Two recent decisions from the Financial Services Commission of Ontario (FSCO) have dealt with determining whether or not the Applicants were involved in an “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS). In one case, Miles Stolove was helping a friend move things from a storage facility when one of the large, metal storage facility garage doors fell on him. In the other, Ronalee Porter had been shopping at a nursery, loaded her car with her purchases and was in the process of returning the cart to the corral when an employee came over to take the cart from her. As she turned to go back to her vehicle, with the car fob in her hand, she was caught up in some strapping on the ground and fell. The two arbitrators that heard these cases came to the same conclusion: neither applicant had proven that the injuries they sustained were directly caused by the use or operation of an automobile.
In Mr. Stolove’s case, the arbitrator found that the incident arose from an ordinary use to which automobiles are put (loading/unloading goods), however, the impairments were not “directly” caused by the use or operation of an automobile, but instead, the falling garage door was an intervening event that broke the chain of causation. The use of the automobile was too remote, in this case, to be a dominant feature in the incident.
Similary, in Ms. Porter’s case, the arbitrator found that there was no direct causation between the use of her automobile and her trip and fall incident as a result of getting caught up in the strapping. Further, her automobile was not the dominant feature in the fall, the strapping was. Taking this case another step further though, the arbitrator also found that Ms. Porter’s fall did not arise from an incident involving the use or operation of an automobile either. Arbitrator Schnapp found that there was no evidence that Ms. Porter was in the process of unlocking her vehicle when she fell and in fact when she described the fall early on there was no mention of her vehicle at all. On the facts before him, the arbitrator felt that he could not find that the incident involved the use or operation of a motor vehicle.
These decisions appear to be a step in the right direction for auto insurers where only ancillary use of a vehicle is at play. Perhaps these decisions were swayed by the fact that other coverage or recourse was available to the applicants (the arbitrator notes in the Stolove case that a negligence claim was being made against the storage facility). In any event, a tightening up of both the purpose and causation tests seems to be underway and I’m sure to most auto insurers is most welcome.