Citation: Hems v. The Personal Insurance Company, 2023 ONLAT 22-008554/AABS-PI

Licence Appeal Tribunal File Number: 22-008554/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:

Lisa Hems

Applicant

and

The Personal Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Anne-Marie Musson, Counsel

Salina Chagpar, Counsel

For the Respondent:

Jennifer Griffiths, Counsel

Zachary Berg, Counsel

Heard by way of written submissions

OVERVIEW

1Lisa Hems, the applicant, was involved in an incident on June 6, 2017, 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 Personal Insurance Company, 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.

3The question that is before the Tribunal is a very narrow one. However, it should be noted that the parties have addressed other issues in their submissions, which were not properly before the Tribunal. If other issues are to be added, parties must follow the appropriate procedure, such as filing a motion to add any additional issues. That has not been done in this case. As such, the Tribunal will not consider any additional issues.

STRIKING PORTIONS OF THE RESPONDENT’S SUBMISSIONS

4In her reply submissions, the applicant requested that the Tribunal strike paragraphs 17, 18 and 44 of the respondent’s submissions. The applicant should have filed motion seeking this relief. There was ample opportunity to do so.

5In my view, it would be procedurally unfair to do so without providing an opportunity for the respondent to address this request. As such, I decline to grant this relief.

RESULT

6I find that the applicant was not involved in an accident.

BACKGROUND

7On June 6, 2017, the applicant was picking up her two infant sons from the hospital. She placed her children in their bucket seats in the back seat of her car. She opened the driver’s side door and sat down in the driver’s seat. She fastened her seatbelt and started the ignition. A passerby waved at the applicant. The applicant turned off the engine, pulled out the key fob, unfastened her seat belt and exited the vehicle.

8Upon exiting the vehicle, she detected an overwhelming smell of gas. She heard the sound of liquid gushing and saw fuel spilling from the vehicle. The entire gas tank had emptied underneath her vehicle. The infants remained in the car.

9The applicant frantically went to get her children out of the car as she was afraid her vehicle would catch fire. She was able to safely extract her children from the car and went a safe distance from the car. The hospital put a Code Brown alert and initiated the toxic spill protocol. Firefighters were called to the scene to contain the fuel leak.

10The applicant’s vehicle was taken to a mechanic after the incident. According to the applicant, the mechanic informed her that there was a mistake made when the fuel pump was installed

11It is the applicant’s position that she suffered a severe, significant traumatic reaction to the incident, as a result of her fear of her children and herself being killed or injured.

ANALYSIS

Was the incident an “accident”?

12For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

13Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

14The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

15In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), 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?

16The 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?

17The 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:

a) The “but for” consideration;

b) 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,

c) 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”.

18I note that the respondent made submissions on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27(“Mustapha”). Mustapha does not address whether an individual was involved in an accident. Rather, it addressed whether it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. For the purposes of this analysis, the two-part test in Caughy will be applied as it is the relevant test for the purposes of determining whether the applicant was involved in an accident

The Purpose Test

19The applicant submits that she satisfies the purpose test because reaching for a door handle is the ordinary use of a car. She was seated in her vehicle, she put her seat belt on, she turned on her vehicle and the fuel tank emptied under her car. It is her position that her injuries flowed out of the regular activity to which her automobile was being put.

20The respondent submits that while it accepts that sitting in a vehicle, fastening a seat belt and turning a vehicle are ordinary and normal elements of using a vehicle, those actions took place only very briefly, and prior to any injury or impairment possibly occurring. When she shut off her engine and got out of her vehicle, there is no evidence that any injury or impairment had been sustained. Her concern arose later, after she was out of the vehicle and first observed a fuel leak/spill. The applicant was merely a witness to the spill. The spill was not an ordinary or normal activity associated with operating a motor vehicle. It was the opposite. It was an indication that the vehicle was not in working order.

21I find that the applicant satisfies the purpose test because reaching for a door handle as well as getting into a vehicle, being an occupant of a vehicle, placing the children in the vehicle and turning it on are an ordinary and well-known uses to which automobiles are put.

The Causation Test

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

22The applicant submits that the use or operation of her vehicle was the cause of her injury whereby but for her turning on the car, she would not have suffered the psychological impairment. In terms of the use or operation of the vehicle, the act of turning on her vehicle and the resulting fuel leak was the cause of injury.

23The respondent submits that there was “no use and operation” and operation of the vehicle by the time the applicant sustained her alleged injuries in this case. Therefore, she does not meet the but for test.

24Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” her need to turn on the vehicle. 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.”

25Since 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?

26I 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, which was the improper installation of the fuel pump.

27The applicant submits that there was no break in the chain of events and therefore no intervening act. It is her position that everything flowed from the operation of the vehicle.

28The respondent submits that the mechanical malfunction of the applicant’s vehicle, which resulted in the spill and in making the vehicle inoperable was an intervening act which broke any possible chain of factual causation between the applicant’s use and operation of a vehicle and her subsequent reported injuries.

29In the agreed statement of facts, it is stated that “there was no known problem with the vehicle or evidence of a fuel leak prior to Ms. Hems starting the vehicle. However, the applicant reported to various medical practitioners that there were issues with the fuel pump.

30For example, in the Clinical Notes and Records (“CNRs”) of her family physician Dr. Farzana Haq, the entry dated August 22, 2017 notes that the car was leaking gas and that it was due to a mechanical cause. According to the independent medical/psychiatric examination report dated December 3, 2020 from Dr. Leslie Kiraly, psychiatrist, the applicant reported the following:

She said that she bought the car for the sole purpose of transporting her newborns in a safe way. She bought the car in January 2017 and was still under warranty. She was told the car was safe. There were some problems that were fixed by the mechanic. It was later determined that the mechanic made a mistake when he was working on fuel pump. She was told that the car would have caught fire or would have exploded. The car was towed away to a different mechanic who then fixed the car and attached the fuel pump correctly.

31Based on the evidence, it is clear that there were issues with the automobile prior to the incident. In my view, the improper installation of a fuel pump that that led to the leak is not a normal incident of risk created by the use or operation or “part of the ordinary course of things”. Moreover, the applicant has not proffered any evidence that supports that turning on the automobile is what led to the leak on the day of the incident. Furthermore, the car was no longer in use or operation when she discovered the leak. The ignition was turned off and she was out of the car. When she exited the car, it is then when she discovered the leak. In my view, the independent intervening act that broke the chain was the leak that was caused due to the fuel pump not being installed properly.

32The applicant has provided excerpts from a variety of jurisprudence but did not make any submissions as to how those cases apply to her circumstances. It is not the role of the Tribunal to make the case for the parties.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

33I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries.

34As 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.”

35The respondent submits that the applicant was injured while passively witnessing the fuel spill/mechanical failure. This is the dominant feature of her injuries. Her use and operation of the automobile had ceased before her injury occurred. It was merely ancillary.

36The applicant submits that the dominant feature consideration is not mandatory and can be instructive but is not necessarily determinative. It is her position that “…this Tribunal is not required to carry out the dominant feature consideration and need not do so, as it is clear, based on the legal principles set out herein and analogous facts that have been found to be accidents, that Ms. Hems turning on her car, the fuel tank emptying was clearly an accident, as the direct use or operation of her vehicle caused her injuries.”

37She further submits that the direct cause/dominant feature of her impairments was her use and operation of her motor vehicle. She states that:

The use or operation of her car – getting into the car – putting on her seat belt – starting the engine – the emptying of the fuel tank – was neither ancillary to her injuries nor was it too remote to conclude that the use or operation of the car was anything but a direct cause of Ms. Hems’ impairments. This clearly satisfies the dominant feature consideration, although this is not required and is merely a tool that may be utilized to shed light on the broader direct causation test.”

38I am not persuaded by the applicant that I should not apply the dominant feature consideration because it has been established by the courts that this is part of the causation test. Greenhalgh is binding on this Tribunal, and it outlines the test as it currently exists. The applicant has not provided any case law that supports departing from the dominant feature consideration.

39In my view, the vehicle was not the dominant feature of this incident. Rather, the dominant feature that caused the applicant’s injuries was her observing the leak that occurred due to a mechanical error upon exiting her vehicle. In fact, the CNRs dated October 24, 2019 from Dr. Albana Dreshaj, psychiatrist, note that “no actual injury incurred [sic], but the thought of what could happen traumatized her. This is something that she thinks about and perseverates on. She brought the babies home and started having severe anxiety all related to what possibly could have happened to her and the babies.”

40Dr. Dreshaj further notes “OCD: obsesses over accidents that could have happened with the gas leak still, being in the car is anxiety provoking of her, she has no compulsions, but the recurring thoughts of what could have been her fate and her twins’ fate is relentless. She is consumed by this on a daily basis.” In my view, it is quite evident that the dominant feature is the leak as per own admission to Dr. Dreshaj.

41As noted in P.F. v Economical Mutual Insurance Company, 2019 CanLII 119747 (ON LAT), 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. In my view, I do not believe that the definition of an accident should be broadened to the extent that an insurer should be liable for a mechanic’s error in improperly installing a fuel pump.

42I acknowledge that this was a traumatizing experience for an individual who had recently become a new mother. However, 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

43The applicant has not demonstrated the incident on June 6, 2017 constituted an “accident”, as defined in s. 3(1) of the Schedule.

44The application is dismissed.