Licence Appeal Tribunal File Number: 22-004380/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:
Judelyn Marmol Buffy
Applicant
and
Belair Insurance Company Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Wendy Sokoloff, Counsel
Meral Kesebi, Counsel
For the Respondent:
Sabina Arulampalam, Counsel
Matthew Stanley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Judelyn Marmol Buffy, the applicant, was involved in an incident on November 29, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010(the “Schedule”). The applicant was denied certain benefits by the respondent, Belair Insurance Company Inc, 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:
i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?
RESULT
3The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
BACKGROUND
4The parties disagree as to whether the incident that occurred on November 29, 2021 falls within the definition of an “accident” in the Schedule.
5The applicant submits that she fell while she was in the process of opening her husband’s car trunk. Although the applicant concedes that in her initial statement to the respondent she reported that she was not holding on to the car when she slipped, in a subsequent letter dated January 25, 2023, she amended her statement, clarifying that she “was holding the trunk when she slipped and released her hand from the car after slipping”.
6The respondent disputes the applicant’s characterization of the incident. It argues that the applicant slipped and fell on the ice located in the parking lot, and that the applicant has consistently reported the incident as a slip and fall on ice. The respondent further contends that with respect to the issue of whether the applicant was in contact with the vehicle during her fall, the applicant’s initial statement to the respondent should be preferred to the subsequent clarifying letter. It argues that the January 25, 2023 letter which stated that the applicant was “holding the trunk” when she fell, was provided a year after her signed statement, and was not a formal statement, but rather, a letter from counsel.
ANALYSIS
Law
7Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries, despite this preliminary issue being raised by the respondent.
9The Ontario Court of Appeal confirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, a two-part test to determine whether an incident is an “accident” as follows:
i. Purpose test: did the incident arise out of the use or operation of an automobile? and
ii. Causation test: did the use or operation of an automobile directly cause the impairment?
10The 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?
11The 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:
i. The “but for” consideration;
ii. 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,
iii. 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”.
12For the following reasons, I find that the applicant has established that she was involved in an accident as defined in s. 3(1) of the Schedule.
Purpose Test
13In its submissions, the respondent concedes that the applicant has met the purpose test. I agree with the parties that the incident has arisen out of the ordinary and well-known activities for which automobiles are put, namely, retrieving items from a car’s trunk. As such, I find that the incident arose out of the use or operation of an automobile.
Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
14I find that the applicant would not have sustained her injuries “but for” her need to retrieve items from the vehicle’s trunk. As noted by Laskin J.A. in Chisholm v. Liberty Mutual Group, 2002 CanLII 4502 (ONCA), the purpose of the “but for” test is exclusionary, so it 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.” Legal entitlement, according to Chisholm, 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.”
Was there an intervening cause?
15I do not find that there was an intervening cause that broke the chain of causation.
16The respondent submits that the applicant’s fall on the ice was an intervening act. It argues that the Divisional Court and Tribunal caselaw have consistently confirmed that slipping and falling on ice is an independent factor that breaks the chain of events. (See: Porter v. Aviva Insurance Company 2021 ONSC, Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ONLAT), Gore Mutual Insurance Company v. Laro, 2023 CanLII 58484).
17In contrast, the applicant relies on Seung v Cooperators General Insurance Co., 2023 CanLII 47510 (ON LAT), to argue that slipping on an unstable surface when retrieving items from a trunk is part of the ordinary course and use of the operation of the vehicle. The applicant further relies on an engineering analysis report of the incident, dated April 24, 2023, and videos which reconstructed the incident. The engineers considered the mechanics of opening the trunk, which is opened by a manual release handle at the centre of the door, and found that the trunk door opens at a wide swing arc. They found that the applicant would have had to take a step back while opening the trunk door, in order to avoid being hit by the door. The engineers concluded that the forces and geometry associated with a backward step, while pulling open the truck door, “significantly increased the fall risk”. The presence of snow or ice on the ground “further increased the fall risk”.
18I am persuaded by the applicant’s evidence that while the ice may have been one of the factors in her fall, it did not break the chain of causation. Given the findings of the engineers’ report, that the mechanics of lifting the trunk door and stepping back already created a “significant” fall risk, which may have been further exacerbated by the ice on the ground, I accept the applicant’s argument the risk of falling on an unstable surface in this particular circumstance was a normal incident of the risk created by the use or operation of the vehicle.
Was the use or operation of the vehicle the dominant feature of the incident and the resulting injuries?
19I find that the dominant feature of the incident was the use or operation of the vehicle.
20The respondent submits that the applicant has not established that the use and operation of the vehicle was the dominant feature of the incident, or what most directly caused the injury. Rather, it argues that the existence of the vehicle was ancillary to the injuries, and that the icy pavement was what most directly caused the fall. The respondent relies on Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107, to argue that the dominant factor that physically caused the applicant’s injuries was ice.
21I agree with the respondent that as per Porter, more is required than the vehicle being the reason why the applicant was at the location where the injury occurred. However, I disagree with its position that the use and operation of the vehicle was ancillary to the alleged physical injuries. I find the engineer’s report persuasive evidence that the act of opening and lifting the trunk door necessitating a step back to avoid being hit, was the dominant feature of the incident.
22This finding is consistent with Chisholm at para 31, that “road accidents may occur where there is more than one direct cause of a victim’s injuries and one of the direct causes is the use or operation of an automobile”. While the icy pavement was another direct cause of the applicant’s injuries, I do not find that it displaces the particular mechanics of opening the car trunk door as the dominant feature of this incident.
23I further am not persuaded by the respondent’s argument that the applicant has provided inconsistent statements as to her contact with the trunk door, prior to her fall. It points to the applicant’s initial statement dated January 24, 2022 where she stated that she slipped “after” she opened the trunk, and medical entries where the incident was described as a “slip on ice”. It argues that there is no evidence that she was holding on to the trunk door, while she fell. The respondent further points to the applicant’s Statement of Claim dated April 14, 2022, where she referred to herself as a “pedestrian in the parking lot”.
24Firstly, while I agree with the respondent that the applicant referred to herself as a “pedestrian” in her Statement of Claim, she also stated that she fell on a patch of snow/ice “as she was opening the trunk of a parked vehicle in which she was a passenger”. Further, I do not find the respondent’s argument that the applicant may have released the trunk door prior to falling, to be a significant factor. The engineer’s report described the chain of events, including opening and lifting the door, while being forced to step back. I agree with the applicant that the engineer’s report establishes that the mechanics of opening the truck involved multiple steps, not only holding the trunk door, but also stepping back. As such, I do not find the question of whether the applicant was in fact still holding on to the door while she was falling, to be determinative of the issue.
25For the foregoing reasons, I find that the applicant’s use and operation of her vehicle was the direct cause or the dominant feature of the applicant’s injuries. As such, the November 29, 2021 incident was an “accident” for the purposes of the Schedule.
CONCLUSION AND ORDER
26The applicant has established that she was involved in an “accident” as that term is defined in the Schedule.
Released: January 26, 2024
__________________________
Ulana Pahuta
Adjudicator