Licence Appeal Tribunal File Number: 21-003034/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:
Kristie Parsons
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Kristie Parsons, Applicant
M. Steven Rastin, Counsel
Barb Andrews, Paralegal
For the Respondent:
Karen Klaiman, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION [AND/OR ORDER]
OVERVIEW
1Kristie Parsons, the applicant, was involved in an automobile accident on April 1, 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 applicant was involved in a motor vehicle “accident” as defined under section 3(1) of the Schedule.
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4On April 1, 2019, the applicant left her home around 7:00 p.m. She went to the parking lot where her car was located. She unlocked her car and put her purse onto the front passenger side seat. She then proceeded to walk around her vehicle to get into the driver side when she suddenly slipped on ice and snow that had accumulated outside of her vehicle. She suffered serious and permanent personal injuries as a result, including a concussion, broken front teeth, a sprained right hand, an abrasion to her chin and upper lip, and swelling to her lips.
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 has failed to prove that the use and operation of an automobile directly caused her alleged injuries as required by section 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,
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. She opened the door, put her purse onto the passenger seat and proceeded to walk around the vehicle so that she could enter it from the driver’s side. There was a clear intention of entering the vehicle in order to operate it when she slipped and fell on ice.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
13Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to walk around her car to enter the driver’s side of her 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.”
Was there an intervening cause?
14The applicant submits that her case is akin to C.K.D. v. Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT) where the applicant had an unbroken chain of causation, which started with the unlocking of the vehicle and ended with the fall. The ice on the ground in this case was merely a condition of the location. Like the applicant in C.K.D, the applicant here had unlocked her car, placed her purse in the passenger seat, and was making her way towards entering the driver’s side of her vehicle, when the fall occurred. Therefore, the applicant submits that there was no intervening act.
15The respondent submits that the direct cause of the applicant's injuries was the ice in the parking lot and not the use and operation of the vehicle. In support of its position, the respondent relies on Edmonds v COSECO Insurance Company, 2021 CanLII 19490 (ON LAT), 18-000468 v Certas Direct Insurance Company, 2019 CanLII 22204 (ON LAT), Webb v. Lombard General Insurance Co. of Canada, [2007] O.F.S.C.D. No. 188, 18-001537 v. TD Insurance Meloche Monnex, 2019 CanLII 27893 (ON LAT) and Porter v. Aviva, 2021 ONSC 3107.
16In Edmonds, the Tribunal found that the slip and fall on the icy ground was the direct cause of the applicant’s injuries. In Webb, it was found that the incident did not arise from the use or operation of a vehicle. In 18-000468, it was found that the ice in the parking lot, and not the use or operation of her car that was the direct cause of her injuries. In 18-001537, it was found that even if the applicant touched the vehicle, the black ice on which she slipped was the intervening cause of the applicant’s injuries. In Porter, it was found that the use and operation of the car did not cause the injuries because the dominant factor that physically caused the injuries was the icy, snow-covered driveway and the use and operation of the Lyft car was at best ancillary.
17I 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 were caused by an intervening cause: the ice on the ground. The ice caused her to slip and fall which led to her injuries, not the use or operation of her automobile. Although the vehicle was physically near the ice, it did not cause the slip and fall.
18I 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. The icy conditions in the parking lot and the applicant’s slip and fall caused the applicant’s injuries.
19Next, the case law cited by the applicant is not helpful. I do not find Sterling v. Heartland Farm Mutual Inc., 2021 CanLII 40695 (ON LAT) to be persuasive as the facts in that case are different than the facts before me. In Sterling, the Tribunal found that applicant’s impairment was caused by a combination of lifting her child into the car seat and then pressing her foot on the pedal and that both of these acts were related to the use or operation of a vehicle. The Tribunal was of the view that there was no intervening act that was not part of the ordinary course of things. In this case, the applicant slipped on ice, which I find is not part of the ordinary course of things and is an intervening act. I find significant support for this position in the jurisprudence outlined above at paras 15-16.
20Finally, the C.K.D. decision that the applicant relies on is not binding on me and was decided before Porter. Therefore, I decline to follow it. Instead, I prefer to follow the more recent 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 that the use of the vehicle had a very close nexus with the ground condition. Her car was parked in the parking lot by her home which, like a driveway, is a location which in itself is intended for the use and operation of vehicles. In K.P. v Aviva General Insurance, 2020 CanLII 35505 (ON LAT), the applicant fell on a driveway. The Tribunal found that the slip on the ice was ancillary, and the distance the applicant needed to walk to enter the vehicle was a dominant feature of the accident. It is the applicant’s position that she had to travel the distance around her car, which was the dominant feature of the accident.
23I 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 icy parking lot, as it was in Porter. The location of the vehicle was ancillary. 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.
24Accordingly, 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.
ORDER
25The applicant has not demonstrated the incident on April 1, 2019 constituted an “accident”, as defined in s. 3(1) of the Schedule.
26The application is dismissed.
Released: April 19, 2023
Tavlin Kaur
Adjudicator