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Slip and Fall Claims - What Is the Threshold

February 15, 2022

Ontario

,

Canada

Issue

Is the statutory deductible applicable to slip and falls that occur when the plaintiff is exiting a vehicle?

Conclusion

Section 267.5 of the Insurance Act limits the liability of the owner of an automobile, the occupants of an automobile, and any person present at the incident for loss or damage from bodily injury "arising directly or indirectly from the use or operation of the automobile" to situations of death, serious disfigurement, or serious impairment of an important physical, mental or psychological function. This is referred to as the "threshold" for motor vehicle injury cases. (Insurance Act)

In general, the law for slip and fall claims is not affected by s. 267.5 of the Insurance Act. Section 267.5 of the Insurance Act does influence motor vehicle accident non-pecuniary claims. (Farhat v Monteanu)

However, "use or operation" extends well beyond driving a vehicle, and includes, for example, loading, unloading and delivering cargo, fuel delivery, refueling, changing a tire, and repair and maintenance. Injuries sustained while getting into or out of a vehicle have generally been found to be motor vehicle injuries. The outcome is more uncertain where the plaintiff had stepped away from the vehicle at the time of the incident, but this is by no means determinative. Use or operation of the automobile generally continues while the person gets out of the car or off the bus, as long as physical contact is maintained. The result is less clear once the person moves away from the automobile. Cases on the margin turn on a number of factors, including whether the peril or the mechanism of injury relates to use or operation of the automobile. (Seale v. Belair Insurance Co.)

A two part test is applied in interpreting "use or operation of a motor vehicle":

1. Did the accident result from the ordinary and well-known activities to which automobiles are put (purpose test)?

2. Is there some nexus or causal relationship between the Plaintiff's injuries and the use or operation of the motor vehicle, or is the connection between the use and operation of the vehicle merely incidental or fortuitous (causation test)? ( Hachey-Tweedle v. Trillium Funeral Service Corp.)

In Hachey-Tweedle v. Trillium Funeral Service Corp., the plaintiff parked her vehicle in the parking lot of the defendant funeral home. She slipped and fell in the icy parking lot while exiting her vehicle and commenced an action for damages suffered as a result of her fall. The defendant brought a motion for a determination on a matter of law, asking the Court to determine whether the plaintiff's injuries arose "directly or indirectly from the use or operation of a motor vehicle." Zalev J. found that the incident did arise from the use or operation of a motor vehicle and, as a result, allowed the defendant to amend its pleadings to include a claim that the plaintiff had failed to meet the requisite threshold test for making a claim for non-pecuniary loss, pursuant to s. 267.5(5) of the Insurance Act.

In Seale v. Belair Insurance Co., a driver's vehicle became stuck on an icy road and a passerby offered to help her get it moving. The passerby got into the vehicle and before the driver could push the vehicle, it started sliding sideways down a hill and became lodged in another snowbank. The driver started walking down the hill towards her vehicle when she slipped and fell, breaking her arm. The arbitrator found that the driver was injured in an "accident" for the purposes of the Statutory Accident Benefits Schedule. This finding was appealed to the Financial Services Commission of Ontario (Appeals Division). Makepeace Dir. Delegate determined that the arbitrator did not err in finding that the driver's use or operation of her vehicle, namely, her efforts to extricate her vehicle from a road hazard, was directly responsible for her injury.

Law

Section 267.5 of the Insurance Act, RSO 1990, c I.8 provides in part:

267.5 Protection from liability
267.5(1) Income loss and loss of earning capacity
Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile:

1. Damages for income loss suffered in the seven days after the incident.

2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of,

i. 80 per cent of the net income loss during that period, as determined in accordance with the regulations, if the incident occurred before September 1, 2010, or

ii. 70 per cent of the amount of gross income that is lost during that period, as determined in accordance with the regulations, in any other case.

267.5(2) Application
Subsection (1) applies to all actions, including actions under subsection 61(1) of the Family Law Act.

267.5(3) Protection from liability; health care expenses
Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

[...]

267.5(5) Non-pecuniary loss
Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

In Hachey-Tweedle v. Trillium Funeral Service Corp., 1999 CarswellOnt 839 (Westlaw), the plaintiff parked her vehicle in the parking lot of the defendant funeral home. She slipped and fell in the icy parking lot while exiting her vehicle and commenced an action for damages suffered as a result of her fall. The defendant brought a motion for a determination on a matter of law, asking the Court to determine whether the plaintiff's injuries arose "directly or indirectly from the use or operation of a motor vehicle." Zalev J. found that the incident did arise from the use or operation of a motor vehicle and allowed the defendant to amend its pleadings to include a claim that the plaintiff had failed to meet the requisite threshold test for making a claim for non-pecuniary loss, pursuant to s. 267.5(5) of the Insurance Act:

7 "Use or operation of a motor vehicle" — the leading case is the judgment of the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia (1995), 127 D.L.R. (4th) 618 (S.C.C.). Major J. reviewed the previous case law and held that two tests had been established in determining whether the accident arose out of the ownership, use or operation of a motor vehicle. A "purpose test" was established by Reliance Petroleum Ltd. v. Stevenson (1956), 5 D.L.R. (2d) 673 (S.C.C.) and the "chain of causation" test was established by Law Union & Rock Insurance Co. v. Moore's Taxi Ltd. (1959), 22 D.L.R. (2d) 264 (S.C.C.). Major J. concluded that a two part test is to be applied in interpreting "use or operation of a motor vehicle". Firstly, did the accident result from the ordinary and well-known activities to which automobiles are put? Secondly, is there some nexus or causal relationship between the Plaintiff's injuries and the use or operation of her motor vehicle, or is the connection between the use and operation of the vehicle merely incidental or fortuitous?

8 Ms. Henshaw submits that the closing of the vehicle door was an ordinary and well-known activity to which motor vehicles are put and that there is some nexus or causal relationships between the Plaintiff's injuries and the use or operation of her vehicle and that the connection is not merely incidental or fortuitous. As persuasive authority in support of her submission she relies on two Arbitrators' decisions under the Insurance Act.

9 In Gligoric v. Economical Mutual Insurance Co. (December 19, 1997) O.I.C. A96-001588 (Ont. Insurance Comm.) Gligoric was approaching his motor vehicle in a parking lot. As he reached out with his key to unlock the car door with his left hand he slipped and fell on some ice and was injured. Before falling he had not yet touched the car. Arbitrator M. Guy Jones had to determine if Gligoric was injured in accordance with an "accident" as defined in the Schedule to the Act as "an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device".

10 Arbitrator Jones applied the two part test set out in Amos (supra). He found that attempting to unlock a car door was an ordinary and well-known activity to which an automobile can be put and that the second part of the test was met. In the result he held that Gligoric was injured as a result of an accident as defined in the Schedule.

11 In Lynam v. Formosa Mutual Insurance Co. (January 18, 1996), Doc. A-010990 (Ont. Insurance Comm.), Lynam parked his van in an icy driveway. He shut off the engine and exited the van. It is not clear if he slipped on the outside stepboard of the van or on the ice on the driveway. He tried to grab the arm rest on the door but missed it. He fell on the ground and was injured. As the insurance company did not dispute that Lynam was injured exiting from his van the arbitrator, Shemin Manji Date, did not find it necessary to determine if Lynam slipped on the stepboard or on the ice on the ground. Following Amos (supra) the arbitrator held that the injury arose directly or indirectly from the use or operation of an automobile.

12 Mr. Goldstein says he was not able to quarrel with the rulings of the arbitrators.

13 Applying the two step tests set out in Amos (supra) the answer to question one is "yes".

In Seale v. Belair Insurance Co. , 2003 CarswellOnt 5452 (Westlaw), a driver's vehicle became stuck on an icy road and a passerby offered to help her get it moving. The passerby got into the vehicle and before the driver could push the vehicle, it started sliding down a hill and became lodged in another snowbank. The driver started walking down the hill towards her vehicle when she slipped and fell, breaking her arm. The arbitrator found that the driver was injured in an "accident" for the purposes of the Statutory Accident Benefits Schedule. This finding was appealed to the Financial Services Commission of Ontario (Appeals Division). Makepeace Dir. Delegate determined that the arbitrator did not err in finding that the driver's use or operation of her vehicle, namely, her efforts to extricate her vehicle from a road hazard, was directly responsible for her injury:

24 "Use or operation" extends well beyond driving a vehicle, and includes, for example, loading, unloading and delivering cargo,19 fuel delivery,20 refueling,21 changing a tire,22 and repair and maintenance.23

25 Injuries sustained while getting into or out of a vehicle have generally been found to be motor vehicle injuries.24 The outcome is more uncertain where the plaintiff had stepped away from the vehicle at the time of the incident, but this is by no means determinative. In Whitehead v. Whitehead, the plaintiff tripped over a chock block in her son's driveway shortly after getting out of a car. The issue was which insurer must pay her damages: her son's homeowner's policy, which indemnified him for occupier's liability, or the car owner's motor vehicle liability policy. The British Columbia Supreme Court held that the motor vehicle policy provided coverage. The driver had turned off the ignition, removed the key, opened the door, and alighted simultaneously with his mother. "She left her door open for her daughter and turned toward the house. She had taken no more than a step or two when she tripped over the block of wood." [para. 8]. The Court had "no difficulty with the proposition that loading and unloading are part of the use of a passenger vehicle," and rejected the argument that the plaintiff's use of the car was over once she got out "and had both feet on the driveway." [para. 16] While this "had a strong appeal initially," on reflection, the Court concluded "[t]his is not a case where somebody walked down the driveway." The plaintiff's son was found liable both as operator and occupier.25

26 Mrs. Seale relies on the decision of the Ontario Court of Appeal in Lefor (Litigation Guardian of) v. McClure, in which Justice Sharpe, writing for Borins and MacPherson JJ.A., held that Ms. Lefor's motor vehicle liability insurer was required to indemnify her for any damages suffered by her seven-year-old daughter, Netasha.26 Ms. Lefor, on her way to a concert, stopped her car across the street from her mother's house, where she planned to leave her children. With the engine running, she left the car to escort her children across the street. Netasha darted across the street and was struck by an oncoming car. The insurer relied on Law Union & Rock Insurance Co. v. Moore's Taxi Ltd., the leading Supreme Court of Canada "chain of causation" case prior to Amos.27 In that decision, on similar facts, the Supreme Court held that the taxi company's duty of care to the child passenger was separate and distinct from its duty of care with regard to use and operation of the vehicle. Therefore, the risk was covered under the company's comprehensive policy, which excluded "claims arising out of ... the ownership, use or operation ... of any motor vehicle." In Lefor, Justice Sharpe stated that the earlier decision "must be read in light of the more recent judgement of the Supreme Court of Canada in Amos ....":

I agree with the submission of the respondents that the amendment to the wording of the standard form motor vehicle liability insurance policy 1990 to provide coverage with respect to injuries arising "indirectly" as well as directly from the use or operation of a motor vehicle, strengthens their case. In view of that broad language and in view of the principles enunciated by the Supreme Court in Amos, supra, it is my view that the motions court judge correctly concluded that the accident arose from the ownership or directly or indirectly from the use or operation of Karen Lefor's motor vehicle. Netasha was being dropped off at her grandmother's house by her mother who was immediately proceeding in the automobile to a concert. Stopping vehicles to pick up and drop off passengers is an ordinary and well-known aspect of the use and operation of an automobile. There is a clear nexus, within the meaning articulated in the Amos case, between the use and operation of Karen Lefor's vehicle and Netasha's injuries. The automobile was stopped temporarily, its motor still running, to drop off Netasha. The accident occurred as a result of the use of Ms. Lefor's vehicle as a means of conveying passengers from one place to another. Ms. Lefor's decision to park her car on the opposite side of the road from her mother's house and leave it running while she and her children darted across the street placed Netasha in a situation of danger and triggered the sequence of events that resulted in Netasha's injuries. The alleged negligence of Karen Lefor after she left her vehicle does not preclude coverage as, on the authority of Amos, supra, the motor vehicle need not be the instrument of the injury, and injuries which do not arise from the negligent use of a motor vehicle may be covered: see Incerto v. Landry [citation omitted], per Lax J.: "The liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle ... where the use or operation of a motor vehicle in some manner contributes to the injury, there is an entitlement to coverage." [para. 8]

27 Justice Sharpe stated that Lefor was "clearly distinguishable" from the earlier decision of the Ontario Court of Appeal in Alchimowicz v. Continental Insurance Co. of Canada , where "the use of an automobile was a remote background fact."28 The issue in Alchimowicz was not, as in Lefor, the scope of the insurer's duty to indemnify under s. 239 of the Act, but the scope of the "accident" definition under the SABS-1990. The Court's brief reasons in that decision clearly focused on the unusual facts. After agreeing that "indirect" is broader than "direct," the Court said,

However, we do not agree that when a drunken person is driven to a beach site, leaves the car, and some 25 minutes later dives off a dock to sustain serious injuries, that this could be construed on any subtle variation of the facts at trial as an incident caused by the use or operation of a motor vehicle. As liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation.29

28 More helpful are the two extrication cases the Arbitrator relied on: Sklar v. Saskatchewan Government Insurance Office30 and Incerto Estate v. Landry.31 Mr. Sklar's car got stuck in a snowbank. A passerby helped him clear the snow from the rear of the vehicle, but the two men were unable to move the car. Mr. Sklar refused the helper's offer of a ride. He stayed with the car and tried to get it moving by rocking it back and forth. This only caused the rear tire to blow out and the wheel to dig a hole into the ground beneath the snow. The weather got worse, and he took shelter inside the car. Eventually snow piled up, blocking the exhaust pipe. He died from carbon monoxide poisoning, and was found the next day.

29 The Saskatchewan legislation provided accident benefits for loss resulting from bodily injuries sustained by an insured "directly, and independently of all other causes, through accidental means, ... provided that the bodily injuries are suffered as a result of ... driving, riding in or on, or operating a moving motor vehicle ...." Sirois J. held that Mr. Sklar "suffered an accident through getting stuck in the snowbank, while driving, riding in and operating a moving motor vehicle." [p. 472] He and the passerby "did the normal thing under the circumstances" by trying to free the car. Mr. Sklar's decision to continue with his efforts, and to remain in the vehicle

was not what caused his deat

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