Citation: Kosiner v. Economical Insurance Company, 2023 ONLAT 21-011142/AABS - PI

Licence Appeal Tribunal File Number: 21-011142/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:

Evan Kosiner

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Christopher J. Schnarr, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1This proceeding concerns a dispute between an insured person (the “applicant”) and Economical Insurance Company (the “respondent”) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of an alleged motor vehicle accident on February 13, 2020.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Was the applicant involved in an “accident” on February 13, 2020 as defined in s. 3(1) of the Schedule?

RESULT

3The applicant’s injuries sustained as a result of the incident on February 13, 2020 did not result from an “accident” as defined in s. 3(1) of the Schedule. As a result, the application is dismissed.

FACTS

4On February 13, 2020, the applicant was leaving a hotel in Ann Arbor, Michigan, U.S.A. with the intention of proceeding to the parking lot to access his motor vehicle. Just before exiting the doors of the hotel, he removed the key fob for his vehicle from his pocket. While leaving the hotel, he looked toward his vehicle, which was visible from the hotel doors, and pressed his key fob to open the vehicle’s trunk. While walking toward the vehicle and looking at it, he slipped and fell on a patch of ice just outside the hotel doors.

5After this fall, the applicant returned to the hotel and requested that staff call emergency services. He was examined by paramedics at the hotel shortly thereafter, and again the following day at the University of Michigan Hospital Emergency Department. In addition, the applicant sought treatment when he returned to Ontario, visiting North York General Hospital for diagnostic testing on February 15, 2020.

PARTIES’ POSITIONS

6The applicant submits that this incident constitutes an accident pursuant to s. 3(1) of the Schedule. He claims that he was using his key fob to open the trunk while walking and looking directly at the vehicle at the time of the slip-and-fall on ice. Therefore, he argues that this should be seen as part of the ordinary use or operation of his motor vehicle and that this incident should be considered an “accident” by Schedule definition.

7The respondent takes the position that the applicant has not established that he was involved in an accident as defined in the Schedule and holds that the application should be dismissed.

LAW

8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries, despite this preliminary issue being raised by the respondent.

ANALYSIS

10For the following reasons, I find that the applicant was not involved in an accident on February 13, 2020 as defined within s. 3(1) of the Schedule. Although I find that the applicant has met the majority of the tests as detailed below, an intervening act broke the chain of events during the incident and his falling on ice was the dominant feature of the incident, not the use or operation of his vehicle.

11The Ontario Court of Appeal has established a two-part test to determine whether an incident is an “accident.” (SEE: Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.) This test is as follows:

i. Purpose Test: did the incident arise out of the use or operation of an automobile?

ii. Causation Test: did the use or operation of an automobile directly cause the impairment?

12The Purpose Test is a determination of whether the incident involves “the ordinary and well-known activities to which automobiles are put.” Or, said another way, for what “purpose” was the vehicle being used at the time of the incident?

13The Causation Test requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s injuries or impairments. Case law generally focuses on the following considerations: “but for;” “intervening act;” and “dominant feature.” To wit:

i. The “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments.

ii. The “intervening act” consideration asks the adjudicator to determine if some other event took place that can better explain the cause of the impairments.

iii. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity at issue “most directly caused the injury.”

14The application of these tests to the facts of this case follows.

Purpose Test

Did the applicant’s injuries arise out of the use or operation of an automobile?

15I find that the applicant’s injuries resulted from the use or operation of his vehicle, and that he has therefore satisfied the requirements of the Purpose Test.

16The applicant submits that he was using his key fob to open his vehicle trunk while walking toward the vehicle and staring directly at it to ensure that the opening trunk did not hit a pedestrian or another vehicle. He further notes that remotely opening a trunk should be seen as analogous to opening the door of a motor vehicle, as both involve gaining access to the vehicle, and that using a key fob should be viewed similarly to manually opening a trunk or door. To summarize, the applicant argues that all of these actions are part of the ordinary use to which automobiles are put, and that he therefore satisfies the Purpose Test.

17In addition, the applicant relies on prior Tribunal decisions K.P. v. Aviva General Insurance, 2020 CanLII 35505 (ON LAT) and V.B. v. Economical Insurance Company, 2020 CanLII 87992 (ON LAT). While I am not bound by other Tribunal decisions, I reviewed them in the context of rendering my decision and acknowledge a number of similarities, particularly with regard to K.P. v. Aviva, which also involved an applicant’s fall on ice when approaching a vehicle.

18The respondent accepts that opening a trunk with the purpose of unloading a vehicle falls under the ordinary or well-known uses of a motor vehicle. But it argues that the applicant had not commenced the act of unloading his vehicle when the slip-and-fall on ice occurred and as a result does not satisfy the Purpose Test.

19In support of this position, the respondent references Buckley v. Wawanesa Insurance, 2022 CanLII 106443 (ON LAT), an incident that involved a similar fall on ice by an applicant while using a key fob to enter a vehicle. While this Tribunal decision found that the applicant met the Purpose Test, the respondent submits that this incident is distinguishable, mainly because the applicant here was at least two times father from his vehicle (between 30 and 50 feet away) when he fell than the applicant was from her vehicle in Buckley. The respondent argues that this incident would be best described as occurring while the applicant was leaving the hotel, not while using his vehicle. In short, it also holds that the applicant was too far from his vehicle to meet the Purpose Test.

20Further, the respondent submits that the applicant has not established that he was using his vehicle key fob at the time of his fall. It notes in submissions that the applicant did not mention use of the key fob to hotel staff as part of a slip-and-fall claim against the hotel, and that he does not seem to have mentioned the fob until an Application for Accident Benefits/OCF-1 form was filed on February 25, 2021, over a year post-accident.

21I agree with the applicant that find that the purpose test has been met. In my view, the use and operation of the vehicle began when the applicant began using the key fob to open the trunk while walking directly to his vehicle. I accept the applicant’s account of the incident, as was most thoroughly documented in an examination under oath (“EUO”) conducted on June 3, 2021. The applicant testified at the EUO that he pressed the key fob to open his trunk while he was exiting the hotel doors and fully explained precisely why he was going to his vehicle, what purpose he was using his vehicle for at that moment, and even what items he was about to retrieve from his trunk. The respondent has provided insufficient reasons for me to doubt this thorough account, which aligns with the general facts of the incident as I understand them.

22Further, I am not persuaded by the respondent’s arguments that the applicant had not engaged in the opening of his trunk at the time of the slip-and-fall.

23First, I find that the distance between the applicant and the vehicle is irrelevant with regard to the Purpose Test. While the respondent claims that a finding such as this could open the door to this test being satisfied by such activities as placing a key fob in a coat pocket while leaving a hotel room, this is a strawman argument. Here, the applicant was leaving his hotel and walking directly to his vehicle while opening his trunk. That alone satisfies the Purpose Test.

24Second, I find that the respondent has not substantiated its claims about the applicant’s use of his key fob. Its allegations have not been supported by any objective evidence, so it is essentially requesting that I draw a negative inference as a result of the applicant apparently not mentioning the key fob elsewhere. As noted above, the applicant’s account of the incident during the EUO was quite thorough. The respondent has not given me any good reasons to doubt this version of events.

25In accordance with the above, I find that the applicant has met the Purpose Test.

Causation Test

26Within the Causation Test, a three-point analysis has been set out by the Ontario Court of Appeal (SEE: Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); and Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA). These three points are as follows:

i. Whether the incident would have occurred “but for” the use or operation of the automobile.

ii. Whether there was an “intervening act” that cannot be said to be part of the ordinary course of the use or operation of the automobile.

iii. Whether the use or operation of the automobile was the “dominant feature.”

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

27I find that the applicant has established that he meets the “but for” test.

28The applicant submits that but for the applicant’s ordinary use of the vehicle, the slip-and-fall incident would not have taken place. If the applicant had not been using his key fob to open his trunk and actively staring at his vehicle at the time, he would have noticed the ice in front of him and avoided the fall. Hence, the incident would not have occurred but for his use of the vehicle.

29In response, the respondent argues that the applicant does not meet the “but for” test. It submits that the applicant has not responded to requests for further information made pursuant to s. 33 of the Schedule, leaving aspects about the circumstances of the incident unexplained. Additionally, the respondent again refers to the applicant not establishing that he was using his key fob at the time of the fall. Lastly, the respondent notes that even if the applicant is found to have met the “but for” test, this does not conclusively establish legal causation, pursuant to Chisholm.

30I agree with the applicant and find that the fall would likely not have occurred but for his actions to access the trunk of his vehicle. It is reasonable that the applicant’s focus would have been at least partially on opening his trunk at the time of his slip-and-fall, especially as he explained in the EUO that he was concerned about the trunk hitting another vehicle or pedestrian while opening. Further, he noted in the EUO that he slipped on ice in his initial step out of the hotel while pressing his key fob, so the fall and using his fob were essentially concurrent. As a result, I accept the applicant’s explanation of the circumstances of the incident, which to me support that it would not have occurred but for his opening the trunk of his vehicle.

31The respondent’s position is not persuasive. The argument that the applicant failed to reply to questions in accordance with s. 33 of the Schedule was not supported by any specifics regarding what questions about the incident were left unanswered. Moreover, it would seem as if the respondent was provided with the ability to fully question the applicant during the EUO on June 3, 2021. As I have already discussed the key fob argument, I will not recount that analysis again.

32However, the respondent is correct that the “but for” test does not establish legal causation. As noted in Chisholm, the purpose of the “but for” test is exclusionary, so it 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.” Legal entitlement to accident benefits according to Chisholm also “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”

33So, even though I find that the applicant has satisfied the “but for” test, this is a relatively low threshold given the parameters established in Chisholm as such a finding does not establish direct causation, or entitlement to accident benefits. I address the question of direct cause in the following sections, and find that this is where the applicant fails to establish that the February 13, 2020 incident was an accident according to Schedule definition.

Was there an intervening act?

34I find that the applicant’s injuries were directly caused by an intervening act, namely the slip-and-fall on ice.

35The applicant submits that there was no intervening act that broke the link of causation between the incident and the ordinary use of his vehicle. He refers to Chisholm, which holds that to satisfy this facet of the Causation Test, the applicant must establish that there was an unbroken chain of events involving the use or operation of the vehicle that led to an injury.

36Here, the applicant claims that the chain of events commenced when the applicant exited the hotel door and pressed the button on his key fob to open his trunk and concluded when he slipped and fell on ice. Additionally, the applicant notes that he demonstrated reasonable concerns when looking at his vehicle to ensure that the opening trunk did not hit another vehicle or pedestrian. Lastly, he argues that an icy walkway cannot be regarded as an intervening cause outside of the normal operation of a vehicle, as a colder winter climate creates a normal risk of a fall when someone is distracted by the ordinary use of a vehicle, such as operating a key fob to open a trunk.

37The respondent submits that the applicant does not meet this part of the test as he has not demonstrated that the operation of the car was a “direct cause” of the incident, as outlined in Greenhalgh. Further, the respondent submits that the Tribunal is bound by Porter, which focused on the “dominant feature” test and concluded that it was the ice and not the use of a vehicle that was the direct cause of the applicant’s fall.

38The respondent also refers to a number of other Tribunal decisions that moved directly to the “dominant feature” analysis and/or found that the fall on ice was an intervening cause that was distinct from the vehicle’s operation. (SEE: Namin v. Allstate Insurance Company of Canada, 2022 CanLII 70251 (ON LAT); Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ON LAT); Davis v. Aviva General Insurance Company, 2022 70502; and Oram v. Aviva General Insurance, 2022 CanLII 4527 (ON LAT).)

39I am persuaded by the argument of the respondent and find that the applicant’s injuries did not result from the use or operation of the vehicle. His injuries were directly caused by an intervening act, specifically the fall on the ice. In addition, according to the applicant’s EUO testimony, the fall occurred just outside the hotel doors some 30-50 feet away from the vehicle and across a parking lot. And no evidence was presented to indicate that anything other than the ice in the parking lot caused the slip-and-fall.

40In addition, I do not accept the applicant’s contention that operating his key fob required such singular attention that he was unable to even glance at the ground in front of him. While, as noted above, I find it reasonable that the applicant’s focus would have been at least partially on opening his trunk at the time of his fall, the distance between the applicant and the vehicle afforded him the ability to assess the hotel walkway for potential hazards. This would also have seemed prudent given the time of year and climate, the applicant’s staying in such an unfamiliar place as a hotel, and because the hotel doors and windows at the exit were so heavily tinted (as reported by the applicant in his EUO) that he was unable to properly see through them.

41In summation, I find that the ice and the slip-and-fall together (compounded by the distance between the applicant and his vehicle) constituted an independent intervening act outside of the use or operation of the applicant’s vehicle that broke the chain of events. The intervening act of the fall on ice broke the chain of events and was the direct cause of the applicant’s injuries.

Was the use or operation of the vehicle the dominant feature of the incident and the resulting injuries?

42I find that the slip-and-fall due to ice was the dominant feature of the incident that caused the applicant’s injuries, not the use or operation of the vehicle.

43The applicant submits that the use or operation of the vehicle was the dominant feature of the incident. He argues that the reason for his slip-and-fall was that he had turned his attention to using his key fob to open his vehicle. Because he was using his vehicle at the time of the fall, the ice should be considered as a secondary cause of the incident that was ancillary to him pressing a button on his key fob and staring at his vehicle. As a result of this operation of the vehicle, the applicant was “unable to look at the ground in front of him,” and this should therefore be determined to be the dominant feature of the incident.

44The respondent submits that the use or operation of the vehicle was not the dominant feature of the incident and that the Tribunal must consider which element of the incident most directly caused the resulting injuries. It cites Greenhalgh and Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107, and also references the Tribunal decisions already noted above, as part of its argument demonstrating that ice has been held to be the dominant feature of numerous slip-and-fall incidents where applicants fell outside of their vehicles.

45Also, the respondent reiterates that the applicant was 30 to 50 feet away from his vehicle at the time of the fall. The respondent further claims that the applicant tacitly acknowledged that this was primarily a slip-and-fall incident unrelated to the operation of his vehicle due to his consideration of pursuing a claim against the hotel initially and not applying for accident benefits for over a year.

46I am not convinced by the applicant that the use or operation of the vehicle was the dominant feature in this incident. I find that the fall on ice was the dominant feature and the direct cause of the applicant’s injuries, with the use or operation of the vehicle being secondary. The applicant’s injuries were due to the ice on the walkway immediately in front of the hotel doors, not the operation of his vehicle. The applicant indicated this himself in his EUO testimony, which largely focused on the ice, the hotel staff’s apparent inattention to this hazard, and the window and door tinting that prevented him from observing the ice before he stepped outside onto it and fell. As a result, I agree with the respondent’s assertion that the incident was more of a slip-and-fall incident leaving a hotel than an accident while engaged in the common use or operation of a vehicle.

47Accordingly, and for the above reasons, I find that the dominant feature of this incident was the slip-and-fall on ice.

CONCLUSION AND ORDER

48While I do not dispute that the applicant was exiting the hotel with the purpose of opening the trunk of his vehicle, and have appropriately found that the applicant meets some of the criteria in the two-part Purpose and Causation Tests, the direct cause of his injuries was not the operation of his vehicle. The direct cause of his injuries was his fall on a patch of ice on the walkway immediately outside the hotel doors, which was both an intervening act that broke the chain of events as well as the dominant feature of the incident.

49I find that the applicant has not demonstrated that the incident on February 13, 2020 constituted an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.