When Falling on the Ice Is an Accident within the Meaning of Quebec’s Automobile Insurance Act
Publication date: August 31, 2018 | Last update: April 27, 2020
Under the compensation scheme of the Automobile Insurance Act (the Act)1, the victim of an automobile accident may not seek compensation for bodily injury in a court of justice2. Rather, the victim must apply for compensation to the Société de l’assurance automobile du Québec (SAAQ), which has exclusive jurisdiction over such matters. The SAAQ will grant him or her the compensation fixed under the Act, irrespective of liability.
THE PRINCIPLES OF THE ACT
To access the public scheme, only one condition is required: establishing that the incident was an automobile accident within the meaning of the Act. This concept refers to any event in which damage is caused by an automobile, by the use thereof, or by the load carried in. Since the Act’s purpose is to provide redress, it must be interpreted broadly and liberally, as should the notion of an automobile accident.
This explains why the traditional causal link is not used to determine whether an accident was caused by an automobile. The Supreme Court of Canada has already stated that the automobile’s role in the accident needs not to be an active one to constitute an automobile accident3. Indeed, whether the automobile’s role was active or passive is not determinative of causation. For the Act to apply, it is not necessary for the automobile to have entered directly into physical contact with the victim. Simply using the automobile will be sufficient for the Act to apply and thus, to be eligible for the public compensation scheme in the event of bodily injury.
In this respect, it is now well accepted that the action of embarking and disembarking of an automobile is included in the definition of use. Thus, should an injury occurs during embarking and/or disembarking, especially a fall, the Act will apply.
EXAMPLES OF IMPLEMENTATION
Although these principles may seem very straightforward, implementation is more complicated, in particular when a fall occurs in the seconds before entering the automobile or following the moment one exits.
The issue is therefore to determine whether the process of embarking or disembarking was taking place or had already ended, which itself depends on the specific facts of each case. There are many examples in the case law. For instance, it was ruled that a fall that occurred when the victim had only placed one foot on the ground and was about to place the second foot on the ground, took place while the person was disembarking the automobile and thus constituted an automobile accident4.
On the other hand, it was ruled that a person who had disembarked his vehicle,had closed the door and turned around to head for the sidewalk by the mall was no longer using his automobile when he fell5. The same applied to the victim who had briefly left his automobile, in one case to go around to a passenger,6 and in the other case to thank a carwash employee.7
However, the situation would be different if the victim was only coming around the automobile in order to get behind the wheel and drive. In fact, the Court of Appeal ruled that a fall, which occurred when the victim was going around his car to get behind the wheel after helping his disabled father into the passenger seat, did occur while he was in the process of embarking the automobile. Thus, the accident was an automobile accident within the meaning of the Act.8
TWO RECENT JUDGMENTS
Recently, the Court of Appeal was once again faced with the issue of whether or not a fall on the ice could be considered an automobile accident, this time in the case of a victim who fell while removing snow from his automobile. In two cases, heard on the same day,9 the victims fell on the ice while clearing their cars of snow, in order to use them immediately thereafter. In one case, the automobile was running when the fall occurred while in the other, there was not enough evidence to establish this with certainty. That said, in both cases, the automobile was parked.
After having reviewed the applicable legal principles, the Court of Appeal determined that the action of removing the snow was closely linked to using the automobile. Indeed, in the opinion of the Court, using the automobile depended on it being free of snow—only then could it be safely used in compliance with the Highway Safety Code. Under such circumstances, the Court of Appeal decided that these falls constituted automobile accidents within the meaning of the Act.
Furthermore, the Court of Appeal dismissed the SAAQ’s argument that snow removal was in connection with maintenance, which is excluded from the application of the Act.10 First, the Court of Appeal stated that since this was an exception to the application of the Act, the concept of maintenance had to be interpreted restrictively. That being said, the Court stated that this concept referred to the idea of maintaining or keeping the automobile in good condition, which generally implies periodic, long-lasting actions such as a changing the oil or replacing the oil filter. In the Court’s view, snow removal is related to automobile use rather than maintenance.
The Court of Appeal thus dismissed the victims’ lawsuits against the owners of the parking lots where the falls occurred and concluded that their claims for compensation should have been addressed to the SAAQ, the only competent authority. Assimiliating removing the snow of an automobile with its using may increase the number of claims before the SAAQ, in particular in the wake of a fall on the ice. This will also reduce claims made before civil court, which could have an effect on the damage insurance industry.
By Me Vincent Lemay, Lawyer, Stein Monast, LLP
1. C.Q.L.R. c. A-25 (henceforth, “the Act”).
2. Id., s. 83.57.
4. Grégoire c. Placements Monfer inc., 2016 QCCQ 4845 [in French only]
5. Toupin c. El-Ad Group (Canada) inc., 2018 QCCS 810 [in French only]
6. Vigneault c. Commission scolaire Chemin-du-Roy, 2015 QCCS 3608 [in French only] (application for leave to appeal dismissed, 2015 QCCA 1429 [in French only]).
7. Laramée c. 9259-1445 Québec inc., 2017 QCCQ 14952 [in French only].
8. Société de l’assurance automobile du Québec c. 9172-5713 Québec inc. (Cinéma Guzzo inc. et Groupe Guzzo Pont-Viau inc.), 2015 QCCA 126 [in French only].
9. Hôtel Motel Manic inc. c. Pitre, 2018 QCCA 895 [in French only] and Vaillancourt c. Blackburn, 2018 QCCA 896 [in French only].
10. A.I.A., s. 1(5).