Licence Appeal Tribunal File Number: 24-004213/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:
Irina Yoffe
Applicant
and
Travelers Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Michelle Panagiotakos, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Irina Yoffe (the “applicant”) was involved in an incident on June 17, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Travelers Insurance Company of Canada (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:
i. Was the applicant was involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4On June 17, 2023 the applicant was riding an e-bike in a residential area when she lost control and crashed. She sustained various impairments including a fractured jaw.
5The applicant submits that she lost control because a third party driving a motor vehicle encroached on her path, causing her to lose control in order to avoid a collision.
6The respondent submits that the evidence indicates that there was no involvement of a third-party vehicle, that she simply lost control and fell, and therefore the incident does not meet the definition of an “accident”.
The Law
7In order to be eligible for statutory accident benefits under the Schedule, the applicant must establish on a balance of probabilities that the incident that occurred on June 17, 2023 meets the definition of an “accident”.
8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test. I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.
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:
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?
11The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA).
12The 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:
The “but for” test can act as a useful screen;
In some cases, the presence of an “intervening cause” 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 incident meets the definition of an “accident”
13The first stage of the causation inquiry concerns whether the use and operation directly caused the impairments.
14The respondent submits that a third-party vehicle was not involved, and therefore the incident fails both the purpose test and the causation test. The respondent submits that neither the ambulance call report, police report, nor the hospital records mention involvement of a third-party vehicle when she fell off her bike. The diagram on the police report indicates that the was travelling at a curve in the road when she lost control. The respondent also points to inconsistencies between both the location of incident (different intersections) and the details of the incident in the OCF-1 and her reports to the family physician I find the discrepancies to be minor and of little consequence.
15The respondent submits that the applicant did not make contact with a vehicle, and therefore the purpose test was not met. The Divisional Court in Madore v Intact Insurance Company, 2023 ONSC 11 (“Madore”) confirmed that contact with the vehicle is not required for an incident to meet the definition of an “accident’. Madore outlines and clarifies the “correct approach” to the causation test under the Schedule at para. 37. The court emphasized that it is the use and operation of the vehicle that is the relevant cause, not the vehicle itself.
16I am persuaded that the use or operation of the third-party vehicle directly caused the applicant’s impairments. Evidence contemporaneous to the incident that corroborates the applicant’s version of events.
17The applicant immediately notified emergency personnel that there was a vehicle in the road that caused her to fall off her bicycle. A 911 call made shortly after the incident reports that woman was hit by a car and sustained a broken jaw. The transcript of the call clarifies alleged inconsistences raised by the respondent, including that it was a motor vehicle accident, that a “30-year-old male [sic] was hit by a car on pedal bike – has jaw pain – male [sic] awake and breathing - ambulance en route.” Additional remarks note “female transported to Mackenzie Health with minor injury to neck and face; she stated that a motor vehicle drove near and startled her, which caused her to fall off her bicycle”.
18According to the OCF-1, the applicant was operating an e-bike near an intersection, when a third party failed to stop at a stop sign and made a sudden and hazardous left turn into her path, causing her to fall off the e-bike.
19With respect to the police report, I note that it was not completed on the day of the incident, but 18 days later on July 4, 2023. Emails from the police confirm that the constable who completed the report did not take a statement from the applicant following the collision. However, in addition to the diagram on the police report noted by the respondent it also contains a description -- “cyclist startled and fell off” -- which supports the applicant’s submissions. I therefore am not persuaded by the respondent’s argument that the police report does not support the applicant’s version of events. I also place little weight on the fact that the medical records do not mention the fact that another vehicle on the road startled the applicant causing her to fall. It is not the role of medical professionals to record all of the details of the incident, but rather pertinent medical information. At the hospital, the applicant was suffering from a fractured jaw. Triage notes indicate that she had significant difficulty opening her mouth. I infer that she would likely have had difficulty speaking.
20Subsequent medical records of the family physician in July 2023 note the applicant was forced to swerve due to a car almost hitting her back wheel, leading to her fall and subsequent injuries.
21Further, the applicant provided a detailed statement to police on November 30, 2023, clarifying the location and details of the incident. The applicant reported that she was travelling northbound when an approaching vehicle ignored a stop sign and made a left turn into her path, which startled her causing her to fall from her bike.
22I am persuaded that the evidence supports that the incident occurred as alleged by the applicant, that a third-party vehicle made a sudden, hazardous turn into her path, causing her to swerve and crash in order to avoid a collision. The incident arose as of the use and operation of this third-party vehicle, which directly resulted in the applicant’s impairments.
23In conclusion, I find that the applicant has demonstrated, on a balance of probabilities, that the incident that occurred on June 17, 2023 meets the definition of an “accident” defined in section 3(1) of the Schedule, having satisfied both the purpose test, and the causation test.
ORDER
24The applicant has established that she was involved in an “accident” as defined in s. 3(1) of the Schedule.
Released: February 27, 2025
Kate Grieves
Adjudicator