Licence Appeal Tribunal File Number: 24-004934/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:
Joselia Ferreira
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Elena Fetesko, Paralegal
For the Respondent:
Alanna Pink, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Joselia Ferreira (the “applicant”) was involved in an incident on September 23, 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 Wawanesa Mutual Insurance Company (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 whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4The applicant was involved in an altercation on September 23, 2023 when she was assaulted by a stranger.
5The applicant provided an initial statement dated December 13, 2023 and an addendum to her statement dated January 22, 2024. She also testified at an examination under oath on February 29, 2024. She testified that, on the day of the incident she was a passenger on a motorcycle, behind her husband, Carlos. They were driving in a tandem position with their friend, Tony, when the stopped at a red light. While stopped at the light, an unknown assailant started throwing pieces of gravel at them, striking the motorcycles. The assailant then physically attacked Tony, punching him and knocking him off his motorcycle. Carlos got off the motorcycle while it was running to help Tony.
6The applicant shouted at passers by for help as Tony and Carlos got into an altercation with the assailant. She turned off the motorcycle and got off while shouting at them all to stop. The assailant backed off initially, and then punched her in the face before fleeing. The assailant did not touch the motorcycle during the attack, nor attempt to steal it.
7The applicant testified that she was hit in the leg by one piece of gravel and had a “tiny little bruise” but was more injured by the punch to the face. The applicant has also reported psychological impairments as a result of the assault and her fear of being attacked again.
Was the incident an “accident”?
8I find that the applicant was not 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”.
10The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.
11In 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?
12The 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). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
13The 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” consideration;
The intervening act consideration, which 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 Purpose Test
14The respondent submits that the incident did not arise out of the use or operation of the vehicle. The respondent submits that when the alleged injuries were sustained, the applicant was not using the vehicle. She had stopped the motorcycle, climbed off, and walked over towards the altercation when she was then punched in the face.
15The applicant submits that it was one chain of events that meets the purpose test: riding the motorcycle, and sitting on it while stopped at a red light were ordinary uses of the vehicle that continued through the throwing of rocks while she was still on the motorcycle, and continued through to the ultimate blow to the face.
16I agree with the applicant that sitting on a motorcycle while stopped at a red light is considered the regular use or operation of an automobile, and therefore the purpose test is met.
The Causation Test
The “but for” consideration
17In my view, but for the applicant being on the motorcycle, stopped at a red light, the incident and any injuries she sustained would not have occurred. The assailant would not have thrown the rocks at her and engaged in an altercation which led to the applicant being injured if not for the fact that she was stopped at a light on the motorcycle.
18However, the “but for” consideration is used as a screening tool to eliminate irrelevant scenarios and does not, on its own, conclusively establish legal causation.
19As noted by the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 4520 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] but the but for test does not conclusively establish legal causation.”
20The analysis must next turn to a consideration of whether there was an intervening act that severs the chain of causation.
Was there an intervening cause?
21I agree with the respondent that the assault was an intervening act that broke the chain of causation leading to the applicant’s injury. I am not persuaded that the use of the vehicle was the direct cause of the applicant’s impairment.
22The applicant refers to some cases involving slip and falls and icy conditions to support the submission that the vehicle itself does not need to cause the injuries, but rather the use or operation of the vehicle does. I do not find those cases particularly helpful or instructive in the circumstances, where the applicant turned off the vehicle, and walked away from it when an assault occurred.
23Recent cases from the Divisional Court have clarified the direct causation framework in “was it an accident” cases.
24In Madore v Intact Insurance Company, 2023 ONSC 11 (“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. Madore also established that a direct cause need not be the only cause, and there being a contributing cause does not break the chain of causation. Nor is physical contact with the automobile required. In that case, tripping and falling from the top of a camper trailer was found to be an accident.
25Further, in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”) the Divisional Court noted that a flexible approach must be taken for finding whether the use or operation of an automobile is a direct cause of an impairment. The applicant in Davis slipped and fell on ice while approaching her vehicle with the intention to enter it with her key fob in hand. The court found that the presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of the fall, not the icy surface.
26The applicant relies on Srour v Aviva Insurance Company, 20224 CanLII 13101 (ON LAT) (“Srour”) L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT) (“L.L.B.”) in support of her position that there was no intervening event that broke the chain of causation. In Srour, the applicant was a taxi driver dropping off passengers when he was injured by glass striking him after an assailant smashed the window of his vehicle. The Tribunal found that the vehicle itself was used as an instrument of the applicant’s injuries, given that his injuries were from the shards of glass from the window.
27In L.L.B., the Tribunal held that the incident in that case was separated into an “accident” phase and an “assault” phase. It was found that where the vehicle itself was used as an instrument to the applicant’s injuries – the door of the car was used to strike the applicant – it was found to be an “accident”. This was distinguished from the second phase of the incident, where the applicant was assaulted outside of the vehicle when punched in the face, which was not an “accident”.
28The applicant submits that there are also two phases to this incident: the first phase of the incident was when the assailant threw rocks at the motorcycle, causing significant damage to it. The second phase occurred when she got off the motorcycle and was subsequently struck in the face by the assailant. The applicant submits it was during the first phase, while seated on the motorcycle, exposed to the air, when the incident started which is directly connected to the use and operation of the vehicle.
29I am not persuaded by the line of authorities raised by the applicant, as I find them distinguishable. Unlike the circumstances in Srour and L.L.B., here the vehicle was not used as an instrument to inflict any injury. The use or operation of the motorcycle did not cause any impairments. As emphasized by the Court in Madore that it is the use and operation of the vehicle that is the relevant cause, not the vehicle itself. The alleged injuries were caused by an intervening act, after she had turned off the motorcycle, approached the altercation taking place, and was subsequently assaulted. Even if I accept that there were two phases to the incident, and the first phase was directly connected to the incident, I am not persuaded that the second phase is connected to the use or operation of the automobile. The applicant had turned off the motorcycle and walked away from it and approached an altercation when she was punched in the face. The applicant’s testimony supports that the alleged impairments she sustained occurred during the “second phase” of the incident.
30The respondent cites Tribunal decisions and two Court of Appeal decisions where applicant’s sitting in their vehicle (Downer v. The Personal Insurance Company, 2012 ONCA 302) or loading their vehicle (Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19) in support of its position that an assault is an intervening act that cannot be said to be in the ordinary course of things.
31I am not persuaded that there was a continuous chain of events related to the operation of a motor vehicle. It cannot be said that the impairments arose as part of the ordinary course of use or operation of the vehicle. The case law relied upon by the applicant is distinguishable to the current circumstances. This is not a situation where the applicant slipped and fell while attempting to get into or out of a vehicle, nor is it a situation where the applicant was injured as a result of her use or operation of the vehicle and then subsequently assaulted. Rather, the assault was a severable act of violence which clearly broke the chain of causation.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
32As described by the Court of Appeal 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”. Here, it is clear that the dominant feature was the assault, which resulted in the alleged impairments. I find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile.
33The assault was not a foreseeable risk related to the operation of the automobile. The use or operation of the motor vehicle – sitting on a motorcycle at a red light -- was not the direct cause of the impairment, but rather was caused by an intervening act: an assault by a third party. The use or operation of the vehicle was ancillary to the assault. Even if the use of a vehicle is the catalyst to an assault, it is not enough to show that the vehicle was merely the location of the injury. The use or operation must have directly caused the injury to be defined as an “accident”.
34The use or operation of vehicle was not the dominant feature of this incident, it was the assault. There is no evidence that the use or operation of the vehicle directly caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by an assailant who attacked her.
35I find that the physical assault by the assailant was the aspect of the situation that most directly caused the applicant’s injuries, and was therefore the dominant feature.
36For all the reasons above, I find that this incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.
ORDER
37The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
38The application is dismissed.
Released: March 14, 2025
Kate Grieves
Adjudicator