Singh v Aviva Insurance Company: Bogoroch & Associates LLP Successfully Challenge Legal Precedent for Slip and Fall Plaintiffs

For some time, Adjudicators at the Licence Appeal Tribunal (“LAT”) have followed the 2021 Divisional Court case of Porter v Aviva Insurance Company of Canada as a bar to an Applicant’s claim for accident benefits in circumstances of a slip and fall due to ice while entering or exiting their vehicle. 

Yoni Silberman and Kevin Hale of Bogoroch & Associates LLP, on behalf of the Applicant, pursued a Preliminary Issues Hearing and Reconsideration to challenge this issue in the recently reported decision, Singh v Aviva Insurance Company, 2024 ONLAT 23-003500/AABS-R, and won. In the result, Vice-Chair Robert Maich decided that Porter does not preclude Applicants from accident benefits entitlement if they were involved in a slip and fall on ice while entering or exiting their vehicle. Vice-Chair Maich instead decided that the more recent 2023 Divisional Court case of Madore v Intact Insurance Company, the leading case, was binding on the LAT as argued by Bogoroch & Associates LLP.

The Applicant in Singh was involved in a slip and fall while in the process of entering his vehicle after dining at a nearby restaurant. First, he remotely started his vehicle while in the restaurant, and then he exited into the parking lot, walked to his vehicle, and slipped and fell with his hand outreached to open his vehicle’s door. The Respondent, Aviva Canada Inc., declined to accept his claim for accident benefits.

Those applying to receive accident benefits must have been involved in an “accident”. Pursuant to section 3(1) of the Statutory Accident Benefits Schedule (“SABS”), an “accident” means an incident in which the use or operation of an automobile directly causes an impairment. Determining whether an Applicant was in an “accident” requires use of a three-legged causation test set out in the Ontario Court of Appeal decision of Greenhalgh v ING Halifax Insurance Co., which requires consideration of the following:

1. A consideration of the “but for” causation test;
2. A consideration of any “intervening act” which may break the chain of causation; and
3. When faced with a number of possible causes, consideration of the “dominant feature” to determine what most directly caused the injury.

In Singh, the Preliminary Issues Hearing Adjudicator, Tavlin Kaur, erred in law by relying on Porter to decide that the Applicant was not involved in an “accident”. Bogoroch & Associates’ request for Reconsideration focused on the argument that Porter was specific to its facts and stood only for the proposition that adjudicators cannot conflate the “but for” causation test with the direct causation test. Until Madore, Porter had been the only Divisional Court case commenting on the application and interpretation of the causation test in this context. The Divisional Court in Madore, however, highlighted the “correct approach to the causation element under the Schedule…in many different factual scenarios”, and went on to outline a number of slip and fall cases where the causation test was properly applied and which constituted “accidents”.

Bogoroch & Associates argued that LAT decisions relying on Porter as a bar to slip and falls constituting accidents involved incorrect application of the law and improper reliance on Porter. Notably, the LAT decisions relying on Porter as a bar to slip and falls as “accidents” conflict with Madore, which outlined different slip and fall circumstances that constituted “accidents”. The cases cited within Madore were decided before Porter, and yet, the Divisional Court relied on these cases without applying Porter. Further, the Divisional Court in Madore did not even mention the Porter decision, reaffirming that it was specific to its facts and not applicable to all slip and fall cases involving motor vehicles. The cases cited within Madore and relied on by the Divisional Court were as follows:

1. C.K.D v Wawanesa Mutual Insurance:⁵ the Applicant was walking towards his vehicle and slipped and fell on ice just before grabbing the vehicle’s handle. The Adjudicator accepted that the Applicant fell while in the process of getting into his car. Further, the Divisional Court highlighted that the fall was directly caused by the purpose of entering the vehicle and the slip and fall was not an intervening act.
2. G.R. v Economical Mutual Insurance Company:⁶ the Applicant was removing snow from his vehicle when he slipped and fell while walking from the passenger’s side to the driver’s side. The Adjudicator held that the normal use or operation of the vehicle caused the impairment.
3. Saad v Federation Insurance Co. of Canada:⁷ the Applicant slipped and fell on ice while walking back to his vehicle from an air pump after filling his tires. The arbitrator noted that direct cause does not mean the only cause, that there was a sufficient nexus between the use and operation of the vehicle with an unbroken chain of events, and that the fall occurred while the Applicant was engaged in the ordinary activity of filling his car with gas and his tires with air.
4. Pinarreta v ING Insurance Co. of Canada:⁸ the Applicant slipped on a snowbank while getting off a bus. The Adjudicator found that the use or operation of the automobile caused the impairment and that the snowbank, even if it was an intervening force, did not break the link of causation because it is part of the ordinary course of things that bus passengers will have to attempt disembarking in all manner of weather conditions.
5. VB v Economical Insurance Company:⁹ the Divisional Court agreed with the Adjudicator in this case that “… slipping and falling while getting out of a vehicle is a reasonably foreseeable risk of operating a motor vehicle. Slipping and falling on ice was not an intervening event outside the ordinary course of the use or operation of the vehicle capable of breaking the chain of causation.”

Vice-Chair Maich agreed with the arguments of Bogoroch & Associates, and decided that Porter stands for the proposition that the “but for” test cannot be conflated with the direct causation test, and not the proposition that a slip and fall on ice is necessarily an “intervening act”. Vice-Chair Maich went on to find that a slip and fall in the presence of ice while entering or exiting a vehicle does not meet the test of an “intervening act” as a break in the chain of causation and that Adjudicator Kaur erred in law in the application of the test. This aligns with the reasoning of the Divisional Court in Madore, and further clarifies that Porter was decided specific to its facts and does not act as a bar to a slip and fall on ice while entering or exiting a vehicle constituting an “accident” pursuant to the SABS.

Unfortunately, there are a number of LAT decisions following Porter that have disentitled Applicants to accident benefits with what is now confirmed by the LAT as an improper reliance on Porter. Madore is a welcome addition to this area of law by the Divisional Court, and one which is binding on LAT adjudicators and must be followed. Vice-Chair Maich has confirmed this in the present case.

In a system plagued by delay, the Singh case as well as Madore provide some measure of security that Applicants in certain circumstances may indeed be entitled to accident benefits, and access to immediate, reasonable and necessary medical and rehabilitation, and other benefits such as income replacement and attendant care, depending on the nature of their injuries. 

¹ 2021 ONSC 3107 [Porter].

² Madore v Intact Insurance Company, 2023 ONSC 11 [ Madore].

³ 2004 CanLII 21045 (ON CA).

⁴ Madore at para 37.

⁵ 2020 CanLII 80305 (ON LAT).

⁶ 2019 CanLII 122726 (ON LAT).

⁷ 2003 ONFSCDRS 66 (CanLII).

⁸ 2005 ONFSCDRS 162 (CanLII).

⁹ 2020 CanLII 87992 (ON LAT).

¹⁰ Madore at para 42.