Davis v. Aviva General Insurance Co., 2024 ONSC 3054
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By: Alexandre Doucet
This appeal stems from a slip-and-fall accident where Carrie-Anne Davis (“Appellant”) fell on black ice in a parking lot on November 22, 2017. The Appellant claimed accident benefits under her policy with Aviva General Insurance Company (“Respondent”), and the claim as it related to certain accident benefits was accepted by the Respondent in January 2019 while other benefits were denied.
The Appellant turned to the Licence Appeal Tribunal (“LAT”) to dispute the benefits the Respondent denied. Prior to the hearing on the substantive issues of her claim, the LAT considered a preliminary issue; whether the Appellant was injured in an “accident” within the meaning of s. 3(1) of the Statutory Accidents Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”). In that section, “accident” was defined as an “incident in which the use or operation of an automobile directly causes an impairment”. Adjudicator Kaur of the LAT applied the Court of Appeal’s two-part test set out in Chisholm v. Liberty Mutual Group (2002) CanLII 45020 (ONCA) to determine whether the slip and fall was a direct result of the use or operation of a vehicle.
The first part of the test involved a determination of whether the incident “arose out of the ordinary and well-known activities to which automobiles are put.” The Respondent conceded that this incident satisfied that purpose [para 30]. The second part of the test involved a causation analysis to determine whether the use of an automobile – the “ordinary and well-known activities” –had caused the Appellant’s injuries. Adjudicator Kaur found that there was no legal causation as the ice on the ground was an intervening cause that broke the chain of causation [para 33]. In other words, the Appellant’s injuries were not directly caused by the use or operation of an automobile and instead could be attributed to the black ice at the scene.
The Appellant subsequently appealed again through s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, C. 12 (“LATA”) which permits the appeal of a LAT decision to the Divisional Court solely on a question of law. Justice Emery wrote for the court that the LAT’s interpretation of SABS was too narrow and that instead it should be interpreted generously to protect consumers and attempt to reduce economic hardships for accident victims [para 71]. Justice Emery found that Adjudicator Kaur’s analysis ignored growing jurisprudence which broadened the causation chain to include ice and slip-and-fall injuries within the purview of the operation of a vehicle [para 76-78, see also: North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (Div. Ct.)]. In summary, the simple act of ‘entering’ a vehicle was enough to be considered the operation of a vehicle. The Appellant’s use of a fob to unlock the door of her car further contributed to Justice Emery’s conclusion that the Appellant was operating her vehicle. Justice Emery therefore allowed the Appeal.
