Licence Appeal Tribunal File Number: 22-012133/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:
Shawn Harris
Applicant
and
Gore Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Sunish Rai Uppal, Counsel
For the Respondent:
Arthur Robert Camporese, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Shawn Harris (“the applicant”) was involved in an incident on December 4, 2018, 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 Gore Mutual Insurance Company (“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 involved in an “accident” as defined in s. 3(1) of the Schedule.
PROCEDURAL ISSUE
4The applicant submits that the question that the Tribunal must resolve is different from that set out in the case conference report and order. He submits that it should be:
i. In this case, were the applicant’s injuries directly caused by exiting and disembarking from the pick-up truck?
ii. If so, did the presence of ice rise to the level of an intervening act that removes the incident from the definition of an accident?
5I agree with the respondent. The question before me is the one that was agreed upon by the parties as set out in the case conference report and order. It would be inappropriate to reframe the preliminary issue. I have considered the applicable test and the appropriate elements of the legal test to establish causation, set out below.
ANALYSIS
Background
6On December 4, 2018 the applicant was injured while exiting a truck he had taken for a test drive. There is some inconsistency with respect to the facts surrounding the accident, particularly whether the applicant was standing on the running board of the truck or if he had stepped onto the pavement when he slipped and fell on ice.
7According to the transcript from the examination under oath (“EUO”), when the test drive was over, the applicant parked the pickup truck in a designated space on the premises and turned off the engine. His wife was in the front passenger seat and the salesman in the backseat. The applicant testified that he opened the door, stepped onto the running board, and then fell out of the truck and landed on his back, striking his head and back on the ground.
8He initially testified that he did not recall whether he stepped onto the pavement. The salesman helped the applicant to his feet, and then he noticed that there was ice on the pavement. Later during the same EUO, the applicant testified that as he exited the truck, he stepped on the running board, then stepped down with his other foot and slipped on ice.
9According to the OCF-1, the applicant indicated “I was in the truck looking to buy it. As I was coming out of the truck my left foot slipped on ice, and then my whole body fell on the floor, damaging my back and the back of my head”.
10An incident report from the dealership indicates that it was completed on the day of the incident. It is handwritten and there are four signatures on the document, however the authors are unclear. It indicates that there was snow and ice present, that the applicant fell, and injured his low back and hip. A note in different handwriting indicates “fell out of truck missed running board”.
11According to the description of the incident to two of the insurer’s examination assessors, as the applicant got out of the truck, he slipped on ice on the ground. There is no mention of the running board.
Was the incident an “accident”?
12I find that the applicant was 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 its submissions, the respondent concedes that the applicant has met the purpose test. I agree with the parties that exiting and disembarking from a vehicle are part of the ordinary and well-known activities to which automobiles are put. Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test
19The respondent did not make submissions on the “but-for” test. Having considered the evidence before me, I find that the applicant would not have sustained these injuries “but for” the need to exit or disembark from the vehicle.
20However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by Laskin J.A. 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… the but for test does not conclusively establish legal causation.” According to Chisholm, legal entitlement also “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause”.
21There is an abundance of case law on the definition of an “accident” in the context of whether a slip and fall on ice or uneven road surfaces during entry and exit from a parked vehicle, and they are difficult to reconcile with each other. Both parties have referred to several Tribunal decisions with similar facts as the current case, and many of them turn on the “dominant feature” consideration. In some cases the dominant feature is found to be the road surface conditions and others conclude that the use or operation was the direct cause of the injuries.
22The respondent relies on a case from the Divisional Court in support of its position. In Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), the applicant was walking towards a rideshare vehicle with the intention of entering it when she slipped and fell on an icy driveway. The Divisional Court cautioned that it is an error to conflate the “but for” test with direct causation. The Court determined that the applicant’s injuries were a result of the use and operation of the rideshare car she was entering when she fell on the icy driveway, but that the use or operation of the vehicle did not directly cause her injuries. Rather, the dominant factor in the incident was the icy, snow-covered driveway, and the use or operation of the vehicle was “at best ancillary”.
23I agree with the applicant that Porter does not stand for the proposition that all incidents involving ice will fall outside the definition of an accident. Instead, it confirms the well-established principle that the direct causation analysis does not end with the “but for” test and requires a more detailed exercise.
24In my view, the facts of Porter are distinguishable. In Porter, the fall preceded any use or operation of an automobile. While there was an intention to enter the vehicle, it had not yet commenced at the time of the fall. In this case, the applicant was in the process of exiting with one foot out of the door when he fell. Unlike Porter, the applicant was stepping down from a pick-up truck, which required stepping on or over a running board (which he may have missed according to the incident report). At the time of the injury the applicant was still engaged in the disembarkation process.
25In a recent Divisional Court case Madore v Intact Insurance Company, 2023 ONSC 11 (“Madore”) the Court determined that a slip and fall off the top of a camper trailer was an “accident” within the meaning of the Schedule.
26Although neither party made submissions on Madore it is binding on me and the principles articulated are directly relevant to the issues in dispute. Madore outlines and clarifies the “correct approach” to the causation test under the Schedule at para. 37. The court emphasized that it is the use and operation of the vehicle that is the relevant cause, not the vehicle itself. I have found that, at the time of his fall, the applicant was involved in the ordinary and well-known activity of disembarking from the truck. I find that the applicant’s use or operation of the truck directly caused his injuries.
27I agree with the respondent that more is required than the vehicle simply being the location where the injury occurred. However I do not agree that, on the facts of this case, the use or operation of the vehicle was “at best ancillary”.
28I am persuaded that the use or operation of the vehicle was a direct cause of the applicant’s injuries. Madore also established that a direct cause need not be the only cause, and there being a contributing cause does not break the chain of causation. Nor is physical contact required with the automobile. In this case, even if I find that the running board played no role in the fall, and the applicant slipped on the icy pavement as he was getting out of truck, I find that the icy condition of the parking lot where the applicant disembarked from the truck was an inextricable factual element of the applicant’s use of the vehicle. He was still completing the process of exiting the truck when he fell and was injured. The surface conditions were another equally direct cause of the applicant’s injuries but does not displace the use of the vehicle as the dominant feature of the incident.
29On the facts of this case, I am not persuaded that the snow and ice was an intervening cause. There was no sequential distinction between the exiting or disembarking and falling. According to Chisholm, an intervening act will not absolve an insurer of liability for accident benefits if it can be considered a normal incident of the risk created by the use or operation of the vehicle – if it is part of the ordinary course of things. I find that slipping and falling while disembarking from a truck is a normal incident of the risk involved in using the vehicle.
30In conclusion, I find that the applicant was engaged in the use or operation of an automobile when the incident occurred -- falling while disembarking from a truck, an ordinary and well-known purpose to which automobiles are put. The applicant’s injuries were a direct result of this activity. His use or operation of the automobile was the dominant feature of the incident.
ORDER
31The applicant has established that he was involved in an “accident” as defined in s. 3(1) of the Schedule.
32The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: June 11, 2024
Kate Grieves
Adjudicator