Citation: Jeanneault v. Jevco Insurance 2024 ONLAT 23-012209/AABS-PI

Licence Appeal Tribunal File Number: 23-012209/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:

Selina Jeanneault

Applicant

and

Jevco Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Jonathon Wallbridge, Counsel

For the Respondent:

Nisaa Khan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Selina Jeanneault, the applicant, was involved in an incident on March 5, 2023 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, Jevco Insurance, 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 agree that on March 5, 2023, the applicant was at a gas station where after she fueled her vehicle, she began to wash her windows, taillights and headlights. While she was walking to the front of her vehicle, the applicant slipped and fell on ice.

5The applicant submits that she was in the act of cleaning her vehicle when she fell. She was using the gas station squeegee and was walking to the front of her car, bending over to clean her headlights when she slipped, making contact with the vehicle and broke her wrist. The respondent argues that the applicant was not in the act of cleaning her vehicle when she fell, but rather, was just walking towards the front of the car when she slipped on ice. It further submits that the applicant did not have any contact with the vehicle until after she slipped and fell on the ice.

ANALYSIS

Law

6Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

7The 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.

8The 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?

9The 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 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

10The 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”.

11For 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.

The incident arose out of the use or operation of a vehicle

12In its submissions, the respondent does not dispute 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, cleaning a vehicle’s windows and headlights.

Causation Test

The alleged injuries would not have occurred “but for” the use or operation of the automobile

13I find that the applicant would not have sustained her injuries “but for” her cleaning her vehicle’s windows, taillights and headlights. However, the “but for” consideration is not determinative. 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.”

No intervening act broke the chain of causation

14I find that the applicant’s slip and fall on ice was not an intervening act breaking the chain of causation.

15The respondent submits that the applicant’s fall on the ice was an intervening act and was not a foreseeable risk of motoring which would break the chain of causation. It cites the Divisional Court decision Porter v. Aviva Insurance Company 2021 ONSC 3107 and a number of Tribunal decisions in which slipping and falling on ice constituted an intervening event breaking the chain of events. (See: Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ONLAT), Khamis v. Unifund Assurance Company, 2021 CanLII 19498 (ON LAT), Singh v Aviva Insurance Company, 2023 CanLII 122930 (ON LAT), Buckley v. Wawanesa Insurance, 2022 CanLII 106443 (ON LAT), Henry v. Aviva General Insurance, 2023 CanLII 113723 (ON LAT)).

16It argues that the applicant has not led any evidence that the vehicle’s use and operation led to her fall or injuries. Rather, the evidence, including video surveillance, is clear that her injuries were caused by slipping and falling on ice.

17The applicant submits that an act is not an “intervening act” if the act is an incident or aspect of risk created by the use or operation of a vehicle, in the ordinary course of things, citing Northbridge General Insurance Corp. v. Jevco Insurance Co., 2024 ONSC 1520 and Chisholm v. Liberty Mutual Group, 2002 CanLII 4502 (ONCA). She further relies on Tribunal decision Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (ONLAT), where the Tribunal found that slipping and falling on ice while loading a trunk of a vehicle is a foreseeable risk of using an automobile and “very much a part of the ordinary course of things” such that the chain of causation is not disrupted.

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. While the respondent submits that the applicant’s fall occurred completely independently of the use or operation of the vehicle, the video surveillance establishes that the applicant fell while in the process of cleaning her car. After fuelling her car, she used the squeegee from the gas station to first clean her tail lights and windows. As she was walking toward the head light on the passenger side, the applicant slipped and fell, making contact with the vehicle in the fall. I find that the fall occurred during the chain of events which began with the cleaning of her tail lights and windows. As such, the fall occurred in the ordinary course of the use or operation of the applicant’s vehicle, being cleaning of her car.

19Both parties provided additional submissions on the recent Divisional Court decision Davis v. Aviva General Insurance Co., 2024 ONSC 3054. In this decision the Court agreed with the reasoning in Seung, and found that the claimant’s fall on black ice was “fortuitous, but not an intervening cause or event.”

20While I agree with the respondent that a determination must be made on the specific facts of a matter, I find that the facts in the present case are similar to those in Davis, which is binding upon me. In Davis, the claimant was approaching her vehicle holding her key fob. In the present matter, the applicant was actively engaged in cleaning her vehicle with the squeegee in hand. In both cases, the parties were so proximate to the vehicle that they made contact with the vehicle in the fall. In such circumstances, I find that a slip on ice would be a normal incident of the risk created by the use and operation of the vehicle.

The dominant feature of the incident was the use and operation of the vehicle

21The respondent submits that the slipping and falling on ice was the element of the incident that most directly caused the applicant’s injuries. It argues that applicant has not established that the use and operation of the vehicle was the dominant feature of the incident. Rather, it argues that the existence or the proximity of the vehicle was ancillary to the applicant’s injuries, and that the ice was what most directly caused the fall.

22The applicant submits that the use and operation of her vehicle was not ancillary to her fall. She cites the Tribunal decision Seung, and the Divisional Court decision Madore v. Intact Insurance Company, 2023 ONSC 11, in arguing that it is the use and operation of an automobile that is relevant to the cause, not the vehicle itself.

23While I agree with the respondent’s submission that more is required than the vehicle being in the location where the injury occurred, I do not find that the applicant’s use of the vehicle was ancillary to her injury. The Divisional Court in Davis found that a flexible approach must be taken to determine whether the use or operation of a vehicle is a direct cause of an impairment. The Court further referenced the reasoning in Seung when assessing whether the use of the car was the direct cause of the claimant’s fall. In Seung, the Tribunal held that in similar factual circumstances, the icy conditions were an inextricable factual element of the applicant’s use of his automobile and a direct cause of the injuries.

24I similarly find that while the applicant’s slip on the ice was a cause her injuries, it does not displace the use and operation of the vehicle as the dominant feature of the incident. The applicant was in the process of cleaning her tail lights, windows and head light, an ordinary and well-known activity, when she slipped on the ice. The Ontario Court of Appeal found in 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 ice was another direct cause of the applicant’s injuries, I find that it was the applicant’s cleaning of her vehicle that was the dominant feature of this incident.

25As such, the March 5, 2023 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.