With winter on its way, parking lots, walkways, and driveways will soon be covered in snow and ice.
In the case of a car accident on icy roads, you will have access to automobile accident benefits through your automobile insurer. Accident benefits can provide various benefits including income replacement, medical and rehabilitation, attendant care, or non-earner benefits. But what happens if you slip or fall on ice when you are walking towards your car in a parking lot or your driveway, when you are entering or exiting your car, or when you are opening or closing your trunk? Are you eligible to receive accident benefits? The answer is “possibly.”
Statutory Accident Benefits Schedule (SABS): Who Is Entitled to Benefits?
The Statutory Accident Benefits Schedule (“SABS”) states that an individual is entitled to accident benefits if they sustain injuries in an automobile accident. The SABS defines “accident” as an incident where the “use and operation of an automobile directly caused an impairment.”
Two-Part Test to Determine if there was an “Accident”
In determining whether there was an “accident”, a two-part test applies. The first part of the test, the purpose test, asks whether the incident “arose out of the use or operation of an automobile”. It involves determining whether the incident involved the “ordinary and well-known activities to which automobiles are put”. The second part of the test, the causation test, asks whether the use or operation of an automobile directly caused the impairment for which benefits are claimed. At this stage of the test, an adjudicator is required to determine if the incident would have occurred under the following circumstances:
a. “but for” the use or operation of the automobile;
b. whether there was an “intervening act” that could not be said to be part of the ordinary course of the use or operation of the automobile; and
c. whether the use or operation of the automobile was the dominant feature.
Recent LAT decisions have found slip and falls to be an “accident”
There are a number of recent cases adjudicated before the License Appeal Tribunal (“LAT”) that have considered whether a slip and fall on ice is an “accident.” The results have been inconsistent and are fact dependent.
For example, in Davis v Aviva (2024 ONSC 3054), Ms. Davis slipped and fell on black ice in a parking lot. At the time, she walked towards her car with her key fob in her hand to open the door. She injured her left shoulder and her insurer, Aviva, initially accepted her accident benefits claim and paid out certain benefits. However, the benefits were ultimately denied, and she commenced an application with the LAT.
LAT Decision on Slip and Fall: Key Fob and Proximity to the Vehicle
Aviva brought a motion to challenge whether Ms. Davis was injured in an “accident.” The LAT dismissed Ms. Davis’s application on the basis that she was not involved in an “accident.” Adjudicator Kaur found that Ms. Davis’s injuries were caused by an intervening cause—the ice on the ground—and were not the result of the use or operation of her vehicle. The decision was upheld on reconsideration. However, on appeal to the Divisional Court, the LAT’s decision was overturned. The Court found that the black ice Ms. Davis slipped on was not an intervening cause or event. Because Ms. Davis had the electronic key fob in her hand to open and enter her car, which was part of the use of a motor vehicle, the fall was connected to the direct use of her car. Further, the Court noted “she was so proximate to completing that entry” that her leg came to rest under the front wheel on the driver’s side.
Case Example: Cleaning Your Vehicle and Falling on Ice
Similarly, in Jeanneault v Jevco Insurance (2024 CanLII 72666 (LAT)), Ms. Jeanneault was washing her vehicle’s windows at a gas station. While walking in front of her vehicle, she slipped and fell on ice. Her application for accident benefits was denied and she applied to the LAT to determine whether the incident was an “accident.” The adjudicator held that the purpose test was met. The incident arose out of the ordinary and well-known activities for which automobiles are put—cleaning a vehicle’s windows. The adjudicator also found that the causation test was met. The slip and fall was not an intervening act that broke the chain of causation. Rather, Ms. Jeanneault was actively engaged in cleaning her vehicle with the squeegee in hand and was in close proximity to her vehicle such that she made contact with the vehicle in her fall. The slip and fall was found to be an “accident” under the SABS.
What Do These LAT and Superior Court Decisions Mean for Accident Benefits?
Recent LAT and Superior Court decisions suggest that if you slip and fall in close proximity to your vehicle, with your key fob in your hand, and/or with your arm or leg under or touching a vehicle, you will likely have been found to be in an “accident” and will qualify to receive accident benefits. Each case is fact specific, however, and you should obtain legal advice.
Contact Wallace Smith Lawyers for Help with Your Accident Benefits Claim
If you’ve been injured in an accident near your vehicle and are unsure whether you qualify for accident benefits, the experienced team at Wallace Smith Lawyers can help guide you through the process. Contact us today for a consultation and get the legal support you need to secure the benefits you deserve.
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