Licence Appeal Tribunal File Number: 20-009052/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:
Roya Hasheminasab Namin
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY DECISION
VICE-CHAIR:
Ian Maedel
APPEARANCES:
For the Applicant:
Kathy Noohi, Counsel
Vanessa Liang, Paralegal
For the Respondent:
Kevin Mitchell, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1The applicant was involved in an incident on December 7, 2019 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 December 17, 2020. 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 income replacement benefits, the cost of a psychological assessment, the cost of drafting a Disability Certificate, attendant care benefits, an award, and interest.
4Given the totality of the evidence provided, I am not persuaded the incident on December 7, 2019, was an “accident”, pursuant to s. 3(1) of the Schedule.
INCIDENT
5On December 7, 2019, the 53-year-old applicant drove her Honda CR-V to an address in Aurora, Ontario, with the intention of viewing the residence for sale with her real estate agent. She was the driver and sole occupant of the vehicle.
6After arriving at the property, she stopped the vehicle in the shared common driveway between the town-home style units, placed it in park, and turned the engine off. After waiting for approximately two minutes, she received a telephone call from her real estate agent. Her agent arrived and parked on the street in front of the residence.
7Prior to parking her vehicle, the applicant observed snow on the ground on the asphalt driveway. The driveway was not shovelled nor salted.
8The applicant was seated in the driver’s seat, opened the car door with her left hand, and placed her right hand on the door, placing both feet on the ground and stood up on the driveway.
9With her right hand on the driver’s side door, she stepped out of the way of the driver’s side door in order to close it. She was facing the residence when she tried to close the driver’s side door of the vehicle. After closing the door, she intended on walking towards the front door of the residence. She did not have any articles or bags in her hand when she exited the vehicle.
10As she tried to close the door, she slipped and fell on ice that was underneath the snow on the driveway. She fell onto her left side. She did not impact the vehicle during her fall.
11Witnessing the fall, her real estate agent attempted to assist the applicant, and eventually she was able to stand while holding onto the vehicle. A call was placed to 911 and the York Paramedic Services arrived. The applicant required assistance to ambulate to the stretcher. She was transported to the Southlake Regional Health Centre.
12At the hospital, x-rays revealed she suffered a left femoral sub-capital neck fracture with mild impaction. On December 9, 2019, she underwent surgery where three cannulated screws were inserted into her hip to stabilize the fracture. She underwent physiotherapy and now walks with a cane. For more than a year following the incident she reported pain through the left hip and thigh.
PARTIES’ POSITIONS
13The applicant submits the two-part test as per Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”)1was met in this case. The purpose test was met, as she was attempting to exit the vehicle at the time of the incident. Exiting a vehicle is part of the ordinary and well-known activities to which automobiles are put. The causation test was similarly met, as it was the unsuccessful attempt to exit her vehicle that was the direct cause of her injuries. This fact scenario is akin to a moving vehicle that gets into an accident on an icy roadway.
14According to the causation analysis, the but-for consideration screens out trivial acts that could not be the possible cause of