Yuliya Kopylets v. Primmum Insurance Company, 2023 CanLII 65759

Citation: Kopylets v. Primmum Insurance Company, 2023 ONLAT 21-015682/AABS - A

Licence Appeal Tribunal File Number: 21-015682/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:

Yuliya Kopylets

Applicant

and

Primmum Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Kevin Lundy

APPEARANCES:

For the Applicant:

Yuliya Kopylets, Applicant

Matthew Consky, Counsel

Tonia Jiao, Observer

For the Respondent:

Crystal Krandel, ADR Specialists

David Karat, ADR Specialist

Matthew Dugas, Counsel

Tonia Jiao, Observer

Court Reporter:

Prashanth Thambipillai

Heard by Videoconference:

June 13, 2023

OVERVIEW

1Yuliya Kopylets (‘the applicant’) was involved in an alleged automobile accident on September 11, 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 Primmum Insurance Company (‘the respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

2On September 11, 2021, the applicant was riding her bicycle with other cyclists in the Halton Region. When she turned right off Tremaine Road N. onto Lower Baseline Road W., the wheels of her bicycle lost traction on a fluid deposit on the asphalt surface, causing her to fall and suffer several injuries.

ISSUES

3The parties agreed that the issue in dispute is:

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

4The applicant withdrew all other issues as listed on the application, the response and the case conference report and order dated November 8, 2022.

RESULT

5I find that the applicant was involved in an “accident” as defined by subsection 3(1) of the Schedule.

PROCEDURAL ISSUE

6On June 12, 2023, the respondent disclosed and submitted four items, specifically three aerial images from Google Maps, and a single landscape image of the area near the crash. The respondent acknowledged that these items were disclosed after the final deadline for disclosure, and that the images were created well after the date of the crash.

7Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure (the ‘Rules’) requires a party to make such evidentiary and witness disclosures to all other parties within the deadline established by the Rules or a Tribunal order. Rule 9.4 provides that a party who fails to comply with the disclosure obligation may not rely on such late-disclosed witness or evidence without the Tribunal’s consent. As a result, the applicant requested that the late evidence be excluded. The respondent took the position that the images may be useful for the witnesses to describe the geographic layout of the area.

8Pursuant to subsection 15(1) of the Statutory Powers Procedure Act (the ‘SPPA’), the Tribunal may admit any evidence that is relevant to the subject matter of the proceeding. Further, it is a core adjudicative function of the Tribunal to determine whether such evidence is reliable, and how much weight should be attached to it. Neither the fact of the applicant’s fall, nor its location were contested, and the parties effectively agreed that the physical parameters of the intersection had not changed since September 11, 2021. The layout of the intersection is relevant to the subject matter of the hearing, and the images were offered strictly as an aid to description. As a result, I admitted all four images, subject to submissions by the parties with respect to their evidentiary weight, none of which was ultimately submitted.

ANALYSIS

The Events of September 11, 2021

9The applicant has been an avid cyclist since 2019 and has been riding with a group of other cyclists since approximately that same time. She was invited to join this group by her cycling coach after she met him at a spin class. In addition to the obvious fitness benefits, she enjoyed bicycling in a group for the social aspects and as an activity during the COVID-19 pandemic. She would partake in group rides usually between early May and late October, depending upon weather, typically two or three days each week. After safety training, her rides increased in length from approximately 20 to 25 km to 50 to 60 km, with a corresponding increase in average speed. The group rides are planned by a designated leader and the applicant wears safety gear throughout. She purchased her Cervelo road bike in 2019 with the assistance of her coach with respect to such parameters as fitting for her height and shoulder measurements. She emphasized that the bicycle was equipped with very high quality tires.

10On Saturday, September 11, 2021, the group ride started between 9:00 and 9:30 a.m. with an intended route near Milton. There were seven riders present, including the applicant and P.S., the designated leader for the day. The applicant recalled that the roads were quiet with minimal traffic. She did not observe any farm, construction, or off-road vehicles along the route, but did see several cars. Approximately thirty to forty minutes after a brief rest stop at a coffee shop, the group was turning right off Tremaine Road N. onto Lower Baseline Road W.

11Both Tremaine Road and Lower Baseline Road are two lane divided roads meeting at a T-junction intersection with only a stop sign on Lower Baseline facing west. The area is predominantly rural, and the applicant recalled famers’ fields but no signs of construction.

12As the group completed the turn, P.S. began to lose control of his bicycle and started to “wiggle.” She was riding approximately one to one and a half meters behind him. She became frightened and applied her brakes. She saw something black and shiny on the surface of the road and realized that it was slippery. She recalled that the group was still in the midst of completing the turn onto Lower Baseline Road and that they may have still been angled from the turn when they encountered the substance, roughly three to four meters onto Lower Baseline, and three to four seconds after crossing into the intersection. As her tires crossed over the substance, she lost control of her bicycle and she fell. Two other cyclists behind her also fell.

13G., another rider who fell on the substance, took photographs of the intersection. These images show a lengthy dark stain in the middle of the eastbound lane. Although the stain started slightly before the intersection on Tremaine Road, she did not notice this at the time of her fall. She had ridden through this location previously and recalled its appearance; however, she had never seen the black strip on the road surface before. Although the applicant estimated the width of the stain at approximately half a meter to a meter and mostly consistent over its full length, the images seem to indicate a somewhat narrower strip, thinner at the start on Tremaine Road and further east on Lower Baseline Road where the deposit diminishes significantly in volume. Throughout its length, the strip remains close to the center of the lane. The applicant testified that although she did not inspect the full length of the strip, she believed that she fell at its widest point. She agreed that her lower estimate of the width of the strip given at the hearing was likely more accurate than that offered at the examination under oath, as she had the assistance of the photographic evidence at the hearing.

14She did not inspect the substance on September 11, 2021 as she was lying on her back until the ambulance arrived. Although she returned to the scene a day or two later, she did not track the full length of the stain, explaining that she attended simply to show her husband where the event had occurred. She speculated that the strip extended approximately ten to fifteen meters based upon her observations on September 11, 2021, and that it may have continued another eight meters east on Lower Baseline Road past the area where she fell. She noted that it was already dark when she and her husband attended at the intersection, and she did not return again until roughly eight months later when the substance was gone.

15Initially, she did not experience pain, but had some difficulty breathing. When P.S. came to assist her, he helped her clean her hand and glove. She testified that the substance had a smell similar to petroleum. She did not know what the substance was or how it came to be deposited on the road. She never engaged in any investigation regarding the source of the strip, or pursued any analysis of its chemical composition.

16Although she compared its odour to “petroleum” in her statutory declaration to the respondent on October 25, 2021 and to diesel during an examination under oath on December 21, 2022, she explained at the hearing that she preferred the term “petroleum” more as a collective term for oily substances. She was consistent in her evidence that the odour of the substance did not resemble that of gasoline and that it was black in colour. She compared the smell of the substance to the oil her coach applied to the gears on her bicycle in contrast to the gasoline she smelled while refueling her car.

17The applicant was transported by ambulance to Halton Health Care hospital in Milton, where she was diagnosed with five fractures, including her collarbone, pelvis and various parts of her shoulder blade, as well as a collapsed lung. When she applied for accident benefits, the respondent refused her claim on the basis that she was not involved in an accident within the meaning of subsection 3(1) of the Schedule.

Bill Glennie’s Investigation

18Bill Glennie (‘B.G.’) is a retired police officer with thirty years of investigative experience. He is also an enthusiastic cyclist, often travelling the same regions as the applicant’s group and very familiar with the area where the applicant fell. Despite their shared interest in cycling in the Halton Region, B.G. and the applicant had never met before September 11, 2021, but shared a mutual acquaintance in G., one of the applicant’s fellow riders.

19On September 11, 2021, B.G. was approximately one hour into his own ride when he observed the applicant’s group. He followed their group at a discreet distance and only briefly lost sight of them over the occasional hill. He observed three riders fall as their peloton turned onto Lower Baseline Road, and one of the fallen did not stand up.

20He approached the group to offer assistance and spoke with the driver of a car that had also stopped. The driver was an off-duty metro police officer who proceeded to direct traffic. B.G. recognized G. as someone with whom he had ridden in the past and spoke with him. G. advised B.G. that the cyclists who had fallen had slipped on oil on the road surface and pointed out a “wetness” on the asphalt to B.G. B.G. had not noticed the substance until G. pointed it out to him and had not seen it when was cycling on Tremaine Road as the substance was clear.

21B.G. rode twenty-five meters back to the intersection and observed that the wetness began as a series of droplets widening to a continuous streak as it approached the intersection, where the strip was approximately three to four inches in width. He testified that the substance looked to have been deposited on the road from something in motion, such as a car. Based upon the dripping evident near the intersection, he disagreed with the suggestion that it may have been left by something dragged down the road. He rubbed his finger in the substance and described it as clear, slippery and smelling like petroleum. He thought that it was either oil or a lubricant. Although the respondent speculated that the droplets may have been unrelated to the larger streak, this theory was not put to B.G. As a result, I find no basis to make such an inference particularly as B.G. described the droplets and the wider streak as likely created by the same action. Although there was no photographic evidence of the droplets submitted, I find that B.G.’s testimony on this point remained unchallenged and served as the only evidence on this issue.

22Like the applicant, B.G. described the substance in his initial statement as resembling diesel fuel. However, at the hearing, he explained that he was more comfortable with the umbrella term of “petroleum” as he is unfamiliar with the specific odour of diesel. He also emphasized that the substance did not smell like gasoline as he was familiar with that smell as a vehicle owner. He did not take any samples for analysis.

23Both he and the metro officer contacted the police. He then followed the wetness eastbound on Lower Baseline Road to where it ended at a gated property with two driveways and a residence, approximately one kilometer east of where the applicant had fallen. Intending to notify the property owner of a possible vehicle oil leak, he spoke to a number of people working, all of whom denied being the owner. He was approaching a barn structure calling out to anyone else present when a man exited the primary residence. B.G. described the events on Lower Baseline Road and advised the man that the line of liquid ended at his driveway. While they were talking, B.G. observed a number of “derelict” vehicles on the lot. At the hearing, he explained that he believed these vehicle to be non-operational due to their prolific rust and grass growing up around them. He noticed a single pickup truck that appeared to be functional.

24The man denied any oil leak. B.G. asked if perhaps he was transporting something in the truck that had fallen over and approached the vehicle to examine it. At this point, the cordial tone of their conversation shifted as the man became aggressive and attempted to rip B.G.’s bicycle from his hands. He told B.G. to leave his property and B.G. complied. He took a number of photographs of the area and departed for home. He confirmed that he was never hired in any formal capacity to investigate the apparent spill, and did not purport to offer expert evidence. He provided his initial statement when G. contacted him.

25As with the applicant, B.G. testified in clear forthright manner and both remained largely unshaken under cross-examination with respect to the details of their evidence. Both offered reasonable explanations for the minor disparities in their descriptions of the substance related to its possible identity, candidly acknowledging their limited experience with various types of petroleum based fluids, but relying primarily on their direct observations of the sight, smell and feel of the substance. Given their confidence in describing the other qualities of the substances, I find little turns on their differing descriptions of the fluid as black versus clear, particularly as only the applicant examined the fluid on a surface other than the road, specifically her clothing. I find that both witnesses offered credible and reliable evidence on the events of September 11, 2021.

26Documents from the operations division for the Town of Milton confirmed that a crew responded to a report of “oil on the road” with reference to an occurrence number for the Halton Police Service for inspection and remediation the same day. Despite the wording of this apparently utilitarian description, there was no indication that the work crew or anyone else analyzed the substance found on the road to confirm the working theory that it was indeed petroleum, let alone identify its source.

Was the applicant involved in an “accident” as defined by the Schedule?

27To be eligible for benefits, the applicant must prove the incident meets the definition of an accident under subsection 3(1) of the Schedule. An accident is defined as:

“an incident in which the use or operation of an automobile directly causes an impairment …”

28Both parties relied upon the two part test as set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, 1995 3 R.C.S. for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:

a. The Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. The Causation Test: Was there some causal relationship between the applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?

c. The applicant bears the onus to satisfy both the purpose and causation tests.

29In Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 OR (3d) 338 (‘Greenhalgh’), the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in Amos and the causation test as set out in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 OR (3d) 776 (ON CA). This combined test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to now satisfy the following questions:

a. Purpose Test:

i. Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. Causation Test:

i. Was the use or operation of the vehicle a cause of the injuries?

ii. If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In other words was the use or operation of the vehicle a “direct cause” of the applicant’s injuries?

30The latter criterion has been described as the dominant feature test. In Greenhalgh, the Court of Appeal recommended a “but for” test to determine causation. The Court noted that in some cases, the presence of intervening causes 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 and 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.” As the Tribunal noted in Travis v. Aviva Insurance Company, 2022 CanLII 49959 (ON LAT), the “but for” test is used to screen out inconsequential details that could not have accounted for the injuries and the “dominant feature” test is used for determining the dominant cause of the injuries.

31In the present case, the applicant must demonstrate on the balance of probabilities both that the accident resulted from the ordinary and well-known activities to which automobiles are put and that there were no intervening acts that resulted in her injuries. There was no dispute that the applicant was injured on September 11, 2021, as confirmed by the medical evidence, or that her injuries were the direct result of falling on the oily substance found coating the road surface that day. The photographic evidence shows a largely straight line of fluid streaked along the middle of the lane where a vehicle would legally travel, beginning with droplets, and appearing to dissipate roughly one kilometer later. This strongly suggests that a vehicle of some sort was involved in the creation of the spill. Having examined the spill, B.G. was unshaken in his evidence that the distribution of the substance appeared to have been dropped or spilled rather than dragged or smeared.

Is it reasonable to infer the involvement of an automobile?

32Significantly, although an “automobile” is not defined in the Schedule, subsection 224(1) of the Insurance Act includes the following definition:

“automobile” includes,

(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and

(b) a vehicle prescribed by regulation to be an automobile; (“automobile”)

33Offering a more functional than descriptive definition of the class of vehicles in question, this provision clarifies that an automobile is a motor vehicle that must be insured under a motor vehicle liability policy. In the context of insurance, all automobiles are motor vehicles, but not all motor vehicles are automobiles.

34For a definition of a “motor vehicle,” one must look to other related legislation. Subsection 1(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 specifically references the definition for “motor vehicle” contained in the Highway Traffic Act, R.S.O. 1990, c. H.8 (the ‘HTA’) and “includes trailers and accessories and equipment of a motor vehicle.” The latter definition in subsection 1(1) of the HTA provides more guidance:

“motor vehicle” includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”)

35The respondent emphasized that there was no direct evidence to indicate that the substance had been left on the road by an automobile as opposed to some other type of vehicle. For instance, the spill could have been left by farm equipment, a golf cart, a lawn mower, gasoline operated power tools or even one of the above referenced “self-propelled instruments of husbandry.” Ultimately, if a vehicle other than an automobile deposited the substance on the road surface, then the applicant was not involved in an accident within the definition of subsection 3(1) of the Schedule.

36Similarly, there was no direct evidence with respect to how the substance had been leaked, or otherwise deposited on the road. With respect to the purpose test, the applicant readily acknowledged that she did not know where the substance identified by her as some form of petroleum product or lubricant originated. And, although B.G. was in the process of investigating a possible explanation at the residence on Lower Baseline Road, his inquiry was abruptly cut short when he was unceremoniously ejected from the premises. As a result, the respondent took the position that the applicant’s proposition that this material was left on the road through “the ordinary and well-known activities to which automobiles are put” was fatally dependent upon speculation as a starting premise.

37However, the applicant submitted that on the balance of probabilities, the source of the spill was likely an automobile travelling along the same route as the cyclists either leaking the substance through mechanical disrepair or transportation of a faulty container that held the fluid. Although it is possible that the spill was deposited by some other type of vehicle, the applicant noted that the overwhelming majority of the common consumers of oils and lubricants using the road are automobiles. This proposition is generally supported by the evidence of both the applicant and B.G., that neither observed any farm, construction or off-road vehicles on the road that day, and the placement of the stain in the middle of the lane where an automobile would travel versus the verge or shoulder where other such vehicles are more likely to occupy.

38In support of this proposition, the applicant relies upon John Petrosoniak v. Security National Insurance Company, 1998 ONFSCDRS 67 (‘Petrosoniak’), a decision of the Financial Services Commission of Ontario (‘FSCO’) that offers strikingly similar factual circumstances to the present case. In Petrosoniak, the applicant was also an avid, competitive cyclist who was returning home from a training ride when he slid on wet pavement and fell off his bicycle as he approached the intersection of Warden Avenue and 14th Avenue in Markham. He testified that he had noticed that the pavement was wet as he approached the intersection travelling southbound on Warden and that he had attempted to steer over to a dry section closer to the curb. He stated that immediately upon coming into contact with the wet pavement his bicycle slid, causing him to fall to the ground.

39Mr. Petrosoniak stated that while he did not actually see a vehicle spewing or dumping any liquid on this stretch of the road, he concluded, based on the dimensions of the wet patch and the fact that the liquid smelled like a petroleum product, that it was likely hydraulic fluid that had poured from the back of a truck. He added that he had noticed many dump trucks travelling down Warden Avenue from an area just north of the intersection in question where highway 407 was being built. As in the present case, the respondent called no evidence.

40At paragraph 9 of her findings, the arbitrator concluded that the evidence supported an inference that the fluid originated from a truck:

On the basis of the evidence before me, I find that the fluid that caused the Applicant’s bicycle to slide and him to fall to the ground originated from a motor vehicle. While there is no direct evidence of where that fluid came from, in my view it is reasonable to conclude that it was emitted from a motor vehicle that drove southbound on Warden Avenue in the curb lane and then proceeded westward at the intersection. In arriving at this conclusion I have considered the fact that the substance in question lay exclusively on the roadway and not on the curb, that it was approximately the width of one lane and that it continued in a westward direction for some 200 feet beyond the intersection before fading away. Although it would have been preferable to have more conclusive evidence on this point, I am persuaded by the factors set out above that, on a balance of probabilities, the liquid in question did emanate from a truck.

41The applicant in the present case relies upon Petrosoniak not only for the determination that the fluid on the road was the result of ordinary and well-known activities to which automobiles are put, but also the inference that the source of that fluid was an automobile.

42The applicant in Petrosoniak had observed several trucks in the area of his accident to better support the adjudicator’s inference that a truck had been responsible to the available evidence. As well, the accident in Petrosoniak occurred in a primarily urban setting where the involvement of agricultural equipment was even less likely than in the present case. Nonetheless, in the present case, both witnesses were clear in their evidence that the only vehicles they had observed in the area that day were automobiles. As well, the only apparently operational vehicle observed by B.G. near the termination of the spill was also an automobile.

43Both of these factors as well as the position of the strip down the near centre of the lane where automobiles travel suggests on the balance of probabilities, that the substance was left by an automobile that traversed that same route at some point prior to the arrival of the cyclists. Significantly, the respondent called no evidence to refute the reasonability of this inference or indicate that the vehicle responsible for the spill was something other than an automobile, or that the spill was deposited through some other process.

44Ultimately, I find on the balance of probabilities, that the available evidence collectively points to a reasonable inference that the oily stain was more likely than not left by an automobile.

The Purpose Test

45I also find on the balance of probabilities that the deposit of fluids from a moving vehicle onto the roadway falls within the ordinary and well-known activities to which automobiles are put. This would be the case whether the fluid issued from an internal component of the vehicle that was leaking or from a faulty or improperly secured container transported by that vehicle.

46These scenarios contrast with situations in which the use or operation of an automobile is merely ancillary such as in Citadel General Assurance Co. v. Vytlingam, [2007] 3 S.C.R. 373, 2007 SCC 46 (‘Citadel’). In that case, two hooligans, F. and R., packed boulders in their car and drove to a highway overpass. They dropped one of these boulder from the overpass, thereby striking the claimants’ vehicle as they were driving along the highway, catastrophically injuring Mr. Vytlingam and causing two other occupants of the car serious psychological harm. For coverage to apply, the injuries suffered by Mr. Vytlingam had to be sufficiently connected to the use and operation of the tortfeasors’ car for the court to conclude that the tort was committed by a motorist. The Supreme Court of Canada held that the relevant tort consisted of dropping the rocks from a highway overpass, not transporting rocks across the countryside to drop them onto the highway. The offender F. was not at fault as a motorist and the tort was an independent act which broke the chain of causation. It therefore represented an intervening event severable from the use and operation of F.’s vehicle to do so.

47In Citadel, the Court appeared to narrow the jurisprudence concerning use and operation of an automobile and endorsed the decision in Continental Stress Relieving Services Ltd. v. Canada West Insurance Co. of Canada, (1998), 1998 ABQB 387, 221 A.R. 160, in which a vehicle repairman whose use of a cutting torch caused gasoline fumes to ignite was held not to be an at-fault motorist. The Court in that case affirmed that the insured was not using the motor vehicle as such when he was repairing it in a garage. Therefore, that automobile could no longer function as a motor vehicle, or be considered in use or operation, if it was being repaired.

48Similarly, in Francia v. Licence Appeal Tribunal, 2021 ONSC 7847 (‘Francia’), the Ontario Divisional Court found that the drivers of two transport trucks involved in a serious collision that resulted in a spill would be covered by the “accident” definition, but that the applicant, Mr. Francia would not. The Court explained that this was because the vehicles were non-operational, on fire and ready to be towed when Mr. Francia arrived. As their state when the applicant arrived did not fall under the ordinary uses to which vehicles are put, the scenario in Francia did not meet the purpose test as it applied to the claimant.

49That is not the situation in the present case. If the substance was deposited by a moving motor vehicle, the straight line of material left in its wake and its position in the lane strongly indicates that the vehicle was being driven at the time it leaked the fluid on the ground. There is no reason to exclude an automobile driven in a state of disrepair from the class of ordinary and well-known uses to which vehicles are put. Unfortunately, this is hardly uncommon or outside ordinary and well-known use. Unlike the trucks in Francia, there is no evidence to conclude that the vehicle in the present case did anything other than drive along Lower Baseline Road, leaking a fluid as it went, possibly without the operator of the vehicle even being aware of the problem.

50While the respondent speculates that the appearance of droplets and the more substantial spill where the applicant fell suggests a makeshift repair, not only is there no basis for such an inference, but this scenario is also not limited only to farm or construction equipment as the respondent suggests. No evidence was present to suggest that automobiles leak fluids less than other vehicles.

The Causation Test

51Whether the substance leaked from a faulty engine or a compromised container, there is no intervening act or event that would break the causal link between the spillage and the applicant’s resulting impairment.

52Although Petrosoniak involved an older version of the purpose and causation test that permitted both direct and indirect causation, the arbitrator dismissed the act of spillage onto the road surface as an intervening event, consistent with the present test:

While the fact that the fluid fell onto the roadway, as opposed to falling directly onto Mr. Petrosoniak, may constitute an intermediate step in the process which ultimately led to his injuries, it does not, in my view, constitute an intervening act or a force “working actively from a new and independent source”…

53In D.S. v. T.D. Meloche Monnex, 2017 CanLII 43837 (ON LAT), the adjudicator adopted the Petrosoniak analysis within the present day Tribunal context in relation to a claimant who fell into a parked car and found at paragraph 54 of the decision that the applicant had satisfied the direct causation test as the collision with the parked vehicle was the direct cause of the applicant’s injuries.

54Conversely, in C.K.D. v. Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT), in which the applicant fell on snow while he was in the process of getting into his vehicle. The Tribunal held that the “but for” suggested causation test was satisfied as the applicant would not have been injured but for his attempt to enter his vehicle and no intervening event broke the chain of causation. As well, the dominant feature of the incident was the applicant’s attempt to get into his vehicle, which supported direct causation. While there is no dispute that the slip and fall caused the injuries, this was secondary to the fact that the applicant was getting into the vehicle, the very act that initiated the incident.

55Similarly, but for the presence of the substance on the road, on the balance of probabilities deposited from an automobile, the applicant in the present case would not have received her injuries. There was no evidence of any intervening event between the fluid being deposited and the dominant feature of the event, specifically, the applicant’s slip on the compromised surface. As a result, I find that the applicant has met her evidentiary onus to demonstrate that she was involved in an “accident” as defined by subsection 3(1) of the Schedule.

ORDER

56I find that the applicant was involved in an “accident” as defined by subsection 3(1) of the Schedule.