Licence Appeal Tribunal File Number: 23-002354/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:
Marlene Henry
Applicant
And
Aviva General Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Michael Hazan, Counsel
For the Respondent:
Jessica Rogers, Counsel
Heard by way of written submissions
OVERVIEW
1Marlene Henry, the applicant, was involved in an incident on March 15, 2022, 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 the respondent, Aviva General Insurance Company (“Aviva”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is whether the applicant was involved in an accident.
RESULT
3The applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
ANALYSIS
Background
4On March 15, 2022, the applicant was on her way to work when she stopped at a gas station. She pulled up to the gas pump and turned off her car. She opened her door and put her feet out. As she was holding the car door with her right arm, she stood up. Both of her legs slid out from underneath her because she had slipped on ice. She attempted to break her fall by grabbing onto the car with her left arm. She landed on her rear end.
Parties’ positions
5The applicant submits that her accident falls within the definition of an accident pursuant to section 3(1) of the Schedule.
6The respondent submits that the direct cause of the applicant’s injuries was not the use or operation of the vehicle. Rather, her injuries were caused by the accident.
Was the incident an “accident”?
7For the following reasons, I find that the applicant was not involved in an “accident” as defined by section 3(1) of the Schedule.
8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
10In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
11The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
12The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
a. The “but for” consideration;
b. The “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and,
c. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.
The Purpose Test
13The respondent concedes that this incident meets the purpose test. On this basis, I find that the purpose test is satisfied. I will address the balance of the test.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
14Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to exit the vehicle. As Laskin J.A. noted in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.”
15Since the but for test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severs the chain of causation.
Was there an intervening cause?
16The applicant submits that there is no relevant intervening event. Her accident was caused by ordinary risks associated with motoring as commonly recognized in the case law dealing with slip and falls in winter conditions. The applicant relies V.B. v Economical Insurance Company, 2020 CanLII 87992 (ON LAT) (“V.B:”) in support of her case.
17The respondent submits that the applicant’s injuries were not the use and operation of the vehicle. The applicant’s injuries were directly caused by the ice on the ground. The ice was the intervening cause. The respondent relies on Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ON LAT) (“Sinnicks”), Cesario v. Intact Insurance Company, 2023 CanLII 23583 (ON LAT) (“Cesario”), and Parsons v. TD General Insurance Company, 2023 CanLII 32794 (ON LAT) (“Parsons”) in support of their case.
18In V.B., the Tribunal found that slipping and falling on ice was not an intervening act capable of breaking the chain of causation between the use or operation of the vehicle and the impairment. The V.B. decision that the applicant relies on is not binding on me and was decided before Porter. Therefore, I decline to follow it as I do not find it to be persuasive. Instead, I prefer to follow the reasoning of the Divisional Court in Porter, which is binding on me. In Porter, although the location of the car in the driveway could be said to have led to the applicant’s injuries, the Court found that the use and operation of the car could not be said to be a direct cause of the injuries. The Court stated that, “More is required than establishing that the car brought the applicant to the location of the incident, and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred.”
19In Sinnicks, Cesario and Parsons, the Tribunal found that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. Rather, her injuries were caused by an intervening cause, which was the ice on the ground. The ice caused the slip and fall that led to the applicant’s injuries, not the use or operation of the automobile. Although the vehicle was physically near the ice, it did not cause the slip and fall.
20I am persuaded by the respondent’s cases and find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. Rather, I find that her injuries resulted from an intervening cause, which was the ice, that caused her to slip and fall. Although the vehicle was physically near the ice, it did not cause the slip and fall.
21I am not persuaded by the applicant’s argument that there was an unbroken chain of causation. Rather, I am persuaded by the respondent’s position and find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. I find that the applicant’s injuries were caused by an intervening cause: the ice on the ground. The ice and the resulting slip and fall occurred independently of the automobile’s use or operation. Moreover, if there was no ice on the ground at the gas station, the applicant would not have slipped on the ground.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
22As 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.” 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.”
23The applicant submits that “in finding that the applicant struck her left arm against the vehicle satisfies the dominant factor element as the direct cause of her shoulder injury.” The applicant asserts that Porter is distinguishable because the applicant in that case was making her way to the automobile while in this case, the applicant was disembarking from her vehicle and was in the process of fulfilling a need for her vehicle. According to the applicant, the injury was caused by her striking the vehicle, which directly caused the injury.
24The respondent submits that the ice on the ground was the dominant feature that caused the incident.
25I note that the applicant asserts in her submissions that she struck her left arm against the vehicle. However, at the examination under oath, the applicant did not testify that she struck the vehicle. Rather, when asked whether she struck anything, the applicant stated that, “What I remember is as I was going down, I tried to break my fall. I grabbed onto the car with my left arm as I went down, and I landed on my bum.” Furthermore, the medical records that the applicant relies on do not make any mention of her striking the vehicle. The clinical notes and records (“CNRs”) dated April 4, 2022 state that, “She tried to brace herself by reaching with her left arm/hand for the car door but ended up reinjuring her left shoulder.” The CNRs dated April 13, 2022 state that she grabbed the door to break her fall. In my view, the applicant’s submissions are inconsistent with the evidence.
26I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries. The dominant feature that physically caused the applicant’s injuries was the ice. The location of the vehicle was ancillary. If the ice was not present, the applicant would not have fallen or have had to grab the door to break her fall.
27Moreover, unlike Tribunal decisions, I am bound by the decision in Porter where the Court stated that direct causation requires more than the motor vehicle simply being the reason or destination for why the applicant was present at this location when the slip and fall occurred. I am not persuaded by the applicant’s position that Porter is distinguishable from the facts before me. The applicant has not explained how being at the location to obtain gas for her vehicle or being in the process of fulfilling a need for her vehicle would be relevant distinctions.
28Accordingly, 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 section 3(1) of the Schedule.
ORDER
29The applicant has not demonstrated the incident on March 15, 2022 constituted an “accident”, as defined in section 3(1) of the Schedule.
30The application is dismissed. The Tribunal will vacate the hearing date scheduled for May 31, 2024.
Released: November 30, 2023
Tavlin Kaur
Adjudicator