This is an appeal from the decision of the motions judge holding that, pursuant to the Ontario rule, the Plaintiff had suffered an impairment as a result of an “accident” as defined in the Ontario Statutory Accident Benefit Schedule. At issue was whether the Plaintiff’s injuries were “directly caused by the use of an automobile”. The Court of Appeal held that they were not.

Greenhalgh v. ING Halifax Insurance Co., [2004] O.J. No. 3485, Ontario Court of Appeal

This is an appeal from the decision of the motions judge holding that, pursuant to the Ontario rule, the Plaintiff had suffered an impairment as a result of an “accident” as defined in the Ontario Statutory Accident Benefit Schedule. At issue was whether the Plaintiff’s injuries were “directly caused by the use of an automobile”. The insured had stalled her car on a country road. She left the car and got lost in the surrounding brush. She was lost for about 10 hours, during which time she suffered frost bite which required amputation of her fingers and legs below the knees. She submitted a claim for accident benefits, which was refused. On a motion of the insured, the motions judge held that she was entitled to benefits. On appeal, the court held that factually there were a number of intervening acts between the use of the car and the insured’s injuries, including the fact that her cell phone wouldn’t work, the weather was very cold, she became disoriented, and she lost her boots. None of these intervening acts were considered by the court to be “a normal incident of the risk created by the use or operation of the car”, which supported the conclusion that the use of the car was not a direct cause of the impairment.

The Appeal court held that the appropriate test to determine whether the facts fit within the definition of causation discussed in the legislation was a stepwise process. First, the court must consider the “purpose test”. In other words, for what purpose was the automobile being operated at the relevant time and did the incident arise out of ordinary and well-known activities to which automobiles are put? Then, the court must consider the language of the legislation which requires a direct link of causation. To determine causation, the court applied the “but for” test, holding that but for the fact that the insured was driving her car she would not have been wandering through the woods at night. However, the court held that this test was only a consideration; it did not establish legal causation conclusively. The next part of the test must be considered; the “intervening acts” consideration. Many facts unrelated to the vehicle intervened between the use of the vehicle and the injury, none of which were related to the car. Finally, the Appeal court considered the “dominant feature” test and held that the “dominant feature” of the insured’s injuries could best be characterized as exposure to the elements, not the use of a motor vehicle.

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