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Insurance - Auto - Causation (2). Davis v. Aviva General Insurance Co.
In Davis v. Aviva General Insurance Co. (Div Court, 2024) the Divisional Court allowed an insured's LAT SABS appeal, here where the insurer paid several years of claims but then successfully denied coverage on the basis that there was no 'accident'.
Here the court considers whether there was an 'accident' for SABS purposes, tied as it often is with a detailed 'causation' analysis:[71] The view that the SABS should be considered as consumer legislation and therefore applied for the benefit of the consumer is as prevalent now as it was when Smith v. Co-operators was decided in 2002. It has been held consistently that the SABS must be interpreted generously as legislation that is remedial in nature. In keeping with the direction from the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at para. 42, leave to appeal refused, [2020] S.C.C.A. No. 7, the definition of “accident” under the SABS must be interpreted in a manner consistent with the substantive objective of reducing economic dislocation and hardship to victims of a motor vehicle accident.
[72] In 2002, the Court of Appeal reformulated the test for accident benefits coverage available to a claimant in Chisholm after the definition of “accident” in the standard automobile policy changed in 1996. In Chisholm, the plaintiff had been injured when he had been shot while in his car by an unknown assailant. He was insured for accident benefits under a policy written by the Liberty Mutual Group for rehabilitation and other statutory benefits if injured in an accident within the meaning of that term.
[73] Liberty Mutual brought a motion to determine a legal question before trial under r. 21.01(1) as the insurer. The motions judge held that the plaintiff had not been injured in an accident involving the direct use or operation of an automobile within the meaning of the term “accident” as defined under the SABS, but by the gunshot. Laskin J.A. wrote the following on behalf of the court at paras. 29 and 30:
[29] Put differently, even 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". See J.G. Fleming, The Law of Torts, 9th ed. (North Ryde, NSW: LBC Information Services, 1988) at p. 247. Gun shots from an unknown assailant can hardly be considered an intervening act in the "ordinary course of things". The gun shots were the direct cause of his impairment, not his use of his car.
[74] The Court of Appeal followed Chisholm with Greenhalgh two years later. The facts in Greenhalgh involved a young woman whose car had become stuck down a country road on a cold winter’s night. The young woman had left her car to walk back to some farmhouses she had seen earlier in her travels to seek help. While walking back in search of a farmhouse, she had become disoriented in the darkness and had strayed off the road. After nine or ten hours of wandering, the young woman had fallen into an ice-covered river and had lost her boots. As a result, she suffered severe frostbite that caused the loss of her fingers and amputation of her legs below her knees. The young woman claimed accident benefits from her insurer.
[75] The Court of Appeal in Greenhalgh took the opportunity to explain that the “direct cause” in the amended SABS after 1996 shortened the link between the use or operation of an automobile and the occurrence of the impairment. The underpinnings of this test was formulated by Laskin J.A. in Chisholm when he stated at paragraph 24:[24] That brings me to Chisholm's final submission, a submission that, in my view, goes to the heart of this appeal because it focuses on the meaning of "directly causes". Chisholm submits that the use or operation of his car is a direct cause of his injuries because he would not have been wounded unless he had been confined in his car. In substance, Chisholm contends that the direct cause requirement can be satisfied by the "but for" test of causation. But for being in his car he would not have been injured. I do not accept this submission. [76] The case of North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (Div. Ct.) was an application for judicial review of a decision of the (former) Financial Services Commission of Ontario regarding accident benefits coverage to the insured party. Justice Thorburn, writing at the time as a judge of the Divisional Court, neatly summarized the considerations to apply on the causation test:[12] What will amount to direct causation will depend 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”. (Greenhalgh paras 11 and 12) [77] The insured party in North Waterloo Farmers had exited his vehicle and had walked around it to the passenger side of the vehicle to close the rear door. He had his hand on the sliding door when he was shoved, slipped on the icy surface where he was standing and fell into a ditch. He made a claim for accident benefits, which was upheld by FSCO and the Divisional Court. At para. 13 in North Waterloo Farmers, Justice Thorburn states that:[13] There may be more than one direct cause; it is not necessary that all of the causes be part of the use or operation of the automobile. [78] A flexible approach must be taken for finding whether the use or operation of an automobile is a direct cause of an impairment to establish entitlement to accident benefits. An example of this flexibility was shown by the Divisional Court in Madore. In that case, the applicant had suffered grievous injuries from falling off the roof of his holiday trailer in the course of cleaning it. The trailer was attached to the applicant’s motor vehicle at all material times.
[79] The applicant subsequently claimed accident benefits from his insurer. On the standard wording of the statutory coverage for accident benefits, the Divisional Court ruled that the LAT had erred at law when it had rejected the claim for being outside the scope of the use or operation of a motor vehicle. The Divisional Court held that this accident had occurred within the definition of the term “accident” under the policy.
[80] As Justice Stewart wrote in Madore, “the link to be drawn therefore is between the “use and operation” of the automobile and the “impairment”. The applicant in Madore did not need to show a direct physical connection between the cause of the injury and an automobile to establish that he was injured in an “accident.”.
[81] Whether Ms. Davis was injured in an incident which was an “accident” within the meaning of s. 3(1) of the SABS is a question of law as it requires the proper interpretation and application of the correct legal test to the facts. In my view, Adjudicator Kaur’s conclusion on the application of the law to the facts was an error of law because she failed to find on the most recent authorities that Ms. Davis was injured during the direct use of her automobile. It is undisputed that she was holding the electronic key fob to open the car door, if she had not already done so, to enter the car and to operate it. This is an ordinary and well-known use to which an automobile is put.
[82] The black ice Ms. Davis slipped on was fortuitous, but not an intervening cause or event. This case is similar on the facts to the decision of the LAT in Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (Ont. L.A.T.), where the applicant had fallen and injured himself while loading his lunch bag into the trunk of his vehicle. He was neither walking towards, nor entering the vehicle to operate it at the time of the incident but he was still found to be injured in an “accident”. Seung was decided just five months before the appeal was heard, and to be fair to Adjudicator Kaur, approximately 18 months after the LAT decision under appeal.
[83] I agree with the adjudicator in Seung that the “slipped on ice” cases are divided into two camps. However, where there is a distinguishing fact from a slip and a fall like the injury in Porter and a series of events that connects the direct use of the car to the injury, ice will not have played the dominant role or served as an intervening event. This view is supported by the Divisional Court in North Waterloo Farmers as reasonable on judicial review and correct in law under the principles in Madore.
[84] Ms. Davis had the electronic key fob in her hand to open and enter her car, which is a part of the use of a motor vehicle. She was so proximate to completing that entry that her leg came to rest under the front wheel on the driver’s side. Referring to the reasoning in Seung, the presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of her fall, not the ice beneath her feet.
[85] On a correct application of the law, I would determine on this record that Ms. Davis sustained the impairment for which she applied for accident benefits from Aviva in an “accident” within the meaning of the SABS.
[86] In making that determination, this court would be exercising its authority on appeal to make any order or decision that ought to have been made by the tribunal appealed from: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(1). I recognize that when an appellate court allows an appeal, it generally remits the matter back to the tribunal for a rehearing, rather than determine the issue itself: see Pourshian v. Walt Disney Co., 2021 ONSC 4840 (Div. Ct.), at para. 38. However, in this case, I consider it appropriate for this court to determine this limited issue. I am satisfied that the record before this court is sufficient to permit this determination to be made. The fact that Aviva first raised the accident issue more than two years after accepting Ms. Davis’ claim is an important consideration in favour of doing so. I see no special advantage in remitting this issue back to the LAT for determination.
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