Penhale v. Aviva General Insurance Company, 2024 CanLII 126320

Citation: Penhale v. Aviva General Insurance Company, 2024 ONLAT 24-006848/AABS-PI

Licence Appeal Tribunal File Number: 24-006848/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:

Margaret Penhale

Applicant

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Jamie Davison, Counsel

For the Respondent:

Cezary Paluch, Counsel

Heard:

By way of written submissions

OVERVIEW

1Margaret Penhale (the “applicant”) was involved in an incident on October 5, 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 Aviva General Insurance Company (the “respondent”) 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:

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

RESULT

3The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.

ANALYSIS

Factual Background

4The applicant’s evidence at her Examination Under Oath on May 25, 2022, can be summarized as follows:

i. The applicant and her husband visited St. Michael’s Hospital on October 5, 2021. A car service picked them up and drove them to the hospital. After her husband’s appointments had finished, they went down to the main entrance and a vehicle was waiting with a driver in it to take them home.

ii. The driver got out of the vehicle and helped her husband, who was using a walker, into the back seat. The driver was not able to get the seatbelt on him fastened, so she asked the applicant if she would do it when she got in the car. The driver proceeded to take a cardboard carton out of the back seat and put it in the trunk. The driver then placed the applicant’s husband’s walker in the trunk, and had some difficulty getting things organized.

iii. The applicant walked a good distance behind the driver to the passenger side of the vehicle so that she could get in. While she was walking behind, the driver closed the door of the trunk and took a step backwards into the applicant, and the applicant fell.

iv. The applicant did not know if the car was running. She testified that it was not moving, no one was sitting in the driver’s seat, she did not hear that the engine was on, and the car never moved.

v. The applicant believed that what caused her to fall was because the driver stepped back into her. The driver pushed the applicant enough to knock her off balance and she fell. She believed this to be unintentional. The applicant had advised the driver that she was going to walk behind her.

vi. At the time she was pushed, the applicant was at the mid point of the back of the car. The trunk was not open when the driver hit her. The roads were dry.

Adverse Inference

5Although the parties have different interpretations of the applicant’s evidence, the respondent has not suggested that the applicant was not truthful or was inaccurate in relaying what occurred. In fact, the respondent relies on the applicant’s evidence throughout its submissions. However, the respondent also requests that I draw an adverse inference from the lack of corroborating evidence and the failure to comply with a production order. It submits that without corroborating witness statements from the applicant’s husband and the driver, a motor vehicle accident report, or other direct evidence available to her, that indicates that the evidence would have been unfavourable to the applicant.

6The respondent did not rely on any case law in support of its request that I draw an adverse inference, however I am bound by Dowell v. Millington, 2016 ONSC 6671. The Divisional Court stated that an adverse inference is usually drawn where the evidence is material, is not before the Court otherwise, and no plausible reason is given for failing to call the evidence. The inference usually requires that the power to lead the evidence or call the witness is uniquely within the power of the party against whom the inference is to be drawn.

7I decline the respondent’s request.

8Firstly, the driver is not within the exclusive control of the applicant. If the respondent felt that the evidence of the driver would have been favourable for its argument, it could have obtained that evidence on its own.

9Secondly, I agree with the applicant that it is unclear how the testimony of the applicant’s husband would be helpful in this instance as he was already seated in the vehicle and was not outside where the incident occurred. Further, the Case Conference Report and Order of October 10, 2024 (“CCRO”), indicates that the parties agreed that no affidavits will be submitted, so the applicant should not be penalized for failing to provide an affidavit from her husband. Additionally, there is no evidence before me that the respondent requested a statement from the husband and the applicant neglected to provide one.

10Thirdly, although the respondent suggests that the applicant failed to comply with a production order, the only document mentioned in the CCRO that the applicant was required to provide was a motor vehicle report. The applicant confirmed by way of letter on October 18, 2024, that a motor vehicle accident report does not exist. The respondent has not given me any reason to doubt the veracity of this letter. There is no evidence before me that the police attended the scene of the accident such that this document would have been generated. There is also no evidence before me that the document does exist but the applicant has refused to produce it. I accept that a motor vehicle accident report does not exist and the applicant is not in breach of the CCRO.

11Finally, the respondent points out that during the examination under oath, the applicant’s counsel was asked questions regarding whether there was a video of the incident available from the hospital. He advised that he had no knowledge or information regarding a potential video. The respondent submits that no video has been provided, but has not adduced any evidence that such a video even exists or is in the exclusive control of the applicant. Further, the CCRO does not obligate the applicant to provide this video or look into its existence further.

12Importantly, the respondent does not take issue with any part of the applicant’s evidence and has not explained what evidence I should draw an adverse inference about. This is not a scenario where the respondent has called into question the applicant’s credibility or questioned the evidence she has provided.

13For all of the reasons above, I am not prepared to grant the respondent’s request.

Legal framework

14Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

15Pursuant to the decisions in Greenhalgh v. ING Halifax Insurance Company, 2004 21045 (“Greenhalgh”) and Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), [2002] OJ No. 3135 (“Chisholm”), the applicant is required to satisfy the following tests in order to prove that an incident was an “accident” as defined by the Schedule:

i. The purpose test: for what purpose was the automobile being used or operated at the relevant time? Did the incident arise out of the ordinary and well-known activities for which automobiles are used?

ii. The causation test: did such use or operation of an automobile directly cause the impairment?

16The Court in Greenhalgh indicated that the following considerations may provide useful guidance in ascertaining whether the causation test has been met:

i. The “but for” test can act as a useful screen;

ii. 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

iii. 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”.

17I note that there is no mechanistic analysis in assessing causation such that meeting a certain number of the three considerations will render an event to be an “accident”. Greenhalgh provides useful tools, but ultimately I must determine whether the incident directly caused the applicant’s impairment.

The Purpose Test

18I find that the applicant has satisfied the purpose test.

19The respondent submits that the incident did not arise out of the ordinary and well-known activities for which automobiles are put, as the applicant had not begun the process of entering the vehicle because she was still outside at the back of the vehicle.

20I disagree. Firstly, the reason the applicant was behind the vehicle is because she was in the process of walking towards the door to enter it. She was not just standing outside and happened to be behind a vehicle. The vehicle came to the hospital to pick her and her husband up, and her husband had already been loaded in the vehicle along with his walker. She had been directed by the driver to enter the vehicle to assist her husband with his seatbelt, and then she was going to be driven to her destination, and she had already started walking behind the vehicle for the purpose of entering it. I do not accept the respondent’s suggestion that she was merely walking towards a parked vehicle. I find that attempting to enter a vehicle in order to be driven somewhere, which in my view is what she was in the process of doing, is an ordinary and well-known activity for which automobiles are put.

21Secondly, the driver was also using the vehicle for its ordinary and well-known activities when the incident occurred. Although the respondent submits that it is speculative to conclude that the applicant fell due to the driver’s operation of the trunk, I am persuaded by the evidence before me that her intention was not to cease using the vehicle when the trunk was closed. She loaded a passenger into the vehicle, loaded items into the trunk, and instructed the applicant to enter the vehicle and assist her husband with his seatbelt, all for the purpose of driving them home. Despite having no direct evidence from the driver, I find that, on a balance of probabilities, her intention was to drive the passengers and item she had just loaded to their destination, as she was hired for exactly that purpose. I find that loading items and passengers in a vehicle with the intention to drive them somewhere is an ordinary and well-known activity for which automobiles are put.

The Causation Test

22I find that the applicant has satisfied the causation test.

23I find that the applicant would not have fallen and sustained her injuries “but for” her use of the vehicle. In my view, she was walking behind the vehicle for the purpose of entering it and would not have fallen but for that fact. I also find that the applicant would not have fallen and sustained her injuries “but for” the driver’s use of the vehicle, as she had just finished loading the trunk and took one step backwards when she struck the applicant. I note that the respondent does not argue that the applicant does not meet the “but for” test. In any event, as noted in Chisholm, the “but for” test does not conclusively establish legal causation. It acts as an exclusionary test. I must now turn my analysis to the other aspects of the causation test.

24The respondent submits that the push by the driver was an intervening act that broke the chain of causation and caused her injuries, not the vehicle. I agree that, without the push, the applicant would not have been injured. However, for the following reasons, I find that the push was not an intervening act that broke the chain of causation.

25The Court in Chisholm stated that an intervening act may not absolve an insurer of liability for accident benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the vehicle. In other words, if it is “part of the ordinary course of things”.

26I note that both parties rely on various Tribunal and Financial Services Commission of Ontario cases to make their arguments. I am not bound by those decisions. While Tribunal cases can certainly be illustrative, this is a highly fact-specific exercise, and none of the cases presented by the parties are identical to the one before me.

27I am bound by Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”), where the Court determined that a fall from the top of a camper trailer constituted an “accident” within the meaning of the Schedule. The Court found that slipping and falling off a trailer that was 12 feet high must be seen as a normal incident of the risk created by such use and was reasonably foreseeable. The Court specifically noted that there was no significant lapse of time between when the appellant was in direct contact with the trailer and the occurrence of the fall, nor did the ordinary use or operation of the trailer cease before the fall occurred. Although the precise way that he fell was not known, there was no evidence to suggest that the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof. The causal link was therefore not broken.

28In the case before me, the driver closed the trunk, and only took one step back before colliding with the applicant. Like in Madore, I find that there was a temporal and proximal connection between the closing of the trunk and the step back, such that in my view they can be considered part of the same act. Further, the use of the vehicle did not end once she closed the trunk, as she intended to drive her passengers home. I find that stepping backwards while still using a vehicle and bumping into someone who is also using the vehicle is a normal incident of the risk created by two people using that vehicle. I accordingly find that the push was not an intervening act.

29The respondent relies on Downer v. The Personal Insurance Company, 2012 ONCA 302, which I am also bound by, where a person was assaulted while he was sitting in his parked car. The Court found that the assault was an intervening act that cannot have been part of the “ordinary course of things”. I find that case to be distinguishable from the one before me, as the applicant was not randomly assaulted by someone who had no connection to a vehicle, and the vehicle was not simply the venue where the incident took place.

30The respondent also relies on Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”). However, the Court did not engage in an analysis with respect to whether there was an intervening act. Although I will discuss Porter further below, I find that it does not assist the respondent at this stage of the analysis.

31The respondent also notes that the medical evidence classifies what occurred as a “mechanical fall” and none of the medical records mention a vehicle. The respondent quotes from Taber’s Cyclopedic Medical Dictionary the definition of “mechanical fall” as “a fall that results from a slip or stumble, rather than from a loss of consciousness”. It argues that this supports a finding that this incident was a “mechanical fall” caused by an inadvertent push or bump from the driver and nothing directly related to the stationary automobile. I am not persuaded by these arguments. The medical professionals who prepared the records presumably did not engage in a causation analysis pursuant to the Schedule, nor was the connection to a vehicle relevant to their treatment of the applicant’s injuries. While I don’t disagree that the applicant had a “mechanical fall”, I find that this is irrelevant to the question before me because I find that the push and fall were unbroken links in a chain of causation that stemmed from the use of the vehicle. As stated in Madore, it is the use and operation of a vehicle that is relevant to determining direct causation, not contact with the vehicle itself.

32I also note that the respondent points out on multiple occasions that the applicant deposed that she was “a good distance behind” the driver. I do not find this descriptor helpful as it is quite vague. The only evidence before me regarding the distance between the applicant and the driver was that the driver only had to take one step backwards before she collided with the applicant. I am accordingly not persuaded that the wording of “a good distance behind” is a salient factor in this analysis.

33Finally, the respondent argues that the push or physical contact with the driver was the dominant feature of the incident, not the vehicle itself. It submits that the use or operation of the vehicle was at best ancillary. The applicant agrees that the dominant feature of the incident was the driver bumping or pushing the applicant. However, she argues that this was part of the accepted use and operation of a vehicle, namely loading items into the trunk and loading individuals for transport.

34In Porter, the insured was walking to a Lyft car she had ordered that was parked halfway up an icy driveway. She put her hand out to touch the hood of the car to help stabilize herself. Before she was able to get into a position to open the car door, she slipped and fell on the ice. The Court held that the dominant factor that physically caused the insured’s injuries was the icy, snow-covered driveway. The operation of the Lyft car was “at best ancillary”.

35I find that Porter is distinguishable from the case before me. In that case, the presence of ice itself, which was the dominant cause of the incident, was not connected to the use of the vehicle. In this case, the reason why the applicant was injured was because the driver bumped into her while she was using the vehicle, and thus this incident was directly connected to the use of the vehicle. I am satisfied that the link between the use of the vehicle and the applicant’s injury was not too remote to be called “direct”.

36Ultimately, using the tools set out in Greenhalgh, I find that the use or operation of the vehicle directly caused the impairment. As such, I find that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.

ORDER

37The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.