Shaikh v. TTC Insurance Company Limited, 2025 CanLII 1828

Citation: Shaikh v. TTC Insurance Company Limited, 2025 CanLII 1828

Licence Appeal Tribunal File Number: 23-010091/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:

Mohammed Akram Shaikh

Applicant

And

TTC Insurance Company Limited

Respondent

DECISION

ADJUDICATORS:

Jim Zotalis

Rebecca Hines

APPEARANCES:

For the Applicant:

Dale Rosenberg, Counsel

For the Respondent:

Nabil Mahmood, Counsel

Court Reporter:

Prashanth Thanbipilaai

HEARD: by Videoconference

October 2, 2024

OVERVIEW

1Mohammed Akram Shaikh, the applicant, was involved in an incident on February 16, 2023, 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, TTC Insurance Company Limited, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?

3Prior to the hearing, the respondent withdrew the preliminary issue of whether the applicant was an “insured person” as defined in s. 3(1) pf the Schedule.

ISSUES

4The substantive issues to be decided in the hearing are:

i. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Back to Function Rehab & Wellness Centre in a treatment plan/OCF-18 (“plan”) dated May 25, 2023?

ii. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by My Physio Sports and Rehab Centre, in a Treatment Confirmation Form (“OCF-23”) dated March 22, 2023?

5The respondent has agreed that if the Tribunal determines that the applicant was involved in an accident, the respondent will fund the May 25, 2023, OCF-18 in accordance with s.25(5) of the Schedule.

RESULT

6The applicant was involved in an accident pursuant to s. 3(1) of the Schedule.

7The applicant is entitled to the OCF-18 for the psychological assessment in the amount of $2,200.00 and the OCF-23 for physiotherapy services in the amount of $2,200.00.

PROCEDURAL ISSUE

8The respondent opposed the applicant’s submission of an invoice from the applicant’s treating clinic showing that he incurred medical treatment because it was first served on the respondent at the hearing. The respondent submits that it would be procedurally unfair to allow the applicant to rely on same because the respondent has not been able to verify its contents.

9The applicant argues that the invoice supports his position that he was injured as a result of the accident and required the treatment.

10The respondent’s request to exclude the invoice is denied. We find that it is relevant to the issues in dispute. Further, the respondent is not prejudiced by us admitting the invoice into evidence because it had limited probative value in our determination of whether the applicant was involved in an accident.

ANALYSIS

Was the applicant involved in an “accident” as defined by s. 3(1) of the Schedule?

11We find that the applicant was involved in an accident as defined by s.3(1) of the Schedule.

12Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.

13The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

14In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), the Ontario Court of Appeal set out a two-part test for determining whether an incident qualifies as an “accident” under the Schedule, known as the “purpose test” and the “causation test.” The tests were further refined by the Court of Appeal in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (“Greenhalgh”) such that, in order to qualify as an “accident” under the Schedule, the insured person must satisfy both branches of the following modified test:

a) The Purpose Test: Did the incident and injuries arise out of the ordinary and well-known activities for which automobiles are used? and,

b) The Causation Test: Did the use or operation of an automobile directly cause the impairment?

15The 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 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

16The causation test then requires the fact finder to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by consideration of the following factors:

i. The “but for” consideration;

ii. 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

iii. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-know activity is what “most directly caused the injury”.

The Purpose Test

17We find that the applicant has met the purpose test. We agree that the incident has arisen out of the ordinary and well-known activities for which automobiles are put, namely, a vehicle was being operated on a roadway.

18The applicant testified that the incident involved the use of an automobile. He was crossing the street when a vehicle ran the stop sign and contacted the applicant’s right leg and then ran over his right foot. To support his position, the applicant relies on the records of Sunnybrook Hospital, the clinical notes, and records (“CNRs”) of Dr. Papneja and the insurance forms where he consistently reported the accident.

19The respondent argues that the applicant was not hit by the vehicle and therefore, the purpose test is not met. The respondent submits that the driver of the vehicle made a left-hand turn and had to stop his car abruptly to avoid contact with the applicant and thus no physical contact was ever made between the vehicle and the applicant.

20The respondent also submits the police attended the scene and concluded that no accident occurred because there were no witnesses and there were competing versions of events between the driver of the vehicle and the applicant. As a result, the respondent maintains that the applicant has not met his onus in proving that he was involved in an automobile accident.

21We find that an automobile was involved in the incident for the following reasons:

i. We find the applicant to be a credible witness and place weight on his version of events that he was struck by the vehicle as he was attempting to cross the street. We find the applicant’s testimony with respect to how the accident happened was consistent with the applicant’s self-reports to the police, the hospital records, the clinical notes, and records of Dr. Papneja and the insurance forms. In each case, the applicant reported the same facts and sequence of events as he testified to during the hearing. We also find the surveillance video from the date in question corroborates the applicant’s version of events. Although we acknowledge that the quality of the footage does not clearly show the applicant being hit, a vehicle can be seen making a left-hand turn into the wrong lane and stopping abruptly on the date the accident occurred. For these reasons, we accept the applicant’s version of events that he was hit by the vehicle.

ii. We place little weight on Constable Wyte’s testimony. The Constable testified that he interviewed the driver of the vehicle who stated that his vehicle came nowhere close to hitting the applicant. The Constable accepted the driver’s version of events because the paramedics stated there was no evidence of a foot injury. On cross-examination, however, Constable Wyte confirmed that had he viewed the surveillance video or the hospital records from the day after the incident which noted soft tissue injuries, it may have changed his opinion on the events or led to further investigation; and

iii. The hospital records note that the applicant sustained soft tissue injuries and recommended that the applicant follow-up with his family doctor.

22Given that we have found that an automobile was involved and that it was being used for an ordinary and well-known activity to which automobiles are put (i.e., it was being operated on a roadway), we conclude the purpose test has been met.

The Causation Test

23The respondent argues that the causation test has not been met because a vehicle was not involved in the incident and that the applicant did not sustain injuries. We find that the causation test has been met. But for the vehicle making contact with the applicant, he would not have sustained soft-tissue injuries to his foot. We also find there was no intervening act, and the vehicle was the dominant feature causing the impairment.

24The causation test requires an analysis of whether the “ordinary and well-know activities” were the direct cause of the applicant’s impairments by focusing on satisfying the following considerations:

i. The “but for” consideration;

ii. 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

iii. 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”.

i. The alleged injuries would not have occurred “but for” the use or operation of the automobile.

25We find that but for the vehicle making contact with the applicant, he would not have sustained soft tissue injuries.

26However, the “but for” test is not determinative of legal causation. As Laskin J.A. noted in Chisholm, the purpose of the “but for” test of causation is exclusionary, so it serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome. […] the but for test does not conclusively establish legal causation.” As such, we must also consider whether there were any intervening acts which cannot be said to be part of the “ordinary course of things”.

ii. No intervening act broke the chain of causation.

27We find that no intervening act broke the chain of causation.

28In some cases, the presence of intervening causes may serve to break the link of causation. An intervening act may absolve an insurer of liability if it is outside the risk created by the use or operation of an automobile, that is, if it is not part of the ordinary course of things. We find that no intervening act exists here which resulted in the applicant’s injuries as there is a clear chain of events which necessarily flow from the involvement of the vehicle.

iii. The dominant feature of the incident was the use and operation of the vehicle.

29We find that the use and operation of the vehicle was the dominant feature of the incident.

30This test involves consideration of whether the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”. Again, we accept the applicant’s version of events. Given this finding, it cannot be said that the use or operation of a vehicle was too remote nor was it merely ancillary to the injuries sustained by the applicant. The presence of and contact with the vehicle was the sole reason that the applicant sustained his injuries. The injuries sustained by the applicant were contemporaneous and directly flow from the use or operation of a vehicle and therefore we find that the operation of an automobile was a dominant feature of the incident.

31For these reasons, we find that the causation test has been met, as the evidence supports that the applicant’s injuries were directly caused by the use or operation of a vehicle and there were no intervening acts that could reasonably be considered to be outside of the normal course of things that would sever the chain of causation.

32Accordingly, we find that the applicant has proven on a balance of probabilities, that the injuries he sustained were the result of an “accident” as defined by s.3(1) of the Schedule.

The applicant is entitled to the benefits in dispute.

33As noted above, the respondent agreed that if the Tribunal determined that the applicant was involved in an accident, it would fund the OCF-23 for physical treatment in the full amount claimed and the OCF-18 for the psychological assessment in the amount of $2,000.00. However, there is a dispute about the quantum of the psychological assessment which will be addressed now.

34Section 25(5) of the Schedule provides that an insurer shall not pay more than $2,000.00 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

35The OCF-18 proposed by Back to Function Rehab & Wellness Centre dated May 25, 2023, recommended a psychological assessment in the amount of $2,000.00, plus a $200.00 fee for preparation of the form.

36The respondent argues that s.25(5) of the Schedule is clear that the maximum payable for assessments is capped at $2,000.00. Consequently, the additional $200.00 is not payable. It relies on the Tribunal’s Reconsideration Decision in 17-006934 v. State Farm Insurance, 2019 CanLII 72227 (ON LAT) (“R.G. v. State Farm”) where the adjudicator determined that the $2,000.00 cap applies to assessments. The applicant submits that he is entitled to the full amount of the OCF-18.

37We do not disagree with the adjudicator’s finding in R.G. v. State Farm that assessments are subject to the $2,000 cap. However, we find this decision did not address s.25(3) of the Schedule which provides for fees charged by a health practitioner for reviewing and approving a treatment plan. Nor does it discuss the Financial Services Commission of Ontario’s Superintendent Guideline No.03/14 which supports that a health practitioner may charge a maximum fee of $200.00 to review and approve an OCF-18. The Tribunal has consistently found that this fee is separate from the assessment. Consequently, we find the $200 fee is not included in the cap because it is not part of the assessment. The applicant is therefore entitled to the OCF-18 in the amount of $2,200.00.

ORDER

38For the above-noted reasons, we find:

i. That the applicant was involved in an accident pursuant to s. 3(1) of the Schedule; and

ii. The applicant is entitled to the OCF-18 for the psychological assessment in the amount of $2,200.00 and the OCF-23 for physiotherapy services in the amount of $2,200.00.