Licence Appeal Tribunal File Number: 22-011340/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Laura Soch
Applicant
and
Unifund Assurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
David Edwards, Counsel
For the Respondent:
Jeffrey Naganobu, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Laura Soch, the applicant, was involved in an incident on August 31, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company (“Unifund”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issues to be decided are:
Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
Is the applicant barred from proceeding to a hearing because she failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant was not involved in an accident.
ANALYSIS
Background
4On August 31, 2021, the applicant was riding her bike on Bloor Street West in the medial aspect of a bike lane due to the uneven pavement ahead of her. It is alleged that a car approached the applicant from behind on her left side and forced her to manoeuvre her bicycle into the lateral aspect of the bike lane where she hit a pothole. She flew over her handlebars and landed on her face. The applicant sustained dental injuries as well as jaw and facial fractures.
Was the incident an “accident”?
5For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
6Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
8In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
9The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh. Put another way, for what “purpose” was the vehicle being used at the time of the incident?
10The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
The “but for” consideration;
The “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and,
When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.
The Purpose Test
11The applicant submits that the automobile that was travelling behind the applicant immediately prior to the accident was being operated on a roadway. This is an ordinary and well-known activity to which automobiles are put. There is no evidence to suggest that the vehicle was being used for a non-motoring purpose. Therefore, the purpose test is satisfied.
12The respondent submits that the incident does not meet the purpose test. It is the respondent’s position that the fact that a vehicle may have been used in its ordinary course nearby is not sufficient to establish that the applicant’s injuries arose from the use or operation of the vehicle. The applicant hit a pothole and fell off her bicycle independent of the use of the vehicle
13I am not satisfied on a balance of probabilities that the purpose test has been met. While the applicant had to allegedly manoeuvre her bike in the lateral aspect of the bike lane because the automobile was near her, I am not satisfied that her injuries arose from the use or operation of an automobile.
14The medical records fail to establish that a vehicle was involved in the incident as alleged by the applicant. The applicant sought medical care for her injuries on the day of the incident. The Ambulance Call Report dated August 31, 2021 does not make any references to an automobile. It states that “pt coming from side of street…pt went over a put[sic] hole on the sidewalk and went over her handlebars and fell face first.” The report does not mention the vehicle or the bike lane. The clinical notes and records (“CNRs”) from the Bridgepoint Family Health Team and the Emergency Record from Sinai Health do not make any refences to the involvement of an automobile.
15Moreover, her statement of claim notes that:
On or about Tuesday August 21, 2021, at approximately 8:20p.m., the Plaintiff was riding her bicycle in a safe and prudent manner, within the designated area of the bike lane, and was heading westbound on Bloor Street West, near its intersection with Symington Avenue, in the City of Toronto. Suddenly and without warning, the Plaintiff’s bicycle travelled over dangerous and hazardous potholes, causing her bicycle’s front tire to become lodged in a pothole. The Plaintiff was subsequently ejected from her bicycle, landing face-first on the roadway (“the incident”).
16There is nothing in the statement of claim that mentions the automobile. It does not support the involvement of a vehicle in the incident. While recognizing that the pleadings of fact in a statement of claim have yet to be proven true, I conclude that the respondent’s statement of claim at minimum characterizes her perspective of the incident that led to her falling off of her bicycle.
17The applicant’s testimony at the EUO is inconsistent with the medical records as well as her statement of claim. At the Examination Under Oath (“EUO”), the applicant provided testimony about the automobile on the day of the incident and how that resulted in her having to maneuver her bike in the bike lane. She stated that the automobile did not hit her. In my view, there is an inconsistency between her testimony and the medical records. The medical records do not mention the involvement of an automobile. I prefer the medical records at the time of the incident because, they provide a more timely account of what transpired as this information was documented around and after the time of the incident.
18The applicant bears the onus to prove on a balance of probabilities that she was involved in an accident. There is no evidence or witnesses to corroborate her account. There is no information about the automobile that was allegedly involved. While I recognize that the applicant sustained significant injuries, I am not persuaded that the incident rose from the use or operation of an automobile. Therefore, an analysis of the causation test is unnecessary, as I have determined that she did not meet the purpose test. As such, I find that the applicant was not involved in an accident as defined by the Schedule.
19As I have determined that the applicant was not involved in an accident, it is unnecessary for me to make a determination as to whether she is barred from proceeding to a hearing because she failed to notify the respondent of the circumstances giving rise to a claim for benefits, no later than the seventh day after the circumstances arose or as soon as practicable after that day.
ORDER
20The application is dismissed. The Tribunal will vacate the hearing date.
Released: July 27, 2023
Tavlin Kaur
Adjudicator