Vijay Singh v. Aviva Insurance Company, 2024 CanLII 69895

RECONSIDERATION DECISION

Before: Robert Maich, Vice-Chair

Licence Appeal Tribunal File Number: 23-003500/AABS

Case Name: Vijay Singh v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Yoni Silberman, Counsel

For the Respondent: Aimee M. Draper, Counsel

OVERVIEW

1On January 11, 2024, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated December 21, 2023 (“decision”).

2The result of the decision was that the applicant was found not to be involved in an “accident” as defined in section 3(1) of the Schedule. The application was dismissed.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The applicant requests a reconsideration of the decision based on the grounds of Rule 18.2(b), specifically that the Tribunal erred in law. The respondent takes the position that the Tribunal did not err in law.

5The applicant requests that the reconsideration be granted, and that the Tribunal’s decision be varied to determine that Vijay Singh was in an “accident” as defined in section 3(1) of the Schedule, and further requests that the hearing dates of May 1, 2 and 3, 2024 be restored.

RESULT

6The applicant’s request for reconsideration is granted.

7Upon reconsideration of the decision of Tribunal dated January 11, 2024, I am granting the applicant’s request for reconsideration. I am varying the decision to find Vijay Singh was in an “accident” as defined in section 3(1) of the Schedule. Further the Tribunal orders that a three-day video conference hearing on the substantive issues in dispute take place in accordance with the procedural orders for the substantive issues hearing set out in the Case Conference Report and Order dated October 27, 2023.

ANALYSIS

8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

9I find the applicant has established grounds for reconsideration under Rule 18.2(b). The Tribunal erred in law; the error was significant to the extent that had the error not been made, the Tribunal would likely have reached a different result, but for the Tribunal’s error in law.

10The issue in dispute in the initial decision was the legal interpretation of the causation test to determine whether an “accident” occurred as defined under s.3(1) of the Schedule. There was no dispute as to the purpose test.

11The causation test determines whether the use or operation of an automobile directly caused the impairment. The applicant and respondent cite the leading Ontario Court of Appeal decision, Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), at para [12] which describes the three legs of the causation test, paraphrased below:

a. The “but for” consideration as for a useful screen of the circumstances;

b. 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,

c. 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”.

12It is the second leg of the causation test in respect to the “intervening act” that is the subject of the dispute in the interpretation of the law. The Tribunal must determine whether an error of law was made that satisfies the criteria under Rule 18(b). The facts are not in dispute, rather it is the application of the facts to the law that the applicant argues establishes grounds for reconsideration pursuant to Rule 18(b).

13Specifically, the applicant submitted the Tribunal erred when it determined the issue in dispute is whether the slip and fall on ice in the parking lot is an “intervening act” breaking the chain of causation, or if the slip and fall was pursuant to the act of entering the vehicle and within the chain of causation. The applicant submitted it is the error in law of the second leg of the causation test that gives rise to the application of Rule 18(b)

14In support of its request for reconsideration the applicant relies on a line of caselaw developed in a decision of the Ontario Divisional Court Madore v Intact Insurance Company, 2023 ONSC 11.

15The respondent relies upon a line of caselaw developed in a decision of the Ontario Divisional Court in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107.

16The adjudicator issuing the decision under reconsideration found the caselaw cited by the respondent to be persuasive, and specifically gave more weight to the Porter line of caselaw. I find that the adjudicator erred in law in the interpretation of the Porter case at para [32]. Porter stands for the proposition that the “but for” test cannot be conflated with the direct causation test, and not the proposition that a slip and fall on ice is necessarily an “intervening act”.

17I also find that the adjudicator erred at para [33] in the consideration of the applicant’s submissions in respect to the Madore case. The applicant clearly explained at para 17 of the applicant’s hearing submissions, the importance of the Madore case to jurisprudence and how it applied to the circumstances herein.

18Further, I find that the Porter case was correctly distinguished and recognized in the applicant’s submission that it does not stand for the proposition a slip and fall on ice is an “intervening act”. The applicant submitted that in Harland-Bettany v Aviva Insurance Company, 2022 CanLII 78879 (ON LAT), the Tribunal correctly identified that the Porter case does not stand for the proposition that slip and fall incidents on ice are a bar to direct causation as an “intervening act”, and cautioned to do so could lead to absurd interpretations. I find the Tribunal made an error in law in its initial decision, as ice is a common and well known risk in the act of entering or exiting a vehicle.

19Further I find that the decision adjudicator erred in the analysis of the applicant’s submission on Harland-Bettany, at para [26]. The applicant explained the importance of the decision and related it to this case at para 14, 15 and 16 of the applicant’s submissions, where it is noted that an “intervening act” cannot arise from a common and well-known risk of an activity, such as entering and exiting a vehicle in the presence of ice.

20The respondent’s reconsideration submissions closely tracks the reasoning of this decision adjudicator in the analysis of the Porter case. Further, the respondent distinguishes the Harland-Bettany case on the basis it involves the process of exiting a vehicle. I find the Tribunal erred in fact and in law in its initial decision, as the process of entering a vehicle is a most similar act to exiting a vehicle, with both acts essentially related to each other. The applicant had remotely started the vehicle, walked to the vehicle and fell with his hand outstretched to open the door of the vehicle.

21I find the applicant has established grounds for reconsideration under Rule 18.2(b). The Tribunal erred in law and would likely have reached a different result had the error of law not been made. I also find that the adjudicator erred at para [33] in the consideration of the applicant’s submissions in respect to the Madore case. The applicant clearly explained at para 17 of the applicant’s submissions how Madore applied to the circumstances herein. Further, I distinguish the Porter case and find that it does not stand for the proposition a slip and fall on ice is an intervening act. The Porter case does not stand for the proposition that slip and fall incidents on ice are a bar to direct causation as an “intervening act”. Further, I find that the decision adjudicator erred in the analysis of the applicant’s submission of Harland-Bettany, at para [26], as this decision holds that an intervening act cannot arise from a common and well known risk of an activity, such as entering and exiting a vehicle in the presence of ice.

22The aforementioned findings indicate that a slip and fall in the presence of ice while entering or exiting a vehicle, does not meet the test of an “intervening act” as a break in the chain of causation. Accordingly, the decision adjudicator erred in law in the application of the “intervening act” test.

23I am satisfied the criteria for the application of Rule 18(b) has been met and must now consider the outcome of the reconsideration pursuant to Rule 18.4(b).

CONCLUSION & ORDER

24The applicant’s request for reconsideration is granted. I am satisfied the applicant has met the criteria of Rule 18.2(b) that an error of law was made by the decision adjudicator, and that the Tribunal would likely have reached a different result had the error not been made.

25I order under the provisions of Rule 18.4(b)(i), that the decision is varied, to find that the incident on January 13, 2023 constituted an “accident”, as defined in section 3(1) of the Schedule.

26I order pursuant to Rule 18.4, the hearing on the substantive issues proceed.

27I further order the Tribunal restore a three-day video conference hearing, in accordance with the procedural orders for the substantive issues hearing set out in the Case Conference Report and Order dated October 27, 2023.

Robert Maich Vice-Chair Tribunals Ontario – Licence Appeal Tribunal