Addison v. Intact Insurance Company, 2025 CanLII 3770

Citation: Addison v. Intact Insurance Company, 2025 ONLAT 24-003792/AABS-PI

Licence Appeal Tribunal File Number: 24-003792/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:

Kenneth Addison

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

S. Jennifer Fernando, Paralegal

For the Respondent:

Nicholas Voight, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Kenneth Addison (the “applicant”) was involved in an incident on October 29, 2021, 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 Intact 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 provided a sworn statement on November 18, 2021 where he states: “I proceeded to get into my van to go to work. It was parked in my driveway….I started the van to warm it up…. I looked into my back mirrors before I proceeded. I saw someone running towards the van in my driver’s side mirror. I proceed to open up the door to ask what he wanted. Before I could say anything, I was hit over the head with a baseball bat. I fell back into the van. The accused jumped on top of me inside the van. We proceeded to wrestle for about 3 minutes. During that time, I tried to defend myself by gouging his eyes or something. My right hand came onto his right hand, and I grabbed a knife that he had in his hand. Before that, he had tried to hit me with the bat again. He hit the top of the doorframe with the top of the bat at that time, so it stopped it from hitting me full force”. The applicant was able to honk the horn to get his wife’s attention. She saw the attacker’s vehicle parked behind the applicant’s van so he could not drive out of the driveway. The applicant was able to escape from the attacker and went inside his house and called the police.

5The application for accident benefits (OCF-1) dated November 24, 2021 describes the incident as “attacked by someone while sitting in my van. Hit by a baseball bat. He also had a knife. Cut to my head that needed stitches, bruises, scrapes, sore lower back, more cautious of my surroundings now.”

6The applicant also detailed the events of the incident to treatment providers at the hospital. A note dated November 9, 2021 indicates “was starting van in the AM before work, neighbor came running at him – was hit in the head by a baseball bat – fell back into the van – he jumped on top of him, tried to stab him with a knife”.

7The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident’ in the Schedule. The applicant submits that if not for the applicant’s sitting in the vehicle at that location, with little room for escape, he would not have sustained his injuries.

8The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused injuries as required by s. 3(1) of the Schedule.

Was the incident an “accident”?

9I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

10Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

11The 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.

12In 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:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,
2. The causation test: Did the use or operation of an automobile directly cause the impairment?

13The 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?

14The 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:

1. The “but for” consideration;
2. 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,
3. 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

15The respondent appears to take no position on the purpose test, but rather, argues that the claim must fail under the causation test.

16I agree with the applicant that sitting in a parked vehicle, keys in the ignition, preparing to depart from a location is an ordinary and well-known activities to which automobiles are put (see Caughy). Accordingly, I find that the incident arose out of the use or operation of an automobile.

The Causation Test

The “but for” consideration

17The respondent does not address the “but for” test.

18Having considered the evidence before me, I find that the applicant would not have sustained his alleged injuries “but for” his use of the vehicle. But for sitting in the parked car, preparing to depart from his home, the applicant would not have sustained the alleged injuries.

19However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As 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.”

Was there an intervening cause?

20The analysis must next turn to a consideration of whether there was an intervening act that severs the chain of causation.

21I am not persuaded by the applicant’s argument that the assailant’s action of blocking the driveway with his vehicle, and attacking the applicant in the vehicle, was a continuous affront to the applicant and did not break the chain of causation. The applicant relies on 17-003125 v Intact Insurance Company, 2019 CanLII 18331 (ON LAT) in support of his position that there was no intervening event that broke the chain of causation.

22However, this decision was overturned by the Divisional Court in Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546, and remitted back to the Tribunal for a new hearing. At the rehearing (LL.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT)) 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”. It was distinguished form 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”.

23I am not persuaded that there was a continuous chain of events related to the operation of a motor vehicle. Rather, the assault was a severable act of violence which clearly broke the chain of causation.

24The applicant submits that his fear of being trapped and confined in a vehicle has led to him sustaining psychological impairments. He relies on the decision in 18-001029 v Primmum, 2019 CanLII 22205 (ON LAT) (“B.H.”) which he suggests supports that the matter proceed to a hearing on a potential psychological component. First, the applicant has not provided any evidence of having sustained psychological impairments. Second, that is not what the Tribunal held in B.H. In that case, the Tribunal determined that the applicant was not involved in an accident, as the assault or physical altercation was an intervening act and broke the chain of causation, and the assault was the dominant feature of the incident. The Tribunal was not convinced that the applicant suffered from a psychological impairment.

25I agree with the respondent that the cause of the applicant’s impairments was the assault. The assault was an intervening act that broke the chain of causation. The respondent relies on Taylor v. Unifund, 2023 CanLII 26938 (ON LAT) (“Taylor”); Baldinelli v. Aviva, 2021 CanLII 19495 (ON LAT) (“Baldinelli”); Amrok v. Economical, 2021 CanLII 10996 (“Amrok”); and Guo v. Allstate Insurance Company of Canada, 2024 CanLII 28828 (“Guo“) in support of its case. I am persuaded by the line of authorities raised by the respondent and find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile.

26As in Amrok, it cannot be said that the applicant’s impairments from the assault were directly caused by the vehicle or that they resulted from the ordinary and well-known use of it just because he was in his vehicle. I find that this assault was not a foreseeable risk related to the operation of the automobile. The use or operation of the motor vehicle – sitting in his parked car -- 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. Similarly, in Baldinelli, the Tribunal held that even where 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”. In that case, the Tribunal determined that the physical assaults by the assailants was the aspect of the situation that most directly caused the applicant’s injuries, and was therefore the dominant feature in respect of the causation analysis. I find that the same analysis applies here.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

27As 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.

28I am persuaded by the reasoning in the line of authorities relied upon by the respondent which held that the dominant features of the incidents were the assaults, which directly caused the applicants’ injuries. As in Baldinelli, 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 of the incident.

29The 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 him with a baseball bat.

30For 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

31The October 29, 2021 incident was not an “accident” as defined in s. 3(1) of the Schedule.

32The application is dismissed.