Licence Appeal Tribunal File Number: 23-009030/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:
Femi Sobulo
Applicant
and
Echelon Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Thomas Harley, Counsel
For the Respondent:
Stan Savvateikine, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Femi Sobulo (“the applicant”) was involved in an incident on February 21, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Echelon Insurance (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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 not involved in an “accident” as defined in s. 3(1) of the Schedule.
PROCEDURAL ISSUE
4As part of his submissions, the applicant included a video “reenactment” of the events leading up to the incident. In reply, the respondent objected to the video, and submits that it is not an accurate depiction of the evidence he provided under oath at the Examination Under Oath (“EUO”) on February 1, 2024. The respondent submits that the footage is contradictory with the applicant’s submissions, the OCF-1, and the EUO transcript. The respondent further submits that the video has not been authenticated in any way. The respondent submits that it should either be excluded from the evidence, or given no weight.
5I agree with the respondent. While I have considered the video evidence, given that the video has not been authenticated in any way, and its depiction contradicts other direct evidence and sworn testimony, I give the reenactment video little weight.
ANALYSIS
Background
6On the morning of February 21, 2022, the applicant drove his vehicle from his home to a shopping plaza, where he parked in front of a convenience store. After entering the store and collecting some items, he realized he needed more money from his wallet, which he had left in the car. He intended to retrieve his wallet from the vehicle and return to the store to pay for his items. While walking toward his vehicle he slipped and fell on black ice. He struck his head in the fall and was seriously injured.
7With respect to the circumstances of the incident, there is a dispute as to the applicant’s location at the time of the fall, whether he was in contact with the vehicle, or had opened the door before he fell.
8In his submissions, the applicant indicates that he realized the ground was slippery, so he “placed his left hand on the hood of his car, near the left headlight to help maintain his footing. He moved his left hand along the hood to the back of the hood, then to the middle of the A-pillar, and then finally to the roof above the driver’s side door. He then reached out with his right hand to open the driver’s side door, making contact with the car with both hands. As he attempted to open the door, he fell.”
9The OCF-1 includes a description of the incident on an attached sheet. It appears to have been prepared by his representative and indicates “because the lot looked slippery, Femi put his left hand on the car to support him. Without removing his left hand from the hood of the car, he reached out with his right hand and opened the car door. As the door swung open, Femi suddenly slipped and fell, landing hard on the ground”.
10The applicant testified at an examination under oath on February 1, 2024. He testified he was returning to his car to retrieve more money from his wallet when he slipped and fell on black ice. He testified that the fall occurred as he went to open the door. He did not open the car door before he fell. No part of his body hit the vehicle. He crawled to his car and drove home. There was no evidence given about using the car for support before he fell.
11I place weight on the applicant’s testimony, as it is the only sworn evidence regarding the circumstances of the incident.
Was the incident an “accident”?
12I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.
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 his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.
15In 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:
The purpose test: Did the incident arise out of the use or operation of an automobile? and,
The 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 the following considerations:
The “but for” consideration;
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,
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
18In find that the applicant’s injuries resulted form the use or operation of the vehicle, and therefore the applicant has met the purpose test.
19There is a dispute about the applicant’s proximity to the vehicle, and whether or not he had opened the door at the time of the fall. However, I am satisfied on a balance of probabilities that the purpose test has been met because the incident arose out of the ordinary and well-known activities for which automobiles are put. The applicant satisfies the purpose test because he was engaged in the parking of the vehicle and going to retrieve an item from his vehicle prior to slipping.
The Causation Test: Would the injuries have occurred “but for” the use or operation of the automobile?
20Having considered the evidence before me, I find that the applicant would not have sustained these injuries “but for” returning to his vehicle to retrieve his wallet. But for the need to return to his vehicle to retrieve his wallet, the applicant would not have been injured when he slipped on black ice prior to entering.
21As set out by the Divisional Court in Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”) contact with the automobile is not required. The applicant does not need to prove a direct physical connection between the cause of an injury and the automobile.
22However, 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.”
23The 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?
24There is an abundance of case law on the definition of an “accident” in the context of a slip and fall, and they are difficult to reconcile with each other.
25The applicant submits that there was no intervening act, but rather a normal incident of the risk created by the use or operation of the vehicle, as part of the ordinary course of things. The applicant relies on Madore, where the Court found that a direct cause need not be the only cause, and that a subsequent contributing cause may not break the chain of causation if it is part of the ordinary course of things. He notes that the Court in Madore approved of the approach used in several decisions involving falls on ice: C.K.D. v. Wawanesa Mutual Insurance, 2020 CanLII 80305 (ON LAT) (“C.K.D.”), Saad v. Federation Insurance Company of Canada, 2003 ONFSCDRS 66 (“Saad”); G.R. v. Economical Mutual Insurance Company, 2019 CanLII 12276 (ON LAT) (“G.R.”); and Pinarreta v. ING Insurance Company of Canada, 2005 ONFSCDRS 162 (“Pinarreta”). He submits that the opening of the car door was the act that precipitated the fall – the dominant feature of the incident, and as in C.K.D. the fall was directly caused by the purpose of entering the automobile.
26In Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (ON LAT), the snow and ice were found to be an inextricable factual element of the applicant’s use of his automobile.
27While I agree with the applicant that there can be more than one dominant factor which caused an accident, I find that the applicant’s injuries were not directly caused by the use or operation of a vehicle, but rather, were caused by an intervening act, his slip and fall on ice. I am not persuaded that the act of opening the door was the dominant feature of the incident. In fact, the applicant’s testimony at the EUO was that he had not opened the door when the slip and fall occurred.
28In support of its case, the respondent relies on Buckley v. Wawanesa, 2022 CanLII 106443 (ON LAT) (“Buckley”); Duah v. Gore Mutual Insurance Company, 2023 CanLII 123468 (ON LAT) (“Duah”); Singh v. Aviva, 2023 CanLII 122930 (ON LAT) (“Singh”); Vintimilla v. Co-Operators, 2023 CanLII 119791 (ON LAT) (“Vintimilla”); Cesario v. Intact, 2023 CanLII 23583 (ON LAT) (“Cesario”); and Parsons v. TD, 2023 CanLII 32794 (ON LAT) (“Parsons”).
29The respondent also relies on the Divisional Court decision Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), where the applicant was walking to a rideshare vehicle when she put her hand on the vehicle to stabilize herself before she was able to open the door and she slipped and fell on ice. The Divisional Court concluded that the use or operation was not a direct cause of the applicant’s injuries, and that more is required than the car being the reason why she was at the location; the dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway.
30I find the line of authorities raised by the respondent persuasive and find that the applicant’s injuries did not result from the use or operation of the vehicle. The applicant’s slip and fall on ice led to his injuries. Although he was physically near the vehicle, the use or operation of the vehicle did not cause the slip and fall which resulted in his injuries. The ice on the ground and the applicant’s slip and fall on that ice was an intervening cause that broke the chain of events. The ice on the parking lot and the applicant’s slip and fall caused the applicant’s injuries.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
31As described by the Court of Appeal 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”.
32In Madore, the Court found that a direct cause need not be an only cause, and that a subsequent contributing cause may not break the chain of causation if it is part of the ordinary course of things. However, the Divisional Court did not further elaborate on this point. I find Madore is distinguishable in these circumstances, because it was unclear whether there was an intervening act. The Court stated “while the precise way that Madore fell may be unknown, there was no evidence to suggest the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof. The causal link therefore was not broken.” In the facts before me, there is evidence of an intervening act, the slip and fall on ice.
33I am not persuaded that the dominant feature of the incident was the use or operation of the vehicle. I find that the dominant feature of the injury was the slip and fall on ice in the parking lot, and the vehicle was only ancillary to it, as in Porter. Direct causation requires more than the vehicle simply being the reason why the applicant was present at the location where the slip and fall occurred. Falling on ice is a foreseeable risk while walking outdoors in winter in Ontario, whether or not a vehicle is involved.
34I find that the use or operation of the vehicle did not directly cause the applicant’s injuries. This incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.
ORDER
35The applicant has not demonstrated that the slip and fall on February 21, 2022, was an “accident” as defined in s. 3(1) of the Schedule.
36The application is dismissed.
Released: May 2, 2024
Kate Grieves
Adjudicator