Stopping a slippery slope: Ontario Divisional Court clarifies auto insurance coverage only applies to direct causes of injury – Insurance


Canada: Stopping a slippery slope: Ontario Divisional Court clarifies auto insurance coverage only applies to direct causes of injury

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The extent to which automobile insurance policies apply to incidents is often a question of causation: did the use or operation of the vehicle directly cause the claimant’s loss? The Ontario Divisional Court at Porter c. Aviva Insurance Company of Canada 1 recently examined this issue in the context of injuries caused by slipping and falling in icy conditions. He clarified that despite the conclusion of a “without” causation the injuries caused by walking towards an automobile did not count as “the use or operation of an automobile”, from which benefits of car insurance could be obtained.

Facts

The complainant called a Lyft carpool to take her from her parents’ house to a medical appointment. The car stopped halfway in the driveway of the house, which was icy and not cleared. The complainant touched the hood of the car to steady herself on the ice as she approached, then fell and injured her leg. She filed a claim with her auto insurer Aviva Insurance Company of Canada (“Aviva“) for benefits under the Statutory Accident Benefits Schedule2 (“SABS“).

Aviva denied her claim, saying the incident was not considered an “accident” under SABS. The plaintiff appealed to the License Appeal Tribunal (the “LAT“), which ruled in its favour. Aviva asked the LAT to reconsider its decision and it affirmed its previous decision. Aviva then appealed to the Divisional Court.

Analysis

The Divisional Court found that the SABS did not cover the plaintiff’s injuries. A two-part test determines whether an incident qualifies as a covered “accident” under SABS:

  1. Did the incident occur while using or driving a car?

  2. Did this use or driving of an automobile directly cause the impairment?

The Divisional Court disagreed with the LAT’s finding that the use and driving of the car was a direct cause of impairment under the second part of the test. Although he concluded that the plaintiff had passed the “without” test (determining whether the accident would have occurred in the absence of the car), this was insufficient to fully determine causation. Instead, he concluded he needed to determine the direct cause of the crash, which in this case was the icy driveway. The fact that the plaintiff came to the scene of the incident because of the car was not in itself sufficient to establish a causal link. The Divisional Court found that, “at best,” the plaintiff’s use and operation of the car was incidental to her injuries.3

Key points to remember

This decision qualifies the application of insurance benefits under the SABS and provides clear legal guidance:

  • Motor insurance only covers motor vehicle incidents involving damage if they meet the SABS definition of an “accident”.

  • SABS will not cover injuries caused by the indirect “use or operation” of automobiles.

  • “Without” causation alone is not always sufficient to show that the use or driving of an automobile directly caused an “accident” covered by SABS. Instead, the question is whether the plaintiff’s use or driving of the car directly caused the plaintiff’s loss.

Footnotes

1 2021 ONSC 3107 [Porter].
2 O Reg 34/10 made under the Insurance Act, RSO 1990, c I.8.
3 Porter, supra note 1 at para 16.

The above provides an overview only and does not constitute legal advice. Readers are cautioned not to make any decisions based solely on this material. Rather, specific legal advice should be obtained.

© McMillan LLP 2021

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