P.H. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-010205/AABS

Full Decision

Counsel for the Applicant – Steven Arie Glowinsky

In P.H. and Aviva Insurance Company of Canada (2020 ONLAT 18-010206/AABS), the Licence Appeal Tribunal (LAT) decided in favour of the Applicant, who was injured when she fell through a gap in between her house and her backyard patio after the latter had been detached as a result of a motor vehicle that struck it moments before her fall. The Respondent, Aviva Insurance Company of Canada, denied the Applicant’s Application for Accident Benefits (OCF-1) on the grounds that the incident which led to her injuries was not considered an “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (hereinafter referred to as the “SABS”). Section 3(1) defines an “accident” as

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.

It is the discussion of “the use or operation of an automobile” which was in issue in the Applicant’s claim and remains in issue in so many situations analogous to it.

The facts of the case are simple, but unique. The Applicant was sitting on her couch in her home when she heard a loud bang and felt her home shake. She knew that the sound and movement originated from her backyard, so she set out to investigate what had transpired. Upon arriving at the door that leads from her kitchen to her backyard patio, she observed that a motor vehicle had been driven into her backyard patio. What she was unable to observe at that point, because her eyes were fixated on the motor vehicle collision, was that her backyard patio had become detached as a result of the impact and had shifted away from her home, creating a gap where she would ordinarily take her first step to exit her kitchen onto the patio. As she took that step, still with her eyes fixated on the motor vehicle that had struck her patio, she fell to the ground where her patio had formerly been located. When she fell, she fractured her ankle.

In order to be successful in substantiating that the above-noted incident constituted an “accident” for the purpose of the SABS, the Applicant was required to satisfy the purpose test and the causation test. The former is intended to determine whether the accident resulted from the ordinary and well-known activities to which automobiles are put. The latter is intended to determine whether there is a causal relationship between the claimant’s injuries and the ownership, use, or operation of the motor vehicle or whether the connection is merely incidental. In other words, the causation test, which many analogous claims fail, seeks to determine whether there was an intervening act that resulted in a claimant’s injuries that cannot be said to be part of the “ordinary course of things”.

In her decision, Adjudicator Hans provided an excellent and comprehensive discussion, framework, and analysis of relevant factors to be considered in making determinations regarding the purpose and causation tests, as well as providing explanations and recitations of the seminal case law considered in these analyses (and why the cases referenced by counsel for the Respondent were not persuasive).

Adjudicator Hans agreed with the Applicant in stating that she met the purpose test because the motorist operating the motor vehicle that struck the Applicant’s patio was in the process of operating a motor vehicle at the time – albeit negligently. Quite obviously, Adjudicator Hans said, “operating a motor vehicle is an ordinary and well-known activity to which automobiles are put.”

Adjudicator Hans found that the Applicant met the causation test because “there was a direct causal link between the use and operation of the vehicle and the applicant’s injuries”. In support of her decision, Adjudicator Hans discussed the Ontario Court of Appeal’s decision in Greenhalgh v. ING Halifax Insurance Company, which helps guide a trier of fact to determine whether the causation test is met by considering a) whether the “but for” test is met; b) whether an intervening cause broke the link of causation where the intervening event(s) are not part of the ordinary course, use, or operation of a motor vehicle; and c) whether the use or operation of the automobile was the dominant feature of the incident. The Respondent conceded that the Applicant met the “but for” test, but took the position that the Applicant did not meet the intervening act consideration. Adjudicator Hans disagreed. At paragraph 31 of her decision, she held:

The evidence before the Tribunal establishes that the automobile was a direct cause of the applicant’s injuries and there was no intervening act. I note that the space between the applicant’s back patio and her house, through [sic] which she fell, existed as a direct result of the vehicle colliding with the back patio of her residence. Further, there is no requirement that the injury occur while the insured has physical contact with the vehicle or that it can only occur while the vehicle is in active use. I find that her injuries were a direct result of the use of a motor vehicle which impacted her residence’s back patio, leading her to hear a loud noise and feel her house shake, leading her to investigate and fall. I agree with the applicant that this was an unbroken chain of events involving the use or operation of an automobile leading to an injury. I find there is no break in the link of causation.

The Respondent relied on multiple cases in which the claimant tripped and/or slipped after the use or operation of a motor vehicle had come to an end. However, in language that is quite favourable to insureds in situations analogous to that of the Applicant in the herein claim, Adjudicator Hans stated at paragraph 34:

Even if I were to find that [the Applicant] slipped or tripped, which I do not, I still would not find that this was sufficient to constitute an intervening act given the unbroken chain of events present in this matter.

In essence, Adjudicator Hans found the Respondent’s definition of an “accident” to be too narrow.

Adjudicator Hans also distinguished the claim at bar from Director Delegate Evans decision in Shah v. Primmum Insurance Company, in which the Applicant, Shah, was awoken by his son to learn that his other son had been struck by a motor vehicle outside the family home. In that claim, however, Shah did not see, hear, or feel the impact of his son’s motor vehicle accident and so when he ran down the stairs to tend to his son and fell down those stairs, thereby injuring himself, Director Delegate Evans held that the incident did not constitute an “accident”. In the claim at bar, however, the Applicant did hear and feel the impact of the motor vehicle’s collision with her backyard patio, which is a critical consideration in Adjudicator Hans’ analysis. Adjudicator Hans also commented that the accident at bar was most analogous to the one in Grewal v. Dominion of Canada General Insurance Company, where the Applicant was present in his home when he heard a loud noise and felt his home shake as a result of a motor vehicle having driven into a wall of his home. Concerned, Grewal ran towards his stairs and fell down the stairs, thereby injuring himself.

Lastly, the Respondent contested that the Applicant met the “dominant feature” consideration, but Adjudicator Hans confirmed at paragraph 38 that “the use and operation of the car was the dominant feature of the incident that caused the applicant to fall and sustain injuries”, as opposed to the Applicant’s slip and fall on the patio and/or the Applicant’s failure to take inventory of her surroundings being the dominant feature, as suggested by the Respondent.

On account of the LAT’s decision, the Applicant was permitted to advance her accident benefits claim as against her automobile insurer, Aviva Insurance Company of Canada.

This decision, while involving a unique fact pattern, provides further and important clarity on what unusual events will, nonetheless, constitute an “accident” for the purpose of section 3(1) of the SABS, which seems to be a target in constant state of flux as novel fact patterns arise (and LAT Adjudicators seemingly and frustratingly contradict one another). Nonetheless, Adjudicator Hans’ comments, especially those pertaining to falls subsequent to the use or operation of a motor vehicle at paragraph 34, may be of tremendous value to an insured’s claim.

Written by

Steven Arie Glowinsky was called to the Ontario Bar in 2010 and is the Founder and Principal Lawyer at Glowinsky Law in Toronto, ON.