Licence Appeal Tribunal File Number: 22-003001/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:
Elizabeth Cesario
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Elizabeth Cesario, Applicant
Harvey Katz, Counsel
For the Respondent:
Robbie Brar, Counsel
Heard by way of written submissions:
OVERVIEW
1Elizabeth Cesario, the applicant, was involved in an automobile accident on December 16, 2019 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, TD General Insurance Company (“TD”), 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 incident involving the applicant constitutes an accident under section 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.
ANALYSIS
Background
4On December 16, 2019, the applicant was returning to her car with her husband after shopping at Costco. She opened the door to her automobile and was in the process of entering the vehicle when she slipped on a patch of ice. She put her left arm up and grabbed the door before slipping and hitting her back directly on the metal door frame. Her husband caught her before she hit the ground between the curb and the automobile.
5The applicant submits that she was involved in a motor vehicle accident as per the definition of an “accident”. The respondent submits that the applicant was not involved in an “accident” within the meaning contemplated under s. 3(1) of the Schedule.
Was the incident an “accident”?
6For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
9In 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?
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 the following considerations:
The “but for” consideration;
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,
Finally, 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
12I 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 find that the use and operation of the car began as the applicant was in the process of entering her vehicle.
The 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 these injuries “but for” her need to enter her automobile. 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.”
14Since 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?
15The applicant submits that there was one continuous chain of events with no intervening act to break up the chain. The applicant was in a continuous process of entering her automobile when she slipped and fell. In support of her position, the applicant relies on Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ON LAT). In 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.
16The respondent submits that the cause of the applicant's injuries was the icy surface on the ground. In support of its position, the respondent relies on Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ON LAT) and Porter v. Aviva, 2021 ONSC 3107.
17In Sinnicks, 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. 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 did not cause the injuries.
18I am persuaded by these 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 icy ground, that caused her to slip and fall. Although the vehicle was physically near the ice, it did not cause the slip and fall.
19I am not persuaded by the applicant’s argument that there was an unbroken chain of causation. The ice on the ground and the applicant’s slip and fall on the ice constitutes an intervening event that broke the chain of events. The ice and the resulting slip and fall occurred independent of the automobile’s use or operation. I find the ice in the parking lot and the applicant’s slip and fall caused the applicant’s injuries.
20The Duah 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.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
21As 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.”
22The applicant submits that her automobile was the dominant feature of the incident that took place on December 16, 2019. The vehicle played more of a role than just bringing the applicant to the location of the slip and fall. Her direct interaction with her vehicle caused the injuries and impairments that she sustained. The applicant argues that her clinical records reference her automobile as being the cause of her injuries and impairments.
23The respondent submits that the dominant feature of the slip and fall was the icy surface on the ground. The mere fact that she was near her vehicle and in the process of entering the vehicle through the driver-side door is insufficient to establish that the causation prong of the test has been met.
24I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries. The dominant feature that caused the applicant’s injuries was the icy parking lot, as it was in Porter. Moreover, 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.
25I disagree with the applicant’s assertion that if the automobile were to be taken out of the equation, the incident would not happen as it did. The applicant is conflating the “but for” test with the direct causation test. Legal entitlement to accident benefits requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause. In my view, the direct cause was the ice. If the ice was removed out of the equation, then she would not have slipped and hit the car.
26Moreover, regardless of whether an automobile is involved, falling on ice is a foreseeable and common risk when walking in a parking lot during the winter.
27Accordingly, 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 s. 3(1) of the Schedule.
28As a result, I find that the incident does not meet the causation test of an “accident”. This is the applicant’s burden to prove, and she 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.
ORDER
29The applicant has not demonstrated the incident on December 16, 2019 constituted an “accident”, as defined in s. 3(1) of the Schedule.
30The application is dismissed.
Released: March 20, 2023
Tavlin Kaur
Adjudicator