) ) Clayton Madore Appellant – v. –, 2023 ONSC 11

CITATION : Madore v. Intact , 2023 ONSC 11 DIVISIONAL COURT FILE NO.: 600/21 DATE: 20230103 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Matheson and Akhtar JJ. BETWEEN: ) ) Clayton Madore Appellant – and – Intact Insurance Company Respondent ) ) ) ) ) ) ) ) ) )) Brian M. Cameron and Jordan Kofman, for the Appellant Patrick Baker, for the Respondent ) ) )) HEARD at Toronto via Teleconference: June 22, 2022 REASONS FOR DECISION Stewart J.

Nature of the Appeal [ 1 ] The appellant Clayton Madore (“Madore”) appeals the decisions of Adjudicator Grant of the Licence Appeal Tribunal dated June 16, 2021 and January 21, 2022 which held that Madore’s fall from his insured camper trailer was not an “accident” as defined under the Statutory Accident Benefits

Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “

Schedule ”) and that he therefore is not entitled to claim or receive benefits pursuant to the no-fault automobile accident statutory regime. [ 2 ] Madore submits that his injuries were sustained in an “accident” as defined under the

Schedule and therefore the Adjudicator erred in denying him entitlement to claim and receive benefits. [ 3 ] The respondent Intact Insurance Company (“Intact”) submits that the appeal lacks merit and should be dismissed. Background [ 4 ] On June 25, 2019 Madore was inspecting and cleaning the roof of his “fifth wheel” camper trailer to ensure its safety for highway travel in preparation for a family road vacation from Ontario to the Maritime provinces. [ 5 ] Madore’s trailer was hitched to his pickup truck while he carried out this inspection and cleaning.

Both the trailer and truck were covered by policies of insurance issued by Intact. [ 6 ] In the course of this inspection and cleaning, Madore fell from the roof of the trailer. There were no witnesses to the fall. [ 7 ] Madore was immediately rushed to the hospital and woke up in the ICU. He had sustained serious injuries including a fractured skull with a frontal hematoma and contusion as well as a broken left ankle and double wrist fractures. Madore also sustained nerve damage in his right ear which has resulted in hearing loss in both ears for which he now is required to use a hearing aid.

In addition, Madore suffered nerve and retinal damage to his right eye.

[8] Because of the serious nature of the injuries Madore has no memory of precisely how he fell from the roof of the trailer. [9] Madore submitted an application for accident benefits to Intact. Intact denied the application on the basis that the incidentdid not meet the definition of an “accident” under s. 3(1) of the

Schedule which defines “accident” as an “incident in which the use oroperation of an automobile directly causes an impairment...”. [10] Madore applied to the Tribunal for determination of the dispute. A hearing in writing took place before the Adjudicator. [11] On June 16, 2021, the Adjudicator agreed with Intact and found that the incident did not meet the Schedule’s definition of“accident”. As a result, he determined that Madore was not entitled to claim or receive benefits. [12] First, the Adjudicator found that the trailer was a “vehicle” under the Highway Traffic Act, R.S.O. 1990, c.

H.8, and an“automobile” for the purposes of insurance coverage under the applicable policy. [13] The Adjudicator then considered in sequence the two tests that an incident must satisfy in order to be considered an “accident”under the Schedule: the “purpose” test and the “causation” test (see: Greenhalgh v. Ing Halifax Insurance Co., (ONCA)). [14] The Adjudicator found that the incident satisfied the “purpose test”: whether the incident arises out of the ordinary and well-known activities for which automobiles are used.

He found that Madore’s inspection and cleaning of the trailer were ordinary activitiesfor which automobiles are used. [15] However, the Adjudicator went on to determine that the incident did not satisfy the ”causation” test: whether the use oroperation of the automobile directly caused the impairment, and whether there was any intervening act that resulted in the impairmentthat cannot be said to be part of the “ordinary course of things”. [16] The Adjudicator noted that there was no evidence that Madore had tripped on the roof of the trailer or pickup truck, or hadstruck either of them as he fell, or that the “trailer itself caused the fall.” [17] The Adjudicator therefore concluded that there was no evidence of direct causation, that is, that Madore fell after havingtripped on the trailer and that his injuries were “directly caused” by the trailer.

Further, the Adjudicator found that there was anintervening act, namely, “the loss of footing due to misfortune” which he concluded was not part of the “ordinary course of things”. [18] Madore requested reconsideration of the decision and argued that the Adjudicator had not properly considered and applied theelements of the causation test. As a result the Adjudicator had made errors of law such that the Tribunal likely would have reached adifferent decision had the errors not been made. [19] On January 21, 2022, the Adjudicator dismissed Madore’s request for reconsideration.

He again rejected Madore’ssubmission that the first branch of the causation test does not require actual contact with an automobile. The Adjudicator determinedinstead that establishing causation required that Madore must have made direct contact with the vehicle.

Moreover, he also found that thefact that the trailer was the situs of the incident was insufficient for establishing that falling off it was not an “intervening act”. [20] Madore now appeals from these decisions of the Adjudicator. [21] For the reasons that follow, I agree with the position taken on behalf of Madore that the Adjudicator erred in law in hisapplication of the elements of the causation test to determine whether his injuries were the result of an accident for which benefits maybe claimed by him pursuant to the Schedule, and the decisions therefore must be set aside.

Jurisdiction [22] This court has jurisdiction to hear this appeal on questions of law only pursuant to ss. 11(1) and (6) of the Licence AppealTribunal Act, 1999, S.O. 1999, c. 12, Sched. G. Standard of review [23] The parties agree that the appellate standard of review applies. A question of law to which this statutory appeal is restrictedattracts a standard of correctness (see: Housen v. Nikolaisen, 2022 SCC 33).

Issue and Discussion [24] The principal issue for determination on this appeal is whether the Adjudicator erred in law in determining that this incidentdid not qualify as an “accident” under the Ontario legislative scheme for compensation for injuries sustained in automobile accidents. [25] In my opinion the undisputed facts before the Adjudicator satisfy the statutory requirements that he has sustained injuries inan “accident” and is entitled to claim and receive benefits under the Schedule.

The Adjudicator erred in law. [26] The Adjudicator did find that Madore was injured in the course of his use or operation of the trailer. However, the Adjudicatorintroduced a requirement that, in addition to proving the injury arose out of the use or operation of the trailer, he must also prove that hisfall was caused by “tripping on some part of the trailer” and “that the injuries were directly caused by the trailer” to establish the directcausation of his injuries.

[27] In the Adjudicator’s decision of July 7, 2021, he inserted this need for Madore to prove that the trailer caused his injuries, asopposed to its use or operation. As framed by the Adjudicator (at paras. 18 and 19): [18] The mere location on or near a vehicle at the time of an incident does not automatically meet the requirements of the causation test.Direct cause requires evidence that Clayton Madore's fall was as a result of tripping on some part of the trailer and the injuries weredirectly caused by the trailer.

In this matter, there is no evidence of either circumstance being the case. [19] The incident was caused by Clayton Madore's loss of footing on the roof of the trailer and the injuries were sustained as a result oflanding several feet below on the ground. … [28] In his reconsideration decision, the Adjudicator repeated this approach, as follows: “Directly caused” is the crux of the argument in this case. The evidence and case law supports that “directly caused” requires that contactwith an automobile has been made and maintained (no intervening act) and resulted in injuries.

The evidence before me was there was nocontact with the trailer causing the fall, and no contact with the trailer at any point during the fall that resulted in injuries.

The injurieswere sustained as a result of (Clayton Madore) falling to the ground, the trailer happened to be the location that he fell from. [29] There is ample support in the case law submitted on behalf of Madore’s position to demonstrate that the preponderance oflegal authority on this issue and its application by the Licence Appeal Tribunal in many cases before it has resulted in the consistentconclusion that contact with an automobile is not a required part of the definition of “accident” under the Schedule. [30] The insertion by the Adjudicator of a requirement for evidence that Madore’s fall “was as a result of tripping on some part ofthe trailer” is contrary to the definition of “accident” in the

Schedule as well as inconsistent with the decision of the Court of Appeal forOntario in Greenhalgh (supra). [31] In Greenhalgh, the correct approach to the test to be applied in determining whether an incident is an accident for thepurposes of claiming and receiving benefits was set out as follows: 1. Did the incident arise out of the use or operation of an automobile (purpose test)? 2.

Did such use or operation of an automobile directly cause the impairment (causation test)? [32] Section 3(1) defines “accident” as an “incident” where there is a direct connection between the use and operation of theautomobile and the impairment. The question to be determined is whether use or operation of the trailer caused the impairment, notwhether Madore had adduced evidence to prove that he tripped on the trailer. [33] The test only requires that the Adjudicator consider whether Madore was injured in the course of cleaning and inspecting theroof of the trailer.

In fact, the Adjudicator found that Madore was injured in the course of cleaning and inspecting the roof of the trailer.Madore’s injuries flow directly from that purpose. [34] The link to be drawn therefore is between the “use and operation” of the automobile and the “impairment”. Madore did notneed to prove a direct physical connection between the cause of the injury and an automobile. [35] In Fehr v Intact Insurance Co., (ON LAT), a decision of the LAT released on February 24, 2022, theapplicant was performing routine maintenance on the roof of his truck while standing on the ladder.

The applicant worked on the roof,while standing on the ladder. The ladder slipped and the applicant grabbed the side of the truck to prevent falling. He hung on the side ofthe truck briefly before falling to the ground and sustaining injuries. The insurer (also Intact) denied the incident was an “accident”. Thetribunal in Fehr held that the applicant had satisfied the elements of the causation test and, in doing so, expressed the opinion that thedecisions now under appeal herein were wrongly decided, stating: …I find the decisions highlighted by Intact are not particularly persuasive.

First, I believe that Madore was wrongly decided where theTribunal placed too much emphasis on the purported fact the applicant somehow did not come into direct contact with the roof or anypart of his trailer before he fell from it, despite standing on its roof.

Where there is clear law that contact with a vehicle is not required, Iafford the decision negligible weight because the decision does not engage with any of this jurisprudence, binding or otherwise. [36] In Fehr, the Tribunal also rejected the argument advanced by Intact that falling from a ladder resting on a truck for thepurpose of maintenance and inspection was an intervening act.

Falling from a ladder in such a situation was a normal incident of the riskcreated by use and operation of the vehicle. [37] Several other decisions were cited on behalf of Madore to support his argument that the approach taken by the Adjudicator toapplying the causation test was incorrect. I refer to them in some detail here in order to illustrate how the correct approach to thecausation element under the

Schedule has been applied in many different factual scenarios: (

a) In G.R. v Economical Mutual Insurance Company, 2019 ONLAT 18-010779/AABS the applicant was removing snow from hisautomobile when he slipped and fell. At the time of the fall, the applicant was walking from the passenger’s side of the automobile to thedriver’s side. The adjudicator held that the normal use or operation of the automobile caused the impairment, despite there being nocontact with the automobile. The adjudicator did not require the applicant to prove he either tripped on the automobile or hit his head onthe way to the ground.

The adjudicator wrote: G.R. submits that his intent was to clear the snow off of his vehicle in order to safely drive to work. In the subject proceeding, I find thatthe use or operation of the vehicle is still in effect even though G.R. did not make direct contact with the vehicle at the time he fell.However, G.R. was still in the process of using the vehicle, which satisfies the causation test; (

b) Saad v. Federation Insurance Co. of Canada, 2003 ONFSCDRS 66, dealt with an applicant who was injured while filling up his

tires with air. As he walked back from the air pump to his car, he slipped on ice and fell ”very near to his car”. Despite making nocontact with the automobile, the arbitrator found that the impairment flowed directly from the insured’s use or operation of theautomobile. The arbitrator stated: …As has been held in the past, direct cause does not mean the only cause or the most immediate cause. There was a sufficient nexus inthis case between the use and operation of a motor vehicle with an unbroken chain of events. Mr.

Saad's fall occurred when he was engaged in an ordinary activity of filling his car with gasoline and then his tires with air. He did allof the usual things when he noticed that his tire had lost air…; (

c) CKD v Wawanesa Mutual Insurance, 2020 ONLAT 18-006988/AABS, involved an applicant who slipped and fell on ice whilewalking to his automobile. The applicant fell just before grabbing the door handle and struck his head on the ground. There were nowitnesses. The adjudicator accepted that the applicant fell while in the process of getting into his car, which satisfied the purpose test.Regarding causation, the fall was directly caused by the purpose of entering the automobile and the slip and fall was not an interveningact.

The adjudicator did not require evidence, for example, that the insured’s hand was on the door when he fell. The adjudicator stated: The respondent reiterated that the applicant fell backwards before touching the vehicle door and could not recall whether any part of hisbody touched the vehicle as he fell. The respondent relied on cases where the incident was not found to be an accident because theinjuries were not directly caused by the use of the vehicle. The respondent submitted that the incident at issue is analogous to thesecases. I disagree.

The cases cited can be distinguished because they involved scenarios where the use of the vehicle had ended; (

d) Pinarreta v ING Insurance Co. of Canada, 2005 CarswellOnt 6926, dealt with an applicant who slipped on a snowbank whilegetting off a bus. Her injuries did not result from physical contact with the bus. The adjudicator found that the use or operation of theautomobile caused the impairment. The adjudicator stated: Furthermore, even if the snowbank was an intervening force, it would qualify as one that did not break the link of causation becausesurely it is part of the ordinary course of things that bus passengers will have to attempt disembarking a bus in all manner of weatherconditions.

Moreover, even if the snowbank at the bus stop contributed in some way to her injury, it is clear that it was not the solecause, as the act of disembarking also caused her to slip and injure herself; (

e) In Mariano v TTC Insurance Co., 2006 CarswellOnt 5837, an applicant stepped off a bus and tripped over raised asphalt. It wasdark.

The arbitrator found tripping on the asphalt was “‘ancillary’ to the applicant being compelled to disembark from the bus onto darkroadway.” The applicant was still in the process of disembarking from the bus and his tripping over the asphalt did not break the chain ofevents. [38] Several decisions additionally were pointed to on Madore’s behalf in which applicants were injured while running towards anautomobile and were eligible for accident benefits despite there being no contact with the automobile. For example, in Seale v.

BelairInsurance Co., 2003 CarswellOnt 5452, the applicant slipped and fell while chasing after an automobile that was sliding down a hill.Contact with the automobile was not considered to be required in order to demonstrate causation: It is clear that ‘direct cause’ need not be the only cause, that physical contact with an automobile is not required, and that a subsequentcontributing cause may not break the chain of causation if it is ‘part of the ordinary course of things.’ [39] Likewise, in Souchuk v.

State Farm Mutual Automobile Insurance Co., 2002 ONFSCDRS 188, the applicant was runningfrom her own vehicle towards a friend’s truck that had lost control and collided. While running, she tripped and fell. The arbitrator foundthat the fall “was a normal incident of the risks of using a car or was part of the ordinary course of the incident in question” and that“[t]here is no requirement that the insured be in physical contact with an automobile to have been involved in an “accident”. On thecausation issue, the adjudicator stated: Even if it could be said that the use of a car was not the only cause of Ms.

Souchuk's injury, I find that it was one of the direct causes.The immediate cause (and, therefore, one of the direct causes) of her injury was her fall on the ground. However, her fall on the groundwas also directly caused by her running from her car up to the truck following the collision, to see if her friends were hurt. To the extentthat Ms.

Souchuk's injury had more than one direct cause, I find that the use of her vehicle and that of [the second vehicle] was one ofthose causes. [40] In my opinion the Adjudicator also erred in holding that Madore’s “loss of footing, due to misfortune” was an intervening act.It is speculative to conclude that Madore fell due to “loss of footing, due to misfortune”, and that “misfortune” was an intervening actthat broke the chain of causation. [41] Madore fell, as the Adjudicator found, while cleaning and inspecting the roof of his trailer.

As was noted in Chisholm vLiberty Mutual Group, ONCA, the Court of Appeal for Ontario held an incident is not an intervening act if it is anormal incident of the risk created by the “use or operation”: 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 riskcreated by the use or operation of the car - if it is “part of the ordinary course of things”. [42] In VB v Economical Insurance Company, (ON LAT), it was held that the focus of the inquiry should beon whether the risk in question was reasonably foreseeable.

VB involved an applicant who slipped on ice after exiting his automobile.Slipping and falling on ice was a reasonably foreseeable risk of exiting an automobile. The tribunal stated, at paras. 24, 26 and 28: V.B. relies on the Ontario Court of Appeal's observation in Chisholm that reasonably foreseeable risks related to operating a motorvehicle will not break the chain of causation. He submits that slipping and falling while getting out of a vehicle is a reasonablyforeseeable risk of operating a motor vehicle.

Slipping and falling on the ice was not an intervening event outside the ordinary course ofthe use or operation of the vehicle capable of breaking the chain of causation.

… …As the Court of Appeal held in Chisholm, factors that are reasonably foreseeable risks of operating an automobile will not break thechain of causation… … …While snowy and icy conditions on the pavement below could be considered an intervening force "starting and working actively froma new independent source," (per Chisholm), in the present case, I find that losing one's footing on the pavement while exiting a vehicle isa reasonably foreseeable risk of operating an automobile.

The risk of falling on unstable road surfaces (due, for example, to snow or ice)is a normal incident of the risk created by the use or operation of a vehicle. The law is clear that intervening acts that can fairly beconsidered a normal incident of the risk created by the use or operation of the vehicle may not absolve an insurer of liability for benefitsunder the Schedule. [Emphasis added.] [43] In this case Madore fell when he was physically on top of the trailer conducting an inspection and cleaning.

Slipping andfalling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by such use and is reasonably foreseeable.This approach is illustrated by several examples of decisions of the Licence Appeal Tribunal upon which Madore relies. [44] In the case of 16-003163 v. Intact Insurance Company, (ON LAT), the applicant was “car surfing” on therear bumper of the automobile in question while holding its roof rack. The automobile made a sharp turn and the applicant fell off.

TheLAT found causation and no intervening act: While I acknowledge that the applicant may not have remembered everything that happened, there is no evidence before me to suggestthere was some intervening act, as suggested by the respondent that would interrupt the causal link between the applicant's injuries andthe use and operation of the vehicle. [45] In Shantz v. Dominion of Canada General Insurance Co., 2002 ONFSCDRS 66 , the applicant was following her caron foot as it rolled away from her down a parking ramp. While following the vehicle, the applicant fell.

The Arbitrator found theapplicant’s injuries resulted from an “uninterrupted chain of events” beginning with her driving her car onto the ramp and ending withher falling to the ground. The applicant was not in contact with the car at the time of her fall and there was no evidence that she fellbecause of any external force such as an obstruction on the ramp.

The Arbitrator inferred that the insured was pursuing her car down theramp and concentrating her efforts on stopping the car, and that as a result, she lost her footing, falling to the ground. [46] The decision in Greenhalgh again provides some additional guidance as to what may constitute an intervening act for thepurposes of determining whether an incident is an “accident” for the purposes of accident benefits. In Greenhalgh, the Plaintiff drove hercar out to a rural area. She took a wrong turn and became stuck on a rock. Her battery died. Her cellphone did not work as the battery wasdead.

She tried to walk home and became lost. While the Court accepted that she was using her vehicle for a normal and ordinarypurpose up to the point where she left the vehicle, it was noted that about ten hours had passed from the time she left the car until shesuffered frostbite. There were numerous occurrences that had happened after she left the car.

The Court noted that none of “these actscould be considered a normal incident of the risk created by the use or operation of the” vehicle. [47] In Madore’s case, however, there is no significant lapse of time between when the appellant was in direct contact with thetrailer and the occurrence of the fall, nor did the ordinary use or operation of the trailer cease before the fall occurred. While the preciseway that Madore fell may be unknown, there was no evidence to suggest the fall was caused by any unforeseen event disconnected fromthe risks associated with cleaning and inspecting his trailer’s roof.

The causal link therefore was not broken. [48] Finally, and according to the observation made by the Court of Appeal for Ontario in its decision in Tomec v EconomicalMutual Insurance Company, 2019 ONCA 882 , the “SABS are remedial and constitute consumer protection legislation”. I canonly agree with that oft-referenced characterization of the statutory regime in which this dispute arises. The

Schedule is intended toprovide benefits to injured persons for their medical, rehabilitative and financial needs, regardless of fault. [49] The only reasons Madore cannot say exactly what caused his fall are that he sustained a life-changing brain injury and thatthere were no witnesses to his fall. It is inconsistent with the purpose of the regulation to defeat Madore’s application on such rigidevidentiary grounds. Further, requiring an evidentiary basis for an element of the

interpretation of “accident” not specifically providedfor in the definition under the

Schedule is not in keeping with the remedial nature of this no-fault accident benefits legislation or itsconsumer protection mandate, and is an error of law. Conclusion [50] For these reasons, the appeal is granted and the decisions appealed from are set aside and are replaced by the determinationthat the incident in which Madore was involved qualifies as an “accident” under the Schedule. Costs [51] The parties have agreed on the all-inclusive amount of $10,000.00 as costs to be paid to the successful party by theunsuccessful party. Accordingly, that amount shall be paid by Intact to Madore for costs within 30 days of the date of release of thisdecision. _______________________________

Stewart J. I agree _______________________________ Matheson J. I agree _______________________________ Akhtar J. Released: January 3, 2023 CITATION : Madore v. Intact , 2023 ONSC 11 DIVISIONAL COURT FILE NO.: 600/21 DATE: 20230103 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Matheson and Akhtar JJ. BETWEEN: Clayton Madore Appellant – and – Intact Insurance Company Respondent REASONS FOR DECISION Stewart J. Released: January 3, 2023