Licence Appeal Tribunal File Number: 24-004253/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:
Justin Wright
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Lara Fitzgerald-Husek, Counsel
Holly Schmid, Counsel
For the Respondent:
Aly Pabani, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Justin Wright (the “applicant”) was involved in an incident on June 27, 2023 and sought benefits pursuant to the Statutory Accident Benefits Schedule –Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “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.
ANALYSIS
Background
4This dispute arises out of an incident that occurred on June 27, 2023 when the applicant was injured while disembarking from a parked shuttle van.
5According to his testimony at an examination under oath, the driver of the shuttle van came to a stop, parked the vehicle, exited, and opened the rear passenger sliding door. The applicant stepped out with his right foot to disembark from the van when he lost his footing and fell. The applicant was not holding onto the grab handle or other part of the vehicle. The pavement of the parking area was in disrepair, with potholes and gravel. The asphalt was so uneven that the van was not parked levelly, it was tilted higher which made it more difficult for the applicant to disembark. The applicant landed on his back on the ground, and allegedly sustained injuries, including a fractured foot.
6The applicant submits that he was involved in a motor vehicle accident as defined under s.3(1) of the Schedule.
7The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused his injuries as required by s. 3(1) of the Schedule.
Was the incident an “accident”?
8I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, because the use of his vehicle was a direct cause of his injuries.
9Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
10The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.
11In 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?
12The 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?
13The 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” test can act as a useful screen;
In some cases, the presence of an “intervening cause” 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,
In other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct” (Greenhalgh, paras. 11 and 12)
The Purpose Test
14The respondent concedes that the purpose test has been met. 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. I find that the incident arose out of the use or operation of an automobile.
The Causation Test
The “but-for” consideration
15Having 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 van.
16However, 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”.
The intervening cause consideration
17I agree with the applicant that there was no intervening cause that broke the chain of causation leading to his injury. The applicant’s use of the vehicle was the direct cause of the injury.
18There is an abundance of case law on the definition of an “accident” in the context of whether an incident is a slip and fall or an accident and they are difficult to reconcile with each other. Both parties have referred to numerous cases with similar facts as the subject case, and many of them turn on the “dominant feature” consideration. In some cases, the dominant feature is found to be the surface conditions and others conclude that the use or operation was the direct cause of the injuries.
19The respondent submits that the chain of causation was broken by an intervening cause – that the trip and fall on uneven asphalt and gravel was the cause of his injuries. The respondent submits that the use or operation of the automobile is not the dominant feature of the applicant’s injuries. The respondent relies on Sobulo v. Echelon Insurance, 2024 CanLII 38465 (ON LAT) (“Sobulo”); 18-000468 v. Certas Direct Insurance Company, 2019 CanLII 22204 (ON LAT); B.Y. v. TD Insurance Meloche Monnex, 2019 CanLII 27893 (ON LAT); D.M. v. Certas Direct Insurance Company, 2018 CanLII 76693 (ON LAT); K.B. v. Intact Insurance Company, 2017 CanLII 63622 (ON LAT); Young v Cumis General Insurance Company, 2021 CanLII 92693 (ON LAT) (“Young”); Zeid v. Economical Insurance, 2024 CanLII 13097 (ON LAT) (“Zeid”); S.B. v. Aviva Insurance Company of Canada, 2019 CanLII 22211 (ON LAT); in support of its position. These Tribunal decisions concluded that various slip and falls or trip and falls on icy conditions or uneven surfaces did not meet the definition of an “accident”.
20The respondent also points to the applicant’s own testimony at the examination under oath where the applicant agreed that the uneven surface of the asphalt had a role to play in the incident. It is not the applicant’s role to determine if the circumstances of the incident met the definition of an accident – that is for the Tribunal to decide.
21Three recent cases from the Divisional Court have clarified the direct causation framework in “was it an accident” cases. The Divisional Court held in Porter that although the location of the car in the icy driveway could be said to have led to the applicant’s injuries, the use and operation of the car could not be said to be a direct cause of the injuries when she fell. The court held that the injuries she suffered were a result of the use or operation of the car the applicant in that case was entering, but that the use or operation of the car did not directly cause her injuries. The court held that the icy driveway was the dominant factor in the incident, and that the vehicle was “at best ancillary”. Porter does not stand for the proposition that all slip and fall incidents 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.
22The Divisional Court in Madore v Intact Insurance Company, 2023 ONSC 11 (“Madore”) also 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. 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 with the automobile required. In that case, tripping and falling from the top of a camper trailer was found to be an accident.
23Further, in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”) the Divisional Court clarified that where there are a series of events that connects the direct use of the car to the injury, the ground surface will not have played the dominant role or served as an intervening event. The applicant in Davis slipped and fell on ice while approaching her vehicle with the intention to enter it with her key fob in hand. She was so proximate to completing her entry that her leg came to rest under the front wheel. The court found that the presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of the fall, not the icy surface.
24In applying the most recent binding authorities, I find that the applicant was injured during the direct use of the automobile. While I agree with the respondent that more is required than the vehicle simply being the location where the injury occurred, I do not agree that the motor vehicle was only ancillary to the incident. Unlike Porter, where the fall preceded any use or operation of the vehicle, in the subject case, the applicant was in the process of disembarking from the van when he fell. He had one foot out the door, and was still engaged in the process of getting out of the vehicle when he fell.
25As emphasized in Madore, it is the use or operation of the vehicle that is the relevant cause. Here, I find that, at the time of his fall, the applicant was involved in the ordinary and well-known activity of disembarking from the van. I find that the applicant’s use or operation of the van directly caused his 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.
The dominant feature consideration
26As 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”.
27The uneven surface of the asphalt was another equally direct cause of the applicant’s injuries, but it does not displace his use of the vehicle as the dominant feature of the incident.
28In conclusion I find that the applicant was engaged in the use or operation of an automobile – disembarking from a van - when he was injured, and that his injuries were a direct result of this activity.
ORDER
29The applicant has established that he was involved in an “accident” as defined in s. 3(1) of the Schedule.
Released: March 25, 2025
Kate Grieves
Adjudicator