Licence Appeal Tribunal File Number: 22-001820/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:
Susana Cruz Ramos
Applicant
and
The Guarantee Company of North America
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION AND ORDER
Adjudicator:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Susana Ramos, Applicant
Stanley Razenberg, Counsel
For the Respondent:
Sabina Arulampalam, Counsel
Written Hearing:
Heard by way of written submissions
Held by Teleconference:
December 16, 2022
OVERVIEW
1Susana Cruz Ramos, the applicant, was involved in an incident on April 30, 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, The Guarantee Company of North America, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (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 as defined by s. 3(1) of the Schedule?
RESULT
3I find that the applicant was not involved in the accident on April 30, 2019. As she was not involved in the accident, she is not an “insured person” who may claim benefits under an automobile insurance policy as a result of that accident.
BACKGROUND
4On April 30, 2019, the applicant was asleep in her home when at approximately 5:30 a.m., the vehicle caught fire while parked in the garage. The applicant’s husband entered the garage and noticed that the vehicle was “making alarm noises, with the lights flashing, and windshield wipers going frantically.” There was smoke and flames coming from the vehicle. He immediately went upstairs to get the applicant, who was still asleep.
5He woke her up and told her that the vehicle was on fire. The applicant, her husband and dog safely exited the residence before it was engulfed in flames. The cause and origin of the fire was determined to be an electrical malfunction within the vehicle.
ANALYSIS
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 satisfying the following considerations in sequential order:
i. The “but for” consideration;
ii. 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,
iii. Finally, 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 satisfies the purpose test because the malfunction is part of the ordinary course of things; it is a well known and anticipated aspect of vehicle ownership and operation. According to the applicant, “it is well-known that malfunctions (electrical and/or otherwise) routinely occur. Cars break down; cars malfunction. It is not unusual to hear that someone’s car has broken down or malfunctioned. When these events occur, although they are undesirable, it is accepted within society that they are common.” The applicant relies on Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647, Hamilton v. Toyota Motor Sales, USA Inc., 2014 ONSC 785 and Johansson v. General Motors of Canada Ltd., 2012 NSCA 120 in support of her case.
13The respondent submits that the vehicle was already on fire and no longer operational by the time her husband advised her of the incident. Therefore, she cannot be found to have been involved an “accident” which requires the ‘use or operation’ of a vehicle. It follows then, that the applicant cannot demonstrate a link between the ‘use and operation’ of the vehicle and her alleged injuries, because the evidence confirms that the vehicle was already on fire and non-operational at the time the applicant was told about the incident. The respondent is relying on P.F. v Economical Mutual Insurance Company, 2019 CanLII 119747 (ON LAT).
14In my view, I do not find that the incident would meet the purpose test because the vehicle neither being used nor operated; rather, it was on fire by the time the applicant’s husband woke her up. A malfunction of a vehicle does not result from “the ordinary and well-known activities to which automobiles are put.” The applicant has not provided any jurisprudence that supports the proposition that a malfunctioning vehicle is a result of an ordinary and well-known activity to which an automobile is put. The case law that the applicant is relying on is of limited assistance because it does not address whether the applicant’s injuries were directly caused by the use or operation of the automobile as per section 3(1) of the Schedule or that a vehicle malfunctioning satisfies the purpose test.
15Even if I am wrong, I find that the applicant would not meet the causation test. My analysis is as follows.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
16The applicant submits that but for the vehicle’s electrical malfunction and fire, she would not have the emotional, cognitive and physical injuries and impairments from which she now suffers.
17The respondent submits that this is insufficient to establish direct causation with the use or operation of a vehicle as instructed by the Court of Appeal and the Divisional Court cases which are binding on this Tribunal. It is the respondent’s position that there is no evidence that the applicant sustained an impairment directly in relation to the use of operation of the vehicle vis-a-vis the electrical issues/malfunctions. The respondent submits that, “the correct analysis dictates that ‘but for’ the fire that “engulfed the home in flames” on the date of loss, the applicant would not have sustained the alleged psychological injuries. More simply, if there was no fire, there would be no psychological injury arising from the date of loss.”
18I find that the applicant has not established that she sustained her injuries because of the incident. The applicant alleges that she sustained psychological and physical injuries. However, she has not submitted any evidence aside from her affidavit to support this. There are no clinical notes or records that substantiate her position.
Was there an intervening cause?
19I find that the applicant’s alleged injuries were not a consequence directly caused by the use or operation of the vehicle but was caused by a later intervening act.
20The applicant submits that there was no intervening act or event to break the chain of causation. According to the applicant, the vehicle malfunctioned, the malfunction resulted in a fire and caused personal injury and the fire and personal injury are reasonably foreseeable consequences of the vehicle’s malfunction. Relying on Madore v. Intact, 2023 ONSC 11, the applicant is of the view that the fire was a reasonably foreseeable consequence of the vehicle’s electrical malfunction.
21The respondent submits that the applicant’s alleged psychological injuries were caused by an intervening factor, which was the fire.
22The car was neither being used nor operated when the fire started. Accordingly, I find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. As such, the fire was not a normal incident of risk created by the use or operation or “part of the ordinary course of things”. In my view, the independent intervening act that broke the chain was the fire that was caused due to the malfunctioning of the vehicle.
23Moreover, in Madore, the appellant fell when he was physically on top of the trailer conducting an inspection and cleaning. The Court found that slipping and falling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by such use and is reasonably foreseeable. I find Madore to be distinguishable from the case before me because the applicant was nowhere near the vehicle when the fire started. The vehicle was neither being used nor operated; rather, it was on fire when the applicant learned of the incident.
24The foreseeable risk that the applicant relies on was not a result of the use or operation of the vehicle. Rather, it was due to an electrical short circuit which resulted in the overheating of the FRM3 (a control unit associated with vehicle lighting functionality, power windows and other master functions). In fact, the police report also notes that the cause of the fire was due to electrical issues from the vehicle. As such, I find there was an intervening cause that broke the chain of causation.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
25I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries.
26As 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.”
27The respondent submits that the existence of the non-operational vehicle is ancillary to the alleged psychological impairments. Rather, the facts suggest that it is the applicant’s second-hand knowledge of the vehicle fire and/or observance of the house fire that is the dominant feature of the alleged psychological impairments – and not the use or operation of a vehicle. Accordingly, the link between the existence of the non-operational vehicle the applicant’s alleged impairment on the date of loss is too remote to be called “direct” and does not constitute the true nature of the claim” as required in law.
28The applicant did not provide any submissions on the dominant feature consideration.
29In her affidavit, the applicant stated that:
The fire which emanated from the vehicle has had a profound impact on me. As a result, I have developed significant emotional, cognitive and physical impairments. I struggle with depression, anxiety, PTSD, difficulty with sleep, difficulty with memory, difficulty focusing and concentrating. Whenever I think about the fire or talk about it, I break down crying. My physical, cognitive and emotional impairments stemming from this incident have prevented me from working in any capacity and from continuing my schooling. I struggle to do even the basic day-to-day activities of daily living.”
30The vehicle was not the dominant feature of this incident. Rather, the dominant feature that caused the applicant’s injuries was the fire that occurred due to the vehicle malfunctioning.
31As noted in P.F., it is important in interpreting the definition of accident to remember that the Schedule is a remedial consumer protection legislation. However, the definition of an accident has been amended over time and has become more stringent to limit the number of claims that can qualify as an accident. It is trite law that 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.
32Accordingly, 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
33The applicant has not demonstrated the incident on April 30, 2019 constituted an “accident”, as defined in s. 3(1) of the Schedule.
34The application is dismissed.
Released: July 20, 2023
__________________________
Tavlin Kaur
Adjudicator