Wall v. Aviva Insurance Company
Licence Appeal Tribunal File Number: 24-001629/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:
Ronald Wall
Applicant
and
Aviva Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Gordon Harris, Counsel
For the Respondent:
Noella Thompson, Counsel
Justin Chan, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Ronald Wall (the “applicant”) was involved in an incident on September 28, 2020 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 Aviva 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.
PROCEDURAL ISSUES
Page limits exceeded
4Pursuant to the Case Conference Report and Order (“CCRO”), the Tribunal ordered that submissions must be double spaced, 12-point font with 1.5-inch margins to a maximum of 10 pages.
5I agree with the respondent that the applicant’s submissions do not comply with the Tribunal’s order, as they appear to be 1-inch margins. Further, while the submissions are 10 pages, the applicant also used end notes, thereby exceeding the limit by one page. The respondent submits it was prejudiced by having to limit its arguments to the page limits. I have considered the non-compliant submissions and assign them the appropriate weight. The page limit was ignored, however, to a minor degree. However, I caution the applicant that submissions inconsistent with the Tribunal’s orders may be excluded solely at the discretion of the hearing adjudicator.
Costs
6In its submissions, the respondent included a request for costs in the amount of $500.00. However, the respondent made no submissions in that regard, and therefore the request is denied.
ANALYSIS
Background
7This dispute arises out of an incident that occurred on September 28, 2020 when the applicant slipped and fell as he was approaching his motor vehicle parked in the parking lot of the complex where he lived.
8According to his testimony at an examination under oath, the incident occurred after the applicant had been out in his vehicle and returned home. After he parked his car, the driver’s side window malfunctioned and would not close. He turned off the ignition and went into his home, leaving the window down. About ten minutes later, it began to rain. The applicant got some garbage bags to use them as a temporary repair to cover his car window to prevent water damage. While approaching his car in the parking lot, the applicant fell on wet grass, approximately a foot from the front of his car. He was close enough to his car that he used the concrete block at the front of his parking space to sit up. The applicant testified that he may have made contact with the front fender of his car where he fell. The applicant suffered serious orthopaedic injuries requiring surgery as a result of the incident.
9This description of the incident is inconsistent with the OCF-1 which indicates that he collapsed while loading parts into the vehicle. In his submissions, the applicant indicates that this was an error made by his representative. The applicant was heavily medicated at the time he was initially contacted by the representative and his counsel misunderstood how the incident took place.
10I accept that explanation for the inconsistency, and place weight on the testimony from the examination under oath, as it is the only sworn evidence. I place little weight on medical records that refer to the incident as a slip and fall, as it is not the role of medical professionals to determine if the incident meets the legal definition of an “accident” pursuant to the Schedule.
11The applicant submits that he was involved in a motor vehicle accident as defined under s.3(1) of the Schedule. The applicant submits that he was attempting to perform a repair to his vehicle when the incident occurred, and but for this activity he would not have sustained his injuries.
12The 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”?
13I 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.
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 his injuries.
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), 2004 CanLII 21045 (ONCA). 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:
19The 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
20The respondent submits that the applicant had ceased using the vehicle, and there is no evidence that he was intending to commence a new journey, therefore the vehicle was neither being used nor operated.
21The Court of Appeal held in Caughy that there is no active use component to the purpose test, and since an automobile is designed to be parked and is parked most of the time, that the parking of an automobile is an ordinary and well-known activity to which automobiles are put.
22The fact that the applicant had completed his journey does not mean that the use or operation of the vehicle had ceased. The applicant was attempting to perform a repair on his parked vehicle, which is an ordinary and well-known activity to which automobiles are put. Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test
23Having considered the evidence before me, I find that the applicant would not have sustained these injuries “but for” the need to perform a repair and cover his open car window. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by the Court of Appeal 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 […] but the but for test does not conclusively establish legal causation.
24According 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”.
25There 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 current 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.
26The respondent submits that the chain of causation was broken by an intervening cause – that the applicant’s mobility issues and or/the slippery surface of the grass led to the 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 Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), 17-000942 v. Aviva Insurance Canada, 2017 CanLII 62174 (ON LAT); Zeid v. Economical Insurance, 2024 CanLII 13097 (ON LAT) (“Zeid”); 16-004503 v. Aviva Insurance Company of Canada, 2017 CanLII 145485 (ON LAT); Borsato v. Pembridge Insurance, 2021 CanLII 35583 (ON LAT); Cara v. TD General Insurance Company, 2023 CanLII 50595 (ON LAT); Young v Cumis General Insurance Company, 2021 CanLII 92693 (ON LAT) (“Young”) in support of its position.
27Three 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. Rather, it confirms that it is an error to conflate the “but-for” causation with direct causation.
28The 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.
29Further, 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.
30In applying the most recent binding authorities, I find that the applicant was injured during the direct use of his 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.
31The current set of facts is akin to those in Davis. The applicant was approaching his vehicle to perform a repair to his window when his leg gave way a step away from the vehicle. He had the materials to perform the repair in hand, intending to cover the window. He was so proximate to the vehicle that he used the curb under his bumper to help himself up. It is not the vehicle itself that must directly cause the injuries, but the use or operation of the vehicle that is the relevant cause. At the time of his fall, the applicant was attempting to perform the ordinary and well-known activity of repairing his vehicle. While the surface conditions or the applicant’s mobility issues may be an equally direct cause of the applicant’s injuries, it does not displace the use of the vehicle as a direct cause. As established in Madore, a direct cause does not need to be the only cause, and there being a contributing cause does not break the chain of causation. The dominant feature of the applicant’s injuries was an attempted repair of the broken window.
32In conclusion I find that the applicant was engaged in the use or operation of an automobile – performing a repair on a parked car – when he was injured, and that his injuries were a direct result of this activity.
ORDER
33The applicant has established that he was involved in an “accident” as defined in s. 3(1) of the Schedule.
34The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: January 30, 2025
Kate Grieves
Adjudicator