Amardi v. Zenith Insurance Company, 2023 CanLII 116462

Citation: Amardi v. Zenith Insurance Company, 2023 ONLAT 21-008725/AABS

Licence Appeal Tribunal File Number: 21-008725/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:

Maxwell Amardi

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATORS:

Sandra Driesel and Trina Morissette

APPEARANCES:

For the Applicant:

Maxwell Amardi, Applicant Cary Schneider, Counsel

For the Respondent:

Johnny Fragnelli, Sr Technical AB Specialist

Daniel M Himelfarb, Counsel Joseph Tumini, Counsel

Interpreter:

Emmanuel Mensah (in the Twi language)

HEARD: by Videoconference:

May 8 and 9, 2023

OVERVIEW

1Maxwell Amardi, the applicant, was involved in an incident on November 26, 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 the respondent, Zenith Insurance Company (originally filed as Northbridge General Insurance Company) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

PRELIMINARY ISSUE

2The respondent brought a motion to determine whether the applicant was involved in an “accident” as defined under the Schedule. If not, then the applicant is not entitled to claim benefits under the Schedule.

ISSUE

3The preliminary issue to be decided is whether the incident involving the applicant constitutes an “accident” under section 3(1) of the Schedule.

RESULT

4We find that the applicant has not proven on a balance of probabilities that the incident of November 26, 2020, was an “accident” as defined in section 3(1) of the Schedule.

ANALYSIS

Background

5On November 26, 2020, while out walking, the applicant came across a clothes dryer that was left at the curb. The applicant wanted the dryer and borrowed a pickup truck to carry it away. The applicant explained that the pickup truck (“vehicle”) he borrowed had a specific tailgate that could be used to facilitate the onboarding of large or heavy items.

6The applicant loaded the dryer onto the open tailgate with the assistance of a passerby. With the dryer on the tailgate, the applicant wanted to push the dryer further back into the bed of the vehicle. He stated that without assistance, he leaned forward to push the dryer and recalled slipping on the icy road and hitting the ground. He further stated that somehow, the dryer fell forward, off the tailgate of the vehicle, and landed on him while he laid on the ground. The applicant cannot explain how the dryer might have fallen but states he is certain that the tailgate was locked in position and in good working order.

7The applicant argues that if it were not for his using the vehicle to transport an item, he would not have slipped and fallen causing him to sustain his alleged injuries which he identified as injuries to his right leg, left shoulder and lower back with a right hip fracture, dizziness, and sleep and mental health problems.

8The respondent takes the position that any injury the applicant may have sustained is a result of his slip and fall on the road and not because of his operation of the vehicle and therefore he is not entitled to accident benefits.

The incident that caused the applicant’s injuries is not an accident.

9For reasons that follow, we agree with the position of the respondent in finding that this incident does not meet the definition of an accident as defined by the Schedule.

10Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

11The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

12In 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?

The Purpose Test

Did the incident arise out of the use or operation of an automobile?

13As set out in Greenhalgh v ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at para 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?

14At the hearing, the parties agreed that the purpose test was not in dispute and neither party gave submissions on this point.

Conclusion – Purpose Test

15We are satisfied that on a balance of probabilities the purpose test has been met because the vehicle was being used for the purpose of transporting an item, an ordinary and well-known activity for which pickup trucks are put.

The Causation Test

16As set out in Greenhalgh, the causation test 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. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;

b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and

c. whether the use or operation of the motor vehicle was a dominant feature of the incident.

Would the alleged injuries not have occurred “but for” the use or operation of the automobile?

17We find that the applicant has not established that the alleged injuries would not have occurred but for the use or operation of the automobile. We find that the applicant being proximate to the truck when allegedly injured is not determinative of causation.

18The “but for” test does not require that the accident be the only cause of the impairments the applicant is currently suffering. In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) at para 25, Laskin J.A. put the “but for” concept this way: “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 assistance of any other act.” This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where at para 39, the Divisional Court rejected the Director’s Delegate’s finding “that the accident in issue must be sufficient in itself to have caused the impairment: that it must be the ‘cause’ as opposed to a ‘necessary cause’.” Applying Sabadash, the applicant needs to show that the accident was a necessary cause of his impairments.

19The applicant is relying on Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ON LAT), (“Duah”), where the Tribunal found that the slip and fall was not a separate event and the applicant’s injuries would not have occurred but for his being in the process of approaching the vehicle to unload groceries. In that case, the applicant reached the car door, slipped and fell on ice, striking his knee on the vehicle. He was not just walking to the vehicle but had been actively involved in entering the vehicle when he interacted with it.

20It is worthy to note that in the present case, two separate – yet closely timed – events occurred at the time of the incident: the slip and fall on the icy road surface and then the dryer falling onto the applicant.

21For the purpose of our analysis, the slip and fall occurred following the loading of the dryer onto the vehicle’s tailgate. At the time of this first incident, the applicant reports the dryer was stationary on the tailgate. He was about to re-position it into the bed of the vehicle when, after leaning forward in an attempt to make contact with the dryer, he slipped on the icy surface of the road. The applicant testified on two separate occasions (during an examination under oath in 2021 and at the hearing) that the vehicle did not contribute to his injuries. He testified that no part of his body came in contact with the vehicle (or the dryer) when he slipped and fell.

22It remains unclear how the dryer was dislodged and fell off the tailgate and the applicant has testified that the tailgate was in good working order and had not moved in any way. Further to this, the applicant was unable to provide evidence of whether or not the dryer hit him once he was on the ground and if so, what injuries he sustained as a direct result of this impact. Without any evidence related to this second incident, we could not put any weight on it as having an effect on the cause of any accident or injury.

23We find that unlike Duah, in this case, the applicant had completed the task of loading the dryer on the vehicle. Here, the applicant did not have any interaction with the vehicle when he slipped and fell. We find that the applicant, being proximate to the vehicle when allegedly injured, is not determinative of causation.

24Based on the facts and evidence before us, we are not convinced the applicant sustained his current injuries but for the use or operation of the vehicle. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in 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.”

25Since 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.

Was there an intervening cause?

26We find that the condition of the road was an intervening factor that contributed to the applicant’s slip and fall.

27As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the vehicle.

28The applicant submits that his slip and fall is a consequence directly caused by the use or operation of the vehicle. He noted that ice on the ground is an ordinary occurrence in November in Canada and not an intervening event. He again relies on Duah where the Tribunal found that the slip and fall on the ice was not an intervening cause, but part of a continuous chain of events related to the use of the automobile.

29The respondent argues the icy ground condition was the intervening cause of the applicant’s incident that caused his injuries. It notes the applicant confirmed he had completed the loading of the dryer with the assistance of a passerby. He was then considering manoeuvring the dryer further into the bed of the vehicle when he leaned forward and slipped on the ice on the ground.

30We agree with the applicant in that it is not uncommon to find ice on the ground in November. In our view, falling on ice is a foreseeable and common risk when walking outdoors in snowy/icy conditions, regardless of whether a vehicle is involved. Again, unlike the situation in Duah where the applicant was engaged in the ordinary use of the vehicle when the slip and fall occurred, here, the applicant completed his ordinary and regular use of his truck when he finished loading the dryer in the vehicle. Although he states he was going to engage in further activity related to the truck (like repositioning the dryer) he admits to slipping and falling on the ice without any contact with the vehicle or dryer. The vehicle did not cause his injuries. We find that the ice on the ground and the applicant’s slip and fall on that ice constitutes an intervening event that broke the chain of events.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

31We find that the vehicle was not the dominant feature of the applicant’s slip and fall injury.

32As 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.”

33The applicant submits that the dominant cause of the incident was the “ordinary and regular use” of the vehicle, involving the moving of the dryer further into the pickup truck’s bed. He argues the vehicle played more of a role than just bringing the applicant to the location of the slip and fall, but also that the applicant’s direct interaction with his vehicle caused the injuries and impairments he sustained.

34The respondent submits that the dominate feature of this incident was the applicant slipping on ice as opposed to the use or operation of the vehicle.

35We find that the use or operation of the vehicle was not the dominate feature of the applicant’s injuries. The dominate feature that physically caused the applicant’s injuries was the icy condition of the ground, as it was in Porter v. Aviva Insurance Company of Canada, 2021, ONSC 3107. In that case, Ms. Porter was walking towards a stationary car when she slipped and fell on ice in the driveway and was injured. The Divisional Court found that:

In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries.

36Moreover, unlike the Tribunal decisions cited by the applicant, we are bound by the decision in Porter where the Court stated that direct causation requires more than the vehicle simply being the reason or destination for why the applicant was present at this location when the slip and fall occurred. As in Porter, we find that the use of the vehicle was at best ancillary, and the intervening cause was the icy road which broke the chain of events. The slip and fall occurred independent of the vehicle’s use or operation. Although the vehicle was physically near the ice, we find that the vehicle was not the dominant feature of the applicant’s fall and, where the applicant did not contact the vehicle at any point, it cannot be said that it was the cause of his injuries.

Conclusion – Causation Test

37We conclude from our analysis that the incident does not meet the causation test of an “accident”. This is the applicant’s burden to prove, and he has not done so. Therefore, any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule, and therefore, he is not entitled to the benefits sought in this application.

ORDER

38The incident on November 26, 2020 involving the applicant does not constitute an “accident”, as defined in section 3(1) of the Schedule.

39Because the applicant is not entitled to any benefits in dispute, interest and an award are not payable.

40The application is dismissed.