Citation: Hung v. Motor Vehicle Accident Claims Fund (MVACF), 2023 ONLAT 22-002844/AABS

Licence Appeal Tribunal File Number: 22-002844/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:

Iris Hung

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Iris Hung, Applicant

Hishan Imtiaz, Counsel

For the Respondent:

Daniel Fenwick, Counsel

HEARD: by Videoconference:

August 1, 2023, and by way of written submissions

OVERVIEW

1Iris Hung (“I.H.”), the applicant, was involved in an incident on November 5, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2Motor Vehicle Accident Claims Fund (“MVACF”) denied I.H.’s claim for benefits after it took the position that the incident did not constitute an “accident” under s. 3(1) of the Schedule. I.H. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

3The parties agree that the preliminary issue in dispute is as follows:

a) Did I.H.’s injuries occur out of the use or operation of a vehicle and therefore meet the definition of an “accident” as defined by s. 3(1) of the Schedule?

RESULT

4I.H.’s injuries were not as a result of an accident as defined by s. 3(1) of the Schedule.

BACKGROUND

5I.H. was injured in an incident that occurred when she was riding her bicycle in downtown Toronto. While riding, she noticed a car parked in the bicycle lane on the opposite side of the intersection. In an attempt to navigate around the parked car, her front wheel hit the streetcar tracks and she fell off her bicycle and was injured.

ANALYSIS

“Accident” criteria

6Section 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.” Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”

7In Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), at para. 17. [“Chisholm”], the Court of Appeal set out a two-part test for determining whether an incident qualifies as an “accident” under the Schedule, known as the “Purpose” test and the “Causation” test. The test was further refined by the Court in Greenhalgh v. ING Halifax Insurance Company 2004 CanLII 21045 (ON CA), at 11. [“Greenhalgh”] such that, in order to qualify as an “accident” under the Schedule, the insured must satisfy both branches of the modified test:

a) The Purpose Test: did the incident and injuries arise out of the ordinary and well-known activities for which automobiles are used? and,

b) The Causation Test:

i. Did such use and operation of the automobile directly cause the impairment?

ii. 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”?

8For clarification, the second branch of the causation test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also considered “but for”, “intervening act” and “dominant feature” to analyze the causation test.

Purpose Test

9I am not satisfied on a balance of probabilities that the purpose test has been met.

10I.H. submits that the incident meets the purpose test as it arose out of an ordinary and well-known activity. Her evidence is that a parked/stopped vehicle obstructed the entrance to the elevated bike lane. Her position is that the parking or stopping of a motor vehicle is an ordinary and well-known activity, even if it was stopped in a location that it was not permitted to do so. Therefore, the purpose test is satisfied.

11MVACF argues that this incident does not meet the purpose test. Its position is that the dominant feature of the incident was the streetcar tracks that caused her to fall off her bike. While there was a vehicle nearby, this is not enough to demonstrate that her injuries arose from the operation of a vehicle. The evidence is that her wheel was caught in the streetcar tracks, and she fell off her bike as a result, independent of the use or operation of a vehicle.

12I agree with MVACF. The vehicle did not belong to I.H., she confirmed there was no contact with the vehicle, therefore, it cannot be found that the purpose test was met. While parking is part of the ordinary use or operation to which a vehicle is put, in this incident, the use or operation had no direct involvement in causing I.H.’s injuries.

Causation Test

13I find the causation test has not been met.

14I.H. testified that she safely entered the middle lane of traffic and began to pass the parked car. After entering the through lane and reaching the point of being at the driver’s side of the vehicle, her front bicycle tire went into the streetcar track, and she fell off her bike.

15MVACF conducted an Examination Under Oath and relied on the June 23, 2020 transcript of same. In the transcript, I.H. described the incident. She rode her bicycle in the bike lane and she approached the intersection. A car was parked in the bike lane close to the intersection. She noticed the vehicle as she approached the intersection and attempted to go around the vehicle on the driver’s side. She testified that she started this maneuver while in the intersection approximately a half to one car length before she reached the vehicle.

16I find I.H.’s testimony and the evidence do not support that she suffered injuries as a result of an “accident”. There is no evidence, and her testimony does not support, that there was an impact with the parked vehicle that would have caused her to suddenly swerve into the streetcar tracks. She testified that the vehicle was stationary, the door did not and was not open, and there is no evidence of a horn honk or other noise that may have startled her. More significantly, although contact with a vehicle is not strictly required, I.H. made no contact with the vehicle.

The “but for” consideration

17I find that “but for” the car obstructing the bike lane, I.H. would not have had to maneuver around the parked vehicle.

18Based on the facts and evidence before me, I find that I.H. would not have sustained these injuries “but for” her need to navigate around 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 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.”

19I.H. submits that the parked vehicle was a “clear cause of the injuries” that she sustained in the incident. Her position is that “but for” the illegal parking/stopping of the motor vehicle, the incident would not have occurred. Due to the obstruction of the entrance to the elevated bike lane, the close proximity of the vehicle to I.H., if the vehicle was not present, she would not have had to maneuver her bike in a way that would put I.H. at risk of her bike wheel going in the streetcar tracks.

20MVACF does not disagree that this incident may satisfy the “but for” test, however, its position is that the streetcar tracks are an intervening act as well as the dominant feature of I.H. falling off her bike and sustaining injuries. I agree with I.H. that “but for” the car obstructing the bike lane, she would not have had to maneuver around the parked vehicle. Despite this, I do not find that the “but for” screen rules out that I.H.’s injuries were not the result of an “intervening act”.

The “intervening act” consideration

21I find the location of the vehicle factors little into the direct cause of I.H.’s injuries as she was not injured by the location of the vehicle, but by the streetcar tracks that caused her to fall off of her bike.

22I.H. relies on Marilena Dimarco v. Chubb Insurance Company of Canada, 2012 ONFSCDRS 16 (“Dimarco”), in support of her claim. In Dimarco, the motor vehicle, which was also stationary, was found to have created an obvious obstacle for the applicant to navigate. The motor vehicle was found to have created a situation of risk that was the defining feature to trigger a sequence of events that resulted in an injury. The applicant lost her balance while attempting to navigate around the vehicle and fell as a result. It was held that the vehicle only afforded a narrow space for a cyclist to navigate. It was further held that the position of the vehicle set in motion a chain of events that directly resulted in the applicant’s fall from her bicycle. The adjudicator found there was a direct and proximate cause between the use of the motor vehicle and the applicant’s injuries. As such, the incident was found to be captured under the definition of an accident.

23MVACF submits there is no evidence that the car had any direct effect on the applicant losing control of her bike, although I.H. had to signal, shoulder check and change lanes due to the parked car that she saw from approximately 50 metres away. It submits that the time that I.H. had to assess the situation and make a lane change speaks to the lack of “direct” involvement of the parked car. Further, that the streetcar tracks are a regular occurrence in the city and are intervening factors that break the chain of causation that the incident occurred from the involvement of a parked car.

24MVACF relies on Soch v Unifund Assurance Company, 2023 CanLII 67889 (ON LAT) (“Soch”) in support of its position. In Soch, the applicant was riding her bike in the middle of the bike line due to uneven payment ahead of her. She alleged that a car approaching from behind forced her to maneuver her bike into the lateral aspect of the bike lane where she hit a pothole and went over her handlebars and landed on her face. The adjudicator determined that the purpose test was not met and did not address the causation test.

25While there are some similarities between the case law the parties rely on and this proceeding, I find that Dimarco is distinguishable. First, there was not a narrow space for I.H. to navigate on her bike with difficulty. The streetcar tracks are part of a regular lane, allowing sufficient space for a bicycle to navigate. Second, I have not been pointed to evidence that I.H. had concerns about navigating around the parked vehicle, as she is an experienced rider, particularly in the area she was located. Lastly, a stationary vehicle cannot be said to have been the dominant feature in this incident as I.H. had sufficient time to navigate around it. The vehicle was already parked, it did not stop suddenly and cause her to swerve, and her own evidence is that she saw the parked vehicle as she approached the intersection, which was more than a vehicle length away.

26In this circumstance, I find that the location of the vehicle did not contribute into the direct cause of I.H.’s injuries as she was not injured by the location of the vehicle, but by the streetcar tracks that caused her to fall off of her bike. The vehicle, although nearby, was a secondary factor in this incident. The intervening act was I.H.’s bike tire getting caught in the streetcar tracks, which led to her being injured.

The “dominant feature” consideration

27I find the circumstances of this incident do not meet the definition of an “accident”.

28I.H. submits that the dominant feature of this incident was the ordinary and well-known use or operation of a vehicle which is parking, which resulted in her having to navigate around the vehicle and cause her to veer into the streetcar tracks and fall off her bicycle.

29I disagree.

30The dominant feature was the streetcar tracks, which caused her bike wheel to get stuck, resulting in her falling from her bicycle. The vehicle did not cause her to suffer injuries as a result of a fall, but rather her fall was a result of the streetcar tracks which her bicycle tire got stuck in.

31I.H. bears the onus to demonstrate on a balance of probabilities that she was involved in an accident. There were no witnesses to corroborate her account of what happened on the date of the incident. While I am alive to the fact that she was injured while riding her bicycle, I am not persuaded that the incident arose from the use or operation of a vehicle. I find that she has not satisfied the purpose test or the intervening act or dominant feature aspects of the causation test. Accordingly, I find that I.H. was not involved in an accident as defined by s. 3(1) of the Schedule.

ORDER

32I have determined that I.H. was not involved in an accident, therefore, she cannot rely on any provision under the Schedule. Consequently, an analysis of whether I.H. is entitled to any claimed benefits is not necessary.