Tribunal erred in conflating ‘but for’ test with direct causation test: Divisional Court

Dominant factor causing respondent’s injuries is icy, snow-covered driveway, court says

Tribunal erred in conflating ‘but for’ test with direct causation test: Divisional Court
Woman who slipped and fell on icy driveway files claim under Statutory Accident Benefits Schedule

The Divisional Court of Ontario has agreed with an insurer’s decision to deny an injured person’s claim, on the basis that the incident did not fall under the meaning of an accident under the Statutory Accident Benefits Schedule.

Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 involved a slip-and-fall incident. In January 2019, the respondent was walking toward a car, which was booked via a ridesharing company and parked less than halfway up the icy and unshoveled driveway at her parents’ house. She touched the car’s hood to stabilize herself on the icy ground, but before she could get into a position to open the car door, she slipped and fell and broke her leg.

The appellant insurance company, which insured the car, denied the respondent's claim under the Statutory Accident Benefits Schedule, O.Reg 34/10, a regulation made pursuant to the Insurance Act, RSO 1990, c I.8, on the basis that what occurred was not an accident as defined in s. 3(1) of the Schedule. The respondent applied for adjudication at the License Appeal Tribunal.

The License Appeal Tribunal decided in the respondent’s favour, finding the respondent’s injury directly resulted from an accident under s. 3(1) and was attributable to two direct causes: first, the icy and snow-covered driveway and, second, the use and operation of the car. The respondent would not have broken her leg “but for” or as a result of the car’s location in the driveway, said the tribunal, which confirmed this decision upon reconsideration.

The Ontario Divisional Court allowed the insurer’s appeal, set aside the tribunal’s reconsideration decision and issued an order that the respondent was not involved in an accident as defined in s. 3(1). The court cited the two-part test for determining whether there has been an accident, which consists of the causation test and the purpose test and which applied in both Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA). The court found that the tribunal committed an error in law when it conflated the “but for” test with the direct causation test.

“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,” wrote Justice Robyn Ryan Bell for the Divisional Court. “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.”

The court noted that, while it could be said that “but for” or as a result of the car’s location in the driveway, the respondent would not have slipped and fallen, this was not enough to amount to direct causation, given that the use or the operation of the car was not the direct cause, but only an ancillary cause at best. To be a direct cause, it was insufficient to show that the car brought the respondent to the location of the incident and that the car caused the respondent to be at that location when the incident happened.

The court ruled that the dominant factor that caused the respondent’s injuries was the icy and snow-covered driveway, and not the use or the operation of the car.

“Had the claimant slipped and fallen moments later, as she was getting into the vehicle, perhaps the result would have been very different,” wrote Daniel Strigberger of Toronto-based firm Strigberger Brown Armstrong LLP in a blog post discussing the case.

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