Licence Appeal Tribunal File Number: 23-014763/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Akashdeep Mattu
Applicant
and
Intact Insurance Company Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Adriano Pranzitelli, Counsel
For the Respondent:
Raman Pandher, Counsel
Heard:
By way of written submissions
OVERVIEW
1Akashdeep Mattu (the “applicant”) was involved in an incident on August 28, 2023, 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 Intact Insurance Company Inc. (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
PROCEDURAL ISSUE
4The respondent submits that the applicant’s written submissions should be disregarded due to his failure to include paragraph numbers. It argues that this significantly hampers its ability to accurately address specific points within its limited 5-page response, and that it faces undue difficulty in referencing and countering the applicant’s claims rendering a fair and precise reply nearly impossible.
5The respondent then proceeded to reply to various parts of the applicant’s submissions. While I appreciate that it may have been difficult to do so without reference to paragraph numbers, I do not agree that this was a near impossible task. I find that any prejudice to the respondent by allowing the applicant’s submissions is greatly outweighed by the prejudice to the applicant if I were to not allow them. I therefore decline the respondent’s request to disregard the applicant’s written submissions.
ANALYSIS
6The applicant submits that he was driving when a vehicle switched lanes abruptly, cutting him off. He alleges that he honked his horn at the vehicle. Both vehicles came to a stop at a red light. The applicant’s driver’s side window was partially rolled down. A person in the vehicle in front of him exited and approached the applicant’s side of his vehicle, and then assaulted the applicant through the open window, striking him repeatedly. The applicant submits that he attempted to drive away, but his vehicle was trapped from all directions. He submits that he suffered a broken nose, dislocated shoulder, and injuries to his face, neck, and chest.
7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.
8Pursuant to the decision in Greenhalgh v. ING Halifax Insurance Company, 2004 21045 (“Greenhalgh”), the applicant is required to satisfy the following tests in order to prove that an incident was an “accident” as defined by the Schedule:
i. The purpose test: did the incident arise out of the ordinary and well-known activities for which automobiles are used?
ii. The causation test: did such use or operation of an automobile directly cause the impairment?
9The Court in Greenhalgh indicated that the following considerations may provide useful guidance in ascertaining whether the causation test has been met:
i. The “but for” test can act as a useful screen;
ii. In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
iii. In other cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”.
10Both parties agree that the purpose test is met. The parties disagree as to whether the causation test is met.
11I find that the applicant has not proven, on a balance of probabilities, that the use or operation of an automobile directly caused his impairment.
12The applicant argues that he was assaulted due to road rage, and potentially due to him honking his horn, which he submits is an ordinary use of his vehicle. He submits that the assault was not an independent intervening act but rather a consequence facilitated by the vehicle’s use.
13Firstly, I agree with the respondent that the applicant’s submissions regarding the circumstances of the incident were made entirely without supporting evidence. Submissions on their own are not evidence. Even the applicant’s own framing of the incident was that he was potentially assaulted due to honking his horn, and this may have provoked the attacker. Without any evidence to support the applicant’s claims about the circumstances of the incident, I do not accept that the applicant’s use of his vehicle precipitated the assault.
14Secondly, I find that the assault was an intervening event that broke the chain of causation. Without the assault, the applicant would not have suffered his injuries. An assault is not part of the ordinary course of or use of a vehicle.
15Thirdly, even if I were to accept the applicant’s version of events, I find that the dominant feature of the incident and the applicant’s injuries was the assault, and not the use or operation of the vehicle. The applicant’s honking would have been ancillary to the assault, which was what caused the applicant’s injuries.
16The applicant also submits that he was unable to escape the attack as he was confined by his seatbelt and blocked in by traffic. He argues that the vehicle’s role in confining him satisfies the causation requirement. I disagree. Even if he was confined, there is no evidence before me that his injuries were caused or worsened by this confinement, or that his injuries would have been different had he been able to extricate himself from the situation. I find that he has failed to prove that his impairment was directly caused by his alleged confinement.
17The applicant relies on Srour v. Aviva Insurance Company of Canada, 2024 CanLII 13101 (“Srour”), arguing that the facts are closely aligned with the case before me. In Srour, a taxi driver rolled down his window to speak to pedestrians who were approaching his vehicle. He attempted to roll his window up when someone struck it, causing it to break and shatter the glass. He was injured by the shards of glass. I find that this case is distinguishable, as the Tribunal found that the vehicle itself was used as an instrument of the applicant’s injuries, and therefore the assault was directly linked to the operation of the vehicle. In the case before me, there is no evidence that the vehicle itself caused an injury to the applicant.
18I accordingly find that, on a balance of probabilities, the applicant has not proven that the incident was caused directly by the use or operation of an automobile. As such, he was not involved in an accident pursuant to s. 3(1).
ORDER
19The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
Released: November 8, 2024
Rachel Levitsky
Adjudicator