Monteiro v. Novex Insurance Company, 2022 CanLII 78791

Citation: Monteiro v. Novex Insurance Company, 2022 ONLAT 21-00261/AABS - PI

Licence Appeal Tribunal File Number: 21-000261/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:

Maria Monteiro

Applicant

and

Novex Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Bozena Kordasiewicz, Counsel

For the Respondent:

Maya Krishnaratne, Counsel

Heard:

By way of written submissions

BACKGROUND

1The respondent, Novex Insurance Company (“Novex”), brings this preliminary issue motion for a determination that the incident in which the applicant broke her left wrist on March 13, 2019 was not an accident as defined in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (''Schedule''). The underlying facts of the incident are not in dispute, although the interpretation of the facts by each party differs. The parties’ submissions focus on the applicable law. Having considered the parties submissions, I find that the applicant, Ms. Maria Monteiro, was not in an accident.

THE FACTS

2The facts are set out in a statement made by Ms. Monteiro approximately a year after the accident, and in an Examination Under Oath (“EUO”) conducted approximately two and a half years after the accident. As may be expected, there are differences in the small details, but otherwise the statement and the EUO are largely in agreement with each other. The documents disclose these facts:

• Ms. Monteiro lives in a townhouse condominium. She parks her car outside in the open air in a parking space in front of her unit.
• At the time of the accident, it was her practice to attend 9:00 a.m. Mass at her church each day.
• On the night of March 12/13, 2019 there was a snowfall and Ms. Monteiro’s car was covered in snow.
• As per her usual practice at the time of the accident, Ms. Monteiro left her townhouse at approximately 8:30 a.m. with three tasks in mind: to get her car ready to take her to Mass by brushing off the snow and warming it up, to drop a small plastic shopping bag of garbage in the garbage containers located in the parking lot a couple of minutes walk from her parking space, and to drive to Mass.
• When she got to her car, she placed the garbage bag by the left rear of the car. She got into her car and started it. She took out her snow brush and brushed the snow off the car, a process which he estimated took 15 minutes or so. She put the snow brush back in the car.
• Leaving the car running with her purse inside, she moved to the rear of the car, picked up the garbage bag and after a step or two, her foot slipped, and she fell breaking her left wrist and bruising her left side.

3Novex submits that Ms. Monteiro slipped in the act of dumping garbage. This act had nothing to do with the use or operation of an automobile, the prerequisite to recovery of benefits under the Schedule. Ms. Monteiro submits that the slip and fall is part of one continuous chain of causation that involved warming up and brushing the car, dumping the garbage, and then driving to Mass. Ms. Monteiro submits that use or operation of the car was a direct cause of the slip and fall.

THE LAW

4The term “accident” is defined in s. 3(1) of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment.” This definition has come under judicial scrutiny. In Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) (“Greenhalgh”), the Ontario Court of Appeal surveyed the case law interpreting the definition of accident. It endorsed a two step analysis. The first step is the purpose test: “Did the accident result from the ordinary and well-known activities to which cars are put?” Assuming the answer to the first step is yes, the second step is: “Was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the car was a "direct cause" of the injuries?” These two steps are referred to in the case law as the purpose test and the causation test.

Purpose Test

5The purpose test is often given a perfunctory analysis in the case law. With respect to Greenhalgh, the respondent recognizes this in paragraph 10 of its written submissions when it says: “The court did not explore the purpose test in detail in this case, stating simply that the applicant may have met the “purpose” test but went on in detail to explain why she did not meet the “causation” test.”

6In Greenhalgh the plaintiff’s car stalled after getting stuck in a remote area on a very cold night. The plaintiff decided to walk away from the car and seek assistance. She and her companion got lost in the dark and wandered for hours before being found. In her wanderings, the plaintiff fell through the ice, lost her boots, and suffered severe frostbite resulting in the amputation of her extremities. On the facts, it can be said that difficulties with the car created the predicament that ultimately led to the plaintiff’s impairments. Thus, the purpose test may have been met. The Court then went on to apply the second branch of the analysis, the causation test. It found that the subsequent events represented a break in the chain of causation such that the plaintiff’s impairments were not “directly” caused by the use or operation of a motor car.

7The current facts differ fundamentally from Greenhalgh. In this case the use or operation of a car played no part in Ms. Monteiro’s fall. It did not create her predicament. She left her home that morning with three tasks in mind: to prepare the car to drive to the 9:00 a.m. Mass, dispose of her garbage, and drive to Mass. She had completed the first of those tasks. The car had been started, she had brushed the snow, and she had placed the snow brush back in the car. That task completed, she commenced on the second of her tasks to dispose of the garbage. While walking to complete the second task, she slipped and fell. Her car had no role in her slip and fall, it was simply in the vicinity of the fall. She cannot satisfy the purpose test because she was not using or operating the car at the time. She was not seeking help because of a broken down car. [Greenhalgh]. She was not taking groceries out of the trunk. [Mahadan v. Co-operators General Insurance Co., [2001] O.F.S.C.I.D. No. 40 (Ont. Fin. Serv. Comm.) (F.S.C.O. A00-000489, March 15, 2001)]. Nor did she slip while brushing the snow.

8It is hard to extract from Ms. Monteiro’s submissions where, if at all, the unbroken chain of events she urges is broken. Does her insurance cover extend all of the way to the garbage disposal and back? Her characterization of the cleaning and warming of the car, followed by dumping the garbage, and then driving to Mass as one continuous chain of causation suggests that had the slip and fall occurred two minutes walk away when she was at the garbage disposal area it would, in her submission, still fall within the definition of an accident. This chain of causation does not allow for discrete steps in the tasks Ms. Monteiro set out to complete that morning.

9Notwithstanding the breadth of her characterization of the chain of causation, it appears that she focusses on proximity, particularly in paragraph 3 of her submissions where she acknowledges that she had completed brushing the snow but notes that the garbage bag was on the ground at the back of the car. At paragraph 9 she states:

She put the brush back inside the car, picked up the small garbage bag in her right hand and while in the process of making her first step, she fell; and therefore, the purpose of her journey/use/operation of the car did not end at that time. There was no brain [sic] in the chain as she did not leave the vehicle before she fell. While she was picking up the garbage bag, the engine was running, she was in very close proximity to her vehicle, the purse and the brush were inside. All of these activities constitute ordinary and well-known activities to which cars are put and confirm Ms. Monteiro’s position that she satisfies the purpose test.

10Proximity is not use or operation. Falling next the car does not necessarily implicate the use or operation of the car in the fall. I find Ms. Monteiro does not meet the purpose test.

The “but for,” “intervening act,” and “dominant feature” tests

11Notwithstanding my finding that the purpose test is not satisfied, I will go on to consider the application of the tests set out in Greenhalgh and recently addressed by this Tribunal in Edmonds v. COSECO Insurance Company, 2021 CanLII 19490 (ON LAT) (“Edmonds”). In Greenhalgh the Court of Appeal adopted the reasoning of Laskin J.A. in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA) (“Chisholm”) that the causation analysis followed a path of the which the first step was to determine the “but for” test; that is, but for the use and operation of a motor car, the injuries would not have occurred. Its application in this case is, but for the applicant leaving her car after brushing the snow, she would not have slipped and injured herself. In Chisholm, cited with approval in Greenhalgh, Laskin J.A. direct causation as: “When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.” Applying the analogy in this case, was it inevitable that Ms. Monteiro’s actions of warming the car and cleaning the snow would lead inexorably to her slip and fall? I fail to see any such inevitability.

12While my analysis above supports the position that the “but for” test is not satisfied in this case, Chisholm makes it clear that this test has a low threshold and acts to filter out cases that cannot succeed. Given the low threshold, I am prepared to proceed on the basis that the “but for” test is met, as an alternative to my findings above.

13The second step in the causation analysis is to determine if there is a break in the chain of causation, that is, an intervening act. In this case the applicant urges an unbroken chain. I have noted the difficulties with this submission above, but for the purposes of this analysis, it is clear that there is an intervening act that breaks the chain of causation. The applicant quit the car with the intention of going to the garbage disposal area.

14Finally, Chisholm discusses the dominant feature test. In Greenhalgh the Court of Appeal defined the dominant feature test as “the aspect of the situation that most directly caused the injuries.” In Edmonds the Tribunal held that the dominant feature of the accident was the ice upon which the applicant slipped. The Edmonds facts are more sympathetic to the applicant than the current facts, as the applicant in Edmonds slipped while trying to open the door and get into the car. The Edmonds applicant was actually in contact with the car when she slipped. Here, Ms. Monteiro had started to walk away from the car when she slipped. The dominant feature is clearly that slippery surface where she was walking quite independently of her future intention to drive the car to Mass.

CONCLUSION AND ORDER

15I find that the incident on March 13, 2019 was not an accident as defined in the Schedule because it did not involve the use or operation of an automobile. I find that Ms. Monteiro has failed to satisfy any branch of the tests set out in Chisholm and further clarified in Greenhalgh. Her application to the Tribunal for statutory accident benefits under the Schedule is dismissed.