Licence Appeal Tribunal File Number: 20-011995/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:
Alexanderina Racey
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Applicant:
Alexandra Victoros
Counsel
For the Respondent:
Amanda Lennox
Counsel
HEARD By Way of Video conference on December 20, 2021
REASONS FOR DECISION AND ORDER
BACKGROUND
1Alexanderina Racey (“applicant”) was injured February 21, 2019 after exiting her automobile (“incident”). The applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The Co-operators General Insurance Company (“respondent”) denied accident benefits.
2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
3At the case conference, the Tribunal ordered that the preliminary issue below be heard before the substantive issue below.
4The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule. The applicant’s position is the opposite.
PRELIMINARY ISSUE
5The preliminary issue to be decided is:
i. Was the applicant involved in an accident?
RESULT
6The applicant’s injuries sustained as a result of the incident did not result from an “accident” as defined by the Schedule. The application is dismissed.
LAW
7Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused the applicant’s injuries.2
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 follows:3
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.
11If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish 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 things.”4 The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”5 Direct causation requires a determination of the “dominant factor that physically caused the applicant’s injuries”.6
12The application of this test to the facts of this case follows.
Facts Not in Dispute
13The basic facts are not in dispute. The applicant parked her vehicle in the driveway of her child’s daycare facility, turned her vehicle off, left the keys in the ignition and got out of the vehicle with the intention of walking behind the vehicle to reach the rear passenger door and helping her child get out of his seat so he could enter the daycare. While walking around the rear of the vehicle, the applicant slipped on the icy driveway, fell and was injured.
14The applicant testified in her examination under oath on May 29, 2020 that as I got around to the back of my truck, I slipped on the ice”. She also testified that she did not strike any part of her body on the vehicle when she fell.
15The applicant’s testimony at the hearing was to the same effect. The applicant testified that she held onto her truck as she walked toward the rear of the vehicle. She saw that the driveway was covered in ice and noticed that there was ice behind her vehicle too. The applicant testified that the icy conditions caused her to fall.
16Based on these facts confirmed by the applicant in her testimony, I find that the incident is not an “accident” under s. 3(1) of the Schedule.
Did the applicant’s injuries arise out of the use or operation of an automobile (the purpose test)?
17The respondent concedes that this incident meets the purpose test and, on this basis, I find that the purpose test is satisfied.
18I will address the balance of the test.
Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?
19Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal:7
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.
20The applicant submits that she meets the causation test, that the use or operation of an automobile directly caused her impairment. The applicant submits that there is no intervening act which broke the chain of causation. Getting oneself out of the vehicle and getting one’s child out of the vehicle is one chain of events, which was not broken, and the applicant was still using her vehicle when she was injured. The applicant submits that the Porter case is distinguishable because in Porter, the injured person had not been inside the vehicle yet when she slipped and fell. The applicant relies on the Duah decision of the Tribunal, which she submits is more like her fact situation. In Duah, the injured person slipped and fell on ice while attempting to get keys out of a bag. The Tribunal found there could be more than one cause. Here, the applicant submits there are two causes – firstly, the ice on the driveway and, secondly, the applicant walking around her vehicle in order to assist her son to exit the vehicle.
21The respondent submits that the applicant’s automobile was not the direct cause of the applicant’s injuries and, therefore, the incident was not an “accident” as that term is defined in s. 3(1) of the Schedule. The respondent relies on the Porter decision and submits that the conflating the “but for” test with the direct causation test is an error of law. The dominant cause or dominant factor of the applicant’s injuries was the icy driveway. The respondent also submits that the Duah case was released prior to the Divisional Court’s Porter decision and is now no longer a persuasive precedent. The dominant factor that physically caused the applicant’s injuries must be determined and here, it was the icy driveway, as in Porter.
22Further, the respondent submits that the fact that the applicant drove to and parked in an icy driveway in her automobile and slipped on the ice after exiting the vehicle does not make the incident part of the ordinary course of the use or operation of the automobile. The applicant’s ordinary and regular use of her automobile ended once she exited it. The automobile itself was not the cause of the injury. The applicant’s body did not strike the vehicle as she fell.
23The case law cited by the applicant is not helpful here. The Duah8 decision is not binding on me and I decline to follow it. Instead, I am bound to follow the reasoning of the Divisional Court in Porter.9
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
24Based on the respondent’s concession referred to above, I find that but for the applicant being in her automobile just prior to the incident, any injuries she sustained in the incident would not have occurred.
25However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in Chisholm,10 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.” Here, the applicant being in her automobile just prior to the incident and being proximate to the automobile when injured is not determinative of causation. 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?
26I find 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 place and the automobile was physically near the ice but not the cause of the slip and fall. I find that the ice and the slip and fall caused the applicant’s alleged injuries, not her use or operation of her automobile.
27The ice on the ground and the applicant’s slip and fall constitute an independent intervening event that broke the chain of events, which started with the applicant driving in her automobile and ended with her slipping and falling after she exited the automobile. 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, not the fact that her injuries occurred after the applicant exited her automobile.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
28I 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 after she exited the automobile. That the applicant intended to re-enter the vehicle and help her child exit the vehicle does not establish direct causation. The intention to continue to use the vehicle does not alter that fact that her injuries were caused when she slipped and fell on the ice.
29As 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.
30Therefore, any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule.
ORDER
31For the reasons above, I find that the applicant’s injuries sustained as a result of the incident did not result from an “accident” as defined by the Schedule. The application is dismissed.
Released: January 21, 2022
__________________________
Avril A. Farlam,
Vice-Chair
Footnotes
- O.Reg. 34/10
- Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.).
- Chisholm 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.
- Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 36; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
- Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
- Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.)
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).
- Duah v. Wawanesa, 2021 CanLII 19484 (ON LAT).
- Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.)
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA).