Novel Case – When is an accident a motor vehicle accident
Note: The author wishes to thank Josh Nightengale for his research efforts on this topic.
When you are injured in a motor vehicle accident, you must apply to your automobile insurer for what are called accident benefits. These benefits provide you, at a minimum, with medical and rehabilitation benefits and/or a weekly benefit. In order to recover benefits under your policy of insurance, you must be in an incident in which the use or operation of an automobile directly causes an impairment (s. 3(1) of the Statutory Accident Benefit Schedule).
The foregoing is never really an issue as most people in an accident are either a driver, passenger or pedestrian. However, what if you exit from your car and are injured? What is you open your trunk, get your bag out of it, close the trunk and, in the process of closing the trunk, you slip on an accumulation of ice? Would you consider then to be use or operation of an automobile? Of course, the answer is never straight forward and will always depend upon the facts surrounding each case.
The first step in determining this is whether “the accident result(s) from the ordinary and well-known activities to which automobiles are put?” This branch of the test requires the use or operation of the vehicle to be involved in the incident (Amos v. Insurance Corp. of British Columbia,  3 S.C.R. 405, at para 20).
The ‘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 (Seale v. Belair Insurance Co.  O.F.S.C.I.D. No. 8, at para 24.) Thus, under the present definition of ‘accident’, the use or operation of a motor vehicle does not automatically end when one leaves a car (Webb v. Wawanesa Mutual Insurance Co.  O.F.S.C.D. No. 102, at para 40).
The ‘purpose test’ will be satisfied when the vehicle in question is being used or operated in a manner that is consistent with the ordinary use and well-known activities of vehicles. The test is to be applied in a contextual manner (North Waterloo Farmers Mutual Insurance Co. v. Samad 2018 ONSC 2143, at para 53).
The second step to consider is what is known as the “causation test.” This step is where the use or operation of an automobile directly causes the impairment (Chisholm v. Liberty Mutual Group (2002) 60 O.R. (3d) 776 (Ont. C.A.) , at para 14).
In answering the second branch, the court (Greenhalgh v. ING Halifax Insurance Co.  O.J. No. 3485, at para 12) has provided useful considerations that may provide guidance in ascertaining whether or not the use or operation of an automobile directly causes the impairment:
- The ‘but for’ test can act as a useful screen;
- In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
- In other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”.
- The Courts have adopted the definition of ‘direct cause’ set out in Black’s Law Dictionary: “The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.” (Chisholm v. Liberty Mutual Group (2002) 60 O.R. (3d) 776 (Ont. C.A.) , at para 30).
An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car – if it is ‘part of the ordinary course of things.” (Chisholm v. Liberty Mutual Group (2002) 60 O.R. (3d) 776 (Ont. C.A.) , at para 29).
‘Direct cause’ does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim’s injuries, but one of the direct causes must be the use or operation of a motor vehicle (Correia v. TTC Insurance Co.  O.F.S.C.I.D. No. 106, at para 35).
Time, proximity, activity and risk are all relevant factors in determining the causal connection between the use or operation of the automobile and the injury (Saad v. Federation Insurance Co. of Canada  O.F.S.C.D. No. 3, at para 12).
If you have ever been involved in an accident while exiting your car, it is possible that you may be entitled to medical benefits under your automobile policy. Although entitlement is never certain as the issue are fact driven, it is imperative that you consult with a lawyer to discuss your rights.
Written by Tullio D’Angela and Joshua Nightengale