Licence Appeal Tribunal File Number: 20-006675/AABS & 20-006677/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:
Nada Nehme & Alfred Nehme Applicant
and
Aviva General Insurance Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Andrew Franzke, Counsel John Sime, Counsel
For the Respondent: J.-C. Rioux, Counsel
HEARD: By way of written submissions
OVERVIEW
1These two proceedings arise out of an incident that occurred on January 23, 2019. The applicant, Nada Nehme (“N.N.”), claims the incident resulted in physical injuries, and her husband, Alfred Nehme (“A.N.”), alleges the incident caused him psychological impairments. As a result, both N.N. and A.N. sought benefits from Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Aviva denied both of the claims for benefits, determining that the incident was not an “accident” under s. 3(1) of the Schedule. A.N. and N.N. disagreed and applied to the Tribunal for resolution of the dispute.
PRELIMINARY ISSUES
3The preliminary issue in dispute is as follows:
a. Did A.N. and N.N.’s injuries arise out of the use or operation of an automobile and therefore meet the definition of an “accident” defined by s. 3(1) of the Schedule?
FINDING
4The incident that occurred on January 23, 2019 is not an accident as defined by s. 3(1) of the Schedule.
BACKGROUND
5In an Application for Accident Benefits, N.N. describes the January 23, 2019 incident as follows:
I headed toward my vehicle located at P1 level of 22 Clarissa Drive. I wanted to pick up groceries from my vehicle. I slipped and fell on ice when I was 12-15 feet away.
6N.N. gave evidence at an Examination Under Oath on May 29, 2020. Of note, N.N. gave the following evidence:
The day before, I was grocery shopping and took some of the grocery, like, you know, the bags outside my car the day before and next – or that – the day of the accident I was going to my car to get the rest of the grocery shopping bags, you know, back to the house….
7The facts of the incident are that N.N. went to get groceries on January 22, 2019. When she returned home, she took some of the bags upstairs. The next day, on January 23, 2019, she went downstairs to the parking garage for the purpose of retrieving the remaining groceries. While she was approximately 12-15 feet away from her vehicle, she slipped on ice and fell.
8A.N. was informed of N.N.’s injuries when she returned to her apartment in order to call for medical attention arising from her injuries from the fall in the parking garage. It was the call from his wife and being informed of her injuries that A.N. alleges caused him psychological impairment. On the evidence, it is unclear exactly what psychological impairments A.N. alleges to have suffered as a result of the incident.
ANALYSIS
9Section 2(3) of the Schedule sets out that benefits shall be provided in respect of “accidents”. Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”
10The two-part test for determining whether an incident qualifies as an “accident” under the Schedule is well-established and is set out in the seminal case of Chisholm v. Liberty Mutual Group.2 The two parts of the test are known as the “purpose” test and the “causation” test. The test was further analyzed and clarified in Greenhalgh v. ING Halifax Insurance Company3 to the extent that in order for an incident to be an “accident” under the Schedule, the insured must satisfy both branches of the test:
a. Whether the incident satisfies the purpose test:
i. Did the incident arise out of the ordinary and well-known activities for which automobiles are used? and,
b. Whether the incident satisfies the causation test:
i. Did the use and operation of the automobile directly cause the impairment?
ii. 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”?
11For clarification, the second branch of the causation test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also considered “but for”, “intervening act” and “dominant feature” to analyze the causation test.
Positions of the parties
12Aviva submits that the operation of a motor vehicle was not what caused N.N.’s or A.N.’s injuries. The cause of N.N.’s injuries was slipping and falling on ice. The only connection between the operation of a vehicle and her injuries is that she used her vehicle to get home the day before. Aviva submits that she fell the next day. In turn, Aviva argues that A.N.’s psychological injuries are also not as a result of an “accident”.
13In support of its position, Aviva directs the Tribunal to two slip and fall cases: I.S. v. Aviva4 (passenger exiting vehicle and tripping over curb) and Dominion of Canada General Insurance Company v. Prest5 (the applicant parked vehicle, walked to the end of the curb and tripped and the incident was not considered an accident). It submits that these cases clearly establish that the definition of an accident requires that there be a direct link between the use of the vehicle and the injuries suffered as a result of the use of that vehicle.
14Further, it submits that this is an occupier’s liability case, which does not attract accident benefits. It refers the Tribunal to the following cases in support of this position: Moore v. Certas6 (applicant got out of a van, walked under a garage door and the door fell on his head) and Edmonds v. Coseco7 (applicant began to move around vehicle on icy ground while keeping a hand on vehicle, attempted to open door with left hand, slipped on ice, struck her head on vehicle and fell to the ground). Aviva posits that all of these cases clearly establish that slipping and falling on ice is an intervening act and, where there is no direct contact with a vehicle, the chain of causation is broken.
15N.N. and A.N. submit that the incident was an accident that satisfies both the purpose and causation tests. They argue that the case law has held that the regular activity to which a vehicle is put contemplates activities that fall outside of the act of driving a vehicle. To this end, they argue that the car was being used for the “ordinary and well-known activity” of transporting groceries from the store to the residence. Their position is that while the active use of a vehicle would qualify under the purpose test, there is no requirement that the vehicle be in active use. In addition, they submit that it is well settled that retrieving items from a vehicle falls under the “ordinary and well-known activity” to which automobiles are put.
Is the January 23, 2019 incident an accident?
16While I am referred to various case law examples of slip and fall-related incidents, I am not persuaded by the case law that N.N. and A.N. rely on, and I find the cases distinguishable. For example, B.Y. v TD Insurance8 (applicant parked his car at the hospital, exited, and while walking away, slipped on ice and broke his leg). In the present case, N.N. parked her vehicle the previous day, and was not in the process of exiting her vehicle. Further, she was not near the vehicle, being 12-15 feet away when the slip and fall occurred. The only similarity between B.Y. and the present case is that the engine was off, and the doors were shut. I find these are details that fall well-short of establishing that the vehicle “directly caused” the injuries.
17N.N. and A.N. also rely on CKD v Wawanesa9, which is also distinguishable, particularly the details noted at paragraph 7, where the adjudicator details the incident:
He then walked in front of the vehicle to get to the driver’s side. Once on the driver’s side, he reached out to open the door with his left hand. However, he then slipped and fell before he could open the door. He said that he slipped when he was about “to touch the open-door area”, which he later clarified was the door handle.
18The subject incident is distinguishable from CKD, in that N.N. was not as close to the vehicle as CKD was, and she was not close enough to reach out to touch any part of the car.
19I find that the incident does not meet the definition of an “accident” for the following reasons:
a. It is well-established that the vehicle must be the “dominant feature” and that the injuries are directly caused by the normal use or operation of the vehicle. Both N.N.’s and A.N.’s impairments were caused by circumstances that arose from the icy conditions of the parking garage, and not from any use or operation of her vehicle. The vehicle did not directly cause her injuries because N.N. was 12-15 feet away. While I recognize that putting groceries in the trunk or retrieving same, as was the intention here, meets the purpose test, there was an intervening act where N.N. fails on causation.
b. Aviva’s evidence, specifically the case law on which it relied, was compelling, in that in the similar slip and fall circumstances, even those which occurred within much closer proximity to a vehicle, were not found to be “accidents”. Neither N.N. nor A.N has given me reason to challenge the case law relied on by Aviva.
c. I find that the circumstances of the incident would likely have occurred, even if N.N. had a different purpose for being in the garage, as the icy surface would have been there regardless if her car was or not. It was not the vehicle that caused the icy conditions, it was likely a lack of or delay in the maintenance of the underground parking, therefore, not the result of an “accident” as defined in the Schedule.
d. Lastly, I agree with Aviva that the incident was the result of an intervening act. Further, because N.N.’s impairment was not caused by an accident, A.N. cannot rely on any provision under the Schedule. Consequently, the circumstances of the January 23, 2019 incident fail to meet the causation test.
CONCLUSION
20N.N. and A.N. were not involved in an “accident” as defined in the Schedule.
21The applications are dismissed.
Released: February 3, 2022
__________________________
Derek Grant Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- 2002 CanLII 45020 (ON CA), at para. 17. ["Chisholm"].
- 2004 CanLII 21045 (ON CA), at para. 11. ["Greenhalgh"].
- I.S. v. Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT)
- Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92
- Michael Moore vs. Certas Direct Insurance Company, 2020 CanLII 87994 (ON LAT)
- Edmonds v. COSECO Insurance Company, 2021 CanLII 19490 (ON LAT)
- 18-001537 v TD Insurance Meloche Monnex, 2019 CanLII 27893.
- C.K.D. v Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT)