Licence Appeal Tribunal File Number: 24-011715/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:
Brandon Croxall
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Elvis Viskovic, Paralegal
For the Respondent: Eric Grossman, Counsel
HEARD: By way of written submissions
OVERVIEW
1Brandon Croxall, the applicant, was involved in an accident on July 18, 2024 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by Co-operators General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3I find that the applicant was involved in an accident as defined in s. 3(1) of the Schedule.
ANALYSIS
Law
4Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
5The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries, despite this preliminary issue being raised by the respondent.
6The Ontario Court of Appeal confirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, a two-part test to determine whether an incident is an “accident” as follows:
i. Purpose test: did the incident arise out of the use or operation of an automobile? and
ii. Causation test: did the use or operation of an automobile directly cause the impairment?
7The 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?
8The 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 satisfying the following considerations in sequential order:
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”.
Background
9On July 18, 2024 the applicant was injured when the pickup truck he had been working on fell on him. The applicant submits that he had been repairing his truck and doing general maintenance, such as replacing brakes and putting on new upper control arms in the rear end of the vehicle, when his truck suddenly fell. He states that the vehicle had been properly suspended on jacks, jack stands and cribbage, and that there is no way that the suspending equipment could have failed.
Was the incident an “accident”?
10I find that the July 18, 2024 incident was an “accident” as defined in s. 3(1) of the Schedule.
Purpose Test
11The respondent submits that the applicant has not met the purpose test. It argues that at the time of the accident, the applicant was not performing a standard repair or routine maintenance, such as changing his oil or replacing his brakes. Instead, he was planning on replacing the upper control arms on the rear of his pick up truck, which the respondent argues is a specialized, structural repair of the vehicle. Given how highly specialized and complex this task was, the respondent argues that this was not “an ordinary and well-known activity to which automobiles are put.”
12The applicant relies on the Tribunal decision Li v Economical Insurance Company, 2024 CanLII 40992 (ON LAT), to argue that performing maintenance on a vehicle is one of the ordinary, well-known activities to which automobiles are put. He disputes the respondent’s position that replacing control arms is a “highly specialized structural repair”. Rather, the applicant argues that this can be a “do it yourself” (DIY) task which is neither highly specialized nor costly.
13I find that the applicant has satisfied the purpose test. Both parties cite the Tribunal decision Li v. Economical. In this decision, the Tribunal considered the Ontario Superior Court decision Northbridge General Insurance Corp. v. Jevco Insurance, 2024 ONSC 1520, subsequently upheld by the Ontario Court of Appeal in Northbridge General Insurance Corp. v. Jevco Insurance Company, 2025 ONCA 74.
14In Northbridge, the claimant was attempting to secure his inoperable truck to a trailer, when it rolled back onto him. The vehicle had not been drivable for at least a month before the incident, and he had wanted to repair it, to make it drivable. The Court in Northbridge held that with respect to the purpose test, a vehicle does not have to be operational and no active component is required. The Court further found that having an automobile repaired is within the ordinary and well-known activities to which automobiles are used.
15The respondent argues that the replacement of the upper control arms is a major, specialized, structural repair of the truck, and cannot be considered to be a “standard repair” or maintenance. I am not persuaded by the respondent’s argument. The applicant has provided as evidence a DIY article, stating that replacing control arms is a necessary repair to restore a vehicle’s safe handling and nimble steering. I agree with the applicant that the DIY article lists needed tools that do not appear to be highly specialized or costly and provides instructions on how to do such a repair yourself.
16Although the respondent has provided an article summarizing what a control arm is, I do not find the article to be compelling evidence that replacing upper control arms is such a major and specialized repair that it cannot be considered to be a standard repair. The article itself notes that control arms are “not the most complicated” components on a vehicle.
17As such, I find that the applicant’s attempted repair of his vehicle was within the ordinary and well-known activities to which automobiles are put.
Causation Test
18In terms of the causation test, the respondent does not dispute that “but for” the applicant being underneath his car to repair his vehicle, he would not have sustained his injuries. I find that the applicant has met this branch of the causation test.
19Rather, both parties have focussed their submissions on whether there was an intervening act that severed the chain of causation and whether the use or operation of the vehicle was the dominant feature of the incident and the resulting injuries.
20The respondent submits that the applicant’s own testimony at his Examination Under Oath (“EUO”) establishes that there are only two possible explanations for how the truck fell: (i) the vehicle hoist or cribbing malfunctioned; or (ii) there was “mischief” or tampering with the vehicle or hoist, leading to the fall. According to the respondent, either of these scenarios are clearly an intervening act, independent of the vehicle’s use or operation, which breaks the chain of causation. Similarly, the respondent argues that if there was malfunctioning equipment or tampering, then the applicant’s repairing of the truck would not have been the dominant feature, or what “most directly caused the injury”.
21The respondent relies on Li v. Economical to argue that malfunctioning equipment does not fall within the ambit of regular use and operation of a vehicle, and that such a malfunction is an independent act, breaking the chain of causation. It further claims the applicant conceded in his EUO testimony that the incident must have happened due to someone tampering with either the truck or the cribbing jack. The respondent argues that such “mischief” is essentially an assault by an unidentified third party. It relies on a number of Tribunal decisions, which found that an assault is considered to be an intervening act, and that the use or operation of the vehicle has been found to be ancillary to an assault.
22The applicant argues that there is no evidence that any of his equipment malfunctioned. He points to his EUO testimony where he states that he had been working in heavy construction since 2006, that there should have been no issue with the jack stands, cribbing and tertiary jack, that he had properly set everything up, and the type of jack he used had a failsafe. As such, the applicant argues that Li v. Economical is clearly distinguishable since in Li, there was no dispute that the hoist had malfunctioned. Rather, the applicant argues that the present case is similar to Fehr v. Intact Ins. Co., 2022 CanLII 14951 (ONLAT) where the claimant used a ladder to inspect the top of his truck. The ladder slipping, leading to his injuries, was not determined to be an intervening act. In Fehr, a “slip” was distinguished from a “malfunction”.
23With respect to the respondent’s claim of mischief or assault, the applicant submits that there is no evidence of an assault or tampering. He argues that the respondent’s assertion that he conceded that the truck or equipment was tampered with, is inaccurate. He argues that in his EUO testimony he only suggested a theoretical possibility of “mischief” in response to counsel’s questioning. The applicant submits that the police had never investigated tampering or assault. Rather, the applicant argues that it is not known what caused the truck to fall, and that this is similar to the facts in Madore v. Intact, 2023 ONSC 11. In that case, the claimant could not say what caused his fall from the roof of his camper trailer. However, the Court found that given the consumer-protection mandate of the Schedule, the fact that the claimant could not identify the cause of his fall, should not defeat his application.
24I find that the applicant has established that the use and operation of the vehicle, was the dominant feature or what most directly caused the injury. The evidence establishes that the applicant was repairing his truck, when his vehicle fell on him. I further find that the respondent has not established that there was an intervening act that broke the chain of causation.
25Although the respondent has proposed two theories as to what caused the truck to fall, I do not find that there is sufficient evidence to support either of these theories. With respect to the respondent’s claim that some of the suspending equipment must have malfunctioned, it has not led any evidence in support of this claim. Rather, I am persuaded by the applicant’s EUO testimony where he was consistent in saying that given how he had suspended the vehicle and the equipment he had used, he did not see how his truck could have fallen.
26Similarly, I find that the evidence does not establish that the equipment or vehicle had been “tampered with. The respondent relies on a number of Tribunal decisions where assaults were found to be intervening acts, to argue that the purported mischief or tampering, is akin to an assault. However, I agree with the applicant that there is no evidence of such tampering and that in his EUO, the applicant was providing a possible theory, in response to questioning. There is no evidence that the purported mischief was being investigated as an assault.
27Rather, I agree with the applicant that the present matter is similar to the fact pattern in Madore, where we may not know what caused the applicant’s truck to fall. However, in my view, this does not mean that an “accident” as defined in s. 3(1) of the Schedule, did not take place. In the present matter, I find that it was the applicant’s repair of his vehicle that most directly caused the applicant’s injuries.
CONCLUSION AND ORDER
28The applicant was involved in an “accident”, as defined in s. 3(1) of the Schedule.
29The application may proceed to a hearing on the substantive issues.
Released: May 15, 2025
Ulana Pahuta
Adjudicator