Licence Appeal Tribunal File Number: 22-007108/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:
Phyllis James
Applicant
and
Unifund
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Phyllis James, Applicant
Tony Lafazanis, Counsel
For the Respondent:
Nicholas Voight, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION [AND/OR ORDER]
OVERVIEW
1Phyllis James, the applicant, was involved in an incident on December 15, 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, Unifund Assurance Company (“Unifund”) 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.
STRIKING THE APPLICANT’S SUBMISSIONS
4The respondent submits that the Tribunal should strike the applicant’s submissions because they were five days late. While I note that the applicant did not comply with the deadlines in the Case Conference Report and Order, the respondent has not explained how allowing the applicant’s submissions would be prejudicial to their case. Moreover, the respondent did not follow the appropriate process to raise this issue. Rather, this was raised in its reply submissions.
5Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) calls for a liberal interpretation and application of Tribunal rules, which “may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party, to facilitate a fair, open and accessible process and to allow effective participation by all parties…[and] ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal…”
6I find that it would be procedurally unfair to the applicant to strike her submissions. Allowing the applicant’s submissions will not prejudice the respondent. Moreover, the respondent has provided a reply to the applicant’s submissions. The respondent’s request to strike the applicant’s submissions is denied.
ANALYSIS
Background
7On December 15, 2019, the applicant went to a parking lot and put her automobile in park. She opened her door and got out of her car. She then opened her rear door to take some items out of her backseat to put in her trunk when she slipped on black ice. She did not make any contact with the vehicle as she fell.
8The applicant submits that she was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule. 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”?
9For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
10Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
11The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
12In 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?
13The 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?
14The 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
15The respondent submits that the applicant will argue that she has satisfied the purpose test on the basis that she was opening her driver-side door prior to slipping. It is the respondent’s position that even if she meets the purpose test, her claim will fail under the causation test. The applicant’s submissions do not clearly articulate how she meets the purpose test. She states that in Madore v. Intact, 2023 ONSC 11, causation is discussed and that contact with the vehicle is not required.
16I 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 applicant satisfies the purpose test because she was opening her door prior to slipping.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
17Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to open the rear door. 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.”
18Since 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 of causation.
Was there an intervening cause?
19The applicant submits that in Harland-Bettany v Aviva 2022 CanLii 78879 (ON LAT)(“Harland-Bettany”), the applicant slipped on ice while in the process of getting out of her vehicle. The ice was not an intervening cause. Similarly, the applicant was involved in the use and operation of her vehicle when she slipped and fell.
20The respondent is relying on B.Y. v. TD Insurance Meloche, 2019 CanLII 27893 (ON LAT)(“B.Y.”) and Sinnicks v. Northbridge General Insurance Company, 2022 ONLAT 21-010989/AABS (“Sinnicks”) in support of it’s case. These cases have found that the ice was the intervening cause that severed the chain of causation.
21I am persuaded by the respondent’s 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 the applicant’s 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.
22The applicant’s submissions with respect to Harland-Bettany do not elaborate why I should adopt the Tribunal’s reasoning in that particular case. Moreover, the Tribunal found the dominant feature consideration to be more helpful than intervening act consideration. This decision like any other decision from the Tribunal is not binding on me. Furthermore, I find this decision to be of limited assistance to this matter and decline to adopt the reasoning in it.
23I find 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 independently 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.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
24As 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.”
25The applicant submits that that the existence of the ice does not change what is the dominant feature of the accident, which was emptying the back seat to make room for an additional passenger. The respondent submits that the reasoning used in the Divisional Court case of Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”) and the Tribunal decision in Sinnicks are analogous to the case at hand.
26I 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 ice, as it was in Porter. The location of the vehicle was ancillary. Moreover, unlike Tribunal decisions, 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.
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.
ORDER
28The applicant has not demonstrated the incident on December 15, 2019 constituted an “accident”, as defined in s. 3(1) of the Schedule.
29The application is dismissed.
Released: June 22, 2023
Tavlin Kaur
Adjudicator