A Slippery Slope: Leave to Appeal Denied on Whether Slipping on Ice Constitutes an “Accident”
Introduction:
In its recent decision in Davis v. Aviva General Insurance Company, 2024 ONCA 944, the Ontario Court of Appeal denied leave to appeal a Divisional Court decision about whether slipping on ice while walking toward one’s vehicle constitutes an “accident” as defined by the Statutory Accidents Benefit Schedule (“SABS”). The Court also confirmed that the established framework for granting leave to appeal from Divisional Court, as set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, has not changed.
Background:
On November 22, 2017, Ms. Davis slipped and fell on black ice in a parking lot while walking towards her vehicle and holding the vehicle key fob in her hand. Due to injuries from the slip and fall, Ms. Davis applied for accident benefits through her insurer, Aviva General Insurance Company (“Aviva”). Over the next three and half years, Aviva paid some, but not all, of Ms. Davis’ accident benefits. Ms. Davis eventually applied to the Licence Appeal Tribunal (“LAT”) to dispute the benefits denied by Aviva.[1]
On May 18, 2022, the LAT rendered a decision, finding that Ms. Davis’ injuries had not occurred due to an “accident” as defined within s. 3(1) of the SABS. This decision was upheld on further reconsideration by the LAT. Ms. Davis’ application was dismissed and her accident benefits were terminated.[2]
Ms. Davis appealed the LAT’s decision to the Ontario Divisional Court, raising two issues of law for consideration, one of which was whether the LAT correctly found that she was not injured in an “accident” within the meaning of the SABS. In a May 31, 2024 decision, the Divisional Court found that the LAT failed to correctly apply the legal test in determining whether an “accident” occurred, given the facts and circumstances. The Court reversed the LAT’s decision and reinstated Ms. Davis’ benefits.[3] Aviva sought leave to appeal the Divisional Court’s Decision to the Ontario Court of Appeal.
Decision of the Court of Appeal
For the appeal application, Aviva argued that the Divisional Court mischaracterized and misapplied the causation step of the SABS “accident” test. Aviva argued that Ms. Davis was not touching her vehicle when she fell and holding the key fob did not cause her to lose her balance; it was the ice itself that caused her to physically fall.
In considering whether Aviva should be granted leave to appeal, the Court of Appeal relied on the framework for granting leave to appeal from Divisional Court decisions as set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.), 1972 CanLII 572 (ON CA) (“Sault Dock”), including the following:[4]
- Appeals from an appellate decision of the Divisional Court to the Court of Appeal are limited by providing that an appeal lies only:
- With leave; and
- On a question that is not a question of fact alone.
- As a general rule, decisions in matters coming before the Divisional Court in its appellate capacity are intended to be final, and the review of those decisions by the Court of Appeal are to be the exceptions to the general rule.
- The Court of Appeal should be satisfied before granting leave that the matter will present an arguable question of law or mixed law and fact requiring the Court to consider matters such as the following:
- The interpretation of a statute or Regulation of Canada or Ontario, including its constitutionality;
- The interpretation, clarification or propounding of some general rule or principle of law;
- The interpretation of a municipal by-law where the point in issue is a question of public importance;
- The interpretation of an agreement where the point in issue involves a question of public importance.
- The impact which the decision on the question will have on the development of the jurisprudence of Ontario is a primary consideration when determining whether to grant leave to appeal. If the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirements to obtain leave will not have been met.
- There may be special circumstances where the Court of Appeal may grant leave, such as matters of public importance, obvious misapprehensions of relevant facts, or departures from established principles of law, resulting in a miscarriage of justice.
In applying the above framework to the circumstances of Aviva’s leave to appeal application, the Court of Appeal found that this was a situation that did not meet the threshold for granting leave to appeal:[5]
In applying the Sault Dock framework to this case, mindful of its breadth and flexibility, I do not see a question that meets the threshold for granting leave. This dispute is largely fact-specific, and Aviva has not made an arguable case for why the settled test for an “accident” under the SABS should be changed.
Ultimately, Aviva’s application for leave to appeal was dismissed.
Clarifying Principles for Leave
The Court of Appeal also took the opportunity to clarify that its recent decision, West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”), does not change the established framework set out in Sault Dock.
In West Whitby, the Court highlighted the importance of assessing the impact of a decision on the jurisprudence in Ontario, which is one of the factors noted in Sault Dock. The Court criticized the “undue attention which … has been placed on the four categories enumerated to illustrate matters on which an arguable question must be established in order to meet the threshold for leave.”[6] As such, the Court in West Whitby found that the Divisional Court’s dismissal of a judicial review application had significant impact beyond the parties involved and granted leave to appeal the decision.
The Court of Appeal in Davis confirmed that, despite the Court’s criticism of the over emphasis on one small portion of the Sault Dock framework, the approach taken by the Court of Appeal in West Whitby ultimately fell within the Sault Dock framework and did not alter the framework itself:[7]
[11] In describing the proper approach to leave applications, the panel exerted the passage from Sault Dock reproduced above dealing with the impact a question may have on the jurisprudence of Ontario and stated, at para 11: “Therein lies the heart of the consideration of an application for leave to appeal: not whether the issue falls into some pigeon-hole checklist, but ‘the impact which the division will have on the development of the jurisprudence of Ontario.’ In other words, it appears that the West Whitby panel intended to highlight rather than change the principles governing leave motions from the Divisional Court to the Court of Appeal.…
[13] … in my view, West Whitby should be read as a helpful discussion and application of the Sault Dock framework, which continues to be the source for the principles governing motions for leave to appeal from the Divisional Court to the Court of Appeal.
Given the clarification in Davis, there should be no confusion that the framework for granting leave to appeal from a Divisional Court decision has not changed since Sault Dock. Instead, West Whitby acts a reminder that there are more factors to consider than simply whether there is an arguable question in law or mixed fact and law to be put forward on appeal.
Conclusion
Given the outcome of this decision, it is important for parties to consider all of the factors outlined in the Sault Dock framework when seeking leave to appeal a Divisional Court decision, not just whether there is an arguable question in law or mixed law and fact. The Davis and West Whitby decisions invite parties to consider factors such as public importance, special circumstances, or the effects of decisions on Ontario jurisprudence when arguing leave applications, if appropriate. By considering these additional factors, parties can bolster their arguments and, perhaps, increase their chances of successfully obtaining leave to appeal from Divisional Court decisions.
[1] Davis v Aviva General Insurance Co., 2024 ONSC 3054at paras 1-8.
[2] Ibid.
[3] Ibid at paras 81-86.
[4] Davis v Aviva General Insurance Company, 2024 ONCA 944 [Davis] at para 3.
[5] Ibid, Davis at para 17.
[6] Ibid Davis at paras4 and 5. Note: The “four enumerated categories” are the listed factors (a)-(e) above.
[7] Ibid Davis at para 13.