Licence Appeal Tribunal File Number: 23-011234/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:
Clemente Sala
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Rayian Nayef, Counsel
For the Respondent:
Ibrahim Farag, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Clemente Sala, the applicant, was involved in an incident on November 21, 2019, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
ii. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
3The substantive issues to be decided in the hearing are:
i. Is the applicant entitled to $5,822.50 for hearing aids, submitted on a claim form (OCF-6) dated May 30, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons below, I find that:
The applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
The applicant is barred from proceeding with his claim for benefits as he failed to submit the application for benefits (OCF-1) within the time prescribed by s. 32 of the Schedule.
PRELIMINARY ISSUES
Was the Incident an “accident”?
Background
5On November 21, 2019, the applicant was operating his motor vehicle on Islington Avenue in Vaughan, Ontario. While stopped at the intersection with Rutherford Road, a 2018 Jeep Grand Cherokee (“Trackhawk”) in the adjacent lane emitted a series of loud backfires. The sudden and intense noise shattered the applicant’s front passenger window and allegedly caused hearing-related injuries, including tinnitus, otalgia, vestibular damage, and sensorineural hearing loss.
Parties’ positions
6The applicant states that the loud noise and shattering glass resulted from another vehicle's operation. The noise would not have occurred without the use of the motor vehicle, and being close to the other vehicle was essential.
7The respondent argues that hearing a loud noise does not constitute an “accident” under s. 3(1) of the Schedule. No medical evidence directly connects the hearing loss to the incident; Dr. Roma Chaban, an otolaryngologist, primarily attributes it to prolonged periods of construction work. The respondent cautions that accepting the premise that loud noises qualify as accidents could lead to an overly broad interpretation of the Schedule, potentially permitting claims from individuals exposed to loud environmental sounds, such as those from construction sites or car horns, regardless of any link to the use or operation of a motor vehicle.
Legal Framework
8For the following reasons, I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule.
9Section 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.
10In 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?
11The purpose test determines whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, 2004 ONCA 21045. Put another way, for what “purpose” was the vehicle being used at the time of the incident?
12The causation test then requires determining if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
a. The “but for” consideration;
b. 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,
c. 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
13The applicant submits that he was operating his vehicle in the ordinary course when the incident occurred. He was driving normally when a loud backfire from an adjacent vehicle allegedly caused him to suffer multiple injuries, including tinnitus, otalgia, eustachian tube dysfunction, vestibular damage, right ear pain, sensorineural hearing loss, and loss of balance. He argues that these impairments arose while he was engaged in the regular use of his automobile.
14The respondent questions whether the incident qualifies as an “accident” under the Schedule. Specifically, the respondent contends that the applicant has not provided any legal authority to support the claim that exposure to loud noise inside a vehicle constitutes an accident within the meaning of the Schedule.
15I find, on a balance of probabilities, that the purpose test has been satisfied. The evidence establishes that the applicant was operating his vehicle in a manner consistent with its ordinary and well-known use at the time of the incident. There is no dispute that the applicant was driving when the alleged backfire occurred. Driving is a recognized and typical activity associated with the use or operation of a motor vehicle.
16Moreover, the Divisional Court in Carrie-Anne Davis v. Aviva, 2024 ONSC 3054, affirmed that the use of a motor vehicle includes its mechanical functions, even where those functions result in unexpected consequences, such as a backfire. Applying this reasoning, I am satisfied that the incident arose from the use or operation of an automobile.
17Accordingly, on a balance of probabilities, the purpose test under the Schedule is met.
The Causation Test
The “but for” consideration
18The second part of the analysis requires consideration of whether the applicant’s injuries would have occurred “but for” the use or operation of the automobile. This test is designed to determine whether the vehicle’s use was a necessary condition for the injuries sustained.
19The applicant claims that while driving his own vehicle, he was exposed to a loud backfire from a nearby Trackhawk, which led to his hearing impairment. He states that the incident happened during normal use of his vehicle and that the injuries would not have occurred if he had not been inside at the time. I accept this argument. Based on the balance of probabilities, I find that the applicant would not have sustained the injuries “but for” his use of the vehicle, or “but for” the operation of the nearby vehicle.
20However, the “but for” test is not determinative of legal causation on its own. As articulated by Laskin J.A. in Chisholm v. Liberty Mutual Group, 2002 ONCA 45020, the “but for” test functions primarily as an exclusionary tool; it eliminates causes that made no difference to the outcome, but does not, by itself, establish legal liability. Legal causation requires a direct and proximate connection between the use or operation of the automobile and the resulting impairments.
21In this case, I am satisfied that such a connection exists. The backfire directly resulted from the mechanical operation of the Trackhawk’s internal combustion engine. The applicant was operating his own vehicle nearby when the backfire occurred, and the resulting injuries were sustained in that context. Therefore, the use or operation of both vehicles was essential to the occurrence of the injuries.
22Therefore, I find, based on a balance of probabilities, that the “but for” test is satisfied.
Was there an intervening cause?
23The applicant submits that the incident occurred when a stationary Trackhawk, positioned in the lane adjacent to his vehicle, emitted a series of loud backfires. He alleges that the resulting sound waves shattered his front passenger window and caused hearing-related injuries. The backfire, described as a misfire of the internal combustion engine, originated directly from the mechanical operation of the Trackhawk. The applicant maintains that there was no intervening act; instead, the explosion and resulting sound were a direct consequence of the vehicle’s functioning. His injuries occurred while he was operating his own vehicle in close proximity, and the sound penetrated his vehicle, causing the alleged harm.
24In support of his position, the applicant relies on Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429, where the court considered the scope of causation in the context of a vehicle’s use and operation. In Dittmann, injuries sustained from spilled coffee inside a running vehicle were found to arise from the use of the automobile, reinforcing the principle that mechanical or operational consequences can satisfy the causation requirement.
25The respondent argues that the applicant has not met the burden of proving that the incident directly caused an impairment, as required under the Schedule. Relying on Greenhalgh and Downer v. The Personal Insurance Co., 2012 ONCA 302, the respondent submits that the causal link between the use or operation of the automobile and the applicant’s injuries is insufficient. It maintains that the injuries were caused by exposure to sound, not by the operation of the vehicle itself.
26Legal causation requires a direct and proximate connection between the use or operation of the automobile and the resulting impairment. This includes consideration of whether any intervening act broke the chain of causation.
27I find no evidence of an intervening act that would break the causal link. The backfire was a mechanical consequence of the Trackhawk’s operation. The sound waves that allegedly caused the window to shatter and led to the applicant’s injuries were directly attributable to the functioning of the vehicle. This aligns with the reasoning in Dittmann, where the court recognized that injuries resulting from the mechanical or operational aspects of a vehicle may satisfy the causation requirement under the Schedule.
28Accordingly, on a balance of probabilities, I find that there was no intervening cause and that the applicant’s injuries arose directly from the use or operation of the automobile.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
29As described in Greenhalgh, the “dominant feature” consideration requires determining what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident,” Justice Labrosse found that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”
30The applicant submits that a physical collision is not required for an incident to qualify as an “accident” under the Schedule. He relies on Dittmann, where injuries caused by spilled coffee inside a stationary but running vehicle were found to arise from the use of the automobile. The applicant argues that his hearing-related impairments similarly resulted from the mechanical operation of the adjacent Trackhawk, which emitted a loud backfire while both vehicles were in use on a public roadway.
31The respondent submits that the applicant’s injuries were not directly caused by the use or operation of a motor vehicle. Relying on Downer, the respondent argues that proximity to a vehicle or the fact that an injury occurred while inside a vehicle is insufficient to establish causation.
32I find that the dominant feature of the incident was the mechanical backfire of the Trackhawk while it was in operation. Although the sound was sudden and loud, it was a direct product of the vehicle’s internal combustion engine, a function integral to its use and operation.
33In Downer, the claimant was assaulted at a gas station and fled in his vehicle. While the Ontario Superior Court initially found the incident to be an accident, the Ontario Court of Appeal reversed that decision, concluding that the assault itself, not the use of the vehicle, was the dominant cause of the injuries.
34Carrie-Anne Davis v. Aviva, 2024 ONSC 3054, involved a claimant who successfully argued that slipping on an icy parking lot surface while holding her key fob to unlock her car (if it wasn’t already open) counted as an “accident” under the Schedule. The Divisional Court ruled that the claimant was “so close" to her car that, when she fell, her leg was under the front wheel.
35Therefore, I conclude that mechanical emissions, such as exhaust or noise, can be part of a vehicle’s use or operation, and such emissions may directly cause impairments. The fact that the applicant’s own vehicle was not malfunctioning does not eliminate the causal link to the Trackhawk’s operation.
36The jurisprudence requires that the use or operation of the automobile be the dominant and direct cause of the impairment, rather than a mere contextual factor.
37While the respondent argues that the injury was caused by environmental noise, the case law does not require physical contact or malfunction to establish causation. The proximity of the vehicles and the mechanical origin of the sound support a finding that the use or operation of the Trackhawk was the dominant and direct cause of the applicant’s impairments.
38I find that the dominant feature of the applicant’s injuries was exposure to a loud sound emitted from the Trackhawk. Although the sound itself was environmental in nature, its source was the mechanical function of a vehicle in operation. Section 3(1) of the Schedule refers broadly to the “use or operation of an automobile,” and does not restrict the analysis to the applicant’s own vehicle.
39Applying the two-part test from Caughy and guided by the reasoning in Davis, I find that the incident meets the definition of an “accident” under section 3(1) of the Schedule. The applicant was injured as a direct result of the use or operation of another automobile, and the impairment arose in the ordinary course of vehicular activity.
40Accordingly, on a balance of probabilities, I find that the incident constitutes an accident within the meaning of the Schedule.
Did the applicant file a late application?
41I find that the applicant is barred from proceeding with his claim for accident benefits due to the late submission of his application.
42Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)).
43Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms. Section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation.
c. Ignorance of the law alone is not a “reasonable explanation”.
d. The test for “reasonable explanation” is both a subjective and objective test that should take into account both personal characteristics and a “reasonable person” standard.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
f. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
44Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or have not applied for the benefit within the times set out in the Schedule.
45In this case, the accident occurred on November 21, 2019, and the applicant submitted his OCF-1 on June 12, 2020, approximately seven months later. The applicant does not dispute that he submitted his OCF-1 well outside the s. 32 time-limit. Rather, he argues that he has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.
Has the applicant provided a reasonable explanation for the delay?
46The applicant explains that he did not retain legal representation until shortly before submitting the application. He further argues that, due to the unusual nature of the injury, a layperson would not reasonably have known to file a claim earlier.
47The respondent submits that the applicant was made aware of the 30-day filing requirement and failed to comply. It argues that the applicant’s explanation, based on lack of legal representation, is not reasonable under the Schedule or applicable case law. The respondent relies on decisions such as Greenhalgh and Downer, which affirm that confusion or ignorance of the law does not justify late filing.
48The Tribunal has consistently held that delay in obtaining legal representation does not constitute a reasonable excuse for late filing. [See, for example, Adams v. Aviva, 2023 CanLII 4458 (ON LAT), and Clements v. The Co-operators Group Limited, 2021 CanLII 18911 (ON LAT)]. Ignorance of the law or delay in seeking legal advice does not excuse non-compliance with statutory timelines.
49Although prior Tribunal decisions do not bind me, I find the reasoning in Adams and Clements persuasive. A delay in obtaining legal counsel has consistently been found insufficient to justify late filing.
50The Schedule imposes a clear statutory obligation on the applicant to file within the prescribed time, and the respondent’s delay in raising the issue does not negate that obligation.
51The applicant was informed in November 2019 of the requirement to submit the OCF-1 within 30 days. I agree with the respondent that the applicant could have contacted the respondent for assistance.
52In assessing whether the applicant has provided a reasonable explanation for the delay, I have considered the Horvath test, which requires balancing the reasonableness of the explanation against any resulting prejudice to the respondent and hardship to the applicant. While the applicant’s delay in retaining legal counsel may reflect a genuine challenge, it does not rise to the level of a reasonable excuse under the Schedule. The applicant was informed of the 30-day filing requirement and had the opportunity to seek clarification or assistance. On its own merit, the applicant’s explanation lacks sufficient justification when weighed against the statutory obligation and the respondent’s interest in timely notice.
53Accordingly, I find that the applicant failed to submit the OCF-1 within the prescribed time and has not provided a reasonable explanation for the delay. Pursuant to s. 55(1) of the Schedule, the applicant is therefore barred from proceeding with his claim for accident benefits.
Does the Tribunal have jurisdiction to apply estoppel?
54I find that while the Tribunal has jurisdiction to apply statutory estoppel under section 131 of the Insurance Act, the requirements for its application have not been met in this case.
55The applicant argues that the respondent should be estopped from disputing the characterization of the incident as an “accident” under the Schedule, as this position was only raised at the Case Conference and not in earlier communications. He submits that the respondent previously referred to the incident as an “accident,” creating a shared assumption upon which he relied in pursuing medical benefits. He contends that allowing the respondent to reverse its position at this stage would result in unfair prejudice and prevent the Tribunal from adjudicating the matter on its merits.
56The applicant further argues that the respondent did not raise the issue of late filing of the OCF-1 until April 2024 and should therefore be estopped from relying on this ground to bar the claim.
57The respondent submits that the applicant’s reliance on estoppel is misplaced. It argues that the Tribunal is a statutory tribunal and does not have jurisdiction to grant equitable relief, including estoppel, unless expressly authorized by statute. The respondent emphasizes that the Tribunal's powers are limited to those conferred by its enabling legislation.
58Historically, the Tribunal has held that it lacks jurisdiction to apply common law equitable remedies. However, the Divisional Court in Akinyimide v. Economical, 2023 ONSC 5272, clarified that the Tribunal does have the authority to apply a statutory waiver and estoppel under section 131 of the Insurance Act.
59Section 131(1)(b) of the Insurance Act provides that an insured’s obligation to comply with a requirement under an insurance contract may be excused where the insurer’s conduct reasonably causes the insured to believe that compliance is not required, and the insured acts on that belief to their detriment. The Divisional Court held that this provision is available to the Tribunal and must be considered where applicable.
60In this case, the applicant relies on an Explanation of Benefits dated August 24, 2023, to argue that the respondent is estopped from disputing the definition of the incident as an “accident.” Nevertheless, simply referring to the incident as an “accident” in early communications does not, on its own, meet the requirements of statutory estoppel under section 131. The applicant has not shown that he suffered prejudice due to relying on that description, especially given that any benefits were paid before the Case Conference.
61Similarly, the applicant has not identified any written notice or conduct by the respondent that would reasonably lead him to believe that the 30-day deadline for submitting the OCF-1 was waived or excused. There is no evidence that the respondent’s conduct caused or contributed to the delay in filing the application.
62Accordingly, while the Tribunal has jurisdiction to apply statutory estoppel under section 131 of the Insurance Act, I find that the legal and factual requirements for its application have not been met in this case.
63As I have determined that the applicant is barred pursuant to s. 55(1) from proceeding with his claim due to late filing, and that the requirements for estoppel have not been met, I do not need to consider the remaining substantive issues.
ORDER
64For the reasons above, it is ordered that:
i. The applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
ii. The applicant is barred from proceeding with his claim for benefits as he failed to submit the application for benefits (OCF-1) within the time prescribed by s. 32 of the Schedule.
iii. The application is dismissed.
Released: October 8, 2025
Harouna Saley Sidibé
Adjudicator