Citation: Duah v. Gore Mutual Insurance Company 2023 ONLAT 23-002633/AABS - PI

Licence Appeal Tribunal File Number: 23-002633/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:

Michele Duah

Applicant

and

Gore Mutual Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Matthew C. MacIsaac, Counsel

For the Respondent:

Ashleigh Leon, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Michele Duah, the applicant, was involved in an incident on January 28, 2023 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Gore Mutual Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

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

RESULT

3The applicant’s injuries did not result from an “accident” as defined in s. 3(1) of the Schedule.

BACKGROUND

4The parties are not in agreement as to the facts in this matter. The applicant submits that she fell while in the process of entering her parked motor vehicle. She states that while she was attempting to place her foot inside her car, she lost her balance and fell, striking her right leg on the vehicle and causing an injury to the leg.

5The respondent argues that the applicant has not submitted any evidence supporting her characterization of the incident. It contends that the hospital and physiotherapy records do not support the applicant’s position that she struck her leg on the vehicle, but rather, that she slipped on ice and fell backward. The mechanism of injury in these records was reported as a “slip and fall”.

ANALYSIS

Law

6Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries, despite this preliminary issue being raised by the respondent.

Was the incident an “accident”?

8I find that the applicant has failed to establish that she was involved in an accident as defined in s. 3(1) of the Schedule.

9The Ontario Court of Appeal confirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, a two-part test to determine whether an incident is an “accident” as follows:

i. Purpose test: did the incident arise out of the use or operation of an automobile? and

ii. Causation test: did the use or operation of an automobile directly cause the impairment?

10The 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?

11The 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 satisfying the following considerations in sequential order:

i. The “but for” consideration;

ii. 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,

iii. 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”.

Purpose Test

12In its submissions, the respondent concedes that the applicant has met the purpose test. On that basis, I find that the purpose test has been satisfied.

Causation Test

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

13I find that the applicant would not have sustained her injuries “but for” her need to enter the vehicle. As noted by Laskin J.A. in Chisholm v. Liberty Mutual Group, 2002 CanLII 4502 (ONCA), the purpose of the “but for” test is exclusionary, so it 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.” Legal entitlement, according to Chisholm, also “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”

Was there an intervening cause?

14I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of her injuries. Rather, I find that the injuries were caused by an intervening act, namely, the fall due to ice.

15The applicant submits that the initial chain of causation started when she began the process of entering her vehicle. She argues that slipping and falling on ice does not disrupt the initial chain of causation, and is not an intervening act, relying on the Tribunal decision V.B. v. Economical Insurance Company, 2020 CanLII 87992, in support of her position. The applicant further cites the Ontario Divisional Court decision Madore v. Intact Insurance Company, 2023 ONSC 11 and the Tribunal decision Fehr v. Intact Insurance Company, 2022 CanLII 14951 (ONLAT), in support of her claim that when considering an intervening act, the requirement is whether the action was a “reasonably foreseeable risk” of the use or operation of the vehicle. She argues that stepping on ice and snow while climbing into a vehicle is reasonably foreseeable during the winter months in Ontario.

16The respondent relies on case law that stands for the proposition that slipping and falling on ice is an intervening act (See: 18-000468 v. Certas Direct Insurance Company, 2019 CanLII 22204 (ONLAT), Cesario v. Intact Insurance Company, 2023 CanLII 23583 (ONLAT), Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ONLAT), Khamis v. Unifund Assurance Company, 2021 CanLII 19498 (ONLAT), and Porter v. Aviva Insurance Company 2021 ONSC 3107).

17The respondent further submits that with the exception of Fehr, the Tribunal decisions cited by the applicant pre-date Porter, by which the Tribunal is bound. It submits that in Porter, the Divisional Court found that while the vehicle brought the claimant to the location she was in, the use and operation of the car did not directly cause her injuries. Finally, the respondent argues that Fehr is distinguishable on its facts, as in that case, the ladder falling was a reasonably foreseeable risk of inspecting a vehicle. Whereas falling on ice has consistently been found by the Tribunal to not be a reasonably foreseeable risk of the use or operation of a vehicle.

18I am persuaded by the caselaw cited by the respondent and agree that a number of the decisions relied upon by the applicant were decided before the Divisional Court decision Porter, which is binding upon 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. Rather, the Divisional 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.”

19I further agree with the respondent that both Fehr and Madore are distinguishable on their facts. In Fehr, the applicant was injured after hanging and falling from the roof of a transport truck when a ladder slid out in the course of performing routine maintenance. Similarly, in Madore the applicant was conducting a routine inspection of a trailer when he slipped and fell. Unlike in the matter at hand, an intervening act was not identified, and the Court noted that the “precise way that Madore fell may be unknown”.

20On the basis of the evidence before me, I find that the applicant’s injuries were not directly caused by the use and operation of the vehicle. Rather, I find that her injuries resulted from an intervening cause, the slip and fall due to ice.

Was the use or operation of the vehicle the dominant feature of the incident and the resulting injuries?

21I find that the dominant feature that physically caused the applicant’s injuries was the slip and fall due to ice.

22The applicant submits that the dominant feature of her injury was the use and operation of her vehicle, which commenced as soon as she began the process of entering it. She relies on the Tribunal decision Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ONLAT), where the adjudicator found that the attempt to enter the vehicle was the dominant feature of the incident.

23I agree with the respondent that Duah was decided before the Divisional Court decision Porter, which is binding upon me. In Porter, the Court found that direct causation requires more than the motor vehicle simply being the reason for why the applicant was present at this location when the slip and fall occurred. I am not persuaded by the applicant’s argument that Porter is distinguishable on the facts.

24Further, I am not persuaded by the applicant’s argument that most of the respondent’s cited Tribunal cases are distinguishable. The applicant submits that in the cases relied upon by the respondent, the insured persons were not in contact with their vehicles when sustaining their injuries. She argues that the circumstances in those cases differ greatly from her situation, because she had already started entering the vehicle when she fell and struck her right leg on the vehicle. The applicant contends that it was the contact with the vehicle that resulted in injury.

25I find that the applicant has not led sufficient evidence that her right leg injury was sustained by her leg hitting the vehicle when she fell. I agree with the respondent that the applicant has provided limited details in her submissions of the circumstances of her fall. No affidavit evidence was submitted to outline the factual details of the incident. Moreover, the hospital records at the time of the fall state that the applicant fell backward onto her right side, without any mention of hitting the vehicle. Similarly, in the triage notes, the referral for an X-ray and in her physiotherapy records, the incident was described as “a slip and fall”. There is no mention of the applicant striking the vehicle when she fell. It is well-settled that submissions alone are not evidence. The applicant has not led any evidence in support of her claim that she struck the vehicle when she slipped and fell.

26For the foregoing reasons, I find that the applicant’s use and operation of her vehicle was not the direct cause or the dominant feature of the applicant’s injuries. Rather, I find that her injuries were caused by the ice and resulting slip and fall. As such, the January 28, 2023 incident was not an “accident” for the purposes of the Schedule.

CONCLUSION AND ORDER

27The applicant has not established that the incident that took place on January 28, 2023 was an “accident”, as defined in s. 3(1) of the Schedule.

28The application is dismissed.