Licence Appeal Tribunal File Number: 25-004805/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:
Keelan Zondervan
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Jeremy Hanigan, Counsel
HEARD: In writing
OVERVIEW
1Keelan Zondervan, the applicant, was involved in an incident on March 8, 2023, and sought benefits from Definity Insurance Company, 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 (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2At a case conference held in this matter on July 8, 2025, the following preliminary issue was added to the application:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3The incident of March 8, 2023 is an “accident” as defined by the Schedule. The applicant may proceed with his application.
BACKGROUND
4On March 8, 2023, the 16-year-old applicant was crossing the street by foot in front of his high school to meet a friend on the opposite side of the street when he was struck and pinned by the ION light rail train which operates in the region of Waterloo (“the ION train”). To get to the other side of the street, the applicant needed to cross a one-way lane designated for eastward vehicle traffic, followed by two-way lanes reserved for the ION train, and followed by a one-way lane designated for westerly vehicle traffic. Unfortunately, before he was able to fully cross the street, the applicant was struck and pinned by the ION train.
5Emergency personnel attended the scene and lifted the compartment off of the applicant using small cranes. This tragic event caused significant impairments to the applicant who was air lifted to the Regional Trauma Centre in Hamilton.
ANALYSIS
6An “accident” is defined under the Schedule as an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
7An “automobile” is defined in the Act to include a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include “railway rolling stock that runs on rails”, a watercraft or an aircraft.
8The Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“the CAIA”) provides an exemption to “railway rolling stock that runs on rails” for the streetcar. Section 1(2) of the CAIA states the following:
Section 1(2): An electric streetcar that runs on rails principally on a highway shall be deemed to be a motor vehicle for the purposes of this Act.
9The respondent submits that the ION train is not an “automobile” within the meaning of the Act and it does not fall within the narrow exception of a “streetcar” found at section 1(2) of the CAIA. Rather, it submits that the ION train is a “railway rolling stock that runs on rails” as per the exclusionary part of the Act’s definition. The respondent therefore argues that this unfortunate incident is not an “accident” as defined by the Schedule. It relies on the distinctive features of the ION train which it extracted from information from the ION train’s website, section 138(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8 (“the HTA”) and the Divisional Court’s decision in Punja v. Toronto Transit Commission, 1979 CanLII 19730 (“Punja”). The respondent submits that this matter is similar to Punja and the Tribunal should adopt the same interpretive approach applied therein to find that this incident was not an accident.
10The applicant submits that the ION train is an “automobile” because it falls within the exemption classification of a “streetcar” found in the CAIA. Like the respondent, he relies on the specific features of the ION train to support his position, photos and videos of the ION train, as well as the decision of the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129 (“Smith”) and the Divisional Court’s decision in Botbyl v. Heartland Fam Mutual Inc., 2025 ONSC 3349 (“Botbyl”). He argues that where regulations are unclear or silent, they must be interpreted in favour of the consumer protection mandate of the legislation. As such, here, he submits that the ION train was constructed with the same (or similar) features as a “streetcar” and therefore should carry the same exemption for the purposes of the no-fault insurance scheme in this province.
11Both parties agree that the legislation is silent on light rail transit. This has led each side to take an opposite position regarding its classification and its resulting statutory interpretation: the respondent classifying it within a “railway rolling stock that runs on rails” and the applicant classifying it within the meaning of a “streetcar”. Both parties also agree that the definition provided for a “streetcar” in the CAIA is constrained but both rely, in part, on this limited definition to support their respective positions. Both parties state that an incident involving light rail transit striking a pedestrian is a novel one for the Tribunal.
An interpretive approach that furthers public policy objectives
12For the reasons that follow, I find that to adopt a strict interpretative approach as the one which the Divisional Court adopted in Punja in 1979, as submitted by the respondent, would not be in line with more recent guidance provided by the Court.
13The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC) citing Driedger on the Construction of Statutes (3rd ed. 1994) at page 87 (“Rizzo”). This approach involves consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.
14The respondent submits that this plain and ordinary interpretation approach should be adopted here as it was by the Divisional Court in Punja when that Court was tasked with the novel decision of whether a “streetcar” is an “automobile” pursuant to the Schedule. The respondent argues that, at the time of Punja where there was no express exemption for a “streetcar”, the Divisional Court decided that this was the Legislature’s intent and found that a streetcar was not an “automobile” for the purposes of accident benefits. Here, the CAIA expressly exempts a streetcar but does not allow for any other exemption including one for light rail transit. It submits that this confirms the Legislature’s intent to exempt a streetcar and not light rail transit from the definition of “railway rolling stock”.
15In Punja, the appellant pedestrian sustained impairments when she was struck by a streetcar in the city of Toronto. At the time of the Punja decision in 1979, the legislative definition of “automobile” was the same as its current version: a trolley bus and a self-propelled vehicle, its trailers, accessories and equipment, but does not include railway rolling stock that runs on rails, a watercraft or an aircraft. However, in 1979, there was no exemption for a streetcar within the definition of an automobile as we now have under the CAIA.
16Ultimately, the Division Court unanimously decided that a streetcar was not an “automobile” pursuant to the Act and the insured was therefore not entitled to accident benefits within the no-fault insurance scheme of the province. Both Krever J. and Montgomery J. provided reasons for their decision.
17Of note, the Court disagreed with the lower court’s interpretation for the object of the legislation and found that its object is “to assist victims of automobile accidents.” It expressed “regret” for what Krever J. described as “an irrational and discriminatory result” but it found that “where there is no ambiguity in the statutory language and the legislative meaning is not obscure, the Courts must yield to the sovereignty of the Legislature.” It found that a streetcar fell within the exclusionary language of the definition of an automobile (“railway rolling stock that runs on rails”) which it found to include cars of an electric railway. As Montgomery J. explained: “a streetcar is rolling stock that runs on rails and thus comes within the exclusion of the definition of “automobile” in the Act.” He added that “[i]f the Legislature had intended to make a streetcar an automobile for purposes of the Insurance Act, they ought to have said so in unequivocal terms. I am not of the view that they intended to do so.” The Court concluded that to interpret a streetcar within the definition of “automobile” is a matter for legislative, not judicial, intervention.
18Subsequent to the Punja decision, the Legislature passed legislation that adopted section 1(2) of the CAIA, the exemption accorded for a streetcar within the definition of a motor vehicle. Although no similar amendment has been brought to the definition of “automobile” under the Act, it is accepted by the Tribunal that section 1(2) of the CAIA provides for an exemption to the definition of “automobile” in that a streetcar is now deemed to be an automobile for the purposes of accident benefits.
19The applicant relies on Botbyl to argue that where regulations are unclear or silent, they must be interpreted in favour of the consumer protection mandate of the legislation. I acknowledge that Botbyl is distinguishable on its facts from the present matter. Botbyl dealt with the question of whether tribunals can grant relief from forfeiture under the Act on such terms as it considers just where there has been imperfect compliance with a statutory condition, and more specifically, whether the reference to “court” in the legislation included a “tribunal”. This is not the question here. However, the Court in Botbyl also provides guidance to the Tribunal when interpreting consumer protection legislation. It is this guidance that I deem relevant to the present matter.
20Fundamental to the Court’s decision in Botbyl was the fact that the Schedule is consumer protection legislation which the Court stated must be interpreted in a manner consistent with its objective: to reduce economic dislocation and hardship for victims of vehicle accidents. In its reasons, the Court cited Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438 (“Tomec”) which set out the overriding principles to be applied in interpreting the Schedule. Tomec stated that the Schedule should “be read in its entire context and in their ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.” The Court explained that Tomec also states that when faced with a choice between an interpretation of the statute “that furthers the public policy objectives underlying the [Schedule] and one that undermines it, the only reasonable decision is to side with the former.”
21I find that to adopt the strict interpretation approach followed in Punja would undermine the public policy objectives of the legislation (as stated in Botbyl) because the Legislature has recognized that there are at least two exemptions to “railway rolling stock that runs on rails” being a trolley bus and streetcar. The features of the ION train are fundamentally those of a streetcar and a trolley bus: it is an electric vehicle that runs on tracks and carries passengers along public highways.
The ION train is an “automobile” pursuant to the Act
22For the reasons that follow, I find that the ION train is an “automobile” pursuant to the Act.
23As recognized by the courts in Rizzo, Punja and Botbyl, the fundamental consideration to interpret whether the ION train is an “automobile” is to consider the legislation in its entire context and in its ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature.
24As previously noted, “railway rolling stock that runs on rails” is not defined in the legislation but the Court in Punja recognized that it includes “cars of an electric railway” and both parties agree that the ION train is an electric vehicle that runs on rails. The parties also agree that the CAIA states that a “streetcar” is “an electric streetcar that runs on rails principally on a highway” and they also agree that there is no expressed exemption for light rail transit, and nowhere in the legislation is light rail transit defined.
25The parties also do not dispute the object of the Act and its regulations (i.e., the Schedule). The Court in Punja found that the object of the legislation is “to assist victims of automobile accidents” and the Court in Botbyl elaborated on this finding to state that the Schedule is consumer protection legislation which must be interpreted in a manner consistent with its objective: to reduce economic dislocation and hardship for victims of vehicle accidents.
26Where the parties differ is on the intention of the Legislature when it adopted the exemption for a streetcar. The respondent takes the position that since the Legislature expressly exempted a “streetcar” (in addition to its initial exemption for a “trolley bus”) and has remained silent regarding light rail transit, its intention was not to allow for an exemption for the ION train. The applicant takes the position that despite the legislative void, the ION train is ultimately a streetcar and should be exempted from the reference of “railway rolling stock that runs on rails” as it operates like a streetcar. Both parties submit features of the ION train to support their respective positions: the respondent highlights features that show the ION train is different from a streetcar such as its use of designated lanes and its rights-of-way, while the applicant highlights features to show that the ION train and the streetcar are similar, such as its lanes are not significantly separated from the highways and vast sections of its lanes share the same highways with vehicular traffic.
27I find that there are similarities and differences between the ION train and a streetcar which can be expected with relatively new technology. The ION train was officially opened in June 2019 and was not contemplated at the time of the 1990 amendment.
28I am aided by the fact that the Government introduced the bill to include the streetcar exemption following the Punja decision which I find suggests that the Legislature agreed with the “irrational and discriminatory result” of not having included an exemption for a streetcar. I also find Krever J.’s definition of a “streetcar” in Punja helpful. Krever J. defined it as “public passenger cars of an electric railway that run along tracks set into the streets.” I find this helpful because it shows a pattern: the Legislature intended to specifically address “public passenger cars”, such as the trolley bus and the streetcar which operate typically within the boundaries of a municipality to transport people. I find that the Legislature’s intention was to include public passenger cars operating within the boundaries of a municipality to transport people within the definition of an “automobile”.
29On this point, I find that the ION train is more akin to a streetcar or trolley bus in the sense that it transports public passengers “along tracks set into the streets” of a municipality (or as the definition of “streetcar” defines it, “on rails principally on a highway”) which I find contrary to other railway rolling stock such as freight trains, VIA rails trains or CN/CP trains which typically do not operate close to busy public infrastructure (such as a high school) or near busy pedestrian traffic or cross walks.
30The respondent submits that unlike streetcar rails, such as the ones in Toronto that are fully integrated within the road, the ION train tracks are built in a way that does not permit motor vehicles to share their lanes. The ION train has its own dedicated lanes and has the right-of-way just like any other train. It argues that motor vehicles are not allowed to drive in the ION train lanes.
31I accept that there are sections of the ION train route that do not allow vehicles to drive on, however, photographs of the ION train lanes submitted by the applicant from various sections of the rails show that the rails run along municipal roads, sometimes with a barrier (either a small curb, larger curb or complete barrier) but sometimes with nothing but a small indentation in the street with no significant barrier. It is also common knowledge that the streetcar lanes in the City of Toronto have dedicated tracks that do not allow vehicles to access, which undermines the respondent’s argument.
32Like streetcars and trolley cars – and contrary to other railway rolling stock – the ION train rails run through busy vehicular and pedestrian traffic. I particularly take note of the lanes in the downtown that run directly parallel to the road, on each side of the road, between vehicle traffic and the sidewalk. In these sections, there is no physical barrier between the rails and motor vehicle traffic, nor is there any significant barrier between the rails and the sidewalk aside from a small curb. It is difficult to ascertain from the photographs how much of the 19-kilometre rail system does not have a physical barrier (the applicant submits that there are “vast” sections of the line without physical barriers to prevent shared use) and I note that although sections of the rail line have either a small or larger curb that restricts access for motor vehicles, they are still largely accessible to pedestrians despite the “safety tips” listed on the website.
33The respondent also relies on the HTA - more specifically section 138(1) - to argue that the ION train is not subject to the same highway requirements as a motor vehicle or a streetcar. Section 138 specifically imposes yield obligations for motor vehicles and streetcars at right-of-way intersections. I am not persuaded by this argument and find that although the HTA does not specifically address light rail transit, this does not mean that the ION train is not subject to highway traffic requirements like motor vehicles or streetcars. Photographs of the ION train’s rail lines in the downtown core show that the ION train rails run parallel with traffic and have no significant barriers. The rails run throughout the downtown and cross intersections subject to traffic lights. I fail to see how the ION train would disregard a red light and continue through the intersection without stopping as this would readily cause collisions with intersecting traffic. Based on the evidence presented, there are some right-of-way restrictions imposed on drivers but again, I find that this argument does not convince me that the ION train should be classified within “railway rolling stock”.
34I find it “unfair and unreasonable” as per the Divisional Court in Botbyl that a pedestrian crossing a street and hit by a streetcar would be eligible to accident benefits whereas a pedestrian crossing a street and hit by the ION train would not be eligible as the respondent suggests with its reliance on Applicant v. Toronto Transit Commission, 2019 CanLII 101715 (ON LAT) (“TTC”). To distinguish the ION train based solely on its technology (light rail transit) as a sole descriptor would not be in line with the guidance provided by the Court in Botbyl that the Schedule is consumer protection legislation and must be interpreted in a manner consistent with the objective of the legislation.
35I find that the ION train is an electric vehicle that runs on rails parallel to municipal roadways and transports public passengers within the boundaries of a municipality. It is different from other excluded “railway rolling stock” such as freight trains, VIA Rail trains and CP/CN trains and is more in line with streetcars and trolley buses. I also find that the Legislature’s intent when adopting the exemptions for a trolley bus and a streetcar from the “railway rolling stock” was to include modes of transportation of these types within the boundaries of a municipality. In the most simplistic terms: if the ION train looks like a streetcar, and operates like a streetcar, it should fall within the same exemption. It should be deemed an “automobile” pursuant to the Act.
36Having considered all relevant legislation, I find that the ION train is an “automobile”. As a result, I find that the incident of March 8, 2023 is an “accident” as defined by the Schedule.
ORDER
37For the reasons stated above, I find that:
i. The ION train is an “automobile” as defined by the Act.
ii. As such, the incident of March 8, 2023, is an “accident” as defined by the Schedule.
iii. The applicant may proceed with his application.
iv. The application shall proceed to a hearing on the substantive issues as scheduled.
Released: October 6, 2025
Trina Morissette
Vice-Chair