Licence Appeal Tribunal File Number: 24-012972/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:
Hashem Poyanipour
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Ken Singh, Counsel
For the Respondent:
Ken Yip, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Hashem Poyanipour, the applicant, was a pedestrian who was hit by an e-scooter on January 20, 2024, while making a delivery for Uber Eats. The applicant sought benefits from the respondent TD General Insurance Company, 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, who advised him that an e-scooter is not an automobile and therefore the incident was not an “accident” pursuant to s. 3(1) of the Schedule. The applicant subsequently 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.
New issue in dispute raised in respondent’s submissions
3In its submissions, the respondent has requested that the following issue also be determined by the Tribunal at the preliminary issue hearing:
i. Is TD liable to pay accident benefits to Mr. Poyanipour given he has submitted an OCF-1 to Definity first? In other words, is Mr. Poyanipour entitled to relief from forfeiture related to his application to TD for accident benefits?
4The respondent in its submissions has stated that the adjudicator at the Case Conference verbally ruled that this issue can be argued by the respondent without the need for it to be explicitly mentioned in the Case Conference Report and Order (“CCRO”).
5The applicant submits that the respondent’s submissions in respect to this issue should be disregarded as the adjudicator chose not to include this issue as a preliminary issue in dispute in the CCRO.
6While I find that this issue was raised by the respondent in its Case Conference Summary, I find upon review of the CCRO that there is no mention of this issue. I have no reason to believe that the respondent is misleading me about what transpired at the case conference, however, I am not privy to the discussions that took place, or any verbal orders made by the adjudicator. As such, as the issue is not listed in the CCRO or mentioned anywhere in the CCRO, it is therefore not before me in this preliminary issue hearing. Therefore, I do not grant the respondent’s request to add this issue to the current hearing.
RESULT
7The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
8The applicant was hit by an e-scooter as a pedestrian while making a delivery for Uber Eats on January 20, 2024. An Application for Accident Benefits (“OCF-1”) was submitted dated February 5, 2024. Under accident details, the applicant stated, “The applicant, a pedestrian, was struck by an e-scooter rider”. There are no further particulars provided about this incident.
9On March 4, 2024, the respondent determined that the accident benefits paid to date had been made in error because there was no coverage in the first place. The letter notes, “You were struck by an e-scooter as a pedestrian at the time of the incident. Pursuant to O. Reg. 389/19 under the Highway Traffic Act (“HTA”), under s. 1(2): An electric kick-scooter is deemed not to be a motor vehicle under the Act. The e-scooter thus does not fall into the definition of an “automobile”.” The respondent advised that the applicant was not involved in an accident involving an “automobile” and thus the incident does not fall within the definition of an “accident”.
10The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule. The applicant claims that he was involved in an “accident” as defined in the Schedule because an e-scooter is an “automobile” in ordinary parlance.
Definition of “automobile”
11Section 3(1) of the Schedule defines an “accident” as an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis, or other medical and dental device.
12The definition of “automobile” is not set out in the Schedule. The leading authority for determining whether a vehicle is an “automobile” is set out in Grummett v. Federation Insurance Co. of Canada 1999 CanLII 15103 (ON SC) (“Grummett”). Grummett was upheld by the Court of Appeal in Adams v. Pineland Amusement Ltd. et all, 2007 ONCA 844 (“Adams”) and is the basis for what is now commonly referred to as the Adams test. To qualify as an “automobile” under the Adams test, one of the following three components must me met:
i. Is the vehicle an “automobile” in ordinary parlance?
ii. If not, then is the vehicle defined as an “automobile” in the wording of the insurance policy?
iii. If not, then does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?
13The respondent submits that the focus of this issue is on the third part of the three-part test in Adams. It submits that an e-scooter is not required under any Act to be insured under a motor vehicle liability policy, nor is it prescribed by any other relevant statute to be an automobile.
14In response to the respondent’s submissions, the applicant concedes that neither part two nor three of the test in Adams applies to e-scooters as an e-scooter is not an “automobile”. The applicant instead relies on part one of the test in Adams and submits that the e-scooter is an “automobile” in ordinary parlance. Since both parties agree that an e-scooter is not an “automobile” under prongs two and three of the Adams test, I will focus on part one of the test in my decision.
15The applicant relies on the decision in Grummett and submits that the Court clarified that the “ordinary parlance” stage of the test is concerned with the “purpose and function of the vehicle” in question – specifically whether the vehicle is “designed for ordinary vehicular traffic on highways or city streets”.
16The applicant further relies on the Tribunal decision in Carpenter v. Intact Insurance Company, 2024 CanLII 118795 (ON LAT) (“Carpenter”), and submits that the decision makes it clear that (1) a vehicle may have more than one purpose and function and, that (2) the fundamental question is whether one of these purposes/functions is to traverse roadways, regardless of how closely the vehicle in question resembles or how many physical characteristics it has in common with uncontroversial examples of automobiles.
17The applicant submits that all that is required to be an “automobile” in ordinary parlance is for it to transverse public roadways in a manner akin to an automobile, as one of its purposes and functions. He further submits that as an e-scooter is self-propelled, it’s operation on public roadways is akin to that of an automobile.
18The respondent in its reply submissions, states that in order to satisfy the first part of the test in Adams, the features of an e-scooter must be examined. The respondent submits that there is no evidence whatsoever on the features of the e-scooter in question. The applicant has not provided any photographs, witness statements, signed statement or other descriptions other that stating that the e-scooter was involved in the incident.
19The respondent submits that the applicant only referred to a few key terms from the decision in Grummett but left out the heart of the analysis. The respondent points to paragraph 16 of the decision, that refers to the decision in MacFarland v. Storm (1998), 1987 CanLII 9937 (ON HCJ), 28 C.C.L.I 128 (Ont. Gen. Div.), where the Court held that an automobile in his view was “a vehicle which was designed for and capable of the transportation of passengers on streets and highways”. The Court found that a race car was not designed for ordinary vehicular traffic on highways or city streets as, “they do not have brake lights, they do not have doors and they can carry no passenger except the driver”.
20The respondent further submits that with respect to the applicant’s submissions that the purpose and function of an electric kick scooter is to traverse public roadways, there are a lot of things that have the purpose of traversing public roadways, but many of them would not be considered an “automobile”. The respondent submits that the applicant has not provided any evidence as to how fast the e-scooter can go, how much weight it can carry or how many passengers are allowed on it. The respondent submits that there is no evidence to suggest that the e-scooter in question is designed for and capable of the transportation of passengers on streets and highways. The respondent submits that just because an e-scooter is “self-propelled” does not alone render it an “automobile”.
21For the reasons set out below, I find that the applicant has not proven on a balance of probabilities that the e-scooter involved in this accident is an “automobile”.
22I find that in determining whether an e-scooter is an automobile in ordinary parlance, it is essential to consider the purpose and function of the vehicle, based on the decision in Grummett. The Court in Grummett determined that a race car in that case was not an automobile, as it was designed for competitive racing and not designed for ordinary vehicular traffic on highways or city streets. The Court stated that a race car does not have brake lights or doors and they cannot carry passengers except the driver. The Court concluded that the design of a race car is for competitive racing and for no other purpose.
23I find that while the applicant submits that the purpose and function of an e-scooter is to traverse public roadways, this on its own is not sufficient to support a finding that the subject e-scooter is an automobile. I find that the applicant has not provided any evidence or discussed the elements of the subject e-scooter that supports it is designed for ordinary vehicular traffic. In Grummet, the Court discussed the factors of no brake lights, no doors and the fact that the race car could not carry passengers except the driver. I find that the applicant has not discussed any of the factors of the subject e-scooter that makes it designed for ordinary vehicular traffic.
24I further agree with the respondent that just because the applicant submits that the e-scooter has a “self-propelled” feature, being self-propelled is not sufficient to meet the test. For example in Grummett, a race car which is self-propelled was found not to be an “automobile”. I find that the applicant has not provided sufficient evidence to support that because the e-scooter was self-propelled it was suitable for ordinary vehicular traffic.
25I find that while the applicant relies upon the decision in Carpenter, it is distinguishable from the matter before me. In Carpenter, the adjudicator referred to the product specifications of the Caterpillar as factors that persuaded her that the purpose and function of the Caterpillar at the time of the accident was to behave like an automobile. In the matter before me, I agree with the respondent that the applicant has not provided any evidence as to the features of the subject e-scooter. The applicant has not provided any product specifications, photographs or any information about the features of the e-scooter to support that it was designed for ordinary vehicular traffic. In addition, the applicant has not provided any evidence as to the top speed or the safety features of the e-scooter to support that it can fit within ordinary traffic. I find that this lack of evidence prevents me from determining whether the purpose and function of the subject e-scooter at the time of the accident was to behave like an automobile. Simply relying on the case without providing evidence of how the specifications of the e-scooter meet the test is not sufficient.
26For the reasons stated above, I find that the applicant has not proven on a balance of probabilities that the subject e-scooter is an “automobile”, and as such the applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ORDER
27The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
28The application is dismissed.
Released: June 19, 2025
___________________________
Melanie Malach
Adjudicator