Licence Appeal Tribunal File Number: 25-004081/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:
Manjot Kaur
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Marina Korshunova, Paralegal
For the Respondent:
Matthew Murphy, Counsel
HEARD: In writing
OVERVIEW
1Manjot Kaur, the applicant, was involved in an incident on June 18, 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
2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule?
3In its submissions, the respondent also raised for the first time a preliminary issue of whether the applicant provided proper notification of her intention to seek accident benefits pursuant to section 32 of the Schedule. This preliminary issue was not raised at the case conference, was not identified as a preliminary issue in the July 23, 2025 Case Conference Report and Order (“CCRO”), and there is no evidence that the respondent raised this preliminary issue prior to the service and filing of its submissions for this preliminary issue hearing. Pursuant to Rule 20.4 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”) any preliminary issue a party intends to raise must be included in their case conference summary.
4As the applicant was not provided with proper notice of the section 32 preliminary issue and therefore was not provided with appropriate time to consider and respond to the issue, on the basis of procedural fairness and Rule 20.4, it will not be considered within the context of this Preliminary Issue Decision. The respondent would have known of the issue of notification at the time of the case conference. I will solely be considering the issue of whether the incident of June 18, 2023 was an “accident” as defined by the Schedule.
RESULT
5The applicant has not proven on a balance of probabilities that the incident of June 18, 2023 was an “accident” as defined in section 3(1) of the Schedule.
PROCEDURAL ISSUE – LATE FILING AND SERVICE OF APPLICANT’S SUBMISSIONS
6In its reply submissions, the respondent argues that the applicant did not provide her responding submissions in accordance with the July 23, 2025 CCRO nor did she seek an order of the Tribunal to extend the service and filing of her submissions beyond the CCRO deadline. The respondent therefore submits that the applicant’s submissions should not be considered and her claim should be dismissed.
7Paragraph 9 of the CCRO states that the applicant was to serve and file her written submissions, evidence and authorities within 28 calendar days after the case conference. The case conference was held on July 23, 2025 and therefore the applicant was to serve and file her materials by August 20, 2025. The applicant served and filed her materials on August 22, 2025, two days later than the ordered deadline.
8There is no information that the applicant sought an order of the Tribunal to extend the deadline, and her submissions do not address her late filing nor does she provide an explanation for the delay.
9Pursuant to Rule 9.3 of the Rules if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal.
10When making its determination, the Tribunal may consider any relevant factor, including: the reasons for non-compliance; whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order; the extent to which the substance of the information or testimony lies within the knowledge of the other party; whether the other party opposes the admission of the evidence or testimony; and the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
11I have considered the relief sought by the respondent as well as the factors stipulated in the Rules and find that the 2-day delay in filing her materials does not warrant an order to exclude them. I note that the respondent also filed its reply submissions two days later than the deadline stipulated in the CCRO and has not explained how this short delay has prejudiced its position. The applicant would be substantially prejudiced if her submissions were not considered, particularly since the applicant has the burden of proof and the late-filed submissions were prepared and filed in contravention of the deadline by her legal representative, potentially impacting her client’s interests. I therefore find that the potential prejudice to the applicant would outweigh any prejudice to the respondent.
12I deny the respondent’s request to omit the applicant’s submissions.
BACKGROUND
13On June 18, 2023, the applicant was a passenger in an Uber vehicle on her way to work. When the applicant was picked up, there was already another female passenger in the vehicle. The applicant alleges that the other passenger became angry when she learned that Uber would be dropping off the applicant at her stop first. The other passenger began using racial slurs, slapped the applicant in the face and kicked her when she was getting out of the vehicle, causing the applicant to fall to the ground. The applicant alleges the Uber driver took no action to intervene and/or to resolve the issue.
14The applicant reported the incident to police and to Uber. A General Occurrence Report notes that the applicant reported an assault, which, at the time of this decision was still under investigation by the police. The applicant claims she suffered psychological injuries and commenced treatment with a psychotherapist in July 2023. She claims Post Traumatic Stress Disorder (PTSD), social withdrawal and phobia, passenger anxiety, uncontrolled crying, and feeling victimized.
ANALYSIS
15For reasons that follow, I find that this incident does not meet the definition of an “accident” as defined by the Schedule.
16The Schedule provides that insurers are liable to pay certain benefits to or on behalf of insured persons who sustain an impairment as a result of the use or operation of an automobile. Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
17The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
18In 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?
The Purpose Test - Did the incident arise out of the use or operation of an automobile?
19I find the purpose test has been met.
20As set out in Greenhalgh v ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at paragraph 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?
21The respondent did not provide submissions on the purpose test. The applicant submits that the incident occurred while being a passenger in an Uber and that taxis, ridesharing services and carpools are all ordinary and well-known activities of an automobile.
22I am satisfied that on a balance of probabilities the purpose test has been met because the vehicle was being used for the purpose of transporting people, an ordinary and well-known activity for which vehicles are put.
The Causation Test
23As set out in Greenhalgh, the causation test requires me to determine if this ordinary and well-known activity was the direct cause of the applicant’s impairments by focusing on the following considerations:
a. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;
b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and
c. whether the use or operation of the motor vehicle was the dominant feature of the incident.
Would the alleged injuries not have occurred ‘but for’ the use or operation of the automobile?
24I find that the applicant has established that the alleged impairments would not have occurred but for the use or operation of the automobile.
25The respondent does not expressly address the ‘but for’ consideration in its submissions. The applicant submits that her psychological impairments would not have occurred but for her being a passenger in the Uber at the time of the assault, even if external factors contributed to the accident. Both parties, however, raise and rely on Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA) (“Chisholm”) for their causation analysis. The applicant relies on Chisholm to show that the threshold for the ‘but for’ test is low, and the respondent relies on Chisholm to argue that the analysis of the causation test requires more than the ‘but for’ consideration.
26I agree with the applicant that the threshold for the ‘but for’ test is low and does not require that the accident be the only cause of the impairments the applicant is currently suffering.
27I also agree with the respondent that Chisholm requires that the applicant go further than to simply establish that ‘but for’ the use or operation of an automobile, the incident in question would not have occurred. The use or operation of a vehicle must be a direct cause. This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where at paragraph 39, the Divisional Court rejected the Director’s Delegate’s finding “that the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to “a necessary cause”.
28I find that the applicant satisfies the ‘but for’ test in that she would not have sustained her alleged impairments but for being a passenger in the Uber, along with another unnamed passenger who was also being transported to work and became upset when she was advised that the applicant would be dropped off at work first. However, as per Chisholm, the ‘but for’ test does not conclusively establish legal causation; it “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.” Applying Sabadash, the applicant needs to show that the accident was a necessary cause of her impairments.
29Since the ‘but for’ test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severed the chain of causation.
Was there an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle?
30I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of her injuries. Rather, I find that the injuries were caused by an intervening act, namely, the assault perpetrated by the other passenger.
31As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the automobile.
32The respondent submits that the applicant’s alleged psychological injuries were caused by an intervening act, namely the assault (various slaps, abusive comments and kick) perpetrated by the other passenger, which as outlined in Chisholm, is an intervening act that cannot be considered a normal incident or risk created by the use or operation of the vehicle. It relies on Downer v. The Personal Insurance Company, 2012 ONCA 302 (“Downer”) and states that the fact that the assault occurred within the vehicle is insufficient in establishing that the vehicle directly caused the injury.
33The applicant submits that her psychological injuries resulted from multiple elements, all of which were normal incidents and risks in the use and operation of a taxi or ridesharing services, which she argues, meets the test in Greenhalgh. The applicant does not elaborate on this, however, she later argues that a simple internet search confirms that commercial vehicle insurance, especially to operate a taxi or ridesharing service, comes at a higher premium cost due to the increased liability associated with these operations, and this solidifies her position that the incident was a normal and anticipated risk of using a ridesharing service. She also argues that the Uber driver’s lack of reaction to a passenger attack on himself and another passenger supports the theory that these kinds of interactions are anticipated during the normal course of business for an Uber driver. I note however, that the applicant did not provide any additional information, documentation or caselaw to support these arguments. Arguments or submissions are not evidence.
34I find the Court of Appeal’s decision in Downer persuasive. In Downer, the insured was physically assaulted by unidentified assailants while sitting in his car at a gas station. The Court found that the insured’s physical injuries were not directly caused by the use or operation of his vehicle, but rather by the assault which it concluded was an intervening act; an act that is not part of the ordinary course of things. I note however, that the Court in Downer distinguished the psychological injuries from the physical injuries. It found that the insured’s psychological injuries were caused by the insured’s belief that he might have run over one of the assailants when he drove off and therefore, were possibly a direct consequence of the use or operation of the vehicle.
35That is not the case here. In Downer, the psychological impairments might have been caused by the insured’s belief that he might have run over one of his assailants, whereas here, the applicant contends that her psychological impairments resulted from the assault. Had the assault not occurred, the applicant would not have sustained her injuries.
36This is also similar to Chisholm where the insured driver was catastrophically injured by gun shots while driving his car. Laskin J.A explained that the gun shots caused the impairment suffered by the insured; not the use or operation of the vehicle.
37Pursuant to Chisholm and Downer, I find that the vehicle did not cause the applicant’s injuries. Her injuries were caused by an assault which is not part of the ordinary course of the use or operation of the vehicle. It is an intervening act that broke the chain of events.
Was the use or operation of the automobile the dominant feature of the applicant’s injuries?
38I am not persuaded on a balance of probabilities that the dominant feature that caused the applicant’s injuries was the ordinary course of use or operation of the vehicle.
39The applicant submits that the operation of the vehicle was the dominant feature of the incident and not just an ancillary act. She argues that the operation of the vehicle certainly contributed to the injuries which establishes her entitlement to accident benefits as per Lefor (Guardian of) v. McClure, 2000 CanLII 5735 (ON CA), 2000 O.J. No. 2244 (“Lefor”) and “Gilbraith”.
40The applicant did not provide the citation for “Gilbraith” nor did she expand on how the decision supports her argument. Lefor is a decision of the Court of Appeal that found that the insured’s alleged negligence did not preclude coverage, but it was decided before the decision in Greenhalgh and therefore before the causation test was further expanded. I therefore do not find it persuasive for the analysis of whether the use or operation of the automobile was a dominant feature of the incident.
41As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine 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.”
42I agree with the respondent that the location of the incident is not determinative of an “accident”. Although the vehicle was the location of the incident, as per the Court in Downer (at paragraph 39): “it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.”
43In the July 28, 2023 clinical notes and records of the applicant’s psychotherapist, the applicant reported that she continues to feel the slap and stated that even when she is not thinking about the assault, she “feels it in her body”. This, in my view, further supports that the dominant feature of the applicant’s psychological injuries was the assault rather than the use or operation of the vehicle.
44I therefore find that the applicant has not established on a balance of probabilities that the ridesharing use of the Uber was the dominant feature that caused her injuries, rather than the assault.
Conclusion – Causation Test
45I find that the incident does not meet the causation test of an “accident”. Any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule, and therefore, she is not entitled to the benefits sought in this application.
ORDER
46The applicant has not established that the incident that took place on June 18, 2023 was an “accident” as defined in section 3(1) of the Schedule.
47The application is dismissed.
Released: October 28, 2025
Trina Morissette
Vice-Chair