21-007664/AABS - PI

Licence Appeal Tribunal File Number: 21-007664/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:

Jung Seuk Seung

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Andrew Franzke, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD: by way of written submissions

OVERVIEW

1Jung Seuk Seung, the applicant, was involved in an automobile accident on February 11, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Cooperators General Insurance Co., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent has raised a preliminary issue that would dispose of the entire application. This hearing is to decide that preliminary issue.

PRELIMINARY ISSUES

3The Tribunal must decide:

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

RESULT

4The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule. The application will proceed to a hearing on the substantive issues.

ANALYSIS

5The facts of this case are not in dispute. In an examination under oath, the applicant described the circumstances leading to his injuries. The incident occurred early one morning as the applicant prepared to leave for work. He exited his house and walked down his driveway towards his parked vehicle. He used his key fob to open his trunk remotely as he walked around the vehicle to its rear. Then, with the intention of placing his lunch bag in the trunk, he lifted its cover (with his right hand, he believes). Suddenly, he slipped and fell, landing on the sidewalk. He sustained numerous injuries.

6An “accident” is defined in s. 3 of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

7The Ontario Court of Appeal has set out a two-part test for determining whether there has been an “accident” under the Schedule: see Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA) (“Chisholm”) and Greenhalgh v. ING Halifax Insurance Co, 2004 CanLII 21045 (ON CA) (“Greenhalgh”). The test is as follows:

1. Did the incident arise out of the use or operation of an automobile? (“the purpose test”); and if so,

2. Did such use or operation of an automobile directly cause the impairment? (“the causation test”).

8Both the purpose test and the causation test must be met for an incident to be considered an “accident”.

The incident arose out of the use or operation of an automobile

9In Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, the Supreme Court of Canada articulated the purpose component of the governing test as follows: did the accident result from the ordinary and well-known activities to which automobiles are put?

10In this case, the incident occurred while the applicant was loading the trunk of his vehicle as he prepared to go to work. I agree with the applicant that loading the trunk of a vehicle is an ordinary and well-known purpose to which automobiles are put. It constitutes the use or operation of an automobile. The applicant has satisfied the purpose test.

The use or operation of the automobile directly caused the impairment

11To assist with determining causation, the court in Greenhalgh set out three guiding considerations:

1. the “but-for” consideration;

2. the “intervening act” consideration; and

3. the “dominant feature” consideration.

12While not determinative, the “but-for” consideration may assist in screening out irrelevant causes. In some cases, the presence of “intervening acts” may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile. In other cases, it may be useful to ask if the use or operation of the automobile was the “dominant feature” of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct.”

13The parties disagree about whether the causation test has been met. They agree that the incident clears the low threshold of the “but for” test (the applicant would not have slipped and fallen had his vehicle not been in the driveway). However, “but for” causation is only sufficient to establish factual causation, not legal causation. The “but for” test merely weeds out irrelevant factors. It is a low bar. It does not, on its own, prove direct causation: see Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 at para. 14 (“Porter”).

14Instead, the parties’ dispute turns on whether the use or operation of the automobile was the “dominant feature” of the incident, and to a lesser extent, whether the snow and ice on the ground constitutes an “intervening act” breaking the chain of causation.

The dominant feature of the incident was the use or operation of an automobile

15The case law is divided on whether slips and falls on snow, ice, or uneven road surfaces during entry or exit from a parked vehicle constitute “accidents” as defined in the Schedule. The parties have referred me to several decisions by this Tribunal with similar facts to the present case, and many of them turn on the “dominant feature” consideration. Some conclude that the “dominant feature” of the incidents was the road surface conditions: see, for example, Namin v Allstate Insurance Company of Canada, 2022 CanLII 70251 (ON LAT). Others conclude that the use or operation of the automobile was a direct cause of the resulting injury: see, for example, Harland-Bettany v Aviva Insurance Canada, 2022 CanLII 78879 (ON LAT). The varied outcomes in these cases are evidence of what the applicant characterizes in his submissions as the “problematic” interpretive framework that has evolved around the meaning of “accident” in s. 3(1) of the Schedule.

16Two recent cases from the Divisional Court have, however, helped to refine and clarify the interpretive framework for direct causation in ‘was it an “accident”’ cases. In Porter, the Divisional Court cautioned that it is an error to conflate “but for” causation with direct causation. In that case, the court determined that the injuries suffered by the insured person were a result of the use and operation of the Lyft car she was entering when she fell on an icy driveway, but that the use and operation of the car did not directly cause her injuries. The court determined that the “dominant factor” in the incident was the icy, snow-covered driveway, and that the use or operation of the car was “at best ancillary.”

17In Madore v. Intact Insurance Company, 2023 ONSC 11, the Divisional Court determined that a slip and fall from the top of a camper trailer constituted an “accident” within the meaning of the Schedule. Neither party has made submissions on Madore, but it is binding on me, and it articulates principles that are directly relevant to the issues in dispute. The decision is a significant contribution to the jurisprudence, as it outlines and clarifies “the correct approach” to the causation test under the Schedule (at para. 37).

18In Madore, the court emphasized that in determining direct causation, it is the use and operation of the automobile that is the relevant cause, not the vehicle itself. Tripping and falling from the top of a camper trailer was an accident, as there is no requirement for physical contact with the vehicle for direct causation to be established. In applying this principle to the present case, I am unpersuaded by the respondent’s submission that the limited contact the applicant had with his car when he slipped and fell undermines direct causation. It is not the vehicle itself that must directly cause the injuries, but the use or operation of the vehicle that is the relevant cause. As I have found, at the time of his fall, the applicant was engaged in the ordinary and well-known activity of loading the trunk of his vehicle as he prepared to leave for work. An incident need not be noteworthy or unusual to count as an “accident”: MN v. Aviva General Insurance, 2021 CanLII 35584 (ON LAT) at paras. 23 and 24. I find that the applicant’s use or operation of his vehicle directly caused his injuries.

19I accept the respondent’s submission that more is required than the vehicle being in the location where the injury occurred. However, I disagree with its submission that the use and operation of the vehicle was “at best ancillary” in this case. I agree with the respondent that the causation test fashioned in Chisholm is more stringent than the statutory definition of “accident” that preceded the 1996 amendments to the Schedule, which eliminated the word “indirectly” from the definition. I do not agree that this more stringent causation requirement – the requirement of direct causation – is unmet on these facts.

20I am satisfied that the use or operation of the motor vehicle was a direct cause of the applicant’s injuries. In Madore, the court observed at para. 38, citing Seale v. Belair Insurance Co., 2003 CarswellOnt 5452, “It is clear that ‘direct cause’ need not be the only cause, that physical contact with an automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is ‘part of the ordinary course of things.’” This finding is consistent with the court’s observation in Chisholm that, “road accidents may occur where there is more than one direct cause of a victim's injuries and one of the direct causes is the use or operation of an automobile” (see para 31).

21I find that the snowy, icy conditions on the sidewalk where the applicant fell are an inextricable factual element of the applicant’s use of his automobile in this case. Alternatively, I find that the surface conditions were another, equally direct cause of the applicant’s injuries. They do not displace the use of the automobile as the dominant feature of the incident. The respondent submits that this case should be decided in its favour because of the Court of Appeal’s holding in Porter. But 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. It merely restates the well-established principle that direct causation cannot be reduced to “but for” causation. My finding accords with the fair, large, liberal interpretation required under s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, and it is one that best ensures the attainment of the Schedule’s consumer protection objects.

No intervening act broke the chain of causation

22I find that slipping and falling while loading the trunk of a vehicle is a normal incident of the risk involved in using an automobile. Certainly, in Ontario, where ice and snow are a feature of using and operating automobiles for a significant part of the year, this type of incident is a foreseeable risk of using an automobile and very much a part of the ordinary course of things. The presence of snow, ice, or debris on the ground surface does not disrupt the chain of causation between the use of the automobile and the resulting injury. Slipping and falling on treacherous road surfaces is a reasonably foreseeable risk of using an automobile. In Chisholm, the court held that an intervening act will not absolve an insurer of liability for no fault benefits if the act can fairly be considered a normal incident of the risk created by the use or operation of the car - if it is “part of the ordinary course of things” (see para. 29).

Conclusion on causation

23I have found under the first branch of the Chisholm/Greenhalgh test that the applicant was engaged in the use or operation of an automobile when the incident occurred (namely, loading the trunk of his car, an ordinary and well-known purpose to which automobiles are put). I have found that his resulting injuries were a direct result of this activity. The applicant’s use or operation of his automobile was the dominant feature of the incident. The snow and ice on the ground surface was not an intervening act capable of breaking the chain of causation. The applicant sustained an impairment as a direct result of the incident. The elements of an “accident” under the Schedule have been met. As a result, the applicant may proceed with his application for accident benefits.

ORDER

24The applicant has established that he was involved in an “accident” as that term is defined in the Schedule. The application shall proceed to a hearing on the substantive issues.

25As ordered by Adjudicator Hines in her June 15, 2022 Case Conference Report and Order, the Tribunal will convene a case conference to address any procedural and case management matters necessary for the hearing in this matter. The Tribunal will contact the parties to set the date and time of the case conference.

Released: May 31, 2023

__________________________

Theresa McGee

Vice-Chair