Licence Appeal Tribunal File Number: 23-013450/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:
Meagan Malone
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Ryan W. St. Aubin, Counsel
For the Respondent: Stefan Sistilli-Sguazzin, Counsel
HEARD: By way of written submissions
OVERVIEW
1Meagan Malone, the applicant, was involved in an incident on January 8, 2020, 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, TD Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4This dispute arises out of an incident that occurred on January 8, 2020. The applicant claims to have suffered injuries as a result of a carjacking.
5According to the applicant’s submissions, after attending at the premises of Ontario Raquet Sport Enterprises Limited, she proceeded to her vehicle with her baby. She placed the baby in the car seat and sat in the driver’s seat. As she was backing out of the parking space, she was attacked by an assailant. The applicant submits that the third party opened the driver’s door and grabbed her scarf, pulled her out of the vehicle and punched and kicked her. The assailant got into her vehicle and the applicant yelled for assistance and continued to struggle with the assailant, eventually getting him out of the vehicle. She then pursued the assailant with her vehicle until he was cornered. The police arrived and arrested the assailant.
6The applicant submits that as a result of the incident, she sustained injuries including bruises on her arms, back, and chest, as well as experiencing frequent migraines, flashbacks, heightened anxiety and nightmares. She also submits that she suffered psychological injuries, for which she received treatment with Ms. O’Neil of the Strivings Group beginning on January 15, 2020. She was diagnosed with post-traumatic stress disorder (“PTSD”) by her family doctor, Dr. Wideman, on September 3, 2020.
7In September 2021, the applicant first spoke with and retained counsel. An Application for Accident Benefits (“OCF-1”), dated November 19, 2021, was submitted by the applicant and received by the respondent on December 2, 2021.
8By letter dated December 8, 2021, the respondent denied the applicant’s application for accident benefits. The letter states, “we have reviewed this application and note significant information is lacking on this document, there is no police report to support a motor vehicle accident occurred on this date. At this time, we consider this application is incomplete.” The respondent requested an Examination Under Oath (“EUO”).
9On May 31, 2022, the applicant underwent an Examination Under Oath (“EUO”) to assess her entitlement to accident benefits.
10On July 11, 2022, the respondent sent a denial letter to the applicant stating that her entitlement to accident benefits was rejected on the grounds that the incident did not meet the definition of an accident. Additionally, the letter advised that the applicant had failed to comply with the applicable timelines under the Schedule by submitting an incomplete OCF-1 nearly two years after the accident.
Was the applicant involved in an “accident”?
11I find that the applicant has not met her onus of proving that she was involved in an “accident” pursuant to s. 3(1) of the Schedule.
12Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
13The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries. The parties agree on the legal test but disagree on whether the facts at hand meet the test.
14In 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?
15The 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?
16The 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
17The applicant submits that the purpose test has been met and the incident arose out of the use or operation of her vehicle. She submits that the assailant’s actions linked the vehicle’s ordinary use as the assailant intended to seize possession of her vehicle. She argues that the vehicle was operational because she was operating the vehicle, backing out and then physically fought the assailant over the vehicle.
18The respondent appears to take no position on the purpose test, but rather, argues that the claim must fail under the causation test.
19I find that the applicant sitting in her vehicle, preparing to depart from a location, 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
The “but for” consideration
20Having considered the evidence before me, I find that the applicant would not have sustained her alleged injuries “but for” her use of the vehicle. But for sitting in her vehicle, preparing to depart the location, the applicant would not have sustained the alleged injuries.
21However, 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, 2022 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.”
22The 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?
23I agree with the respondent that the assault was an intervening act that broke the chain of causation leading to the applicant’s alleged injuries. I am not persuaded that the use of the vehicle was the direct cause of the applicant’s impairment.
24The applicant submits that her assault was directly connected to her ownership, use and operation of the vehicle. She submits that the subject incident occurred while she was backing out of a parking spot and attacked. She claims that the vehicle was used at all material times during the assault because the assailant opened the driver’s door and grabbed her by her scarf, pulled her out, punched and kicked her and got into her vehicle.
25The applicant refers to the decision in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”), and submits that it is analogous to the issues in dispute. In Davis, the insured slipped and fell on black ice while approaching her vehicle with the intention to enter it with her key fob in hand. The Divisional Court determined that the insured’s actions of unlocking and preparing to enter the vehicle linked her injuries sufficiently to the vehicle’s use. It further determined that the black ice was not an intervening cause, but part of the circumstances surrounding the vehicle’s use.
26The respondent submits that a physical assault is not part of the circumstances surrounding a vehicle’s use and this would be considered an intervening act. It argues that the assault, clearly constitutes an intervening act, and not an action that would be considered within the normal risks associated with the use or operation of a vehicle.
27The respondent submits that the issues in Davis themselves are similar, but the facts giving rise to the issues are distinguishable from the subject incident. It submits that a slip and fall on ice is not analogous to an assault.
28The respondent relies on the decision in Parviz v. Economical, 2023 CanLII 122910 (ON LAT) (“Parviz”), where the Tribunal found that, “The jurisprudence regarding assaults has been very clear that an assault is not considered to be an automobile accident because it severs the chain of causation.”
29The respondent further relies on the decision in Martin v. 2064324 Ontario Inc., 2011 ONSC 7145 (Ont. S.C.J.), rev’d 2013 ONCA 19 (C.A) (“Martin”), where the insured was involved in a physical assault. The Court found that Mr. Martin received assaults that involved an automobile, namely when the vehicle ran over his foot, as well as assaults that merely took place inside or near an automobile. The Court found that it is not enough to show that an automobile was somehow involved in the incident giving rise to the injury, but that the use or operation of the automobile must have directly caused the injury. The Court concluded that all of the ‘senseless acts’ except for the injury to Mr. Martin’s foot had nothing to with the use or operation of the vehicle, concluding that the assaults constituted intervening acts that could not “reasonably be said to be part of the ‘ordinary course of things’ associated with the use or operation of Mr. Martin’s vehicle.”
30I 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 the decisions in Parviz and Martin in support of its case. I am persuaded by the line of authorities raised by the respondent and find that an assault is not considered to be an automobile accident because it severs the chain of causation. The court in Martin stated:
With the possible exception of the alleged injury to the plaintiff’s right foot, his injuries did not arise directly or indirectly, from the use or operation of his vehicle within the meaning of s. 239(1)(a) of the Act. Rather, those injuries arose from the assaults inflicted by his assailants, and not from the conduct of his assailants as motorists. His vehicle was merely an incidental element to the assaults. The fact that some of the assaults occurred near or in the plaintiff’s vehicle was insufficient to trigger liability under s. 239(1)(a) of the Act.
31I find that 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 she was in the 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, as the assault by a third party was the intervening act.
32I find that the decision in Davis 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. Rather, the assault was a severable act of violence which clearly broke the chain of causation.
33Although not cited by the parties, I find the Court of Appeal decision in Downer v. The Personal Insurance Co. 2021 ONCA 302, persuasive, 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.
34While I agree that the applicant was inside her vehicle at the time of the assault, the applicant’s vehicle was not the direct cause of her injuries. The assault was the cause of her injuries. Accordingly, I find that the assault interrupted the chain of events from the applicant’s ordinary use of the vehicle.
35As a result, I find that the applicant has not satisfied the second part of the causation test.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
36As 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 injuries.
37I find that the use or operation of the 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.
38For the reasons set out above, I find that this incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.
Late filed OCF-1 and Reasonable Explanation for the Delay
39As I have concluded that this incident does not meet the definition of an “accident”, it is not necessary for me to consider the second issue in dispute of whether the applicant is barred from proceeding to a hearing for failing to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day.
ORDER
40For the reasons set out above, I find that the January 8, 2020 incident was not an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
Released: August 15, 2025
Melanie Malach
Adjudicator