June 13, 2011 by Canadian Underwriter
The Financial Services Commission of Ontario (FSCO) has confirmed that getting out of a motor vehicle “safely” falls within the definition of the ordinary use or operation of a motor vehicle – even when that means the driver has locked the car door and walked around the car without incident to get to a shoveled “access point” next to a snow bank on a curb.
A FSCO arbitrator made the finding in Daphna Webb and Wawanesa Mutual Insurance Company, heard in March 2011.
Daphna Webb, a 36-year-old mother of two boys, drove to visit a friend who lives in a residential neighbourhood in Ontario. Parking on the street was only permitted on the north side of the street, where the friend lived. That side of the street does not have any driveways.
On the day Webb arrived, she testified there was no snow or ice on the road, but there was a snow bank two feet high that jutted from the curb. The only way to get to the sidewalk was through access points that had been shoveled out.
Webb testified she parked her car directly in front of an access point to the sidewalk. She exited her vehicle on the driver’s side, locked the door and walked around the car to the front.
When she put her foot on the shoveled-out access point, she slipped on the ice and fell, breaking four bones in her right foot. She claimed she was injured as a result of a motor vehicle “accident,” as defined in S. 2(1) of the Statutory Accident benefits Schedule.
The insurer submitted the use or operation of Webb’s vehicle had long ended by the time of the slip and fall. The insurer noted she had turned off her car, took her key out of the ignition, closed her door and locked her car. Most importantly, she had navigated the roadway safely up until the point that she slipped on the access point.
But a FSCO arbitrator held that the access point was still part of the roadway, because the snow bank jutted out from the curb to the road.
“On the facts of this case, I find that because of the snow bank, Ms. Webb was compelled to park her car at the access point and that she was still disembarking from her vehicle when she fell on the roadway at the entry of the access point,” the arbitrator found. “Succinctly, I find that Ms. Webb had not safely and completely disembarked from her vehicle when she fell.”