CITATION: Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107

DIVISIONAL COURT FILE NO.: DC-20-469-00

DATE: 2021/04/28

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: KERRY PORTER, Respondent

AND

AVIVA INSURANCE COMPANY OF CANADA, Appellant

BEFORE: Sachs, Kristjanson and Ryan Bell JJ.

COUNSEL: Vahe Avagyan, for the Respondent

Todd J. McCarthy and Frank Benedetto, for the Appellant

HEARD: March 29, 2021 at Toronto

ENDORSEMENT

RYAN BELL J.

Overview

[1] On January 25, 2019, Kerry Porter was walking toward a stationary rideshare Lyft car when she slipped and fell on ice in the driveway of her parents’ home and was injured. Ms. Porter made a claim to Aviva Insurance Company of Canada (the insurer of the Lyft car), for statutory benefits under the Statutory Accident Benefits Schedule, O. Reg 34/10 (the “Schedule”, a regulation made under the Insurance Act, R.S.O. 1990, c. I.8). Aviva denied Ms. Porter’s claim on the basis that the incident was not an “accident” as defined in s. 3(1) of the Schedule. Section 3(1) defines “accident” as meaning “an incident in which the use or operation of an automobile directly causes an impairment… .”

[2] Ms. Porter applied to the License Appeal Tribunal (“LAT”) to have her claim adjudicated. At the LAT, Vice Chair Susan Mather found that Ms. Porter’s impairments were the direct result of an accident within the meaning of s. 3(1) of the Schedule. Aviva requested a reconsideration of the Tribunal’s decision.

[3] On reconsideration, Vice Chair Mather did not find that she had made any errors of law or mistakes of fact such that she would have reached a different conclusion had the error or mistake not been made. The Vice Chair confirmed her previous order finding that there was an accident with the meaning of s. 3(1) of the Schedule.

[4] Aviva appeals the Reconsideration Decision on a question of law. Aviva asks that the Reconsideration Decision be set aside and that an order go finding that Ms. Porter was not involved in an accident on January 25, 2019 as defined in s. 3(1) of the Schedule.

[5] For the following reasons, I would allow the appeal.

Background

[6] On January 25, 2019, Ms. Porter summoned a Lyft car to her parents’ home to take her to a medical appointment. It was a stormy day with freezing rain, ice and an accumulation of snow. The driveway of her parents’ home was icy and not shovelled. The Lyft car arrived and parked less than half-way up the icy driveway. As Ms. Porter made her way to the car, she put out her hand to touch the hood of the car to help stabilize herself on the ice. Then, as the Vice Chair found, “[b]efore she was able to get in a position to open the door of the car, she slipped and fell on the ice, breaking her left leg in two places.”

The Appeal is Not Premature

[7] In her decision at first instance, the Vice Chair identified the question of whether the incident was an accident within the meaning of s. 3(1) of the Schedule as a “preliminary issue” and, after finding Ms. Porter’s impairments to be the direct result of an accident, ordered that “the application may proceed to a hearing on the merits of her claim for benefits.”

[8] Given the nature of the Vice Chair’s order, the panel requested submissions from counsel on whether the appeal was premature. After hearing from counsel, we were satisfied that the appeal was not premature. The only issue raised by Ms. Porter’s application to the LAT was whether the January 25, 2019 incident was an accident within the meaning of s. 3(1) of the Schedule. The Vice Chair found that the incident met the definition of an accident and that Ms. Porter was entitled to the statutory benefits available under the Schedule. There are no other matters remaining to be determined in Ms. Porter’s application.

Standard of Review

[9] Aviva submits that the standard of review is correctness; Ms. Porter’s position is that the issues raised on the appeal are questions of mixed fact and law and the standard of review is reasonableness.

[10] Aviva challenges the Reconsideration Decision by means of the statutory appeal mechanism provided for in s. 11(6) of the License Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. Section 11(6) provides: “[a]n appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.” As this is a statutory appeal on a question of law, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.

Analysis

[11] In both Chisholm v. Liberty Mutual Group (2002), O.R. (3d) 776 and Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 21045 (ON CA), 72 O.R. (3d) 338, the Court of Appeal for Ontario identified a two-part test to determine whether there has been an accident within the meaning of s. 3(1) of the Schedule. The two questions to be considered are:

1. Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

2. Did such use or operation of an automobile directly cause the impairment (the “causation test”).

[12] The central issue on this appeal is Aviva’s submission that the Vice Chair misapprehended the causation test.

[13] The Vice Chair concluded that there were two direct causes of the impairment: the icy, snow-covered driveway and “as a result of the use and operation of the car that stopped less than halfway up the driveway.”

[14] In essence, the Vice Chair concluded that the use and operation of the car was a direct cause of Ms. Porter’s impairments because she would not have been injured but for or “as a result of” the location of the car in the driveway. In so doing, the Vice Chair conflated the “but for” test with the direct causation test. This is an error in law. If the “but for” test is met then the act or omission is a factual cause of the injury; however, the “but for” test does not conclusively establish legal causation: Greenhalgh, at para. 37. Legal entitlement to accident benefits requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause: Chisholm, paras. 25-26.

[15] In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries.

[16] While it may be said that but for where the Lyft car parked in the driveway, Ms. Porter would not have slipped on the ice and fallen, this is insufficient to establish direct causation. The dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was “at best ancillary”: Chisholm, at para. 34.

[17] Accordingly, I would allow the appeal, set aside the Reconsideration Decision, and make an order that Ms. Porter was not involved in an accident on January 25, 2019.

[18] On agreement of the parties, Ms. Porter shall pay costs of the appeal to Aviva, fixed in the amount of $10,000 all inclusive.

___________________________ Ryan Bell J.

I agree ___________________________

Sachs J.

I agree ___________________________

Kristjanson J.

Date: April 28, 2021