Amtul Saiyid v. Intact Insurance Company, 2022 CanLII 65538

PRELIMINARY ISSUE DECISION

Citation: Saiyid v. Intact Insurance Company, 2022 ONLAT 20-013964/AABS - PI

Licence Appeal Tribunal File Number: 20-013964/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:

Amtul Saiyid Applicant

and

Intact Insurance Company Respondent

Vice-Chair: Ian Maedel

Appearances: For the Applicant: Joshua Meshack, Counsel For the Respondent: Sabrina Lucibello, Counsel

Heard: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on February 25, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on May 18, 2021. The respondent raised a preliminary issue of whether this incident was an “accident”, pursuant to s. 3(1) of the Schedule.

3The substantive issues in dispute include a MIG determination, a medical treatment plan, disbursement costs, and interest.

4Given the totality of the evidence provided, I am not persuaded the incident on February 25, 2020, was an “accident” pursuant to s. 3(1) of the Schedule.

INCIDENT

5Just prior to 11:00 am on February 25, 2020, the applicant was dropped off by an Uber vehicle across from Union Station, located at Bay Street, near Front Street, in the City of Toronto. The applicant planned to attend the GO Station to catch a bus to her home in Mississauga. After exiting an Uber vehicle, the applicant fell on Bay Street, injuring her left hip. She did not suffer a head injury or loss of consciousness. The applicant stated she crawled to the centre median where she was assisted by a witness who reported the incident.

6The applicant was observed at 11:09 am standing in the median of the street with the witness by Special Constables who attended the scene. At 11:18 am, Toronto EMS arrived. The applicant was identified with pain in her left hip who displayed no signs of obvious trauma.¹ She was transported to St. Michael’s Hospital where she was diagnosed with an interochanteric fracture of the left hip.² The applicant underwent surgery on February 27, 2020, where a plate and screws were inserted to stabilize her hip.

7The applicant was 71 years old at the time of the incident with several underlying health conditions, including diabetes with peripheral neuropathy, hypoglycemic episodes, a right eye visual impairment, hearing impairment, daytime somnolence due to untreated sleep apnea, and osteoporosis (with a high risk of fracture).³

PARTIES’ POSITIONS

8The respondent submits this incident was not an “accident”, as per s. 3(1) of the Schedule, rather the applicant fell after leaving the Uber vehicle. Her trip in the motor vehicle was complete, she had closed the door and was walking across Bay Street when she fell and was injured. The statements from the Uber Driver, the Metrolinx Incident Report, the Ambulance Call Report, and the records of St. Michael’s Hospital all provide differing accounts of the applicant’s fall, but none of the accounts involve the use or operation of the vehicle. Similarly, the applicant had a very poor recollection of the incident at the Examination Under Oath, namely, she could not recall exactly what happened when she exited the vehicle (i.e., if she fell immediately or while crossing Bay Street). As a result, the respondent submits the applicant does not meet the purpose test or the causation test, as per the Court of Appeal for Ontario’s decision in Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”)⁴, and this application should be dismissed.

9The applicant submits she was involved in an “accident”, as per s. 3(1) of the Schedule. The applicant submits she was nervous and anxious upon exiting the Uber vehicle and crossing busy Bay Street to reach the GO Station. She fell on Bay Street, and she had to crawl to the centre median as traffic approached. She was later diagnosed with a fractured hip as a result of her fall. The applicant submits this incident meets the purpose test, because the Uber vehicle was being used to transport passengers. Then, but for the actions of the driver (i.e., refusing to conduct a U-turn and drop her in front of the station), the applicant would not have sustained her injuries. This was a continuous train of events, and there was no intervention from an independent source. The operation of the motor vehicle led to a psychological state of fear, which culminated in a fall - all during a single continuum of events. There was otherwise no intervening cause, and the incident is an “accident” as defined in s. 3(1) of the Schedule.

DEFINING AN “ACCIDENT”

10Section 3(1) of the Schedule defines an “accident” as an “incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis or other medical or dental device”.

11If the incident is not found to be an “accident”, then the applicant cannot apply for accident benefits through the Schedule.

12Both parties cite the decision in Greenhalgh, as the Court of Appeal laid out a two-part framework that adjudicators should consider when making this determination:

i. Did the incident arise out of the use or operation of an automobile?

ii. Did this activity directly cause the impairment?

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

14The second stage then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the impairments, sometimes known as the “causation test”. 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.

• 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”.

15Regardless of the analytic tools at an adjudicator’s disposal, the ultimate question has to be whether the incident “directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis or other medical or dental device”. Without this causal link, there is no “accident”.

ANALYSIS

16The evidentiary burden of establishing whether this incident was an “accident” remains on the applicant, despite this preliminary issue being raised by the respondent.

Purpose Test

17I am satisfied this incident arose from the ordinary and well-known activities to which automobiles are put. I find the incident comprised the larger activity of exiting a vehicle once the destination is reached. The applicant had the intention of exiting the vehicle and proceeding to the GO Station just prior to the incident taking place. Similarly, I have no evidence that the motor vehicle was not being operated in the ordinary course as a passenger vehicle by Uber at the time of the incident.

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

Causation Test

19Again, there is no mechanistic analysis at play in this second stage, such that meeting a certain number of the three considerations will render an event to be an “accident”. Instead, these tools are meant to be used in a common-sense fashion to allow a decision-maker to effectively analyze the particular factual matrix at issue. Further, I am not bound by the Tribunal case law before me, as these cases are highly fact specific. Otherwise, I have reached my own conclusions based on a comprehensive review of the facts before me, assisted by the binding and persuasive case-law.

20I find the applicant has met the low threshold of the “but for” test. As the applicant stated in her submissions, the incident and subsequent impairments would not have happened “but for” the applicant’s disembarkation from the Uber vehicle. However, as noted in Greenhalgh, the “but for” test does not conclusively establish legal causation⁵.

21I do not then find the “intervening act” analysis helpful with regard to the factual matrix of this matter. This is especially in light of the applicant’s submissions regarding the continual sequence of events. This included the actions of the Uber driver in failing to drop her immediately outside the station, and her anxious state when she realized she would have to cross a busy city street in order to reach the station.

22However, despite the above findings, I conclude that the “dominant feature” consideration is the most helpful tool in determining whether this particular incident is an “accident”. That is, I am satisfied that to answer this incident is an “accident”, it is helpful to determine if the operation and use of the motor vehicle was the “dominant feature” of the incident.

23As 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.”⁶ 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.”⁷

24I am satisfied the dominant feature of this incident was the applicant slipping and falling on Bay Street, whether it was a slip and fall on ice, or her catching her toe on the curb and falling. Either way, I am satisfied that the operation of the Uber vehicle was ancillary to her injuries.

25There are at least five separate sources of evidence that I base this decision upon. First, the Metrolinx Security Operations Incident Report completed by Special Constable Jassal on February 25, 2020, indicates the incident was a “slip and fall” in the middle of Bay Street.⁸ Second, the Toronto Paramedic Services Ambulance Call Report also dated February 25, 2020 indicated the applicant was crossing the street, caught her toe on the curb, and fell onto her left hip.⁹ Third, the Inpatient Consult Record from St. Michael’s Hospital indicated the applicant was crossing the street to get to Union Station and slipped on ice.¹⁰ The applicant’s daughter, in a sworn statement (dated March 26, 2020), indicated her mother fell in the middle of Bay Street, and she was unsure if the Uber vehicle was still present when her mother fell.

26A statement from the Uber Driver, Mr. H. Ismail, was taken on April 3, 2020. In this statement, he reported being unaware of the incident until he was contacted by Uber.¹¹ He indicated the applicant exited the motor vehicle, and—after she was a safe distance from the vehicle—he drove away. He never witnessed the applicant fall and indicated that, if he had observed any incident, he would have stopped and remained at the scene.¹² Immediately following the incident, Mr. Ismail’s car was physically inspected by Uber. The inspection found his vehicle was not damaged in an accident, and it was in “good running order”.¹³ I place weight upon these five sources of evidence cited above. Four are from direct witnesses who attended the scene or treated the applicant soon after the incident on February 25, 2020.

27In contrast, the applicant provided evidence at an Examination Under Oath on July 29, 2021, i.e., seventeen months post-accident. I place less weight upon this testimony given the time elapsed since the accident. Additionally, the applicant could not remember key details of the incident like: what happened when she disembarked from the vehicle; whether the passenger door was closed; whether the vehicle had driven away when she fell; the cause of her fall; or how far she crawled to the median after her fall. However, the Ambulance Call Report described the applicant was exhibiting no obvious trauma upon EMS arrival, as she was found standing in the median in minor discomfort with no obvious injuries or deformities.¹⁴ She was able to take a few steps to the stretcher unaided and described her hip pain as 5 on a scale of 10.¹⁵ Similarly, in the Inpatient Consult Record from St. Michael’s, she again described her pain as 5 on a scale of 10.¹⁶ When asked if she remembered telling the Emergency Room Physician that she slipped on ice while crossing the street, she responded that she was in acute, excruciating pain at the time and couldn’t remember what she uttered on February 25, 2020.¹⁷ Thus, I am not satisfied her memory was impaired by excruciating pain as she later reported.¹⁸ Given the other contemporary accounts, I place little weight on the applicant’s version of events, especially given her lack of clarity and inability to recall key aspects of the incident.

28From the evidence, and on a balance of probabilities, I am satisfied that the use or operation of the Uber vehicle was not a direct cause of the applicant’s fall and her subsequent injuries. As in Porter v. Aviva Insurance Company of Canada (“Porter”)¹⁹, the operation of the vehicle was ancillary, as it only brought this applicant to the location where her fall occurred.

29Similarly, as per the statement provided by the Uber Driver, Mr. Ismail, I am satisfied the applicant had disembarked from the vehicle, closed the passenger door, and began to cross Bay Street when the incident occurred. I am not persuaded the Uber vehicle was even present at the location when the applicant sustained her injuries. Mr. Ismail did not view the incident and drove away from the scene, only learning of her fall when later contacted by Uber.

30I do not doubt the applicant in a nervous or anxious state of mind when she learned she would be required to cross busy Bay Street in order to reach Union Station. While this nervousness may have contributed to her fall, it cannot be directly linked to the operation of the motor vehicle on that date. Her journey in the Uber vehicle had concluded, and she was walking across Bay Street when her fall occurred.

31Finally, I find the cause of her broken hip was her impact with the ground, as she did not have contact with the Uber vehicle or any other vehicle when she fell. While there is some debate about the precise nature of her fall – whether it was on ice, or as a result of her catching her toe on the curb – all that is material in this case is whether the use or operation of the motor vehicle was the dominant feature of the incident that led to her impairments. On the evidence, I am satisfied that the motor vehicle was not a direct cause of her fall.

32The applicant relies on the Tribunal Decision in 16-000218 v. Aviva Insurance²⁰ (“16-000218”), which predates the binding Divisional Court case in Porter. 16-000218 is distinguishable on its facts, as it involved an incident where a 7-year-old girl with cerebral palsy and quadriplegia sustained psychological injuries when she was left on a school bus for 2 hours after being picked up for school. This Tribunal Decision is not binding, and it provides almost no persuasive value in its application to the instant matter.

33I have utilized the tools from Greenhalgh to permit a fulsome analysis of this factual matrix. Any analysis is contextual and based largely on the facts of each individual case. While I do not dispute the applicant was travelling in the Uber prior to the incident, that journey had clearly ended when she fell in the street. The applicant has failed to establish her injuries were a direct result of her exit from the vehicle. Her injuries were due to a fall sustained after she exited the vehicle and was walking across Bay Street. Her fall was the dominant feature of this incident, and not as a result of exiting the Uber vehicle.

34According 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.

ORDER

35I find that:

i. The applicant has not demonstrated the incident on February 25, 2020 constituted an “accident”, as defined in s. 3(1) of the Schedule.

ii. The application shall be dismissed, and the Tribunal file shall be closed.

Footnotes

1. 1Submissions of the Respondent Insurer, Tab C, Ambulance Call Report February 25, 2020.
2. 2Submissions of the Respondent Insurer, Tab D, St. Michael’s Hospital Inpatient Consult Note, February 25, 2020.
3. 3Ibid.
4. 42004 CanLII 21045 (ON CA).
5. 5Greenhalgh at para. 37.
6. 6Greenhalgh at para. 49.
7. 7Ibid.
8. 8Submissions of the Respondent Insurer, Tab B, Metrolinx Incident Report, February 25, 2020.
9. 9Submissions of the Respondent Insurer, Tab C, Ambulance Call Report February 25, 2020.
10. 10Submissions of the Respondent Insurer, Tab D, St. Michael’s Hospital Inpatient Consult Note, February 25, 2020.
11. 11Submissions of the Respondent Insurer, Tab F, Statement of Hamza Ismail, April 3, 2020.
12. 12Ibid.
13. 13Submissions of the Respondent Insurer, Tab C, Ambulance Call Report February 25, 2020.
14. 14Submissions of the Respondent Insurer, Tab C, Ambulance Call Report February 25, 2020.
15. 15Ibid.
16. 16Submissions of the Respondent Insurer, Tab D, St. Michael’s Hospital Inpatient Consult Note, February 25, 2020.
17. 17Ibid. pg. 23.
18. 18Submissions of the Respondent Insurer, Tab G, EUO Transcript, July 29, 2021, pg. 23.
19. 192021 ONSC 3107, Submissions of the Respondent Insurer, Tab O.
20. 202017 CanLII 56680 (ON LAT) Responding Submissions of the Applicant, Tab E.