Background facts
On November 22, 2017, the applicant, Ms. Davis, slipped on black ice in a parking lot while approaching her vehicle. She was holding her key fob and was close enough to the vehicle that her leg came to rest under the driver’s side wheel. She applied for statutory accident benefits from her insurer, Aviva General Insurance Company (Aviva). After three years of adjusting Ms. Davis’s claim, approving some benefits and denying others, Aviva asserted that the incident did not constitute an “accident” under the Statutory Accident Benefits Schedule (SABS). Aviva raised this as a preliminary issue before the Licence Appeal Tribunal (LAT).
Licence Appeal Tribunal Decision
On May 18, 2022, the LAT rendered a decision, finding that Ms. Davis’s injuries did not arise from an accident as defined within s. 3(1) of the SABS. Citing the two-part test from from Chisholm v. Liberty Mutual, 2002 CanLII 45020 (ON CA) – namely, (1) whether the incident arose out of the use or operation of an automobile (purpose test), and (2) whether the use or operation of the automobile directly caused the impairment (causation test) – the LAT held that Ms. Davis failed the causation test.
This decision was upheld on further reconsideration by the LAT. Ms. Davis’s LAT application was dismissed and her accident benefits were terminated.
Ontario Divisional Court Decision
Ms. Davis sought judicial review of the LAT’s decision.
On May 31, 2024, the Divisional Court allowed the application, concluding that the LAT’s analysis was flawed and its conclusion unreasonable. The court emphasized that the LAT had misapplied the causation test by focusing too narrowly on the slip-and-fall itself. It pointed to the following key facts:
- Ms. Davis was actively using her key fob to access the vehicle;
- She was in immediate proximity to the car — her body even came to rest beneath it;
- The fall occurred as part of a continuous chain of events related to the use or operation of the automobile.
The Divisional Court relied on appellate guidance, particularly Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), to support a broader, remedial interpretation of accident. The court reversed the LAT’s decision and reinstated Ms. Davis’s benefits.
Of note, the Divisional Court did consider the timing of Aviva’s challenge to whether the incident constituted an accident under the SABS. This delay became a point of procedural concern. Ultimately, while the court acknowledged that the LAT has equitable powers and can act to prevent abuse of process, it found that the LAT did not err in allowing Aviva to raise the issue, despite the three-year delay in doing so. That said, the court’s reasons suggest a degree of unease with the timing, especially given the remedial nature of the SABS and the importance of procedural fairness in benefit determinations.
Court of Appeal Decision
Aviva sought leave to appeal to the Ontario Court of Appeal, arguing that the Divisional Court had misapplied the causation step of the SABS accident test.
The Court of Appeal dismissed the motion for leave to appeal, reaffirming the framework set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA) , which governs leave from Divisional Court decisions, including the following key principles:
- Not a question of fact alone: Leave to appeal will only be granted where the proposed appeal raises a question that is not purely factual. It must involve a question of law or mixed fact and law.
- Decisions are intended to be final: The Divisional Court is intended to serve as the final arbiter in most statutory and administrative appeals. Appeals to the Court of Appeal from such decisions are the exception, not the norm.
- Public importance or legal significance: For leave to be granted, the issue should involve:
- The interpretation of a statute or regulation (provincial or federal)
- The clarification or development of a general rule or principle of law
- The interpretation of a municipal by-law or agreement where the issue is of public importance.
- Broader jurisprudential impact: For leave to be granted, the appeal should have potential implications beyond the immediate parties. For example, it should raise a legal issue that could affect the development of Ontario law more broadly.
- Interests of justice / special circumstances: In some cases, leave may be granted to correct a significant error or where special circumstances justify appellate intervention.
The Court of Appeal also clarified that its recent comments in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (CanLII) did not alter the Sault Dock principles but merely provided a more detailed analytical lens for assessing leave applications.
Ultimately, the Court of Appeal emphasized that the dispute between Ms. Davis and Aviva was fact-specific and did not raise an arguable question of law or mixed fact and law that would warrant appellate intervention. Leave to appeal was denied.
Key Takeaways
This decision, or line of decisions, reinforces the Divisional Court’s broader interpretation of the definition of accident under the SABS and signals the Court of Appeal’s reluctance to revisit fact-driven determinations absent a clear legal issue. For plaintiff’s counsel, Davis affirms that proximity to the vehicle and preparatory actions – like unlocking the car – can satisfy the causation element of the SABS test.
In addition, it serves as a cautionary note: while insurers may technically be permitted to raise threshold or preliminary issues late in the process, doing so risks judicial scrutiny – particularly where the delay may prejudice the applicant or undermine the integrity of the dispute resolution process. It also reinforces the importance of early and transparent communication regarding coverage positions.
