Gore Mutual Insurance Company v. Katherine Laro, 2023 CanLII 58484

22-010197/AABS - P

Licence Appeal Tribunal File Number: 22-010197/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:

Gore Mutual Insurance Company

Applicant

and

Katherine Laro

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Arthur R. Camporese, Counsel

For the Respondent:

Nigel D’Souza, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Katherine Laro was involved in an incident on February 15, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). She was denied benefits from Gore Mutual Insurance Company (“Gore”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The parties attended a case conference and were unable to resolve the issues in dispute. A preliminary issue hearing was scheduled.

2On March 15, 2023, Gore filed a notice of motion raising the preliminary issue of whether the respondent was involved in an accident. This decision will address this issue in dispute. Gore has referred to itself as the applicant and Ms. Laro has referred to herself as the respondent.

PRELIMINARY ISSUE

3The preliminary issue to be decided is whether the respondent was involved in a motor vehicle “accident” as defined under section 3(1) of the Schedule.

RESULT

4The respondent was not involved in an “accident” as defined in s. 3(1) of the Schedule.

ONUS

5The applicant submits that the onus is on the respondent to satisfy the evidentiary burden of the incident being an “accident” and satisfy the test in Greenhalgh v. ING Halifax Insurance Ca., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA)(“Greenhalgh") since they adjusted the accident benefits claim as an “accident” for approximately four years, paid benefits and provided the respondent the belief she was entitled to accident benefits.

6The applicant submits that the respondent has the evidentiary burden of establishing that the use or operation of an automobile directly caused her injuries. Neither party submitted any case law to support their respective positions.

7It is trite law that the burden of proof lies with the insured. In Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA) the Court of Appeal stated that, “It is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.” This principle was upheld in Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627, where the Divisional Court upheld the Director’s Delegate’s application of Shakur in claims under the Schedule. Therefore, in this case, the onus is on the respondent, as the respondent is the insured.

ANALYSIS

Background

8On February 15, 2019, the respondent was being dropped home after attending a pool league. She was a front seat passenger in the automobile that was being operated by her stepfather. Once the automobile came to a stop, the respondent removed her seatbelt, opened the door with her right hand, put her right foot out, and then grabbed the door handle with her left hand and got her left leg out of the vehicle onto the ground. She had fully stood up from the seat. After she exited the vehicle, she slipped and fell on ice.

9The respondent submits that she was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule. The applicant submits that the respondent was not involved in an accident.

Was the incident an “accident”?

10For the following reasons, I find that the respondent was not involved in an “accident” as defined by s. 3(1) of the Schedule.

11Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

12The onus is on the respondent to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

13In 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?

14The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.”See: Greenhalgh. Put another way, for what “purpose” was the vehicle being used at the time of the incident?

15The 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

16The respondent submits that she was in the process of disembarking the vehicle and had placed her left hand fixed on the interior of the front passenger’s side door when she fell. Therefore, she has met the purpose test.

17The applicant’s submissions provide a summary of jurisprudence, but do not specifically address whether the respondent meets the purpose test.

18I 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 respondent satisfies the purpose test because, disembarking from a vehicle is an ordinary and well-known use to which automobiles are put. The respondent had her left hand on the door when she was exiting the automobile.

The Causation Test

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

19The respondent submits that the incident and resulting impairments would not have happened “but for” the respondent’s need to exit the vehicle.

20The applicant’s submissions do not address the “but for” test.

21Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to disembark from the 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.”

22Since 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?

23The respondent submits that the presence of ice was reasonably foreseeable, and was not an intervening act capable of breaking the chain of causation from the “use and operation” component, which is satisfied through exiting the vehicle while holding the door, and accordingly, the resulting impairments. The respondent is relying on Harland-Bettany v. Aviva Insurance Canada, 2022 CanLII 78879 (ON LAT) (“Harland-Bettany”), Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”), G.R. v. Economical Mutual Insurance, 2019 CanLII 122726 (ON LAT) (“G.R”) and V.B. v. Economical Insurance Company, 2020 CanLII 87992 (ON LAT) (“V.B.”) in support of her case.

24The applicant disagrees, and is relying on jurisprudence that has determined that slipping and falling on ice constitutes as an independent factor that breaks the chain of events. The applicant is relying on Ritchie v. Economical Insurance, 2021 CanLII 134534 (ON LAT) ("Ritchie''), Mahoney v. Co-operators General Insurance Company, 2020 CanLII 106434 (ON LAT) ("Mahoney''), Khamis v. Unifund Assurance Company, 2021 CanLII 19498 (ON LAT) (“Khamis”), Edmonds v. Coseco Insurance Company, 2022 CanLll 109481 (ON LAT) (“Edmonds”), Davis v. Aviva General Insurance Company, 2022 CanLII 45273 (ON LAT) (“Davis”).

25I am not persuaded by the respondent for the following reasons. In V.B., the Tribunal found that “losing one’s footing while exiting a vehicle is a reasonably foreseeable risk of operating an automobile.” The Tribunal noted that “in the ordinary course, automobile door handles may be used to assist an occupant of a vehicle disembarking.” The V.B. decision is not binding on me, was released prior to the Divisional Court’s decision in in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”) and I decline to follow it.

26I am also not persuaded by Harland-Bettany. The applicant submits that in paragraph 42, it was found that the ice that was located outside of the vehicle which caused the claimant to fall, was not considered an intervening component that disconnected the use and operation of the motor vehicle and the impairments that were suffered. I have reviewed this decision and the Tribunal found that the intervening act consideration was of limited use in that particular case. Rather, the Tribunal found the dominant feature consideration to be more helpful than intervening act consideration because it allows for a better incorporation of the “ordinary and well-known” activity of exiting into the analysis. 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.

27I also find G.R.to be distinguishable from the facts before me. The applicant was clearing snow from his vehicle when he slipped and fell on that same snow. The Tribunal found that the fall was not an intervening act, and therefore, there is no break in the chain of causation which led to the applicant’s injuries. In G.R., it was found that the act of clearing the snow off of the vehicle, was considered a part of the normal use of the vehicle that had resulted in his injuries.

28Moreover, the Tribunal in G.R. relied on Gligoric v Economical Mutual Insurance Co., [1997] OICD No 229, File No OIC A96-001588, which involved the interpretation of the 1994 Schedule. The 1994 Schedule defined an “accident” as an incident in which, direct or indirectly, the use of an automobile causes an impairment. The definition in the current Schedule that applies in this matter has been narrowed down. A “broad and liberal interpretation” cannot effectively broaden the definition of “accident” to include indirect causes as was the case prior to the amendment of s.3(1) of the Schedule which narrowed the definition of “accident” to direct causes, see: Sajid v. Certas, 2022 ONSC 2071. As such, the use and operation of the automobile in this case did not contribute to her injuries. Moreover, the ice was the intervening act. Ice is not a foreseeable risk of motoring.

29With respect to the applicant’s submissions regarding Madore, the Court reproduced a passage from V.B. which referred to Chisholm. In Chisholm, the Court of Appeal found that an intervening act may not absolve an insurer of liability for no-fault benefits if it 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". But the Divisional Court in Madore did not elaborate more on this point. However, I find it to be distinguishable because it is unclear whether there was an intervening act in Madore. The Court stated that, “While the precise way that Madore fell may be unknown, there was no evidence to suggest the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof. The causal link therefore was not broken.” In the facts before me, there is evidence of the intervening act, which is the ice.

30I am more persuaded by the jurisprudence that has been submitted by the applicant. In Khamis v. Unifund, the applicant slipped on ice in the parking lot, and fell outside of his vehicle with the left side of his body hitting the parking lot surface. It was found that the icy parking lot was the intervening act, which was not a foreseeable risk, that severed the chain of causation between the use or operation of the motor vehicle and the applicant’s accident and injuries.

31In Edmonds, the Tribunal found that the slip and fall on the icy ground was the direct cause of the applicant’s injuries. In Mahoney, the Tribunal found that the black ice and consequent slip and fall caused the alleged injuries, not the fact that the alleged injuries took place while the applicant exited her automobile.

32In my view, ice is not a foreseeable risk related to the use and operation of a motor vehicle. As noted in Ritchie, falling on ice is a foreseeable and common risk when walking in parking lots in the winter, regardless of whether a motor vehicle is involved. I find that the ice on the ground and the applicant’s slip and fall on that 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 applicant’s ordinary and regular use of her automobile ended once she started to exit it. The automobile did not cause her injuries. Rather, 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?

33As 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.”

34The applicant submits that the dominant feature of this incident was the respondent slipping on ice, as opposed to the use or operation of an automobile.

35The respondent submits that the dominant cause of the incident was the “ordinary and regular use” of the motor vehicle, involving the dominant factor of exiting the vehicle, which directly caused the suffered impairments. She argues that Madore addressed the dominant feature consideration. She states that, “Using decisions in Madore and Chrisholm [sic], the Porter decision and dominant cause component is reinterpreted and its narrow interpretation of “direct cause” within the causation test was set aside.”

36I disagree with the respondent’s characterization. I have reviewed Madore, and the Divisional Court did not address the dominant feature consideration and nor did the original decision. The Divisional Court notes that the correct approach to the test to be applied to determine whether an incident is an accident for the purposes of claiming and receiving benefits was set out in Greenhalgh. The Divisional Court in Madore did not narrow the Greenhalgh interpretation as suggested by the respondent.

37I 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 ice, as it was in Porter. In that case, Ms. Porter was walking towards a stationary rideshare Lyft car when she slipped and fell on ice in the driveway of her parents’ home and was injured. The Divisional Court found that:

In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries.

38The 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.

39Moreover, her statement of claim notes that the respondent was walking in the parking lot when she slipped and fell. The statement of claim alleges, amongst many things, the property owner and its employees failed to take any or sufficient steps to prevent the said area/pathway/parking lot from being dangerous and failed to remove snow and/or ice to ensure that such an accident would not occur. I note that there is nothing in the statement of claim that mentions the automobile. This provides additional support that the use or operation of the automobile was not the “dominant feature” of the incident on these facts. While recognizing that the pleadings of fact in a statement of claim have yet to be proven true, I conclude that the respondent’s statement of claim at minimum characterizes her perspective of the incident that led to her slip and fall.

DOCTRINE OF ISSUE ESTOPPEL

40Both parties have provided submissions in relation to the doctrine of issue estoppel and whether the applicant is estopped from submitting an application to the Tribunal. The Case Conference Report and Order dated March 6, 2023 does not list this as an issue in dispute. I have taken judicial notice of the file and note that the respondent requested that this issue be added as an issue in dispute. The adjudicator declined the request because this is not a preliminary issue as the Tribunal does not have jurisdiction. As such, I decline to make a ruling on this point, as this issue is not properly before the Tribunal.

ORDER

41The incident on February 15, 2019 involving the respondent does not constitute an “accident”, as defined in s. 3(1) of the Schedule.

42The application is dismissed.

Released: June 23, 2023

___________________________

Tavlin Kaur

Adjudicator