Licence Appeal Tribunal File Number: 23-010560/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:
Nigest Araya
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Samia Alam, Counsel
For the Respondent: Christine Ellis, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nigest Araya, the applicant, was involved in an incident on August 16, 2019, 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 Motor Vehicle Accident Claims Fund (MVACF), the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?
SUBSTANTIVE ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $4,688.75 for physiotherapy services proposed by Physio Art Rehab in a treatment plan/OCF-18 (“plan”) dated January 22, 2020?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Novo Medical Services in a plan dated December 19, 2019?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
5The application is dismissed.
PROCEDURAL ISSUE
6On April 15, 2025, the applicant brought a motion requesting an order to allow her to introduce new evidence that recently came to light, i.e. the full and unredacted Motor Vehicle Accident Report (“MVAR”) from Toronto Police Service (“TPS”), and to allow for the parties to make submissions by way of motion hearing on the new evidence. On April 15, 2025, the Tribunal ordered that the applicant’s motion be heard at the written hearing.
7The applicant submits that she was struck by an e-bike on August 16, 2019. She further submits that on November 29, 2024, the respondent argued in its written submissions that she was not involved in an accident because the e-bike does not meet the definition of “motor vehicle” as contemplated by the Schedule and noting that there was an incomplete MVAR from TPS that did not describe the vehicle involved. The applicant argues that she filed her submissions on December 30, 2024, and received the full and unredacted MVAR on February 25, 2025, which indicates that the e-bike had “some kind of motor attached to it.” The applicant submits that the MVAR also provides the identity of the individual that struck her, causing her injuries.
8The applicant argues that the evidence requested to be admitted is relevant to the issues in dispute. The applicant further submits that without this evidence, she is prejudiced in her ability to make submissions to the Tribunal with respect to the nature of the vehicle that struck her and how it meets the definition of “motor vehicle.”
9The applicant relies on Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, submitting that it expresses the Tribunal’s mandate to ensure a fair hearing and the opportunity for effective participation by a party. The applicant also relies on the Supreme Court of Canada decision of Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), where the Court held that procedural fairness includes the opportunity for those affected by an administrative decision to put forward their views and evidence fully and have them considered by the decision maker. The applicant submits that it would be procedurally unfair to deny her the ability to introduce the newly acquired evidence before the Tribunal as it proves that her claim is valid and has merit.
10The respondent opposes the applicant’s motion for the following reasons:
i. The records the applicant seeks to admit contain no new or probative information. The unredacted records are duplicative of the redacted records already identified in the respondent’s written submissions. The reference about the e-bike having “some kind of motor attached to it” is already contained in both parties’ written submissions.
ii. The applicant has already had the opportunity to make submissions on this information.
iii. The only new information revealed in the records is the identity of the individual who struck the applicant, as well as identifying information related to the 911 callers, which is not relevant to the issues in dispute and does not assist the applicant in meeting her burden to prove that the e-bike involved meets the definition of an “automobile.” None of the unredacted records provide any further description of the bicycle involved. The new evidence will not affect the result of the hearing.
iv. The applicant had over four years to obtain the unredacted records prior to the commencement of the written hearing but failed to do so, without explanation.
v. The applicant’s request to admit further evidence and make further submissions is a waste of time and resources and is contrary to the Tribunal’s mandate to ensure efficient, proportional and timely resolution of the merits of proceedings before it.
11I note that the applicant’s initial submissions refer to evidence indicating that the vehicle that struck her was a “motorized bicycle” which “has a large frame with some sort of motor on it.” I also note that the respondent’s submissions refer to the same evidence. I find that this evidence is relevant and probative. Since the respondent’s position is that this evidence is duplicative and both parties have already made submissions on it, I find that the respondent is not prejudiced by its admission. Accordingly, I will admit into evidence statements indicating that the vehicle that struck the applicant was a “motorized bicycle” which “has a large frame with some sort of motor on it,” as well as the submissions on that issue. A timetable for further submissions is not required because the initial submissions sufficiently speak to the issue.
12Although the applicant submits that the records also provide the identity of the individual that struck her, I find that the applicant has not demonstrated how this evidence is relevant to any of the issues in dispute or to a claim for accident benefits under the Schedule. Accordingly, I deny the request to make further submissions on this evidence.
ANALYSIS
PRELIMINARY ISSUE
Background
13The applicant submits that on August 16, 2019, while walking from a meeting, she was struck by an e-bike. The operator of the e-bike fled. The applicant further submits that she had no recollection of the incident and that it was only through police investigation and statements from witnesses that the vehicle was identified as an e-bike. The applicant takes the position that the e-bike that struck her is considered a “motor vehicle” as contemplated in the Schedule, the Insurance Act, the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), and relevant case law.
14The respondent submits that the applicant has failed to adduce evidence that the bike that struck her was an “automobile” in accordance with the Schedule and other relevant legislation, and therefore she has not met her onus to prove that she was involved in an “accident.”
Definition of “accident” and “motor vehicle”
15In s. 3(1) of the Schedule, an “accident” is defined in part as an incident in which the use or operation of an automobile directly causes an impairment. The definition of “automobile” is not set out in the Schedule.
16Section 224 of the Insurance Act defines an “automobile” as a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and a vehicle prescribed by regulation to be an automobile.
17In s. 1(1) of the HTA, the definition of “motor vehicle” includes a motor assisted bicycle but does not include a power-assisted bicycle.
18The HTA defines “motor assisted bicycle” as a bicycle (a) that is fitted with pedals that are operable at all times to propel the bicycle, (b) that weighs not more than fifty-five kilograms, (c) that has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel, (d) that has an attached motor driven by electricity or having a piston displacement of not more than fifty cubic centimetres, and (e) that does not have sufficient power to enable the bicycle to attain a speed greater than 50 kilometres per hour on level ground within a distance of 2 kilometres from a standing start.
19Although the definition has since changed, on the date of the accident, the HTA defined “power-assisted bicycle” in part as a bicycle that is a power-assisted bicycle as defined in subsection 2(1) of the Motor Vehicle Safety Regulations, C.R.C., c. 1038, made under the Motor Vehicle Safety Act (Canada) (“MVSR”). In the MVSR, the definition of power-assisted bicycle included many specific characteristics including that it is a vehicle that “has one or more electric motors that have, singly or in combination the following characteristics: (i) it has a total continuous power output rating, measured at the shaft of each motor, of 500 W or less, (ii) if it is engaged by the use of muscular power, power assistance immediately ceases when the muscular power ceases, (iii) if it is engaged by the use of an accelerator controller, power assistance immediately ceases when the brakes are applied, and (iv) it is incapable of providing further assistance when the bicycle attains a speed of 32 km/h on level ground.”
20Section 1(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c C.25 (“CAIA”) defines a “motor vehicle” as having the same meaning as in the HTA.
The applicant was not involved in an “accident”
21The applicant has not established on a balance of probabilities that she was involved in an “accident” as defined in s. 3(1) of the Schedule.
22The applicant refers to evidence of police officers’ notes indicating that the vehicle that struck her was a “motorized bicycle” which “has a large frame with some sort of motor on it,” as well as the Event Details Report from TPS indicating that it was a “motorized bicycle” and “possibly an e-bike.”
23The applicant submits that given the 2020 repeal of the section of the MVSR dealing with “power-assisted bicycles,” there exists a gap in the definition of what defines a “motor vehicle” under the HTA. I find that since the section in question was in effect on August 16, 2019, no gap in the definition of “motor vehicle” existed at that time and that the definition in the HTA at the time applies for the purpose of this hearing.
24The applicant relies on the decisions of R. v. Pizzacalla, 2014 ONCA 706 (“Pizzacalla”), R. v. Morrison, 2015 ONSC 7616 (“Morrison”), and R. v. Clifford, 2014 ONSC 2388 (“Clifford”), where the courts confirmed that an e-bike falls under the definition of a “motor vehicle.” The applicant submits that the Schedule and the Criminal Code, R.S.C. 1985, c. C-46, both share the legislative intent of protecting and maintaining public safety and protecting victims, and therefore the Criminal Code should be considered a relevant statute that can assist the Tribunal in defining a “motor vehicle.”
25I find that these decisions are distinguishable as they consider the definition of “motor vehicle” in the context of offences in contravention of the Criminal Code, R.S.C. 1985, c. C-46, and not in the context of the Schedule. The Pizzacalla and Clifford decisions involved charges of operating a motor vehicle while disqualified from doing so and the Morrison decision involved a charge of impaired operation of a motor vehicle. Further, I note that at para. 35, the Court in Clifford indicated that the definition of “motor vehicle” in the HTA is different than the definition in the Criminal Code, in that in the HTA, e-bikes are excluded from the definition of “motor vehicle.” In any event, the analysis in these decisions do not assist me in determining the type of vehicle that struck the applicant in this case because I must make a determination in this case based on the specific evidence before me.
26The applicant also refers to the decision of Adams v. Pineland Amusements Ltd., 2007 ONCA 844 (“Adams”), where the Court provided a three-part test to determine if a vehicle is considered an “automobile”:
i. Is the vehicle an “automobile” in ordinary parlance?
ii. If not, is the vehicle defined as an “automobile” in the wording of the insurance policy?
iii. If not, does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?
27The applicant submits that an e-bike is an automobile in ordinary parlance, or that alternatively, it falls within the enlarged definition of automobile as contemplated in Adams.
28The applicant agrees with the respondent that the dispute turns on whether the vehicle that struck her was a motor assisted bicycle or a power-assisted bicycle. However, the applicant argues that the fact that the vehicle that struck her was described as having a large frame with a visible motor on it would allow anyone to consider that it is a “motor vehicle” in ordinary parlance. I disagree and find that the fact that the vehicle had a visible motor on it is insufficient to find that it is a motor vehicle, because a power-assisted bicycle, which is not defined as a motor vehicle under the HTA, is defined as having “one or more electric motors.”
29The applicant submits that the e-bike that struck her does not meet the definition of a “power-assisted bicycle” because it is capable of being driven at speeds greater than 32 km/h.
30The applicant points to significant injuries that she sustained when she was struck, submitting that a power-assisted bicycle, which is not capable of exceeding 32 km/h, would not have caused such serious injuries. The applicant argues that it is therefore only plausible to deduce that the vehicle in question was a motorized bicycle or e-bike. The applicant further submits that a motorized bicycle, due to its speed, is more likely to cause greater injury and danger to the public, especially pedestrians. The respondent submits that this is an improper factual inference to draw absent expert evidence to this effect. I find that the fact that the applicant sustained significant injuries, without further evidence of the type of vehicle that caused these injuries, is insufficient to prove on a balance of probabilities what type of vehicle struck the applicant.
31The respondent submits that the applicant has not adduced specific evidence speaking to the type of bicycle involved that would enable any analysis under the “ordinary parlance” criteria, nor has she established that the e-bike is defined as an “automobile” in any applicable policy.
32The respondent points out that one of the key distinctions between the definition of “power-assisted” and “motor assisted” bicycles is the maximum speed each may reach while employing power assistance (32 km/h versus 50 km/h, respectively). The respondent further submits that since the applicant did not provide evidence confirming whether the e-bike that struck her was a motor assisted bicycle or a power-assisted bicycle, she did not meet her burden of establishing that she was involved in an “accident.”
33The onus is on the applicant to demonstrate that she was involved in an “accident” as defined in s. 3(1) of the Schedule and therefore that the e-bike is an “automobile” as contemplated by the Schedule.
34Based on the evidence before me, I find that the applicant has not established on a balance of probabilities that the e-bike that struck her was an “automobile” in ordinary parlance. The applicant did not direct me to any evidence that the vehicle in question is defined as an “automobile” in the wording of an insurance policy. Further, I find that the applicant has not demonstrated on a balance of probabilities that the type of vehicle that struck her meets the definition of an “automobile” or “motor vehicle” in an insurance policy, the HTA, the Insurance Act, or the CAIA.
35The evidence presented by the applicant is that the vehicle was described as a “motorized bicycle” which “has a large frame with some sort of motor on it,” and “possibly an e-bike.” No evidence was presented of a specific description of the vehicle such as make, model, or the maximum speed it travels. I am not persuaded that the vehicle qualifies as an automobile in ordinary parlance. I have similarly not been presented with evidence that the vehicle is defined as an automobile in an insurance policy. In turn, I find that the applicant has not adduced evidence on a balance of probabilities to establish that the vehicle that struck her was a motor assisted bicycle, which would qualify as a “motor vehicle” under the HTA or any enlarged definition of an automobile under any relevant statute. Accordingly, the applicant has not met the three-part test articulated by the court in Adams.
36For these reasons, I find that the applicant has not established on a balance of probabilities that the subject vehicle is an “automobile,” and as such, she has not established that she was involved in an “accident” as defined in s. 3(1) of the Schedule. As this threshold determination does not permit the applicant to proceed with the application, an analysis on the substantive issues is not required.
ORDER
37For the above reasons, I find:
i. The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ii. The application is dismissed.
Released: September 4, 2025
Laura Goulet
Adjudicator