Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-007526/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:
Rosemin Cara
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Rosemin Cara, Applicant
Steven Glowinsky, Counsel
For the Respondent:
Noah Shapiro, Counsel
Heard by way of written submissions
OVERVIEW
1Rosemin Cara, the applicant, was involved in an incident on September 23, 2021, 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 Services (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
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 s. 3(1) of the Schedule.
ANALYSIS
Background
4On September 23, 2021, the applicant exited her automobile. She waited for her husband to assist her in getting into the chairlift which is located in the garage. The applicant required assistance because she has substantial loss of use of her bilateral legs due to polio at a young age. Her husband faced her and held her in a bear hug position. They shuffled together sideways for approximately five steps along the van. They then pivoted about forty-five degrees away from the van and towards the left. As they pivoted, her right leg collapsed, and she fell on the ground. Her husband fell on top of her. She fell to the ground while leaning against the van.
5The applicant submits that her injuries sustained on September 23, 2021 were as a direct result of an accident, thereby entitling her to statutory accident benefits. The respondent submits that the applicant was not involved in an accident as defined in 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”.
8Both parties agree that the 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
12The applicant submits that she meets the purpose test. She was using the motor vehicle for the purpose of achieving and maintaining balance, stability and support. The respondent submits that the purpose test is not met because the use and operation of the car had concluded prior to the subject incident.
13I am not persuaded by the applicant’s position. Using an automobile for maintaining balance and support is not an ordinary and well-known activity to which automobiles are put. However, I note that the automobile was parked, and the applicant had exited and was walking away from it with the assistance of her husband. In my view, I find that the purpose test is satisfied because parking an automobile is an ordinary and well-known activities to which the applicant’s vehicle was put.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
14Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to exit 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?
15The applicant submits that even if her right leg did slip, this would not constitute an intervening act and would not break the chain of causation.
16The respondent submits that the applicant sustained injuries because of her leg slipping. The applicant specifically and repeatedly admitted that her leg slipped, leading to her fall. She has never asserted that the vehicle itself in any way caused her to fall.
17I am not persuaded by the applicant’s argument. In my view, the applicant’s right leg collapsing was the intervening cause.
18At the Examination Under Oath (“EUO”), the applicant testified that she was wearing her leg braces at the time of the incident. When asked about her leg brace collapsing, she stated that, “It -- it is stiff and it is up to my hip. I do not know how it could have collapsed, but it did collapse, my right leg did collapse.” The applicant lost her balance and fell on the ground, which resulted in her injuries. In my view, falling down due to losing one’s balance is not a foreseeable risk of motoring. The applicant losing her balance caused her to slip and fall. This led to her injuries, not the use or operation of the automobile.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
19As 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.”
20The respondent submits that the most direct cause of the applicant’s injuries was falling and striking the ground. Her injuries were caused by her leg slipping. The slip and fall occurred independent of the automobile's use or operation.
21The applicant did not provide clear or cogent submissions on this point. According to the applicant:
At paragraph 42 of the Respondent’s Submissions, the Respondent argues that the contact with the ground was the most direct cause of the injury. The Applicant submits that this is irrelevant, as demonstrated by the following hypothetical example: A passenger is bounced out of the back of a pickup truck when the operator travels over a large pothole. This passenger falls onto the highway and breaks his/her hip. The Respondent would have this Tribunal believe that this would not constitute an “accident” per section 3(1) of the [Schedule]. This position, if accepted, would lead to a patently absurd result. In other words, Rosemin’s injury can be caused by contact with the ground and this Tribunal may still deem the fall to be an “accident” for the purpose of the [Schedule].
22I 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 fact that her leg slipped and resulted in her falling on the ground. 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.
23Accordingly, 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
24The applicant has not demonstrated the incident on September 23, 2021 constituted an “accident”, as defined in s. 3(1) of the Schedule.
25The application is dismissed.
Released: June 12, 2023
___________________________
Tavlin Kaur
Adjudicator