Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 25-007010/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:
Linda Robitaille
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
W. Patrick Sloan, Counsel
For the Respondent:
Jeremy Hanigan, Counsel
HEARD:
In writing
OVERVIEW
1Linda Robitaille, the applicant, was involved in an incident on March 21, 2025, and sought benefits from Definity Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES 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 incident of March 21, 2025 is an “accident” as defined in section 3(1) of the Schedule.
ANALYSIS
Dispute regarding the circumstances of the incident
4The applicant is a massage therapist and resides in an apartment complex in Penetanguishene, Ontario. In the morning of March 21, 2025, the applicant submits that she left her apartment and went to the parking lot to get into her vehicle for her commute to work. After opening the car door, and starting the engine, she began brushing snow and ice off the vehicle. As she continued her tasks towards the rear of her vehicle, she suddenly and unexpectedly slipped and fell on ice, resulting in serious injuries. Her injuries include a distal radius fracture of her right (dominant) arm, swelling/bruising, ongoing pain, reduced grip strength, and limited range of motion.
5The respondent argues that the sequence of events described by the applicant is unreliable and not credible. It relies on the testimony of the applicant provided at an Examination Under Oath (“EUO”) on July 3, 2025, medical evidence, and text messages exchanged by the applicant with her clients on, and subsequent to, that day.
6The respondent submits that the evidence points rather to a fall that occurred where no automobile was involved, and submits she more likely slipped on an icy sidewalk when she exited her residence. More specifically, the respondent submits that the applicant had been dealing with some light-headedness, and likely exited her residence, slipped on the ice on the sidewalk near the entrance of her residence, and fell forward catching herself with an outstretched hand. It argues that the sequence of events she described in her EUO testimony is self-serving and inconsistent with the medical records.
7On a balance of probabilities and for the following reasons, I prefer the version of events of the applicant.
8At the EUO, the applicant testified that she was holding a snowbrush in her hand when she slipped. She claimed she fell backwards and onto her hand, not forward. The respondent argues that the applicant attended the emergency department (“the ED”) of the hospital following the fall and met with three medical professionals (the triage staff, a nurse, and an ED physician) and at no time in her meetings with these health professionals did she mention she was clearing snow off of the vehicle or that she was holding a brush in her hand when she fell.
9I am not persuaded that the medical documentation supports the respondent’s argument that the applicant’s version of events is not credible or reliable.
10First, the applicant reported to each of the health professionals that she slipped and fell on ice. In my view, it is not unreasonable that the applicant did not mention the details that she was clearing snow off of her vehicle or that she was holding a brush in her hand at the time of the fall. In the event she did mention these details, it is not unreasonable that the health professionals would not find these details crucial to address her issues, or, as the applicant submits, in the interest of brevity, they were not included. I note that the respondent also relies on an assessment by an orthopaedic physician on March 22, 2025 where she did not mention her vehicle or the snow removal. For the same reasons as previously stated, I do not find that the void of these details disproves the applicant’s version of events.
11Secondly, the ED physician noted that the applicant presented with a right-sided FOOSH (fall on outstretched hand) injury, slipped on the ice, fell forward catching herself with an outstretched hand. At the EUO, the applicant confirmed that she fell backwards, not forward, and this detail in the records was incorrect. The respondent argues that the contradictory statements to the ED physician goes to the applicant’s credibility. The respondent points to an x-ray diagnosis where it was found that the applicant sustained “a comminuted fracture of the distal radius with mild dorsal impaction” and submits that this makes it “objectively clear” that she fell forward.
12I am not persuaded that this information affects the applicant’s credibility. The respondent’s argument that a FOOSH injury is “clear that she fell forward” is not supported by any medical evidence nor does it negate the possibility that a FOOSH injury can be sustained when an individual falls backwards with an extended hand, as the applicant testified at the EUO.
13Third, the respondent relies on the applicant’s report to the ED physician that she had been dealing with “some light-headedness recently”. It submits that, at the EUO, the applicant testified that the Zopiclone sleep medication she had been taking for years did not make her feel dizzy or light-headed that morning and argues that the applicant presented no evidence to corroborate her statement. The applicant testified that any light-headedness, if noted in the ED records, was “probably” because she was light-headed due to the fall when she arrived at the hospital. I find that there is no persuasive evidence to question the applicant’s testimony in this regard. The respondent is requiring the applicant to prove a negative which is not possible or reasonable in these circumstances. In any event, there is no medical evidence that any light-headedness was a contributing factor to the fall.
14The respondent also points to two text messages the applicant sent to her clients: one on the day of the fall (her 9:00 a.m. client) and one the following day on March 22, 2025. It submits that the applicant did not mention a vehicle, the snow brush, or that she was clearing snow off her vehicle to her clients. Here, again, I find that providing these details to her clients is not evidence that the fall did not occur as described by the applicant in her EUO testimony.
15The respondent also submits that the applicant was inconsistent and/or dismissive when explaining what happened with the snow brush when she fell. The applicant testified that the brush fell out of her hand, or that she was not holding the brush at the time; she could not recall. I do not find that the applicant’s inability to answer the questions posed by the respondent support its allegation that she is not credible. I find that the applicant’s testimony that she does not recall is in line with a fall that occurs in a split second and her testimony that she “probably” was light-headed as a result of the fall.
16Finally, the respondent submits that the weather in the area showed no evidence of snow accumulation in the 24 hours prior to the fall. I do not find this to be persuasive evidence putting in question the applicant’s credibility. It is common knowledge that in our Canadian winters, snow can be blown onto vehicles and ice can develop regardless of a snow event. In addition, there is no information that the applicant used her vehicle in the 24 hours prior to the event. Having no information on the most recent snow event in that area prior to the information submitted by the respondent, it is possible that there was already snow on the vehicle.
17The respondent argues that the applicant’s version of events described at the EUO is self-serving and it implies that reference to removing snow from her vehicle only became part of her description of the incident after she retained counsel.
18On a balance of probabilities, I accept the applicant’s version of the fall. Neither party disputes that the applicant left her residence that morning to commute to work. I note that, as per the respondent’s own submissions, the applicant mentioned the implication of the vehicle when she inquired about accident benefits with the respondent ten days later. I also note that in the applicant’s second text message to a client, she specifically stated that she “fell in my icy parking lot”. Also, in her Application for Accident Benefits (OCF-1) dated April 7, 2025, the applicant describes the incident as “I started my vehicle and was in the process of cleaning off snow and ice from my vehicle when I slipped and fell, resulting in a fractured wrist (dominant hand).” These descriptions were provided by the applicant within the first seventeen days of the incident. Finally, I place weight on the applicant’s testimony as it is the only sworn evidence regarding the circumstances of the incident.
The incident meets the definition of an “accident” as defined by the Schedule
19The Schedule provides that insurers are liable to pay certain benefits to or on behalf of insured persons who sustain an impairment as a result of the use or operation of an automobile. Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
20The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
21In 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:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
The Purpose Test
22I find the purpose test has been met.
23As set out in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at para. 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?
24The respondent submits that the applicant does not have reliable evidence to show, on a balance of probabilities, that she was using or operating her vehicle when the fall occurred. It argues that the mechanics of the fall recorded in the medical evidence suggests that the purpose test is not met.
25The applicant submits that the description of the incident where the applicant was removing snow from her vehicle, is credible and reliable. She relies on an unpublished decision of this Tribunal in G.R. v. Economical Mutual Insurance Company, 2019 ONLAT 18-010779/AABS (“G.R.”) where the Tribunal found:
Whether that ordinary use is attempting to unlock the vehicle or cleaning snow off, both activities are accepted as part of the definition of normal and ordinary use of a vehicle. Legislation dictates that a driver is required to clear off any excess snow before operating a vehicle on a roadway. Thus, this legislative requirement supports the position that clearing snow off a vehicle is part of the normal use and operation.
26The respondent argues that G.R. is distinguishable because in G.R., the applicant’s credibility was not at issue.
27The purpose test does not require the active use of the vehicle: see Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”). Although I am not bound by G.R., I agree with the Tribunal’s finding that removing snow prior to operating a vehicle is an ordinary and well-known activity for which automobiles are put. I am therefore satisfied that, on a balance of probabilities, the purpose test has been met.
The Causation Test
28I find the causation test has also been met.
29As set out in Greenhalgh, the causation test requires the Tribunal to determine if this ordinary and well-known activity was the direct cause of the applicant’s impairments by focusing on the following considerations:
a. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;
b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and
c. whether the use or operation of the motor vehicle was the dominant feature of the incident.
30The applicant submits that had the applicant not needed to clear snow off of her vehicle, she would not have fallen.
31The respondent submits the case that most closely reflects the precedent applicable to the applicant’s fall is Porter v. Aviva Insurance Company, 2021 ONSC 3107 (“Porter”). In Porter, the insured was walking towards a stationary rideshare Lyft car when she slipped and fell on ice in her parents’ driveway. Here, the respondent submits that the slip and fall occurred before reaching the vehicle.
32As I have accepted the description of the incident provided by the applicant, I agree with the applicant that but for the applicant removing snow from her vehicle, she would not have slipped and fallen on ice.
33In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), the Court of Appeal requires that a claimant must go further than to simply establish that ‘but for’ the use or operation of an automobile, the incident in question would not have occurred. The use or operation of a vehicle must be a direct cause.
34Since the ‘but for’ test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severed the chain of causation and whether the use or operation of the vehicle was the dominant feature of the applicant’s injuries. As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the automobile.
35Both parties rely on Davis for their respective positions on whether there was an intervening cause for the applicant’s fall, and the dominant feature of the fall.
36The applicant submits that a broad and flexible approach and application of the causation test is required under the consumer protection mandate of the Schedule and for finding whether the use or operation of an automobile is a direct cause of an impairment to establish entitlement to accident benefits. She argues that her impairments were due to a series of events: starting her car, brushing snow and ice off her car, and slipping and falling in the course of doing so. She relies on the finding in Davis to submit the ice she slipped on was fortuitous and not an intervening cause of the event. As such, the use of the vehicle was the direct cause of the impairments.
37The respondent submits that an intervening act resulted in the injuries of the applicant, being the ice. It argues that the series of events that preceded the fall have no nexus to the direct use or operation of the vehicle and the fall occurred independent of the vehicle. The applicant exited her apartment complex and “most likely” fell in the icy parking lot. The direct cause of the injuries was the icy parking lot, not the use of the automobile. The respondent also submits that the injuries could have also been caused by the recent light-headedness the applicant was experiencing and that the ED physician noted.
38I find that, like in Davis, the ice the applicant slipped on was fortuitous and not an intervening cause. As referenced in Davis, Laskin J.A. wrote in Chisholm that “an intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car – if it is “part of the ordinary course of things”.”
39Here, the applicant was in the process of removing snow from her vehicle which I have already found is part of the ordinary use or operation of a vehicle. It was in the process of doing so when she slipped and fell on ice. Icy surfaces during our Canadian winters are a normal phenomenon. I find that the ice was a normal risk created by the ordinary use or operation of the vehicle and not an intervening cause that broke the chain of events.
40Regarding the third branch of the causation test, the “dominant feature” consideration, I note that in Greenhalgh, the Court found that 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.”
41I have already concluded that there is no persuasive evidence that the applicant’s light-headedness contributed to her fall. Here, similar to the facts in Davis, the applicant was in the proximity of the vehicle when she fell. I therefore agree with the applicant and find that the most direct cause of her fall is the snow/ice removal from her vehicle.
42For the reasons stated above, I find that the incident meets the causation test of an “accident”. Any impairments the applicant sustained as a result of the incident resulted from an “accident” as defined by the Schedule.
ORDER
43For the reasons stated above:
i. On a balance of probabilities, I accept the applicant’s description of the events of March 21, 2025;
ii. The incident of March 21, 2019 is an “accident” as defined in section 3(1) of the Schedule; and
iii. The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: January 20, 2026
Trina Morissette
Vice-Chair