Diep v. Mac's Convenience Stores Inc.
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The Facts
In December 2017, the plaintiff parked at a Markham convenience store, unlocked his car with the key fob and, going for the door handle, slipped on snow or ice and was seriously hurt. His auto insurer refused accident benefits, but a Licence Appeal Tribunal adjudicator ruled that he qualified as having been in an accident for the purposes of the benefits schedule, since he was in the course of getting into his car. He then sued the lot's owner and its winter maintenance contractor in negligence and under the Occupiers' Liability Act, and the claim also covered OHIP's subrogated interest in his medical costs. The defendants brought a motion before trial on a point of law. They argued that, since the Tribunal had tied his injury to the use of a car, s. 267.8 of the Insurance Act required his accident benefits to be deducted from any damages, and s. 30(5) of the Health Insurance Act barred OHIP's claim. Justice Lack dismissed the motion in April 2025, and the defendants appealed.
What the Court Decided
The Court of Appeal (Simmons, Paciocco and Osborne JJ.A.) dismissed the appeal, and also refused the defendants' request to add fresh evidence about their insurance. The deduction in s. 267.8 applies only to claims for bodily injury arising directly or indirectly from the use or operation of an automobile. The motion judge had found that the dominant cause of this injury was the ice and snow on the lot and the alleged failure to deal with them, so the car played no such role. The Court agreed, and held that earlier appeal decisions on double recovery and OHIP subrogation were distinguishable because those cases involved losses that clearly did arise from a vehicle. It also rejected the argument that the plaintiff was held to what he said before the Tribunal. The two proceedings asked different questions under different statutes: the Tribunal was applying a benefits scheme that is read broadly and generously, while the court had to decide whether a deduction rule applied to a tort claim. Abuse of process and issue estoppel therefore did not assist the defendants.
Does This Affect You?
- ✓You were hurt on ice or snow in a parking lot while getting into or out of your vehicle.
- ✓You have received, or been refused, accident benefits for a fall near your car and also want to sue the property owner.
- ✓You are an occupier or snow contractor who expects accident benefits to reduce what you would owe a claimant.
Key Takeaways
- A claim can count as an accident for accident benefits purposes without being an automobile claim for tort purposes.
- Whether a deduction for accident benefits applies depends on the dominant cause of the injury, which in a winter fall is usually the condition of the property.
- A finding made by the Tribunal for benefits does not automatically fix how the same incident is classified in a lawsuit.