Licence Appeal Tribunal File Number: 21-014747/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:
Carl David
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Carl David, Applicant
Edward S. Kim, Counsel
For the Respondent:
Tim Gillibrand, Counsel
Observer:
Stephen Wojciechowski, Lawyer, City of Thunder Bay
Monica Kramer, Law Clerk
Ethan Edwards, Articling Student
Heard by Videoconference:
April 26, 2023
OVERVIEW
1Carl David, the applicant, slipped and fell on December 31, 2020, 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, Wawanesa Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On December 31, 2020, the applicant fell in the parking area at a garbage disposal and recycling facility. The applicant was seriously injured by his fall.
3The parties came before the Tribunal for a determination as to whether the applicant was involved in a motor vehicle “accident” as defined by section 3(1) of the Schedule. The disagreement between the parties stems from the applicant’s lack of memory or other objective evidence as to the cause of the fall. If the applicant’s use of the vehicle caused the fall, the applicant would qualify for benefits under the Schedule.
4To advance their respective cases, the parties presented witnesses who could each provide details they recalled about the applicant’s state when he was found on the ground after the fall, the surroundings, where he was in relation to the recycling bins or his vehicle, as well as any security footage available or other relevant details.
5It was through the review of various testimony, evidence and security footage that I determined that the injury was not the result of an “accident” as defined by the Schedule.
ISSUES
6The issue in dispute here is:
a. Was the applicant involved in a motor vehicle “accident” as defined by section 3(1) of the Schedule?
RESULT
7The applicant’s injury on December 31, 2020 is not a motor vehicle “accident” as defined by s.3(1) of the Schedule.
BACKGROUND
8On December 31, 2020 the applicant attended the Thunder Bay Landfill and Recycling Centre (“Centre”) to dispose of boxes and other refuse, when he slipped in the parking lot. During this fall, the applicant seriously injured his spine and struck his head, knocking himself unconscious. The applicant does not have a full memory of the fall.
9During the hearing the applicant testified as to what he could remember. When he arrived he exited his truck, engine running with the dog in the back, and proceeded around the side to open his tailgate. Afterward he spent some time removing boxes from the bed of the truck, stomped on them in the snow to flatten them where needed, and then disposed of them in the recycling bins nearby.
10On one of the walks to or from the recycling bins, the applicant slipped on cardboard in the snow. He wasn’t sure where the cardboard came from. He recalled falling backwards, with his legs slipping out in front of him, onto his back. He thought he may have hit his head off his tailgate during the fall, or, that he’d hit his head off the pavement – he couldn’t say for sure because he did not have a distinct memory of how he injured his head. Unfortunately, no one was around to witness the fall, and he was outside the recording range of the surveillance cameras when he fell.
11When the applicant regained consciousness, he had significant difficulties associated with a spinal injury. He was unable to move from his spot laying in the snow and slush. He remained there until he was discovered by a passerby and an employee of the Centre. With their assistance and support, emergency medical services were contacted, and the applicant was taken to the hospital for treatment.
ANALYSIS
12The issue to be determined is whether the applicant’s fall qualifies as a motor vehicle “accident” under the Schedule.
13A review of the Schedule provides the following insight into what qualifies as a motor vehicle “accident” through sections 2(3) and 3(1):
a. Section 2(3) provides that benefits shall be paid to the injured party when there is an “accident”; and
b. Section 3(1) describes that an “accident” is an “incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
14The onus is on the applicant to establish that, on a balance of probabilities, the use or operation of an automobile directly caused his injuries. This means that the applicant must show that it is more likely than not, that his accident was directly caused by his use or operation of his truck, to be able to show he is entitled to the payment of benefits from his insurer under the Schedule.
15To establish if the applicant’s use or operation of his truck was the direct cause of his accident, we refer to caselaw to provide a framework since the applicable legislation is silent.
16In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the court of appeals proposes a “purpose” and “causation” test. As a court of appeal, this approach is binding to our Tribunal. This is illustrated by answering the following questions posited by this court:
a. Purpose Test: Did the accident result from an ordinary and well-known activity of automobiles?
b. Causation Test: Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the applicant’s injuries and the ownership, use or operation of his automobile, or is the connection between the injuries and the ownership, use or operation of his automobile merely incidental or fortuitous?
Purpose Test
17I find that the use of an automobile to drop off recycling and refuse is an ordinary and well-known activity for which automobiles are used.
18Mr. Hertz, an employee of the Centre, through his description of the facility, illustrated why this is a well-known use for automobiles. Mr. Hertz described that the Centre was set up to be accessible by automobile through certain access points, and that certain areas were designed to be accessed by automobile for different kinds of waste. Each area having a road into and out of their designated waste zone, in addition to parking lots for the vehicles transporting the refuse. The Centre does not account for entrance by other means like foot traffic or by bicycle, and the facility is not customized to meet the needs of traffic other than by automobile.
19This is corroborated by the Centre’s information packet enclosed in the Applicant’s document brief which details the accommodations for automobiles as well as the procedure for different kinds of vehicles to use the Centre. Accommodations to make the Centre more “car friendly”.
20In light of their information packet and the testimony of an employee of the Centre, I find that using an automobile to drop off refuse at this Centre is an ordinary and well-known activity for which automobiles are used. The applicant testified that at the time of the accident he was at the Centre unloading boxes into recycling bins in the facility. I find that this is a recognized use of this facility, and as such, the applicant was engaged in an ordinary and well-known activity for which automobiles are used. The applicant has met the purpose test.
Causation Test
21To assess whether the applicant meets the test for causation, I have applied the evidence before me to the following three questions:
a. Would the injuries have occurred “but for” the use or operation of the truck?
b. Was there an intervening cause?
c. Was the use or operation of the truck a dominant feature of the applicant’s injuries?
22Under Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), for the applicant to establish legal entitlement to accident benefits requires, not just that the use or operation of the automobile be a cause of the injuries, but that it be a direct cause.
"But For"
23The accident took place under one of three scenarios advanced by the parties. I place weight on the second scenario for the reasons set out below.
a. Scenario 1: The applicant was walking away from his truck to place cardboard in the recycling bins. His legs slipped out in front of him and he fell backwards, striking his head on either the ground or the tailgate of his truck. He testified that when he regained consciousness, he was looking up at the tail pipe from underneath his truck.
b. Scenario 2: The applicant was walking to or away from his truck when he slipped on cardboard, his legs slipped out in front of him and he fell backwards striking his head off the pavement. The applicant suggested that it was his cardboard from his truck that he had slipped on, the respondent suggested that it was left behind by another patron or that it fell out of one of the recycling bins nearby.
c. Scenario 3: The applicant was walking to or away from his truck when he slipped in the snow. His legs slipped out in front of him and he fell backwards striking his head off the pavement.
24I do not put any weight on scenario one. I find this because witness testimony placed the applicant out of arms reach of the vehicle, his head was near the recycling bins, and his feet pointing to or adjacent to the car. If the applicant’s legs fell out forwards from under him and he fell backwards, he fell in the wrong direction to have hit his head on his truck whether the tailgate was open or not. A witness who found the applicant on the scene testified that he was only about 3 feet from the recycling bins, so close he could touch them, but far enough that he could not have touched the applicant’s truck from his position at the applicant’s side.
25This is corroborated by the surveillance video, which, while it does not show the fall, does show the reflection of the applicant walking to dispose of a box and then does not show the applicant walking back to his truck1 which indicates either he fell at the recycling bins where his reflection on the ground was less apparent or he was too far outside the view of the security camera for his reflection to appear after this point. Within the same minute he was discovered by a government employee who did not testify today, and a minute later Larry Gammond is on the scene.
26I accept the second scenario over scenario three for the following reasons:
a. The one thing each witness could agree on during their testimony was the presence of a large box with a printed label was underneath the applicant when he was found at the scene.
i. Larry Gammond, one of the parties that initially found the applicant, stated that the cardboard was under the applicants legs when he found him in the snow and that the applicant was unable to move due to his injury.
ii. A paramedic, Jason Webb, stated in his testimony that he believed that the box was the cause of the applicant’s fall – that the box had a very slick printed side and was found under the applicant’s’ legs at the scene.
iii. The applicant himself relayed that he believed he slipped on a box. He remembered slipping on something and then his memory gets less reliable closer to when he struck his head.
iv. The employee for the Centre, Richard Hertz, also identified a box under the legs of the applicant.
v. The other paramedic, Lauren Swoluk, also confirmed the presence of the cardboard box and that she believed the applicant had slipped on this box when he fell.
b. I do not find that the cardboard came from the applicant’s truck for the following reasons:
i. The applicant did not remember with any degree of certainty what the box was, only that it was a large box with a large label that he thought might have been the cardboard box he was disposing of. He also admitted it may not have been.
ii. No party could testify as to what was on the box to confirm its origin, nor was the box recorded by any surveillance that day.
iii. The box was not saved or documented in any form following the accident.
iv. No party was able to indicate the brand, what was written on the box, or any identifying details. The best description given was that it was a large box with a shiny printed label that may be for a tv or some other large item.
v. Even if it was the box that the applicant had brought to the Centre that day to recycle, there is no evidence that it did not fall out of the recycling bin after it was deposited there by the applicant.
vi. The witnesses who saw the box all testified that the box, located under the legs of the applicant, was covered in snow and slush. So the box may have been there when the applicant arrived, either from the driver who had dropped off boxes prior to the applicant, or perhaps the wind that day may have knocked a box out of the recycling bins.
vii. Without further evidence it’s not possible to corroborate the source of this box or to link it causally to his vehicle.
27While the applicant’s fall did not directly interact with the applicant’s automobile, the applicant left the vehicle running while he temporarily unloaded recyclable materials with the intention to continue on to the next site in the Centre. As such, the applicant’s injury would not have taken place without the automobile which facilitated his delivery of the cardboard. I do find that “but for” the applicant’s use or operation of his automobile he would not have been injured. The “but for” analysis on its own does not conclusively establish legal causation under Chisholm, so I will continue to answer the next two questions.
Was there an intervening cause?
28Paragraph 14 of Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 describes that an intervening cause is an act(s) that result in the injury that cannot be said to be part of the “ordinary course of things”, is the use or operation of the vehicle a “direct cause” of the injury.
29In Young v. Economical Insurance Company, 2023 CanLII 47535 (ON LAT) at paragraph 18 the Tribunal sets out that reasonably foreseeable risks relating to a motor vehicle will not break the chain of causation. The Tribunal considered timing, risk and proximity to the vehicle in coming to a determination about an “intervening act”.
30Time and proximity – as testified to by the applicant and witnesses, the applicant was facing feet towards the car in the snow close to the recycling bin on his back. He had exited his automobile and was disposing of cardboard into recycling bins. To do this he had to walk around the parking lot.
31Risk – At paragraphs 20 to 23 the Tribunal in Young assesses that in a case of falling on “ice” in a parking lot being an intervening act which prevented the injury from determining to be an accident. Like in this case, the applicant’s automobile brought the applicant to the location but this is not sufficient to meet the causation test. Slipping on the box or slush combined with the box caused the applicant’s injuries. This is a break in the chain of causation.
32I am persuaded that, based on the facts and law, the applicant was not involved in an accident as a result of an intervening act. To complete this analysis, I will now additionally address the dominant feature consideration of the causation test.
Was the use or operation of the truck a dominant feature of the applicant’s injury?
33The applicant submitted that the dominant feature of the injury was the ordinary and well-known use or operation of the automobile while unloading recyclables, which forced him to walk through snow, slush and the parking lot to get to the recycling bins. As a result, he walked through the parking lot where he slipped on the cardboard box and fell.
34The facts before me show that the applicant was injured as a result of slipping and falling on a cardboard box at the Centre. Here, the use of the automobile was at best ancillary. Falling on cardboard in a slushy parking lot outside of recycling bins is a foreseeable and common risk when walking in that area in the winter time regardless of if an automobile is involved. Put another way, the cardboard was the dominant feature of the fall, not the use or operation of the automobile.
35When he exited his truck into a slush-filled parking lot outside of recycling bins he assumed the risk that falling on those materials is a foreseeable risk in the winter time. As such, the slush and cardboard were intervening events which broke the chain of causation. This fall would have taken place whether the applicant’s truck was involved or not. The truck did not contribute to the poor conditions that led to the applicant’s fall, nor was it a factor in the conditions at the time of the injury.
36As a result of the broken chain of causation detailed above, the applicant’s’ injuries were not the result of an “accident” as defined in the Schedule.
ORDER
37The applicant was not involved in an “accident” as defined in the Schedule.
38The application is dismissed.
Released: July 26, 2023
__________________________
Julia Fogarty
Adjudicator