Jesse A Lilleorg-Meilleur v. The Co-Operators Insurance Company, 2024 CanLII 28831

Licence Appeal Tribunal

23-006919/AABS-PI

Licence Appeal Tribunal File Number: 23-006919/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:

Jesse A Lilleorg-Meilleur

Applicant

and

The Co-Operators Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Natasha Anand, Counsel

For the Respondent:

Amanda Lennox, Counsel

Heard:

By way of written submissions

OVERVIEW

1Jesse Lilleorg-Meilleur (“the applicant”) was involved in an incident on February 24, 2023 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 Co-Operators 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 whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

RESULT

3The applicant was in an “accident” as defined in s. 3(1) of the Schedule. The application will proceed to a hearing on the substantive issues.

ANALYSIS

Background

4On February 24, 2023, the applicant left his hotel room to retrieve some personal items from his parked vehicle in a hotel parking lot. When he reached the passenger door of his vehicle to pull the door open, he slipped and fell on the icy ground and allegedly sustained injuries to his ankle.

5The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident’ in the Schedule. The applicant submits that loading and unloading, in this case opening the passenger door by holding onto the door handle, was an everyday operation of an automobile. He submits that the icy ground on which he slipped and fell while opening the passenger door of his vehicle did not break the chain of causation and asserts that the incident falls within the definition of an accident pursuant to s. 3(1) of the Schedule.

6The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused his injuries as required by the Schedule.

Was the incident an “accident”?

7I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.

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.

10In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,

2. The causation test: Did the use or operation of an automobile directly cause the impairment?

11The 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?

12The 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 the following considerations:

1. The “but for” consideration;

2. The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

3. 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.

The Purpose Test

13The respondent concedes that the purpose test has been met. On that basis, I find that the purpose test is satisfied.

The Causation Test: Would the injuries have occurred “but for” the use or operation of the automobile?

14Having considered the evidence before me, I find that the applicant would not have sustained his injuries “but for” the need to open the passenger door of his vehicle to retrieve his personal items. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 4520 (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 …but the but for test does not conclusively establish legal causation.”

15The analysis must next turn to a consideration of whether there was an intervening act that severs the chain of causation.

Was there an intervening cause?

16I find that ice and snow on the ground where the applicant fell, in this case, is not an intervening cause that would break the chain of causation.

17In reply, the respondent submits that the icy surface of the ground is an intervening event and not a normal risk associated with the use and operation of a vehicle and breaks the chain of causation. The respondent relies on Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”) and a line of past Tribunal cases, in support of its case.

18The applicant’s sur-reply submissions assert that the ice and snow is common during winter months in Ontario and is a reasonably foreseeable risk or part of the ordinary course of things that would not be disconnected from the risks associated with operating an automobile. He relies on the Divisional Court case, Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”), as well as the Tribunal cases, Buffy v. Belair Insurance, 2024 CanLII 6517 (ON LAT) (“Buffy”) and Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (ON LAT) (“Seung”).

19Although the respondent cited numerous Tribunal cases where the Tribunal held that slipping on ice was an intervening act or that it was not a dominant feature in the cause of the applicant’s injuries, I am not bound by past Tribunal decisions because these cases are fact specific and require a determination on a case-by-case basis.

20The Divisional Court held in Porter that although the location of the car in the driveway could be said to have led to the applicant’s injuries, the use and operation of the car could not be said to be a direct cause of the injuries. The court held that “more is required than establishing that the car brought the applicant to the location of the incident, and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred”. I am bound by the reasoning in this decision.

21I am persuaded by Seung, raised by the applicant, where Adjudicator McGee held that “Porter does not stand for the proposition that all incidents involving snow, ice, or debris on the ground will fall outside the Schedule’s definition of an accident. It merely restates the well-established principle that direct causation cannot be reduced to “but for” causation.”

22I agree with Adjudicator McGee’s reasoning in Seung that “in Ontario, where ice and snow are a feature of using and operating automobiles for a significant part of the year, this type of incident is a foreseeable risk of using an automobile and very much a part of the ordinary course of things. The presence of snow, ice, or debris on the ground surface does not disrupt the chain of causation between the use of the automobile and the resulting injury. Slipping and falling on treacherous road surfaces is a reasonably foreseeable risk of using an automobile.”

23Here, I find that slipping and falling while opening the motor vehicle door is a normal risk in the use and operation of a motor vehicle and the presence of icy conditions or not, would not be an intervening cause that would break the chain of causation.

24I also do not accept the respondent’s argument that the applicant did not tender any engineer analysis report in this case, as in Buffy, and therefore the applicant has not submitted evidence of the mechanism of his fall and to meet his onus of proof. As mentioned above, I am not bound by the Tribunal’s past decisions and there is no established jurisprudence that an engineer analysis report is required in the determination of these types of cases.

25I will now turn to the dominant feature test.

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

26I find that the dominant feature of the applicant’s injuries was the use and operation of his vehicle.

27As described in Greenhalgh, the dominant feature consideration requires a determination of what element of an incident is “the aspect of the situation that most directly caused the injuries”. For instance, in Greenhalgh, the incident involved an insured person who suffered from severe frostbite after getting her vehicle stuck on a country road. The court held 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.”

28In Caughy, the claimant tripped and fell over a motorcycle that was parked on a walkway. The court found that the temporary parking of the motorcycle on the walkway was the dominant feature of the incident, and not ancillary to it, and that this was an accident within the meaning of the Schedule. The Court of Appeal upheld this finding.

29The applicant submits that the use or operation of his automobile was the dominant feature of the incident, and he would not have slipped and fallen unless he pulled on the passenger door handle.

30The respondent submits that the dominant feature of the applicant’s injury was the slip and fall on the ice, and the vehicle was only ancillary to the incident.

31I find that the use and operation of the vehicle was the dominant feature of the applicant’s injuries. Based on the applicant’s Examination Under Oath, he testified that “[a]s I went to the back passenger door to open it, I placed my left hand on the side of the truck and my right hand on the handle and as I went to pull, pretty much the earth just fell from underneath me and I slipped and fell pretty much underneath my truck.”

32The evidence suggests that the applicant was already standing on the ice when he reached and stood beside his vehicle passenger door. I also note that the applicant’s hand was already on the passenger door handle and was in the activity of pulling the door open when he fell on ice.

33Although I acknowledge that it was not the door handle that directly caused his fall, it was the act of opening the passenger door that caused him to slip on the ice, on which he was standing, that led to his fall. This continuous chain of events starting from the act of pulling on the door handle, which lead to the applicant’s fall, is the aspect of the situation that most directly caused the injuries.

34This matter is distinguishable from Porter where the Divisional Court found that the ice caused the applicant’s injuries. In that case, the applicant fell on ice while walking towards a Lyft vehicle on her parent’s driveway. The applicant in that case submitted that she put her hand on the hood of the car to stabilise herself and she fell on ice before she positioned herself to open the door of the vehicle. The applicant in Porter was reportedly unstable when she reached the Lyft vehicle and had hold onto the hood of the vehicle for support to “stabilise herself”. In this case, the applicant was stable and standing in balance when he was at his vehicle and before opening the door. The applicant testified that he put his left hand on the side of his vehicle and right hand on the door handle, all while he was stable. He only slipped and fell when he pulled to open the passenger door.

35For the above reasons, I find that the applicant’s use or operation of his motor vehicle was the dominant feature of the incident. The ice on the ground was not an intervening act capable of breaking the chain of causation. The applicant sustained injuries as a direct result of the incident. This incident meets the definition of an “accident” pursuant to s. 3(1) of the Schedule.

36The applicant may proceed with his application for accident benefits and the hearing on the substantive issues.

ORDER

37The applicant has demonstrated that the incident on February 24, 2023 constituted an “accident” as defined in s. 3(1) of the Schedule.

38This matter will proceed to the hearing of the substantive issues.