Licence Appeal Tribunal File Number: 23-003500/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:
Vijay Singh
Applicant
and
Aviva Insurance Company
Respondent
PRELIMINARY ISSUE HEARING AND DECISION
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Yoni Silberman, Counsel
For the Respondent:
Aimee Draper, Counsel
Heard by way of written submissions
OVERVIEW
1Vijay Singh, the applicant, was involved in an incident on January 13, 2023, 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” as defined in section 3(1) of the Schedule.
RESULT
3The applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
ANALYSIS
Background
4On January 13, 2023, the applicant was enjoying a late-night meal with his family at a restaurant. While he was in the restaurant, he used his key fob to remotely start his vehicle. This was approximately ten minutes before leaving. Upon exiting the restaurant, he unlocked the vehicle doors. It was snowing and the parking was covered in snow. The applicant was holding his key fob in his right hand as he made way towards his automobile. He reached out for the door. The applicant was one foot away from his vehicle when he slipped and fell on the snow and ice. As a result, he broke his left humerus.
Parties’ positions
5The applicant submits that his injuries fall within the definition of an accident pursuant to section 3(1) of the Schedule.
6The respondent submits that he was not involved in an 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 his 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 applicant submits that he meets the purpose test because he remotely started his vehicle, unlocked his vehicle, walked towards his vehicle, and reached to open his vehicle, all with the sole intention to enter and use his vehicle.
14The respondent submits that the applicant is unable to meet the purpose test because he was simply walking towards his vehicle. He had no contact or true interaction with the vehicle prior to the slip and fall.
15I am satisfied on a balance of probabilities that the purpose test has been met because the incident arose out of the ordinary and well-known activities for which automobiles are put. I agree with the applicant that the use and operation of the car began as he was in the process of entering his vehicle. The only purpose of the applicant walking from the restaurant towards his car was to go home. He had his key fob in his right hand. There was a clear intention of entering the vehicle when he slipped and fell on the snow and ice. I am not persuaded by the respondent’s position that he was simply walking towards the vehicle.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
16Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” his need to enter 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.”
17Since 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?
18The applicant submits that slipping on ice or snow when entering or exiting a vehicle ought to be considered a normal incident of the risk created by use or operation of a vehicle in a Canadian winter, and not an intervening act. The applicant relies on Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ON LAT) (“Duah”), Harland-Bettany v Aviva Insurance Company, 2022 CanLII 78879 (ON LAT (“Harland-Bettany”) and Seung v Cooperators General Insurance Co, 2023 CanLII 47510 (ON LAT)(“Seung”) in support of his case.
19The respondent submits that the snow and ice on the ground that causes the applicant to slip and fall is clearly an intervening event that broke the chain of causation. The respondent points to the decisions in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Ont. Div. Ct.) (“Porter’), Buckley v Wawanesa Insurance, 2022 CanLII 106443 (ON LAT) (“Buckley”), Mahoney v Co-Operators General Insurance, 2020 CanLII 106434 (ON LAT) (“Mahoney”) and Ritchie v Economical Insurance, 2021 CanLII 134534 (ON LAT) (“Ritchie”), as authority for its position that the jurisprudence reveals that there are numerous intervening factors that can break the chain of causation.
20For example, in these cases, the intervening factors include the accumulation of snow and ice on the ground, the negligence of the property owner in failing to perform winter maintenance services and the applicant’s failure to wear footwear appropriate to the conditions. It submits that these intervening factors were found to be a clear break in the chain of causation and proved that the use or operation of the motor vehicle was not the dominant feature or direct cause of the incident and alleged corresponding injuries.
21I am persuaded by the caselaw cited by the respondent 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 his injuries resulted from an intervening cause, which was the ice and snow that caused him to slip and fall. Although the vehicle was physically near the ice and snow, it did not cause the slip and fall.
22I 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.”
23In my view, ice is not a foreseeable risk related to the use and operation of a motor vehicle. As noted in Ritchie, falling on ice is a foreseeable and common risk when walking in parking lots in the winter, regardless of whether a motor vehicle is involved. I 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. The ice and the resulting slip and fall occurred independently of the automobile’s use or operation.
24In Duah, the Tribunal found that the slip and fall was not a separate event. The applicant was walking towards his vehicle for the sole purpose of getting into it when he slipped and fell. The Duah decision that the applicant relies on is not binding on me and was decided before Porter. Therefore, I decline to follow it because I do not find it to be persuasive.
25In Seung, the Tribunal found that Porter does not stand for the proposition that all incidents involving snow, ice, or debris on the ground will fall outside the Schedule’s definition of an accident. While that may be the case, Seung does not specify the situations where Porter would apply. Moreover, it is not binding on me. It was decided on its own facts.
26The applicant’s submissions with respect to Harland-Bettany do not elaborate why I should adopt the Tribunal’s reasoning in that particular case. Moreover, the facts in Harland-Bettany were different and is not binding on me. Furthermore, I find this decision to be of limited assistance to this matter and decline to adopt the reasoning in it.
27I am not persuaded by the applicant’s argument that there was a continuous chain of events. 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 and snow on the ground. The ice and snow and the resulting slip and fall occurred independently of the automobile’s use or operation. Moreover, if there was no ice and snow on the ground in the parking lot, the applicant would not have slipped on the ground and sustained his injuries.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
28As 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.”
29The applicant submits that the dominant feature of his accident was this continuous chain of events culminating in him attempting to enter the vehicle and the slip and fall was secondary to that act.
30The respondent submits that the dominant cause of the applicant’s alleged injuries is the snow and ice which caused the slip and fall, not the use or operation of his vehicle. The use or operation of his automobile was, at most, ancillary and not the direct cause of the injury.
31I 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 snow and ice. The location of the vehicle was ancillary. If the ice and snow were not present, the applicant would not have fallen.
32Moreover, 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.
33Furthermore, the applicant’s submissions with respect to Madore v Intact Insurance Company, 2023 ONSC 11 (Madore) do not elaborate how it would apply to the facts before me.
34Accordingly, I cannot conclude that 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
35The applicant has not demonstrated the incident on January 13, 2023 constituted an “accident”, as defined in section 3(1) of the Schedule.
36The application is dismissed. The Tribunal will vacate the hearing date scheduled for May 1, 2024.
Released: December 21, 2023
Tavlin Kaur
Adjudicator