Citation: Baker v. Wawanesa Insurance, 2023 ONLAT 22-006565/AABS

Licence Appeal Tribunal File Number: 22-006565/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:

Dodridge Baker

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Clive Forbes

APPEARANCES:

For the Applicant:

Dodridge Baker, Applicant Michelle Velvet, Counsel

For the Respondent:

Melissa Torres, Adjuster

Stanislav Bodrov, Counsel

HEARD by Videoconference:

October 10 to 12, 2023

OVERVIEW

1Dodridge Baker, the applicant, was involved in a single vehicle collision on November 23, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Wawanesa Insurance and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant’s position is that he was involved in an accident, his injuries are as a result of the subject accident, and he is entitled to the benefits claimed. The respondent’s position is that the applicant was not involved in an accident as defined by s. 3(1) of the Schedule and therefore he is not entitled to the benefits claimed and they are not reasonable and necessary.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Was the applicant involved in an “accident” as defined by subsection 3(1) of the Schedule?

ISSUES

4If the applicant was involved in an “accident” as defined by subsection 3(1) of the Schedule, the substantive issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined by s. 3 of the Schedule and therefore subject to treatment withing the $3,500.00 Minor Injury Guideline limit? The parties agree that there has been no payment for medical or rehabilitation treatment.

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 23, 2021, and ongoing?

iii. Is the applicant entitled to $4,979.48 for physiotherapy services, proposed by HealthMax Etobicoke (“HME”) in a treatment plan/OCF-18 dated June 22, 2021?

iv. Is the applicant entitled to $200.00 for the cost of completing an OCF-3 proposed by HME on an OCF-21 dated June 19, 2021?

v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that:

i. The applicant was not involved in an accident as defined by s. 3(1) of the Schedule.

ii. The applicant is not entitled to any of the benefits in dispute.

PROCEDURAL ISSUES

Evidence and Solicitor Client Privilege

6The respondent submits that it is claiming solicitor client privilege of pages 449 to 456 of the joint document brief that was inadvertently included as part of the redacted adjusters’ log notes. The respondent further submits that it only became aware of the error a few days before the hearing commenced and relies on the Superior Court’s decision in Airst v. Airst, 1998 CanLII 14647 (ON SC) in its request to have pages 449 to 456 of the joint brief redacted because of solicitor client privilege.

7The applicant did not agree with the respondent’s request and argues that privilege would be lost because pages 449 to 453 of the joint document brief summarize the Examination Under Oath (“EUO”) transcript and should not be protected. The applicant further submits that only pages 454 to 456 of the joint document brief should be excluded because of privilege. He also submits that since receipt of the accident benefits file both the applicant’s representative and law clerk would have seen the documents.

8I agree with the respondent that privilege is not lost as a result of the inadvertent disclosure. In addition, and as stated in Airst, I find that the disclosure was limited in scope and restricted to two persons retained in a capacity that might be broadly construed as confidential and the respondent made a prompt attempt to retrieve the documents after the disclosure was discovered. Furthermore, there is no prejudice or unfairness to the applicant if the requested pages are redacted because of solicitor-client privilege since the applicant is in receipt of the complete EUO transcript. As such, the respondent’s request to have pages 449 to 456 of the joint document brief redacted because of solicitor client privilege is granted and the Tribunal will not consider it.

ANALYSIS

Background

9On November 23, 2020, the applicant was operating his automobile in the eastbound lanes of Highway 401 when he intended to take the exit at Dixon Road. A third-party vehicle impeded the applicant’s exit causing him to swerve onto the shoulder of the highway and collide with the guardrail.

10After the collision with the guardrail, a tow truck arrived on the scene and, approximately one hour after, the applicant’s vehicle was towed to a Collision Reporting Centre (“CRC”) at Highway 401 and Keele Street. The applicant was driven to the CRC with the tow truck and let out by the tow truck driver on the road adjacent to the CRC.

11The applicant explained that upon arrival at the CRC, he walked across the sidewalk and up a man-made hill that was covered with snow, and on his way down the hill he slipped and fell before reaching the entrance of the CRC. He confirmed that the cause of his fall was because he slipped on the snow. As a result of his slip and fall, the applicant felt immediate pain in his left ankle, and he later reaffirmed that he was certain that he injured his ankle when he slipped and fell and not during the guardrail collision. The applicant submits that he suffers from left ankle pain, back pain, vehicular anxiety and depression as a result of the single vehicle collision.

Was the applicant involved in an “accident” as defined by the Schedule?

12I find that the applicant has not proven on a balance of probabilities that the incident meets the definition of an accident under s. 3(1) of the Schedule. Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

13In Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 OR (3d) 338, the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in Amos and the causation test as set out in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 OR (3d) 776 (ON CA). This test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to satisfy the following tests:

a. Purpose Test:

i. Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. Causation Test:

i. Was the use or operation of the vehicle a cause of the injuries?

ii. If the use or operation of the vehicle was the cause of the injuries, 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?” In other words, was the use or operation of the vehicle a “direct cause” of the applicant’s injuries?

14The applicant bears the onus to satisfy both the purpose and causation tests.

15The applicant submits that pursuant to s. 199 of the Highway Traffic Act, he was compelled by law to attend and report his collision at the CRC. He further submits that “but for” the collision with the guardrail on Highway 401 he would not have been at the CRC where he slipped and fell and sustained a left ankle fracture that led to back problems. The applicant relies on the psychological assessment report of Dr. Ricardo Harris, clinical psychologist, dated August 13, 2021, to support his position that he suffers from vehicular anxiety and depression because of the guardrail collision and as such argues that he is entitled to the benefits being claimed.

16The respondent submits that at the time of the slip and fall incident, the applicant was no longer using his motor vehicle and as such there was no use of an automobile related to the fall to satisfy the purpose test. In addition, the respondent relies on Porter v Aviva Insurance Company of Canada, 2021 ONSC 3107, to argue that more is required than the automobile being the reason why the applicant was at the CRC where he slipped and fell. The respondent also submits that the slippery hill at the CRC was the direct cause of the applicant’s fractured ankle and creates a break in the causal link between the use or operation of a motor vehicle and the applicant’s injuries. The respondent further submits that the reasoning in Porter is binding on the Tribunal, and since the applicant has not satisfied both the purpose and causation tests he is not entitled to the benefits claimed.

Purpose Test

17I agree with the respondent that the applicant has not satisfied the purpose test for the following reasons.

18The applicant reported at the EUO on May 12, 2021, that he was certain that he injured his ankle when he slipped and fell at the CRC and not during the guardrail collision on Highway 401. In addition, the applicant indicated that he did not suffer any injuries as a result of the guardrail collision but noted he had some back pain at the time of the EUO. While the applicant asserts that he sustained back problems as a result of the collision he did not point the Tribunal to any medical evidence to support this. However, he clarified that his back pain was unrelated to the subject collision or the slip and fall but was caused by a bad mattress. The applicant also testified that he was having the mattress related back pain before the guardrail collision. Accordingly, where the applicant admitted to the above, I find that the applicant’s slip and fall at the CRC was not due to the ordinary and well-known activities to which automobiles are put. But rather, it came about because he climbed an icy hill.

Causation Test

19I find that the applicant has not satisfied the causation test for the following reasons.

20The applicant argues that his case is distinguishable from Porter because he was required to report the guardrail collision in accordance with s. 199 of the Highway Traffic Act when he slipped and fell at the CRC. The applicant also submits that he suffers from vehicular anxiety and depression because of the guardrail collision.

21I do not agree with the applicant that his case is distinguishable from Porter. The fact that the guardrail collision was the reason why the applicant was at the CRC does not create a causal link between the use or operation of an automobile and the applicant’s injuries. The applicant’s automobile use was ancillary to his injuries because the direct cause of his injuries was the intervening act of the applicant climbing the snow-covered hill and slipping and falling, which he has admitted caused his physical injuries. Furthermore, the applicant testified that he did not use the sidewalk at the CRC to access the front entrance but instead he decided to go over the man-made snow-covered hill where he slipped and fell.

22I find that the reasons in Porter and its findings are applicable to this case because the dominant feature of the incident was not the operation or use of an automobile but the applicant choosing to climb the icy snow-covered hill and slipping and falling. Moreover, I find that the applicant’s fractured ankle and any impairment that arises from that injury were not directly caused by the use or operation of an automobile but were caused by the intervening act of the applicant choosing to climb the snow-covered hill and slipping and falling down same.

23I also do not agree with the applicant that he suffers from depression and vehicular anxiety because of the guardrail collision. The applicant reported to Dr. Harris that he was only involved in a single-vehicle guardrail collision and made no mention to Dr. Harris that he slipped and fell at the CRC and fractured his ankle. The applicant’s visit to Dr. Harris was more than nine months after the collision where Dr. Harris diagnosed him with depression. Dr. Harris specifically noted that the applicant’s depression was attributable to his fractured ankle and his subsequent inability to work because he reported he could not stand at the autobody shop for more than three hours as a result of pain in his ankle.

24In addition, there is no mention in the clinical notes and records of the applicant’s walk-in clinic, Westway Children’s Clinic, of any emotional or psychological complaints reported as a result of the guardrail collision or following it. As mentioned earlier, the applicant has admitted that his fractured ankle was caused by the slip and fall and not by the use or operation of an automobile. Therefore, I find it unlikely that the applicant’s depression is from the guardrail collision because there is limited contemporaneous evidence to support same.

25Also, I was not directed to any medical evidence to support the applicant’s position that he suffers from vehicular anxiety. Dr. Harris did not diagnose the applicant with this condition and during his EUO the applicant confirmed that he has no restrictions in his ability to operate a motor vehicle following the guardrail collision on November 23, 2020. Furthermore, the applicant testified during the hearing that he continues to drive after the guardrail collision but is only more careful now whenever he is exiting Highway 401.

26I find that the applicant has failed to satisfy his onus to demonstrate that he was involved in an “accident” as defined by s. 3(1) of the Schedule. I find that the applicant’s fractured ankle and any impairment that arises from that injury were not directly caused by the use or operation of an automobile but were caused by the intervening act of the applicant choosing to climb the snow-covered hill and slipping and falling down same. Therefore, it follows that the applicant is not entitled to any of the benefits in dispute.

Interest

27As I find that the applicant was not involved in an accident pursuant to s. 3(1) of the Schedule, he is not entitled to the benefits claimed. As there were no overdue payments found, no interest is payable under s. 51.

Award

28I find an award is not warranted. As the applicant is not entitled to any of the issues in dispute and no payments for benefits were unreasonably withheld or delayed, it follows that the Tribunal cannot order an award.

ORDER

29I find that:

i. The applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

ii. The applicant is not entitled to any of the benefits in dispute.

30The application is dismissed.