Greenhalgh v. ING Halifax Insurance Co. [Indexed as: Greenhalgh v. ING Halifax Insurance Co.]
72 O.R. (3d) 338
[2004] O.J. No. 3485
Docket: C40340
Court of Appeal for Ontario,
Labrosse, Charron and Goudge JJ.A.
August 27, 2004
*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs March 3, 2005 (Major, Fish and Abella JJ.).
Insurance -- Automobile insurance -- Interpretation and construction -- "Use or operation of automobile" -- Insured walking for hours on cold [page339] night and falling into ice- covered river after her car got stuck on country road -- Insured suffering severe frostbite and losing fingers and legs below knees -- Insured's injuries not "directly caused" by "use or operation of an automobile".
The insured's vehicle became stuck on a country road on a cold winter night. She set out with the intention of walking back the way she had come, towards one of the houses she had seen earlier, but became disoriented in the darkness and strayed off the road. She walked for about nine or ten hours. Along the way, she fell into an ice-covered river and lost her boots. As a result of exposure to the cold, she suffered severe frostbite, which required the amputation of her fingers and her legs below the knees. She submitted a claim to her automobile insurer for accident benefits. The insurer refused coverage, and litigation ensued. Pursuant to Rule 22 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the parties sought the resolution of the following question of law: "Did the plaintiff suffer an impairment as a result of an 'accident' as defined in s. 2(1) of Ontario Regulation 403/96 -- Statutory Accident Benefit Schedule -- Accidents on or After November 1, 1996, under the Insurance Act, R @@.S.O. 1990, Chapter I.8?" The motions judge answered that question affirmatively. The insurer appealed.
Held, the appeal should be allowed.
The relevant definition of "accident" is "an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device". That definition replaces earlier definitions in which causation was modified by the words "directly or indirectly". Under the definition of "accident" in O. Reg. 403/ 96, the purpose test set out in the decision of the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia (i.e., did the accident result from the ordinary and well- known activities to which automobiles are put?) continues to apply, but the Amos causation test (i.e., is there some nexus or causal relationship, not necessarily a direct or proximate causal relationship, between the insured's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicl e merely incidental or fortuitous?) does not apply, since the legislature has clearly shortened the link between the use of an automobile and the occurring of the impairment. Rather, the insured must meet the causation test set out in the decision of the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group. That test, as it applied to this case, could best be set out in the form of two questions: (1) Was the use or operation of the vehicle a cause of the injuries? (2) If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? The insured in this case could possibly meet the Amos purpose test, but could not meet the Chisholm causation test. The use of the car had ended without injury being suffered. The insured had p hysically left the car. No automobile contributed physically to the insured's injuries. There was temporal distance between the end of the use of the car and the injuries. The problem with the car could be said to have led to the injuries, but one could not say that it caused the injuries. The factor that physically caused the injuries, the weather, was unrelated to the use or operation of the automobile. There were numerous intervening occurrences between the time the car became stuck and the time the insured suffered her injuries. None of those intervening acts could be considered a normal incident of the risk caused by the use or operation of the car. In other words, the use or operation of the car could not be said to be a "direct cause" of the injuries. In some cases, it may be [page340] useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". A factor is a "dominant feature" where it is the aspect of the situation that most directly caused the injuries. In this case, the dominant feature of the insured's injuries could best be characterized as exposure to the elements. The use of the motor vehicle was ancillary to that injury.
APPEAL from a judgment of Kiteley J., dated June 16, 2003, determining a question of law.
Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, 10 B.C.L.R. (3d) 1, 127 D.L.R. (4th) 618, 186 N.R. 150, [1995] 9 W.W.R. 305, [1995] I.L.R. Â1-3232, 13 M.V.R. (3d) 302; Chisolm v. Liberty Mutual Group (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776, 217 D.L.R. (4th) 145, 33 M.V.R. (4th) 165 (C.A.)., apld Sklar v. Saskatchewan Government Insurance Office (1965), 1965 388 (SK QB), 54 D.L.R. (2d) 455, 52 W.W.R. 264, [1965] S.J. No. 65 (Sask. Q.B.).; Belair Insurance Co. Inc. v. Cassandra Seale, [2003] O.F.S.C.I.D. No. 8 (Ont. Fin. Serv. Comm.); Incerto v. Landry (2000), 2000 22346 (ON SC), 47 O.R. (3d) 622, 2 M.V.R. (4th) 264, [2000] O.T.C. 144, [2000] O.J. No. 861 (S.C.J.); Heredi v. Fensom, [2002] 2 S.C.R. 741, 219 Sask. R. 161, 213 D.L.R. (4th) 1, 289 N.R. 88, 272 W.A.C. 161, [2002] 8 W.W.R. 1, 2002 SCC 50, 25 M.V.R. (4th) 85, 12 C.C.L.T. (3d) 1, 19 C.P.C. (5th) 1, [2002] S.C.J. No. 48; Hanlon v. Guarantee Co. of North America , [1997] O.I.C.D. No. 43 (Ont. Ins. Comm.), affg [1995] O.I.C.D. No. 172; Alchimowicz v. Continental Insurance Co. of Canada , 1996 1313 (ON CA), [1996] O.J. No. 2989, 22 M.V.R. (3d) 41, 37 C.C.L.I. (2d) 284 (C.A.); Mahadan v. Co-operators General Insurance Co., [2001] O.F.S.C.I.D. No. 40 (Ont. Fin. Serv. Comm.),consd Other cases referred to Herbison v. Lumbermens Mutual Casualty Co., 2003 27300 (ON SC), [2003] O.T.C. 685, 2 C.C.L.I. (4th) 44, [2003] O.J. No. 3024 (S.C.J.); Hernandez v. 1206625 Ontario Inc. (2002), 2002 45089 (ON CA), 61 O.R. (3d) 584, 218 D.L.R. (4th) 456, 32 M.V.R. (4th) 64, [2002] O.J. No. 3667 (C.A.); Redmond v. West Wawanosh Mutual Insurance Co. (2004), 2004 14175 (ON SCDC), 180 O.A.C. 280, 5 C.C.L.I (4th) 255, [2004] O.J. No. 110; Scanes v. Datillo (2003), 2003 38664 (ON SC), 65 O.R. (3d) 768, [2003] O.J. No. 2863 (S.C.J.), supp. reasons [2003] O.J. No. 3372 (S.C.J.); Unger (Litigation Guardian) v. Unger (2003), 2003 57446 (ON CA), 234 D.L.R. (4th) 119, [2003] O.J. No. 4587 (C.A.) Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 268(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 22 Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996, O.Reg. 776/93, s. 1 [as am.] Statutory Accidents Benefits Schedule -- Accidents Before January 1, 1994, O.Reg. 672, s. 2 [as am.] Statutory Accident Benefits Schedule -- Accidents On or After November 1, 1996, O.Reg. 403/96, s. 2(1) [as am.]
Donald L. Granatstein, for respondent. Chris T. Blom, for appellant. [page341]
The judgment of the court was delivered by
[1] LABROSSE J.A.: -- This is an appeal from the decision of Kiteley J. in which she determined, pursuant to Rule 22 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that "the use or operation of an automobile directly cause[d]" the injuries sustained by the respondent Jessica Darlene Greenhalgh ("the insured").
Background
[2] On January 14, 2002, the insured was driving a motor vehicle covered under a policy of automobile insurance issued by the appellant ING Halifax Insurance Company ("the insurer"). She was accompanied by a friend. At about 9:00 p.m., the insured took a wrong turn on a country road and inadvertently entered upon a private road. After she realized her mistake, she attempted to turn around. In the process, the vehicle became lodged upon a rock. Despite repeated efforts, the insured was unable to dislodge the vehicle and eventually it stalled. It would not start again.
[3] The insured attempted to use a cellular telephone to call for assistance. However, the battery on the cellular telephone died before she succeeded in making the call. The insured and her friend decided to leave the vehicle and walk back along the route they had taken in the car to one of the homes they had seen earlier. However, they became disoriented in the darkness due to the extensive brush and trees, and strayed off the road they had taken by car. They walked through the night, for about nine or ten hours. Along the way, they fell into a river that had been covered with ice and the insured lost her boots. They were found sometime between 7:00 a.m. and 8:00 a.m. the following morning.
[4] As a result of exposure to the extreme cold during the night, the insured suffered severe frostbite, which required the amputation of her fingers and of her legs below the knees.
[5] Following this incident, the insured submitted a claim for accident benefits. The insurer refused coverage, and litigation ensued. Pursuant to Rule 22 of the Rules of Civil Procedure, the parties submitted a question to the court in order to resolve an issue of law raised by the pleadings in the litigation. The question was stated as follows:
Did the plaintiff suffer an impairment as a result of an "accident", as defined in s. 2(1) of Ontario Regulation 403/96 - Statutory Accident Benefit Schedule - Accidents on or After November 1, 1996, under the Insurance Act, R.S.O. 1990, Chapter I.8?
[6] The motions judge held that the plaintiff had suffered an impairment as a result of an "accident" as defined in the legislation. [page342] The insurer appeals from that decision. For the reasons that follow, I would allow the appeal.
The Issues
[7] Before the motions judge, the parties proceeded on the basis that in order to succeed in her claim, the insured must meet the purpose test as set out by the Supreme Court in Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, 127 D.L.R. (4th) 618, and the causation test as set out by this court in Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776, 217 D.L.R. (4th) 145 (C.A.). The insured argued that she meets both of these tests, while the insurer argued that the insured does not meet either of the tests.
[8] On appeal, the insurer submitted that the motions judge erred in concluding that the insured met the Amos purpose test because she was using her vehicle to carry herself from one place to another. The insurer submitted that when the insured left her vehicle, she was no longer using it to convey herself from one place to another. It argued that she was not involved in a well-known activity to which vehicles are put, because she was not driving her vehicle but walking across the country at the relevant time. On the other hand, the insured submitted that the motions judge correctly concluded that she met the Amos purpose test "because the accident resulted from an 'ordinary and well-known' activity of an automobile, namely, that the insured was operating a motor vehicle when she took a wrong turn". The motions judge referred to three decisions in reaching the conclusion that the insured had met the Amos purpose test: Sklar v. Saskatchewan Government Insurance Office
(1965), 1965 388 (SK QB), 54 D.L.R. (2d) 455, 52 W.W.R. 264 (Sask. Q.B.), Incerto v. Landry (2000), 2000 22346 (ON SC), 47 O.R. (3d) 622, [2000] O.J. No. 861 (S.C.J.) and Belair Insurance Co. Inc. v. Cassandra Seale, [2003] O.F.S.C.I.D. No. 8 (Ont. Fin. Ser. Comm.) (F.S.C.O. Appeal P02-00005, January 28, 2003). On the basis of these decisions, it can be argued that the motions judge was correct in concluding that the insured has met the Amos purpose test in this case. However, and for reasons elaborated upon below, the insured cannot meet the causation test and that is determinative against her claim. Before considering the case law and the applicability of these tests to this case, it is useful to review the relevant legislation and the test that naturally flows from the very language of the statute that governs.
Relevant legislation
Section 268(1) of the Insurance Act, R.S.O. 1990, c. I.8 (the "Act") provides: [page343]
268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.
The Schedule governing this case, s. 2(1) of O. Reg. 403/96 -- Statutory Accident Benefits Schedule - Accidents On or After November 1, 1996, defines the term "accident" as follows:
2(1) In this Regulation,
"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
(Emphasis added)
This replaced s. 1 of the Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/93, which defined the term "accident" as follows:
- In this Regulation,
"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
(Emphasis added)
Similarly, s. 2 of the Statutory Accident Benefits Schedule -- Accidents Before January 1, 1994, O. Reg. 672, which defined "accident" as follows:
- In this Regulation,
"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device.
(Emphasis added)
The Applicable Test
[9] Unlike its predecessor statutes, s. 2(1) of the Statutory Accident Benefits Schedule - Accidents On or After November 1, 1996, O. Reg. 403/96 defines the term "accident" as an incident in which:
-- "the use or operation of an automobile"
-- "directly causes an impairment . . .". [page344]
[10] Accordingly, the language of the provision itself sets out the test as involving a consideration of the following two questions:
Did the incident arise out of the use or operation of an automobile?
Did such use or operation of an automobile directly cause the impairment?
[11] The first question addresses what has often been referred to as the "purpose test". In other words, for what purpose was the automobile being used or operated at the relevant time? Did the incident arise out of the ordinary and well-known activities to which automobiles are put? The "purpose test" is common to the interpretation of all automobile insurance legislation. Indeed, this is the very kind of inquiry that informed the first part of the test in Amos, as elaborated upon below, and remains relevant in the interpretation of the differently worded legislation that governs this case. The "purpose test" inquiry is relevant because:
(a) it is consistent with and gives effect to the intent and expectations of the parties; and
(b) it circumscribes the proper scope of application of the legislation.
[12] The second question concerns direct causation and flows from the language of the governing provision. Unlike its predecessors, this legislation requires a direct link of causation. What will amount to direct causation will depend much on the circumstances. However, some of the following considerations may provide useful guidance in ascertaining whether or not it has been established in a given case:
(a) the "but for" test can act as a useful screen;
(b) in some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
(c) 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". [page345]
[13] A review of some of the case law is useful to illustrate these different points. However, care must be taken in referring to the case law given that the definition of "accident" has not always been as stringent as that found in the present legislation.
The Purpose Test
1. Amos v. Insurance Corp. of British Columbia
[14] The insured Amos was driving his van in California. As he pulled away from an intersection, he was attacked by a gang of people. With his van surrounded by six men, the insured locked the doors of the van and kept it moving slowly ahead. The assailants commenced pounding on the door windows on both sides of the van. The glass on the driver's door shattered but was held in place by its frame. Another man then walked out in front of the van and pointed a gun at the insured. As he tried to duck from the line of fire, he was shot, the bullet striking his spinal cord. The insured was able to keep the van moving. When he had distanced himself from the assailants by several blocks he brought the van to a stop. He obtained assistance and was transported to a hospital. He sustained serious, disabling and permanent injuries. The insured submitted a claim for accident benefits and the insurer refused coverage.
[15] The legislation that pertained in Amos stated as follows [at p. 410 S.C.R.]:
[T]he corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle . . .
(Emphasis added)
[16] In Amos, the parties agreed that what had happened to the insured constituted an "accident". The question was whether or not the accident could be said to have arisen "out of the ownership, use or operation" of the vehicle. In fashioning the test to determine this question, Major J., speaking for the court, held at pp. 414-15 S.C.R., that "while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage". Major J. then stated the test as follows (p. 415 S.C.R.):
(1) Did the accident result from the ordinary and well-known activities to which automobiles are put?
(2) Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?
(Emphasis in original) [page346]
The court referred to the two parts as the "purpose" and "causation" branches of the test.
[17] With regard to the purpose test, Major J. held that the insured met this branch. Noting that the insured was driving his van down the street, Major J. held at pp. 415-16 S.C.R. that "the accident clearly resulted 'from the ordinary and well-known activities to which automobiles are put'". In using this language, Major J. was not speaking of causation. He addressed causation in the second branch of the test. Rather, the phrase intended to indicate whether the accident flowed out of or arose out of the ordinary and well-known activities to which automobiles are put. It cannot be said that the insured's injuries in the Amos case "resulted from" the regular activity to which his automobile was being put, in the causal sense of these words. Rather, it meant that the insured's injuries flowed out of the regular activity to which his automobile was being put.
[18] With regard to the causation branch of the test, Major J. stated at p. 417 S.C.R.:
The question is whether the requisite nexus or causal link exists between the shooting and the appellant's ownership, use or operation of the van. With respect to causation, it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use of operation of a vehicle. The phrase "arising out of" is broader than "caused by", and must be interpreted in a more liberal manner.
(Emphasis added)
[19] On the meaning of the phrase "arising out of", Major J. noted [at p. 417 S.C.R.] that:
[T]he words "arising out of" have been viewed as words of much broader significance than "caused by", and have been said to mean "originating from", "having its origin in", "growing out of" or "flowing from", or, in short, "incident to" or "having connection with" the use of the automobile.
[20] Major J. found that there was the requisite connection and concluded at p. 419 S.C.R. that:
The shooting appears to have been the direct result of the assailants' failed attempt to gain entry to the appellant's van . . . . It is important that the shooting was not random but a shooting that arose out of the appellant's ownership, use and operation of his vehicle.
The insured was therefore held to be entitled to coverage.
2. Chisholm v. Liberty Mutual Group
[21] Mr. Chisholm was an insured person under a car insurance policy issued by Liberty Mutual to his wife. He was driving his wife's car when an unknown assailant fired gunshots at it. The shots rendered him a paraplegic. Liberty Mutual refused to [page347] pay Mr. Chisholm benefits on the ground that although he suffered an impairment, he was not in an "accident" within the meaning of the current legislation, because the use or operation of a motor vehicle did not directly cause his impairment.
[22] For ease of reference, I repeat here the legislation applicable to this case [at para. 9]:
- In this Regulation,
"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
(Emphasis added)
[23] When Mr. Chisholm submitted that the Amos test applied to this case, Laskin J.A. rejected this argument, stating, "In my view, the Amos test does not apply, and even if it did, I am dubious whether Chisholm could satisfy it" (para. 18). It may be argued that in Chisholm, Laskin J.A. questioned the applicability of the whole Amos test. However, in my opinion, when Laskin J.A. made that statement, he could only be referring to the causation test. It must be remembered that in Chisholm, the purpose test was not in issue; it was obviously satisfied in that case as Mr. Chisholm was actually driving his car. The issue was causation. Laskin J.A. recognized this when he later said, at para. 22: "He meets the first part of the test, the purpose test, but likely not the second part, the causation test." So, when Laskin J.A. said that Mr. Chisholm could not satisfy the test, he could not be referring to the whole test because he later recognized that the first par t of the test was met. Further, when Laskin J.A. stated at para. 20, "But the stringent causation requirement -- 'directly causes' -- in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition", he was not purporting to decide whether the purpose test still applies. Finally, Laskin J.A.'s analysis, which is entirely directed to the issue of causation, further demonstrates that he was not concerned with the purpose test.
[24] There is good reason in favour of retaining the Amos purpose test. First, while the language of the Amos causation test clearly reflects the express legislative language in that case, the Amos purpose test is drawn by inference from that language which broadly parallels the language at stake in this case. The Amos purpose tests asks whether the accident in question resulted from the ordinary and well-known activities to which automobiles are put. Arguably, this question would apply whenever a court sets out to interpret any legislation dealing with [page348] automobile insurance; the common denominator in any situation falling under automobile insurance legislation is a situation wherein a car was put to use in an ordinary way. Second, absent clear language, it is presumed that most automobile insurance legislation is not intended to cover uses of cars that are not ordinary and well-known. Neither insurance companies nor the insured would expect coverage to ext end to any and every use to which a car may be put, no matter how unforeseen or unprecedented. (For example, would a car insurance policy cover an accident which arose where an insured attempted to lift his car solely to show his strength, thereby hurting his back?) If that is the case, then the Amos purpose test may act as a sort of filter; before determining whether the accident was causally connected to the use of the car, it has to be determined whether the car was being used in a manner that would be covered by the insurance at all.
[25] Third, while the case law following Chisholm does not explicitly clarify whether the Amos purpose test has been rejected, in the majority of cases it seems as though the Amos purpose test continues to be applied. See Unger (Litigation Guardian of) v. Unger (2003), 2003 57446 (ON CA), 234 D.L.R. (4th) 119, [2003] O.J. No. 4587 (C.A.); Hernandez v. 1206625 Ontario Inc. (2002), 2002 45089 (ON CA), 61 O.R. (3d) 584, 218 D.L.R. (4th) 456 (C.A.); Scanes v. Datillo (2003), 2003 38664 (ON SC), 65 O.R. (3d) 768, [2003] O.J. No. 2863 (S.C.J.); Redmond v. West Wawanosh Mutual Insurance Co. (2004), 2004 14175 (ON SCDC), 180 O.A.C. 280, [2004] O.J. No. 110 (C.A.); and Herbison v. Lumbermens Mutual Casualty Co., 2003 27300 (ON SC), [2003] O.J. No. 3024, [2003] O.T.C. 685 (S.C.J.).
[26] As indicated above, the motions judge referred to three other decisions in reaching the conclusion that the insured had met the Amos purpose test. These cases are worth reviewing.
[27] In Incerto, the driver of a vehicle that had become stuck in a gravel rut got out in order to push the car out of the rut and was run over by the car and killed. The court held that the first part of the Amos test was met in this case, noting that "this accident resulted from an ordinary and well- known activity of an automobile, namely that Landry drove the car off the road and into a ditch".
[28] In Seale, Mrs. Seale's van became stuck on ice. A passer-by offered to help her, so she got out of the van to push. The van slid down a hill, and as Mrs. Seale walked towards the van, she slipped and fell on the ice. The Financial Services Commission of Ontario held that Mrs. Seale had met the Amos purpose test (para. 63):
Mrs. Seale's fall happened while she was engaged in an ordinary activity in a Canadian winter -- trying to regain control of a vehicle on an icy road. She did the usual things when her van got stuck. After calling an automobile [page349] association, she accepted help from a passer-by. As is often done in such situations, she allowed Mrs. Harwood to take the wheel so she could do the hard work of pushing. When her van slid down the hill, she followed it, again doing the ordinary thing. She did not, as her counsel put it, decide to get a coffee first, then fall on the way. She walked down the road because the sidewalk was impassable. She fell because the road was icy, the same reason she had lost control of her van. There was "a perfect chain" between the two events, in my view. Putting it another way, the entire sequence of events was one incident. This distinguishes Mrs. Seale's case from the assault cases and the cases involving unusual hazards unrelated to use or operation of an automobile. Unlike in the assault cases, I find that use or operation of an automobile was the dominant feature of the incident.
[29] Finally, while Sklar predates Amos considerably, it is helpful inasmuch as it answers the question of what can be considered the "primary causation" in a situation where a person dies of carbon monoxide poisoning while sitting in his stuck vehicle. The court held at p. 473 D.L.R. that the carbon monoxide poisoning "was merely another step in the chain of circumstances which followed directly from the primary causation - the accident of getting stuck in the snowbank".
[30] It is arguable that all of these decisions can be distinguished from the case at bar inasmuch as they dealt with situations in which the insured was still engaged in an activity that involved the automobile (sitting in the car in Sklar, chasing the car in Seale, pushing the car in Incerto). However, all three seem to characterize the "ordinary and well-known activity" required by the Amos purpose test as the initial mishap, in this case, the automobile becoming stuck. On this logic, the vehicle becoming stuck in this case could be characterized as the "ordinary and well-known activity" to which this vehicle was put, satisfying the Amos purpose test.
[31] With regard to causation, Laskin J.A. concluded that the Amos test did not apply. He stated [at para. 20]:
But the stringent causation requirement -- "directly causes" -- in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition. Indeed, Major J.'s reasons in Amos say as much. In setting out the causation part of the test, Major J. explicitly stated at para. 17 that the required nexus or causal relationship between a plaintiff's injuries and the ownership, use or operation of his or her car was "not necessarily a direct or proximate causal relationship."
[32] I agree with Laskin J.A. that the Amos causation test does not apply to the 1996 legislation whereby the legislature clearly shortened the link between the use of an automobile and the occurring of the impairment. The parties, in the present case, were therefore correct to proceed on the basis that in order to succeed, the insured must meet the purpose test as set out in Amos and the causation test as set out in Chisholm. [page350]
The Causation Test
[33] As noted above, Laskin J.A. rejected the Amos causation test, given the more stringent causation requirement in the 1996 legislation. Instead, he described the causation test at para. 27 in the following way:
A direct causation requirement conjures up memories of the famous English tort case of In Re Polemis & Furness, Withy & Co. Ltd., [1921] All E.R. Rep. 40, [1921] 3 K.B. 560, where recovery was allowed for damages that were not a foreseeable result of the defendant's negligence but were directly caused by it. When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.
[34] Laskin J.A. then went on to hold at para. 29 that:
[E]ven accepting that the use of Chisholm's car was a cause of his impairment, a later intervening act occurred. He was shot. 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". . . . Gun shots from an unknown assailant can hardly be considered an intervening act in the "ordinary course of things".
(Citations omitted)
[35] Finally, Laskin J.A. thought it was useful to consider the "dominant feature" test as developed by the Supreme Court under broader legislation in Heredi v. Fensom, 2002 SCC 50, [2002] 2 S.C.R. 741, 213 D.L.R. (4th) 1. Even under the more expansive legislation, Mr. Chisholm could not succeed. In Chisholm, it was the gun shots, and not the use or operation of an automobile, that could be said to be the "dominant feature" of Mr. Chisholm's injury. In short, Laskin J.A. found three inquiries helpful in answering the "direct cause" question: the "but for" inquiry; the "intervening act" inquiry; and the "dominant feature" inquiry.
[36] While I will look at each of these in turn, in my opinion, the Chisholm test, as it applies to this case, can best be set out in the form of two questions:
Was the use or operation of the vehicle a cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? [page351]
(a) The "but for" consideration
[37] It can be argued, in this case, that the use or operation of the insured's car was a cause of her injury. In Chisholm, Laskin J.A. appears to have accepted that it could be said that the use of Mr. Chisholm's car was "a cause" of his impairment, inasmuch as but for driving his car he would not have been shot. By analogy, I think it is fair to say that but for the fact that the insured's car having become stuck on a rock, she would not have been wandering through the woods at night, fallen into the river and suffered severe frostbite. However, as Laskin J.A. explained, the "but for" test only serves to eliminate from consideration factually irrelevant causes, but does not conclusively establish legal causation. The next part of the test must therefore be considered.
(b) The "intervening act" consideration
[38] The next question is whether it can be said that the use or operation of the motor vehicle was "a direct cause" of the injuries. I say "a direct cause" rather than the direct cause because in Chisholm, Laskin J.A. seems to accept that in certain cases, there could be more than one direct cause. As Laskin J.A. held, 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 car.
[39] In Chisholm, it was clear that there was an intervening act that could not fairly be considered a normal incident of the risk created by the use or operation of the car - the gunshots. Therefore, the use or operation of the car could not be said to be a direct cause of the injury.
[40] I find the following cases helpful in applying this consideration.
[41] In Hanlon v. Guarantee Co. of North America, [1997] O.I.C.D. No. 43 (Ont. Ins. Comm.), affg [1995] O.I.C.D. No. 172 (Ins. Comm.), Hanlon was injured when, after a car accident with another vehicle, the driver of the other vehicle got out of the vehicle and hit Hanlon in the head with a cellphone. Hanlon was no longer in his vehicle at the time he was hit. The Director Delegate of the Ontario Insurance Commission concluded that this injury could not be said to be a result of an "accident". Noting that "at some point, the causal relationship, or nexus, between the use or operation of the automobile and the accident is too incidental or remote to be covered by automobile insurance", the Director's Delegate held that he was not persuaded that "there [was] a causal relationship, even an indirect one, between the use or operation of an automobile and Mr. Hanlon's injuries". The Director's Delegate concluded as follows: [page352]
"Cause" has an instrumental aspect that is lacking here. The incident involving the use or operation of an automobile ended with no one being injured. No further consequences were inevitable or linked to any ongoing use or operation of an automobile. Sometime later, in a location removed from the "incident," there was a verbal confrontation between the two men outside their vehicles. At that point, Mr. Daly attacked Mr. Hanlon. No automobile was the target of the attack, was used in the attack, or contributed to Mr. Hanlon's injuries. I conclude that . . . the connection between the use or operation of the automobile and the injury is not sufficient to be covered by automobile insurance.
Interestingly, this conclusion was reached under the older and broader legislation, which defined an "accident" as an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury.
[42] In Alchimowicz v. Continental Insurance Co. of Canada, 1996 1313 (ON CA), [1996] O.J. No. 2989, 22 M.V.R. (3d) 41 (C.A.), Mr. Alchimowicz was driven to a beach, left the car, and then some 25 minutes later dove off a dock and sustained serious injuries. Again, this case was argued under the old legislation, which allowed recovery for injuries caused "directly or indirectly" by the operation of an automobile. In a brief endorsement, this court held at para. 9 that this situation could not "be construed on any subtle variation of the facts at trial as an incident indirectly caused by the use or operation of a motor vehicle".
[43] Mahadan v. Co-operators General Insurance Co., [2001] O.F.S.C.I.D. No. 40 (Ont. Fin. Serv. Comm.) (F.S.C.O. A00-000489, March 15, 2001) is another case on the same topic. Mr. Mahadan had parked his car in his usual spot in the parking lot of his condominium. He turned off his vehicle and got out of his car. He went to the trunk of his car took out five bags of groceries. As he turned away from the trunk his left foot twisted in a groove in the pavement and he fell on his left side. As a result of the fall, Mr. Mahadan sustained injuries. Again, the issue was whether Mr. Mahadan was injured as a result of an "accident" as defined under the present legislation. The Arbitrator at the Financial Services Commission of Ontario held as follows (para. 17):
I find that while Mr. Mahadan's motor vehicle led him to the location of his injury, his injuries, nevertheless, were sustained from a new and independent source other than his car. I find that what caused Mr. Mahadan to trip and fall was the crack in the pavement. This crack in the pavement had nothing to do with the use and operation of a motor vehicle, but was there because of the construction work being done on the parking lot. I, therefore, find that the crack in the pavement was the intervening feature that ultimately caused his injury. Accordingly, I find that Mr. Mahadan was not involved in an "accident" as defined in subsection 2(1) of the Schedule. [page353]
[44] Here, as in Hanlon, Alchimowicz and Mahadan, the use of the car had ended without injury being suffered, the insured had physically left the car; no automobile contributed physically to the insured's injuries; and there was temporal distance between the end of the use of the car and the injuries. As in Hanlon, the problem with the car could be said to have led to the injuries, but one could not say that it caused the injuries. As in Mahadan, the factor that physically caused the injuries, in the present case the weather, was unrelated to the use or operation of the automobile.
[45] In this case, between the time that the car became stuck and the time that the insured suffered her injuries, there were numerous occurrences:
-- her cell phone died;
-- the weather was very cold;
-- it was dark;
-- she became disoriented;
-- she walked for a long distance over a long period of time;
-- she fell into a river;
-- she lost her boots;
-- she had to continue her journey without her boots before finally being found; and
-- she was found miles away from her car.
[46] None of these intervening acts can be considered "a normal incident of the risk created by the use or operation of the car" or, in other words, the use or operation of the car cannot be said to be a "direct cause" of the injuries. Taken together, these intervening acts support the conclusion that the use of the car here was not a direct cause of the impairments.
(c) The "dominant feature" consideration
[47] As stated earlier, in some cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". In Heredi, the Supreme Court was asked to interpret the phrase "damages occasioned by a motor vehicle" in legislation from Saskatchewan. Ms. Heredi had been injured while riding on a [page354] paratransit bus designed to accommodate persons with physical disabilities. Mr. Fensom was driving the bus. Mr. Fensom helped Ms. Heredi place her crutches under her right shoulder, and then proceeded to drive the bus "in such a manner as to cause the plaintiff's crutches to jar her right shoulder, thereby causing injury". The Supreme Court held at para. 34, that if "the dominant feature of the damages is their relation to a motor vehicle accident", then the legislation would apply. The Supreme Court held at para. 41 that "it [was] clear that the direct ca use of the injury was the operation of a motor vehicle".
[48] In Chisholm, Laskin J.A. noted that the wording of the legislation in Heredi was broader than in Chisholm. However, he went on to consider the "dominant feature" test as applied to the case before him, again reaching the same conclusion that use or operation of a motor vehicle could not be said to be the "dominant feature" in that case.
[49] As stated in Chisholm at para. 34, the test from Heredi is not directly applicable, because the legislation here under review "stipulates a more restrictive causation requirement than the phrase 'damages occasioned by a motor vehicle' in the Saskatchewan legislation". However, even applying the Heredi test, the insured in this case still cannot succeed. In Chisholm, the "dominant feature" of Mr. Chisholm's injury was held to be the gunshots. In Heredi, the "dominant feature" of Ms. Heredi's injuries was held to be the "very operation of the motor vehicle itself". These cases indicate that a factor is a "dominant feature" where it is the aspect of the situation that most directly caused the injuries. The present case seems to fall in between Chisholm, where the use or operation of his car was "at best ancillary" (para. 34), and Heredi, in which the use or operation of the bus was "the direct cause of the injury" (para. 41). However, i n my opinion, it is closer to Chisholm than to Heredi. It seems that the "dominant feature" of the insured's injuries could best be characterized as exposure to the elements, and that the use of the motor vehicle was ancillary to that injury. This too supports the conclusion that the use was not a direct cause of the impairment.
Conclusion
[50] In conclusion, while the insured in this case could possibly meet the Amos purpose test, she cannot meet the Chisholm causation test. This conclusion regarding the Chisholm causation test must be considered in light of two other factors. First, in Chisholm, Laskin J.A. pointed out that a person seeking accident benefits under the 1996 Schedule must meet a narrower or more [page355] stringent causation requirement than in the past. As Laskin J.A. wrote at para. 35:
The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry's liability to pay no-fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car. Like almost any statutory standard, the direct causation requirement will, at the margins, produce hard cases, perhaps even sympathetic cases and seemingly arbitrary results.
[51] Second, the words of this court at para. 9 in Alchimowicz are apposite:
As liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation.
[52] The legislation at issue is automobile legislation, and is specific in its applicability. The injuries suffered by the insured are tragic, but it cannot be said that the injuries were suffered as a "direct" result of an "accident", within the meaning of the legislation.
Disposition
[53] For these reasons, I would allow the appeal, set aside the order of the motions judge and dismiss the action with costs, if demanded, fixed at $10,000.
Appeal allowed.