Does slipping on ice next to a vehicle come within the definition of accident under Ontario's statutory accident benefits scheme?
Ok Stop. Collaborate and, ummmmm .....read. The Divisional Court has weighed into the (Ice) Age-old debate of whether an incident was an accident.
In Porter v Aviva, the claimant called a Lyft car to pick her up from her parents' home. It was January. A cold Canadian Winter. A stormy day with freezing rain, ice, and an accumulation of snow. Like a scene from Frozen.
There was a lot of ice on the driveway. It had not been shoveled.
The Lyft car arrived and parked less than half-way up the icy driveway. The claimant left the house and started walking toward the vehicle. She put her hand on the hood of the car to stabilize herself on the ice.
Unfortunately, she slipped on the ice and fell before she was able to get into position to open the car door. She sustained injuries.
The claimant applied to Aviva for accident benefits. Aviva denied her claim on the basis that she was not involved in an accident, which the policy defines as "an incident in which the use or operation of an automobile directly causes an impairment..."
The License Appeal Tribunal sided with the claimant and found that the incident was an accident. The crux of that finding was that the use or operation of the Lyft car (i.e., driving and stopping on the icy driveway) was a direct cause of the claimant's fall.
In a unanimous decision, the Divisional Court disagreed with the LAT and allowed the appeal, finding the claimant was not in an accident. The Court found that the LAT conflated the but for test with the direct causation test:
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."
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.
The Court concluded that the location of the car in the driveway could have been a cause of the fall and injuries, but the use and operation of the car did not directly cause her injuries.
These cases always turn on their facts1. Had the claimant slipped and fallen moments later, as she was getting into the vehicle, perhaps the result would have been very different. We will leave that thought for another day. The SABS never bothered me anyway.
See Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (CanLII.
1. To explore further, see my book: Auto Insurance Coverage Law in Ontario 2nd Edition (2021).
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