March 4, 2025
A person slips and falls in an icy parking lot while holding their key fob and reaching out to open their car door. They are not touching the car when they fall. The fall is caused by the ice, not by the car.
THE ISSUE
Is this a slip and fall accident or an automobile accident. Or both?
This distinction makes quite a difference. No fault benefits under the Statutory Accident Benefits Schedule available for auto accidents provide income replacement benefits and medical and rehabilitation benefits. If you do not have private or group LTD or extended health benefits, they are a huge advantage in your recovery. Slip and fall accidents in parking lots now require early notice if you intend to sue. So knowing which your occurrence is may be crucial.
THE CASE
The scenario that starts this article is a summary of the facts in Davis v. Aviva General Insurance Company. The Licence Appeal Tribunal denied Ms. Davis’ appeal of a denial of benefits. On appeal to the Divisional Court, the Tribunal decision was overturned, and the court ruled that this was an automobile accident as defined under the SABS. The Ontario Court of Appeal denied leave for a further appeal by Aviva, describing the test for “accident” under the SABS to be “settled” and therefore not of sufficient public interest to require the further appeal. Ms. Davis gets her no-fault benefits.
There is a two-part test for defining an accident under the SABS. First, did the incident involve “the ordinary and well-known activities to which an automobile is put?” No question that reaching to unlock the door meets that test.
The second part of the test is tougher- was that use the direct cause of the incident? Further, was the use of the automobile the dominant cause? Aviva argued that the ice was an intervening cause, and that in any event, the use of the automobile was not the dominant cause.
The Divisional Court disagreed. They considered precedent cases on both questions. Recent decisions favoured Ms. Davis’ argument. The presence of the key fob in her hand was the determining fact.
TAKEAWAYS
- Slipping on ice is unfortunately a common risk in Thunder Bay and Northwestern Ontario.
- Depending upon the facts, this may be either or both of an automobile accident or a slip and fall for which the property occupier or maintainer may be responsible.
- SABS are a helpful benefit.
- If you intend to sue the occupier, notice must be given within 60 days of the occurrence.
- Seeking early legal advice is a sound investment. As most lawyers take most personal injury cases on contingency, there may be no fee to find out your rights.
WHAT WEILERS LLP CAN DO TO HELP YOU
Weilers LLP has a proud tradition of excellence in litigation, with much of our work falling into the basket of tort claims, including both automobile accidents and slip and fall claims. We act for both defendants and victims (and insurers too).
Whether you are a victim of an injury or are being sued, the experienced team at Weilers LLP might be the right lawyers for you.