Licence Appeal Tribunal File Number: 24-001486/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:
Alnoor Jadavji
Applicant
and
The Personal Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Tamara Gostek, Counsel
For the Respondent: Patrick Baker, Counsel
HEARD: In Writing
OVERVIEW
1Alnoor Jadavji, the applicant, was involved in an incident on June 22, 2022, 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, The Personal Insurance Company, 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 s. 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.
ANALYSIS
Was the applicant involved in an “accident”?
4To be eligible for benefits, the applicant must prove on a balance of probabilities that the incident that occurred on June 22, 2022 meets the definition of an accident under the Schedule. Section 3(1) 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.
5As outlined in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, an analysis of whether an accident occurred involves a two-part test to determine whether an incident is an “accident” as follows:
The purpose test: Did the incident arise out of the use or operation of an automobile? and,
The causation test: Did the use or operation of an automobile directly cause the impairment?
6The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.”
7The causation test 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 serve to break the chain of causation where some other intervening events 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
Agreed Facts
8On the afternoon of June 22, 2022, the applicant was riding his bicycle southbound on 9th Line in Georgetown, Ontario. The roadway had one lane for traffic in either direction. The applicant struck a temporary construction speed limit sign with his bicycle, knocking the sign out of its steel frame, and he was ejected and thrown to the ground. The sign had been placed on the roadside and was not driven into the ground. Following the incident, a passerby called the police and then police and ambulance arrived and transported the applicant to Sunnybrook Hospital where he was diagnosed with a spinal injury and underwent spinal surgery.
9According to the police report, there were no skid marks or tire marks in the area, and no indication that either of the rural highway lanes were closed to traffic. The police on scene spoke with a witness named Brian Babcock, whose statement to police was redacted.
10The applicant’s bicycle did not collide with or make direct contact with an automobile.
Positions of the Parties
11The respondent submits that there is no truck or other automobile described in the Halton Police Accident Report, as described by the applicant. The report indicates that the applicant was cycling, hit his handlebar off a construction reduced speed sign, was ejected from his bicycle, and travelled approximately 3 metres in the air before landing headfirst on the road. The respondent argues that the accident report did not reference any unidentified automobile, given the fact that an independent witness, Mr. Babcock, provided a statement on what had transpired. The respondent also argues the Tribunal should draw an adverse inference because the applicant has not obtained any evidence from the witness, despite his phone number being provided on the accident report.
12The respondent acknowledges that although the ambulance call report contains a description of the incident that was given to paramedics by the applicant, including that a car got too close to the applicant and caused him to go into a construction sign at about 40 km/hr, it does not indicate that this was a motor vehicle accident, but rather a bicycle crash.
13The respondent submits that there are several versions of events that were relayed to the applicant’s health providers at Sunnybrook Hospital following the incident, and none of them references an automobile in proximity to the applicant. According to the respondent, the applicant advised the critical care physician that he had lost control of his bike and fell over the handlebars while cycling at 40-50km/hr, and then on June 23, 2022, the applicant advised a social worker that he believed he may have biked over a piece of metal on the road before falling over his handlebars. Again, the respondent submits that there is no mention in the hospital records that the applicant was involved in a motor vehicle collision, nor do they reflect a version of events where an automobile drove near the applicant before his collision with a road sign.
14The respondent argues that the applicant did not sustain a traumatic brain injury as a result of the accident, and that according to hospital records the applicant was fully able to communicate and understand following the incident. As such, the respondent argues that the hospital notations about the incident must be viewed as what was described by the applicant himself, which explains why the accident report also does not reflect the presence of an automobile, until the applicant provided a police statement several months later in October 2022.
15The respondent goes on to argue that there are several inconsistencies with the applicant’s police statement dated October 28, 2022, and his affidavit dated June 27, 2024. For example, the incident took place on 9th Line and not 6th Line, the applicant struck a speed limit sign and not a merge sign, there is no indication that one of the lanes of traffic was closed or that the southbound lane was instructed to merge based on the incident scene photos, and the applicant previously advised paramedics about a car that was close to him but his statement alleges that it was a pickup truck. The respondent goes on to argue that the applicant’s affidavit claims that he was traveling far slower than any other record, or than the mechanism of his bicycle crash would suggest, and there is no evidence to corroborate the applicant’s version of events. The respondent submits that all of this casts doubt on the applicant’s recollection of events and supports that this incident was a bicycle crash.
16The applicant submits that according to his OCF-1 dated December 1, 2023, the incident occurred while he was riding his bicycle on 9th line and was approaching a construction post directing traffic to merge from the right lane to the left lane. The applicant submits that he had almost completed his merge when a pickup truck suddenly sped up, almost hitting him, and that he had to swerve to avoid getting hit by the truck and that is when he hit the construction post.
17The applicant also submits that the ambulance call report from the date of the incident contains his description of what happened, including that he was riding his bicycle on the road when a car got too close to him, causing him to hit a construction sign. According to the applicant, he was not able to make a police statement until October 28, 2022, which again confirms that a truck was speeding up behind him and he had to swerve to avoid it. The applicant’s description of events was then attached to the police report.
18The applicant argues that despite efforts, he has been unable to obtain an unredacted police file or contact the independent witness, Mr. Babcock. The applicant also argues that he did not advise anyone that he was cycling 40-50km/hour when the accident happened, but perhaps he advised paramedics he was travelling 14-15 km/hour and they misheard him. In terms of his description of the incident in hospital records, the applicant argues that the focus of his meetings with medical professionals was not to explain every detail of how the incident happened.
The applicant has not demonstrated that the incident constitutes an “accident”
19I find that the applicant has not demonstrated, on a balance of probabilities, that the incident that occurred on June 22, 2022 constitutes an “accident” as defined in s. 3(1) of the Schedule as the applicant has not established that the incident arises out of the use or operation of an automobile.
20The respondent submits that the incident does not meet the purpose test as no automobiles were involved in this bicycle crash, and aside from the applicant’s statement, there is no evidence to suggest that there was an automobile of any kind operating near him when he crashed his bicycle into a road sign.
21I agree with the respondent that there is no objective evidence to support that an automobile was involved in the bicycle incident, and I am not persuaded by the applicant’s version of the incident. I find the applicant’s self-report to be inconsistent, and therefore unreliable for the following reasons.
22The applicant has not provided any corroborating evidence, most notably from the independent witness, Mr. Babcock, that would substantiate his claim that he had to swerve off the road while merging from a closed traffic lane because a truck behind him sped up and got too close to him. I have also considered the applicant’s affidavit that he was only traveling approximately 15km/hr and that the paramedics must have misheard him when they recorded his bicycle speed as 40-50km/hr. However, all other medical and incident records indicate that the applicant was traveling on his bicycle at the higher rate of speed. I find that without corroborating evidence to the contrary, a higher rate of speed is the more plausible scenario based on photographs and details from the scene of the incident, and the applicant’s affidavit indicates he had just stopped at the top of a hill, which would indicate that he was accelerating down the hill when he approached the construction speed limit sign.
23I have considered the inconsistencies between the location of the accident as noted by the applicant’s police statement and affidavit, and whether it was a car or a truck that approached him which is inconsistent between the ambulance call report and the police statement.
24I have also given weight to the social worker assessment report of Nicole Amirault of Sunnybrook Hospital dated June 23, 2022. Ms. Amirault indicated that the applicant was insightful and able to provide informed consent while participating in the assessment. I find that this again supports the unreliability and inconsistency of the applicant’s incident recall. According to Ms. Amirault, the applicant believed that he may have biked over a piece of metal on the road which resulted in the incident, and there was no mention of any vehicle approaching him. Though the applicant submits that he had just suffered a life-altering incident and was in no place to discuss and recall the details of the accident at Sunnybrook, Ms. Amirault noted in a subsequent consult note dated June 30, 2022 that the applicant was up in his chair, that he reported that he was doing okay, and that he often used humour in their conversations.
25Accordingly, I find that the applicant was not involved in an accident as defined in s. 3(1) of the Schedule. The incident that occurred on June 22, 2022 does not meet the purpose test because any injuries the applicant may have suffered do not arise from the use or operation of an automobile. Since the purpose test has not been met, further analysis concerning the causation test is not necessary.
ORDER
26The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
Released: December 6, 2024
Tyler Moore
Vice-Chair