of the matter is that C.M. lost his footing and suffered injuries caused by his impact with the ground.
22On reconsideration, C.M. has not provided a compelling argument that I erred in law in my interpretation of whether the incident that occurred on June 25, 2019 was an accident. Accordingly, I find no errors of law that would have resulted in a different outcome of my decision.
CONCLUSION
23C.M.’s request for reconsideration is dismissed.
Derek Grant, Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 21, 2022
Footnotes
- Porter v. Aviva Ins. Co., 2021 ONSC 3107 (Div. Ct.) (“Porter”)