Background
In December 2017, Chi Khai Diep suffered serious injuries after slipping on ice or snow in a convenience store parking lot in Markham, Ontario. He had just purchased lottery tickets and was returning to his vehicle; he fell while reaching for the door handle after unlocking the car with his key fob. Mr. Diep successfully claimed Statutory Accident Benefits (SABs) from his automobile insurer, Wawanesa Mutual Insurance Company, after a Licence Appeal Tribunal (LAT) adjudicator found he had been involved in an “accident” as defined in the Statutory Accident Benefits Schedule — namely, an incident in which “the use or operation of an automobile directly causes an impairment.” The LAT reasoned that unlocking the car and reaching for the door handle constituted the commencement of re-entering the vehicle, making the vehicle’s use the dominant feature of the incident and a direct cause of the injuries.
Mr. Diep also sued 2117240 Ontario Ltd. (the parking lot owner) and Vitor Cordeiro, operating as Custom Snowplowing and Maintenance (the winter maintenance contractor), alleging negligence and liability under Ontario’s Occupiers’ Liability Act for failing to properly maintain the parking lot. OHIP advanced a subrogated claim for the cost of insured services it provided. Prior to trial, the two defendants brought motions under rule 21.01(1)(a) of the Rules of Civil Procedure seeking determinations that: (i) under s. 267.8 of the Insurance Act, any tort damages awarded against them must be reduced by the SABs Mr. Diep received; and (ii) s. 30(5) of the Health Insurance Act (HIA) bars OHIP’s subrogated claim, because the defendants held insurance policies containing motor vehicle liability endorsements.
The motion judge rejected both arguments, applying a substantive approach drawn from Heredi v. Fensom, 2002 SCC 50, and Hernandez v. 1206625 Ontario Inc., (2002) 61 O.R. (3d) 584 (C.A.). She found that the dominant cause of Mr. Diep’s loss was the occupiers’ failure to remove ice and snow, not the use or operation of an automobile, and that his tort action could not properly be characterized as arising “directly or indirectly from the use or operation of an automobile” as required to trigger either statutory provision. The defendants appealed.
The Court’s Holding
The Court of Appeal, per Simmons J.A. (Paciocco and Osborne JJ.A. concurring), dismissed the appeal. The court affirmed the motion judge’s application of the substantive approach, which asks whether the action is “primarily classifiable as an action for damages occasioned by a motor vehicle” or whether the vehicle’s role in the causal chain is “too insignificant” or “merely incidental or fortuitous.” The court held that the substance of Mr. Diep’s tort claim is for damages caused by the defendants’ negligence as occupiers — the failure to clear ice and snow — and that the presence of the vehicle in the parking lot was incidental to that claim. Accordingly, neither s. 267.8 of the Insurance Act (requiring deduction of SABs from a tort award) nor s. 30(5) of the HIA (barring OHIP subrogation) was triggered.
The court rejected the appellants’ argument that this court’s prior decisions in El-Khodr v. Lackie, 2017 ONCA 716, and Ontario (Ministry of Health and Long-Term Care) v. Georgiou, 61 O.R. (3d) 285 (C.A.), were binding and determinative. El-Khodr involved an actual rear-end motor vehicle collision, and the question in that case was only how SABs were to be deducted — not whether the section applied at all. Georgiou was also distinguishable: OHIP had conceded in that case that the plaintiff’s injuries arose from automobile use, so the court never had to resolve whether the statutory threshold was met. The critical, unresolved issue in the present case — whether Mr. Diep’s action arises “directly or indirectly from the use or operation of an automobile” — was therefore not foreclosed by either precedent.
The court also rejected the appellants’ abuse-of-process argument, which was premised on the theory that Mr. Diep was impermissibly taking a position in the tort action inconsistent with his successful position before the LAT. The court observed that the interpretive framework for entitlement to SABs (remedial and broadly construed in favour of accident victims) differs fundamentally from the framework for restrictions that strip plaintiffs of common law rights (narrowly construed). The LAT determination that Mr. Diep suffered an “accident” for SABs purposes did not estop him from contending in the tort action that the dominant cause of his loss was occupier negligence rather than automobile use.
Key Takeaways
- A plaintiff who successfully claims SABs on the basis that a vehicle’s use was a direct cause of an injury is not thereby estopped from arguing in a subsequent occupiers’ liability action that the loss does not arise “directly or indirectly from the use or operation of an automobile” for purposes of s. 267.8 of the Insurance Act — the two determinations serve different legislative purposes and apply different interpretive frameworks.
- The statutory deduction of SABs under s. 267.8 of the Insurance Act and the bar on OHIP subrogation under s. 30(5) of the HIA require a substantive inquiry into the “fundamental nature of the action,” not merely a factual inquiry into whether a vehicle was present or involved; where the dominant cause of the plaintiff’s loss is an occupier’s failure to maintain safe premises, neither provision applies even if the plaintiff was in the act of entering a vehicle at the time of the fall.
- Restrictions that reduce a plaintiff’s right to recover — including the SABs deduction rule and the OHIP subrogation bar — are to be construed narrowly, consistent with the presumption against interfering with rights of action and the common law private insurance exemption from double-recovery rules.
- El-Khodr v. Lackie and Georgiou do not govern cases where it is genuinely disputed whether the plaintiff’s loss arises from automobile use; those decisions addressed collateral questions and proceeded on undisputed facts about automobile causation.
Why It Matters
This decision draws an important practical line between the generous, remedial interpretation of “accident” used to determine SABs entitlement and the narrower, substantive analysis required before defendants in occupiers’ liability actions can invoke statutory mechanisms to reduce damages or block OHIP subrogation. Parking lot and property owners — and their liability insurers — cannot automatically rely on a plaintiff’s LAT success in claiming SABs to shield themselves from full tort liability or to defeat OHIP’s subrogated interest. The dominant character of the claim, not the mere presence of a vehicle, governs.
For personal injury plaintiffs and their counsel, the case confirms that recovering SABs after a slip-and-fall near a vehicle does not foreclose the full occupiers’ liability tort claim or open the plaintiff to double-recovery arguments by occupier defendants. For insurers and defendants in occupiers’ liability matters, it signals that the applicability of ss. 267.8 and 30(5) turns on a context-sensitive substantive analysis, and that merely holding a policy with motor vehicle liability endorsements is insufficient to invoke those protections when the impugned conduct is failure to maintain premises.