Waite v. Gore Mutual Insurance Company, 2025 CanLII 55800

Citation: Waite v. Gore Mutual Insurance Company, 2025 ONLAT 24-012511/AABS-PI

Licence Appeal Tribunal File Number: 24-012511/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:

Connor Waite

Applicant

and

Gore Mutual Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Matthew Dale, Counsel

For the Respondent:

Aleksandar Tomasevic, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Connor Waite, the applicant, claims to have been involved in an automobile accident on May 5, 2024, 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, Gore Mutual Insurance Company, 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 June 13, 2024 where he states:

I was on Balaclava Street heading north; coming up to make a right turn onto Hammond Street, and a gentleman was kind of on the curb right on the corner. My windows were down in my truck. The man was waving a walking stick and was yelling. He had a small shitzu type dog. I pulled up to him thinking that he needed help. He was on the curb sidewalk when I pulled up to him. I did not have a red light. There was no stop sign at that corner. My windows were down. He was on the sidewalk, and I was in my truck with my window down. I never left my truck. He began cussing me out saying I was speeding coming up to Hammond. We started arguing; I asked how I was speeding as I was turning onto Hammond. The argument kept going. That is when he took the walking stick and started hitting the passenger side back window. At that point I basically told him not to go anywhere. After he started hitting my truck, I had turned the truck around (spun around) and said I was going to call the police. He was intoxicated; I could smell the beer on him. He left two dents in the side of my truck on the driver’s side this time and right after that he proceeded to hit me in the mouth with the walking stick once.

5The application for accident benefits (“OCF-1”) dated June 17, 2024, describes the incident as “a man struck me with a club, severely damaging my teeth, fractured upper jaw”.

6The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule.

7The 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”?

8I find that the applicant has not met his onus of proving that he was involved in an “accident” pursuant to 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 the 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:

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?

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 CanLII 21045 (ONCA) (“Greenhalgh”). 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:

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

14I find that the incident arose out of the use or operation of an automobile.

15The applicant submits that the purpose test has been met and the incident arose out of the use or operation of his vehicle. The applicant submits that the sole purpose for which he was using his vehicle, was to transport himself home, while he was seated, and seat belted in his vehicle. He submits that the physical impairments that he sustained arose from an ordinary and well-known activity to which vehicles are put, namely, driving and rolling down a window to investigate a pedestrian in distress and yelling.

16The respondent submits that the incident did not arise out of the use or operation of a vehicle and the applicant has not met the purpose test. The respondent submits that when the alleged injuries were sustained, the applicant was engaged in a road rage argument with the pedestrian. The respondent submits that road rage is not an ordinary and well-known activity for which automobiles are used. Therefore, the incident cannot be said to have arisen out of the ordinary and well-known activities for which automobiles are used just because the applicant was in his vehicle at the time of the incident.

17I agree with the applicant that using his vehicle to drive himself home and rolling down a window to address a pedestrian in distress, is an ordinary and well-known activity to which automobiles are put. Accordingly, I find that the incident arose out of the use or operation of an automobile.

The Causation Test

a. The “but for” consideration

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 driving his vehicle, stopping his vehicle to roll down his window and investigating a pedestrian in distress, 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 in the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020, the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration faulty 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.

b. Was there an intervening cause?

21I find that there was an intervening act, the assault, that severed the chain of causation.

22The applicant submits that there was no intervening event that broke the chain of causation. He submits that he had continuous use of his vehicle from the time that the pedestrian became angry about his driving to the pedestrian using the vehicle to strike the applicant, that led to his injuries. The applicant submits that he was driving home when he was struck by the pedestrian with a walking cane through his driver’s window. The applicant had rolled down the window as he overheard the pedestrian yelling and wanted to make sure he was okay. The pedestrian was yelling because he was unhappy with the manner in which the applicant was operating his vehicle. The cause of the injury occurred due to the window, which was part of the vehicle’s operation. The pedestrian used the window ledge of his vehicle to stabilize and increase the force of his walking cane into the applicant’s face and mouth.

23The respondent submits that the assault suffered by the applicant was an intervening act that broke the chain of causation between the use of the motor vehicle and the injuries suffered by the applicant. It submits that the applicant’s use or operation of the motor vehicle did not directly cause his injuries, the assault did. The respondent relies upon the Court of Appeal decision in Downer v. The Personal Insurance Co. 2021 ONCA 302, where the court noted that proximity and location of a vehicle are not enough to satisfy the causation test. It is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the use or operation of an automobile was somehow involved in the incident giving rise to the injury. The use or operation of the automobile must have directly caused the injury.

24I 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.

25I agree with the respondent that the cause of the applicant’s impairments was the assault. The assault was the intervening act that broke the chain of causation. The respondent relies on Amrok v. Economical, 2021 CanLII 110996 (ON LAT) (“Amrok”); Mattu v. Intact Insurance Company Inc. 2024 CanLII 112996 (ON LAT) (“Mattu”); and Addison v. Intact Insurance Company, 2025 CanLII 3770 (ON LAT) (“Addison”), 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 and in Addison, 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 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.

27The applicant relies on the Divisional Court of Ontario decision in Miceli v. TD General Insurance Company, 2025 ONSC 496 (Div. Ct.), where the court confirmed that being inside a vehicle with limited ability to react due to being seated and seat-belted, made the situation worse and contributed to the injury. I find the decision in Miceli distinguishable from the case before me, as the applicant in that case was in the back seat of a car at a drive-through when her coffee spilled and she was unable to take evasive action to avoid the consequences of that spill. I find the facts in this matter are more similar to those in the Tribunal decision in Mattu, where it was concluded that even if the applicant was confined with his seatbelt, there is no evidence to suggest that the insured’s injuries were caused or worsened by this confinement, or that his injuries would have been different had he been able to extricate himself from the situation. Similarly in this matter, I find that the applicant has not proven that his impairment was directly caused by his alleged confinement or that had he not been wearing a seatbelt he would not have suffered injuries.

28The applicant relies on Srour v. Aviva Insurance Company of Canada, 2024 CanLII 13101 (“Srour”). In Srour, a taxi driver rolled down his window to speak to pedestrians who were approaching his vehicle. He attempted to roll his window up when someone struck it, causing it to break and shatter the glass. He was injured by the shards of glass. I find that this case is distinguishable, as the Tribunal found that the vehicle itself was used as an instrument of the applicant’s injuries, and therefore the assault was directly linked to the operation of the vehicle. In the case before me, while the applicant in his submissions states that the injury occurred because the pedestrian used the window ledge of his vehicle to stabilize and increase the force of his walking cane, I do not find that the evidence provided supports this submission. There is no mention of these facts in the statement provided by the applicant, dated June 13, 2024 or in any other evidence submitted by the applicant.

29The applicant further relies on Montesano v. Western Assurance Co., 2021 CanLII 54817 (ON LAT) and L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT), where the Tribunal found that physical contact with the vehicle that causes injuries was seen to support the finding of an “accident”. I find these cases distinguishable based on my finding that the applicant has not provided sufficient evidence to support that the pedestrian made physical contact with the vehicle by using the window ledge to stabilize and increase the force of his walking cane.

30I find that even if the applicant had provided evidence to support that the pedestrian used the vehicle to stabilize himself, the intervening act of this incident is still the assault. I agree with the respondent that the location of the assault and of the pedestrian’s hands does not change that.

31As a result, I find that the applicant has not satisfied the second part of the causation test.

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

32I find that the use or operation of the vehicle was not a dominant feature of the applicant’s injuries.

33The applicant submits that the use or operation of his vehicle was the dominant feature of his injuries because without the use and operation of the vehicle, the pedestrian would not have caused his impairments. Further, the applicant submits that without the vehicle, the pedestrian would not have used the vehicle as an instrument to facilitate striking the applicant.

34The respondent submits that the dominant feature that caused the applicant’s injuries was not the use or operation of his vehicle. The respondent submits that the applicant did not suffer any direct injuries from the use of his vehicle. The injuries he suffered were caused by the assault.

35As 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. 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 the pedestrian who attacked him with his cane. I find that there is no evidence to support the applicant’s submission that the pedestrian used the truck as an instrument to facilitate striking the applicant.

36I find that the use or operation of the vehicle did not directly cause the applicant’s injuries. The incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.

ORDER

37The May 5, 2024 incident does not meet the two-part test to determine whether the incident is an “accident”. Therefore, any impairments the applicant may have sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule.

38As a result, the applicant is not entitled to accident benefits.

39The application is dismissed.