Licence Appeal Tribunal File Number: 24-011214/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:
Heather J Barr
Applicant
and
CAA Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Jennifer Cosentino, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Heather J Barr, the applicant, claims to have been involved in an automobile accident on June 2, 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 the respondent, CAA Insurance Company, 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:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
PROCEDURAL ISSUE
Applicant’s request to strike paragraphs 3-10 of respondent’s submissions
4The applicant’s request to strike paragraphs 3-10 of the respondent’s submissions is denied.
5The applicant submits that the respondent has improperly addressed the preliminary issue in dispute in its submissions. She argues that the respondent’s submissions in paragraph 3-10 are irrelevant in determining whether the applicant was involved in an “accident” and should be disregarded by the Tribunal. The applicant submits that the respondent has cited facts regarding the applicant’s testimony at her Examination Under Oath (“EUO”) and that the inconsistencies and credibility of the applicant are not relevant considerations for the Tribunal when determining the preliminary issue. The applicant relies upon the Tribunal decision in Curameng v. Intact Insurance Company, 2024 CanLII 913 (ON LAT), where certain paragraphs were struck from the evidentiary record during the preliminary issue hearing because they were not relevant.
6The respondent submits that none of its submissions are irrelevant to the core issue of this dispute. The applicant gave testimony under oath about her version of the “incident” and the injuries and impairments that flowed from the incident. The respondent submits that the facts of the incident as reported by the applicant do not coincide with the objective evidence provided by the clinical notes and records (“CNRs”) and the video footage submitted into evidence. The respondent argues that the test of whether the applicant was involved in an accident, requires an evaluation of the stipulated facts known by the applicant which calls into question a level of credibility and the objective evidence to determine the two-part test set out by the case law.
7I do not agree to strike paragraphs 3-10 of the respondent’s submissions. I agree with the respondent that its submissions at paragraphs 3-10 are relevant to the issue in dispute in this hearing. I further agree with the respondent that the test of whether the applicant was involved in an accident requires an evaluation of the evidence provided by the applicant and an assessment of the credibility of the applicant. Therefore, I find that the evidence provided by the applicant at her EUO and the submissions provided by the respondent in respect to this evidence are relevant to the issue in dispute.
ANALYSIS
Background
8This dispute arises out of an incident that occurred on June 2, 2023. The applicant claims to have suffered injuries after she exited the grocery store with a shopping cart, which made contact with a trolley of plants, causing the shelving unit itself and the plants to fall over.
9According to the applicant’s testimony at her EUO, dated August 22, 2023, the incident occurred when she exited the grocery store with her shopping cart and as she got to her vehicle, she felt something hit her right shoulder. She states that she believes that she braced herself on either the cart or the vehicle, but she fell and saw the whole shelving unit of plants and trees falling onto her vehicle. She states that the plants and trees whacked her on the right shoulder.
10The respondent has provided a copy of the video evidence provided by Claims Pro, in its submissions. The video evidence shows that the front lights on the applicant’s vehicle appear lit up which is an indication that the applicant used her fob to unlock her vehicle prior to exiting the store. The applicant is seen exiting the grocery store with her shopping cart, with two hands on the shopping cart. As she maneuvered the shopping cart, the rear wheel of the shopping cart contacts with the corner of the trolley and the entire shelving unit holding the plants falls on top of the applicant’s vehicle and the ground beside it. The applicant is seen reaching out with her right hand in an attempt to stop the shelving unit from falling. Neither the shelving unit nor the plants fell on the applicant. The video confirms that the applicant did not fall to the ground, did not brace herself against the vehicle and had no physical contact with her vehicle.
11The applicant submits that she was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule. The applicant submits that as she parked in a designated accessible parking spot in front of the grocery store and was walking towards her vehicle with groceries, this constitutes an activity directly related to the use of her vehicle. She submits that if she was not engaging in this vehicle-related activity, the incident involving the trolley falling over would not have occurred and she would not have suffered injuries.
12The respondent submits that the applicant has failed to prove that the use or operation of an automobile directly caused the injuries as required by s. 3(1) of the Schedule.
Was the applicant involved in an “accident”?
13I find that the applicant has not met her onus of proving that she was involved in an “accident” pursuant to s. 3(1) of the Schedule.
14Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
15The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries. The parties agree on the legal test but disagree on whether the facts at hand meet the test.
16In 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?
17The 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) (“Greenhalgh”). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
18The 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
19The respondent submits that the incident did not arise out of the use or operation of a vehicle and the applicant has not met the purpose test. The respondent submits that when the alleged injuries were sustained, the applicant was not using her vehicle and there was no contact with the vehicle. Her key fob was in her purse located on the top level of her shopping cart, her hands were on the shopping cart when the cart contacted the shelving unit, and the trunk of her vehicle remained closed until after the incident.
20The applicant submits that the purpose test has been met and the incident arose out of the use or operation of her vehicle. The applicant submits that by parking in a designated accessible parking spot in front of the grocery store and walking to that vehicle with groceries, this behaviour aligns with the usual purpose to which vehicles are put, namely to transport purchased goods and persons. The applicant further submits that the use of her vehicle commenced by unlocking her vehicle 10 seconds before she came out of the store, and the use of her vehicle did not end by the time of the incident. By using her fob to unlock her vehicle, this proves that at the time of the incident, her vehicle was being used. She argues that the time-period between the unlocking of her vehicle and the trolley falling is within seconds.
21I agree with the applicant that grocery shopping is part of the ordinary and well-known activities to which automobiles are put. I find that it is clear that the applicant was using her vehicle to attend a grocery store, purchase groceries and transport those groceries back to her home on the day of the incident. Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test
22Having considered the evidence before me, I find that the applicant would not have sustained her alleged injuries “but for” her use of her vehicle to go grocery shopping.
23However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted in the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020, the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration faulty irrelevant causes. It screens out factors that made no difference to the outcome […] but the but for test does not conclusively establish legal causation.”
Was there an intervening cause?
24The respondent submits that although the applicant’s car was in the vicinity of the incident, and the applicant had the intention to use the car for its intended use, the direct cause of the injuries the applicant sustained were caused by an intervening event. The respondent submits that the applicant was on her way to her vehicle with the intention of loading her grocery items into the trunk of her vehicle, however, the chain of events was broken when contact was made by the grocery cart and the shelving unit fell over. The respondent submits that the proximity of the vehicle and the unlocking of the vehicle upon exiting the store, are not relevant facts to consider.
25The respondent further argues that the case in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”), gave significance to the presence and location of a key fob when determining whether the applicant was involved in an accident. The respondent submits that the case of Davis must be considered distinguishable by this Tribunal for the fact that the applicant’s key fob in the case at bar, was in the applicant’s bag from the moment she exited the store and well after the incident directly led to the injuries the applicant sustained.
26The applicant submits that the trolley falling over was an intervening act that was triggered by the applicant’s use of her vehicle. She submits that this did not break the chain of causation between the use or operation of the vehicle and her injuries. The falling trolley was a contributing factor that arose from the normal and foreseeable use of the vehicle, and the injuries sustained were the direct result of the risks and dangers associated with the use or operation of the vehicle. The applicant further argues that there was an unbroken chain of events: her commencing use of her vehicle by unlocking the vehicle with her fob, and her walking with groceries to load them into her vehicle. She submits that the time between the unlocking of the vehicle and the falling trolley is within seconds; therefore, the use and operation of the vehicle was in effect and the falling trolley was part of the continuous chain of events leading to her injuries. The applicant further submits that the decision in Davis is applicable to this matter as the presence of her vehicle highlights that the applicant’s focus and intention to engage with her vehicle is central to the chain of events leading to her injuries.
27I agree with the respondent that the cause of the applicant’s purported impairments was hitting the trolley with her grocery cart and the trolley falling over. Hitting the trolley was an intervening act that broke the chain of causation. I do not find that the applicant’s injuries were a consequence directly caused by the use or operation of her vehicle.
28In 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 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. In the matter before me, I find the facts are distinguishable from those in Davis. While there is evidence that the applicant used her key fob prior to exiting the grocery store to unlock her vehicle, she was not holding the key fob at the time of the incident. I do not find that the use of the key fob prior to leaving the store supports a finding that the use of the vehicle was the direct cause of her injuries.
29Although not cited by the parties, I find the Court of Appeal decision in Downer v. The Personal Insurance Co. 2021 ONCA 302, persuasive, where the court noted that proximity and location of a vehicle are not enough to satisfy the causation test. It is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the use or operation of an automobile was somehow involved in the incident giving rise to the injury. The use or operation of the automobile must have directly caused the injury.
30While I agree that the applicant’s vehicle was parked outside of the grocery store, and that she had unlocked the vehicle with her key fob prior to leaving the store, the applicant’s vehicle was not the direct cause of her injuries. The act of hitting the trolley with her cart and the trolley falling over was an intervening act that caused the applicant’s injuries. Without the applicant hitting the trolley with her cart, she would not have sustained injuries. Accordingly, I find that the falling trolley interrupted the chain of events from the applicant’s ordinary use of the vehicle.
31As a result, I find that the applicant has not satisfied the second part of the causation test.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
32The respondent submits that the dominant feature that caused the applicant’s injuries was not the use or operation of her vehicle. The respondent submits that the shelving unit collapsing on the applicant’s vehicle and the applicant reaching out with her right hand was the direct cause of the applicant’s injuries. The respondent submits that while it was the applicant’s intention to load her groceries into her vehicle, the vehicle became an irrelevant object and no longer the dominant feature when the shopping cart struck the shelving unit.
33The applicant submits that the use or operation of her vehicle was the dominant feature of her injuries because her vehicle was the primary cause of her proximity to the trolley, her distraction and concentration efforts on reaching her vehicle and her attempt to catch the trolley from falling.
34As 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”. Here it is clear that the dominant feature was the applicant hitting the trolley with her cart and it falling over, which resulted in her alleged impairments. I find that the use or operation of the vehicle was not the dominant feature of this incident, it was the trolley falling over. There is no evidence that the use or operation of the vehicle directly caused any injuries whatsoever.
35I find that the use or operation of the vehicle did not directly cause the applicant’s injuries. The incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.
ORDER
36The June 3, 2023 incident does not meet the two-part test to determine whether the incident is an “accident”. Therefore, any impairments the applicant may have sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule.
37As a result, the applicant is not entitled to accident benefits.
38The application is dismissed.
Released: May 14, 2025
___________________________
Melanie Malach
Adjudicator