Kandaiya v. TD Insurance, 2024 CanLII 83754

Licence Appeal Tribunal

Citation: Kandaiya v. TD Insurance, 2024 ONLAT 23-015168/AABS-PI

Licence Appeal Tribunal File Number: 23-015168/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:

Prathab Sivagun Kandaiya

Applicant

and

TD Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Ramandeep Minhas, Counsel

For the Respondent:

Nicholas Maida, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Prathab Sivagun Kandaiya (“the Applicant”) was involved in an incident on October 1, 2023 and sought benefits from TD Insurance (“the Respondent”) 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 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 whether the Applicant was 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 section 3(1) of the Schedule.

ANALYSIS

Background

4The Applicant was assaulted by another person with a blunt object while walking in a park. He was knocked to the ground during the assault and the assailant attempted to steal a gold chain that the Applicant was wearing. The Applicant fled the location of the assault to his vehicle however, the assault continued. He reports that he was struck upon entering the vehicle but managed to close the door thereafter. Following this, the assailant damaged the side mirror and taillight of the vehicle. The Applicant suffered injuries as a result of the incident, including headaches and backpain.

5The parties are at odds over whether this incident meets the definition of an accident, as outlined in the Schedule.

Was the incident an “accident”?

6I find that the Applicant was not involved in an “accident” as defined by section 3(1) of the Schedule.

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 demonstrate on a balance of probabilities his injuries were caused by the use or operation of an automobile.

8As 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:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,
2. The 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.”

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:

1. The “but for” consideration;
2. 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,
3. 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 Respondent submits that the incident does not meet the purpose test. It submits that the Applicant was walking in a park at the time the incident occurred and that his vehicle was not in use or operation at the relevant time.

12The Applicant submits that the purpose test is met because the Applicant was using the vehicle for its intended purpose: to transport him from one location to another. To the Applicant, the sequence of parking a vehicle and walking back to it to drive away from a location is an ordinary and well-known activity that automobiles are regularly put into. He further submits that using the vehicle to escape the assault – using a vehicle to ensure safety – is also within the scope of typical function for a vehicle.

13I agree with the Respondent and find that the incident does not meet the purpose test.

14I find that walking to a parked vehicle is not using or operating a vehicle. Walking to a vehicle is far too broad of an interpretation to consider it to be use or operation of a vehicle. Accepting such a broad interpretation would greatly expand the definition of an accident to include all incidents that may occur while someone is on their way to a vehicle, regardless of the proximity of the vehicle to the incident. There is no evidence before me to indicate that the Applicant had started to engage to the process of operating a vehicle, aside from returning to it. Returning to a vehicle is not using a vehicle, particularly when the proximity of the vehicle to the incident is unclear and there is no indication that he started to engage the vehicle, such as using the remote to unlock the door.

15The Applicant cannot bring the incident to the vehicle and then determine it was an accident. The incident occurred at a location other than at the vehicle and it was the Applicant who chose to flee the scene to the vehicle. Accepting the Applicant’s interpretation here would permit anyone involved in an injurious situation to flee to a vehicle and claim accident benefits. I find it implausible that this outcome was the legislature’s intention. Accordingly, I find that the purpose test is not met in this situation.

16However, if I am wrong and using a vehicle for shelter during an assault is a use or operation of a vehicle, I find that the incident does not meet the causation test.

The Causation Test

17I find that the Applicant would have sustained the injuries reported, regardless of the use of a vehicle. Thus, the causation test is not met.

18The Applicant’s injuries would have occurred whether he sheltered in the vehicle or not, thus the “but for” component is not met. The Applicant was walking in a park at the time the assault started and was not using the vehicle, as it was parked. The involvement of the vehicle occurred after the incident started and because the Applicant decided to involve it as a means for shelter from the assault. Because the assaulted occurred while walking in a park, it cannot be said that the Applicant would suffer the injuries but for sheltering in the vehicle. If anything, the operation of sheltering in the vehicle mitigated the injuries sustained in the assault.

19Sheltering in a vehicle is not an intervening act that engages the definition of an accident. As noted previously, the Applicant brought the incident to his vehicle. Nevertheless, this would be an incorrect application of the legal test as it asks whether an intervening act may break the chain of causation – not whether an intervening act can create an accident.

20The dominant feature of the incident leading to the Applicant’s injuries is the assault. Even if I were to accept that the incident met the purpose test, I find that the assault is the dominant feature of the incident which led to the Applicant’s injuries. The evidence before me, which includes the Applicant’s statement in his application for accident benefits, a disability certificate, and the police report – labelling the incident as a robbery with a weapon, all indicate that the Applicant’s injuries are from being struck by the assailant with a blunt object. None of the evidence includes reports from the Applicant that he struck any part of his body on the vehicle, inside or out, or that the motion of the vehicle upon departing caused him to suffer an impairment. Likewise, he has not produced any medical records which indicate an injury other than a blunt force injury as a result of the assault. I have no doubt that the injuries sustained are as a result of the assault.

21To the Applicant’s misfortune, he was assaulted in a park and not involved in an accident. Thus, I find that the use or operation of the vehicle is not a direct cause for the Applicant’s injuries. This incident does not meet the definition of an “accident” pursuant to section 3(1) of the Schedule.

ORDER

22The Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.

23The application is dismissed.