Licence Appeal Tribunal File Number: 24-009795/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:
Khloud Zeko
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
For the Respondent:
Jamie R. Pollack, Counsel
Nicholas Wine, Counsel
HEARD: By way of written submissions
OVERVIEW
1Khloud Zeko (“the Applicant”) was involved in an incident on October 14, 2023, and sought benefits from Co-operators General Insurance Company (“the Respondent”) 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 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.
SUBSTANTIVE ISSUES IN DISPUTE:
3The substantive issues to be decided in the hearing are:
i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan/OCF-18 dated January 15, 2024?
iii. Is the Respondent liable to pay an award under section 10 of Regulation 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 section 3(1) of the Schedule.
5Having determined that the Applicant was not involved in an accident, it follows that a decision regarding the substantive issues is unwarranted.
ANALYSIS
Background
6The Applicant claims that she suffers from psychological injuries stemming from a “road rage” incident.
7The details of the incident are limited to the Applicant’s self-report to a psychologist, during an assessment on October 30, 2024 (reported November 22, 2024), and her submissions for this hearing. The Applicant submits that she was the driver of a vehicle with her mother in the passenger seat when the driver and passenger of another vehicle started kicking and punching the passenger side of her vehicle. She reports that she continued to drive and called the police while driving. The Applicant reports that when she stopped her vehicle, the other parties who were striking her vehicle exited their vehicle and began striking the passenger-side window. The other parties never made physical contact with the Applicant or her mother.
8The Applicant submits that her pre-existing medical conditions, such as asthma and irritable bowel syndrome, worsened and that she experiences heightened anxiety and worsening depression since the incident. The Respondent contends that the incident was not an accident and denied benefits to the Applicant.
Was the incident an “accident”?
9I find that the Applicant was not involved in an “accident” as defined by section 3(1) of the Schedule.
10Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the Applicant to demonstrate on a balance of probabilities that her injuries were caused by the use or operation of an automobile.
11As outlined in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), an analysis of whether an accident occurred involves a 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?
12The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.”
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:
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
14The Applicant claims that the incident arose out of the use and operation of her vehicle. She submits that she was driving her vehicle, which is in a normal and expected manner, when the other parties reached out of their vehicle and struck her car and yelled at her and her mother. The Applicant relies on third-party case summaries of Tribunal cases to support her position. The third-party case summaries related to the following cases: Srour v. Aviva Insurance Company of Canada, 2024 CanLII 13101 (ON LAT) (“Srour”); 17-006380 v. Liberty Insurance, 2018 CanLII 97835 (ON LAT) (“Liberty”); GR v. Economical Mutual Insurance Company, 2019 CanLII 122726 (ON LAT) (“GR”); and Duah v. Wawanesa Mutual Insurance Company, 2021 CanLII 19484 (ON LAT) (“Duah”).
15The Respondent submits that the ordinary and regular use of the vehicle stopped once the verbal and physical assaults started. To the Respondent, the case law finds that verbal and physical assaults causing psychological harm do not arise out of the use or operation of an automobile. It relies on the Divisional Court decision in Fariad v. Intact Insurance Company, 2021 ONSC 6965 (“Fariad”) which is binding upon me.
16I find that the cases presented by the Applicant are distinguishable from her case. In Srour the insured person was driving a taxi when they had a violent encounter with a pedestrian. It was found that the pedestrian and the driver got into an argument and the pedestrian struck the driver’s side window and broke it. The driver was injured due to shards of glass going into his eyes. Srour is distinguishable from the Applicant’s case because in Srour the vehicle was an instrument of the insured’s injuries, not the accosting party.
17In Liberty, the insured sustained injuries when she was hit by a cyclist while loading/unloading her vehicle. The adjudicator in that case found that the insured was using her vehicle to access items in it while she was struck by the cyclist and that there was no evidence to suggest that the cyclist struck the insured intentionally. This case is distinguishable from the Applicant’s case because the Applicant’s case involves third parties purposefully accosting the Applicant and her mother and Liberty involves a third party accidentally striking the insured.
18In GR and Duah, the insureds were injured when they fell while using or operating a vehicle and sustained injuries. The Applicant’s case involves an injury directly from another party. This makes GR and Duah distinguishable because those cases do not involve another party.
19In Fariad, the insured person was driving a rideshare when he became uncomfortable with the passengers he picked up and asked them to exit the vehicle. Upon exiting the vehicle, the passengers kicked and otherwise struck the vehicle and yelled at the insured person. The insured person claimed that he feared that he would be hurt or even killed by the passengers and departed the scene in his vehicle. The Divisional Court agreed with the Adjudicator that the ordinary and regular use of the vehicle stopped once the verbal assaults escalated to the point where the insured feared for his safety and asked the parties to leave the vehicle. It was further found that verbal and feared assaults are not part of the normal use or operation of a vehicle.
20I find that the Applicant’s case is analogous with Fariad, thus I find that it does not meet the purpose test. As in Fariad, the Applicant made no physical contact with the accosting parties and sustained no physical injuries as a result of the altercation. Similarly, as in Fariad, the Applicant’s injuries relate to the altercation with the other parties, and the use or operation of the vehicle, or the vehicle itself, is not the mechanism for her injuries. I further note that Fariad is the only binding authority that was cited in this matter.
21Having concluded that the incident does not meet the purpose test, it follows that the Applicant was not involved in an accident as defined in section 3(1) of the Schedule.
The Causation Test
22If I am wrong, and the incident meets the purpose test, I find that the intervening act consideration of the causation test concludes that the other parties reaching out of, and exiting their vehicle and accosting the Applicant breaks the chain of causation and is an intervening act that cannot be said to be part of the ordinary use or operation of a vehicle. As outlined in Caughy, which is also binding upon me, the causation test considers whether an intervening act breaks the chain of causation. In this case, the intervening act is the accosting done by the other parties to the incident.
23In this case, the intervening act occurred once the other parties started to hit the Applicant’s vehicle and yell and scream at the Applicant and her mother. I find that being accosted and verbally assaulted by another driver is not an ordinary risk of the use or operation of a vehicle. Indeed, drivers of automobiles will have disagreements while operating their vehicles, and they may become upset with each other. However, the ordinary risk ends at parties being upset with each other. An intervening act occurs once those emotions erupt to the point that they cause a party to reach outside of, or exit their vehicle and accost the other party, or have a party fear for their safety as a result of that aggression, as in the Applicant’s case.
24Accordingly, I find that the intervening act consideration of the causation test concludes that the Applicant’s impairments arise from an intervening act when the other parties accosted her while she was in her vehicle.
25Having found that the accosting parties caused an intervening event that broke the chain of causation, it follows that I find that the Applicant’s injuries did not arise out of the ordinary course of use or operation of a vehicle.
Substantive issues
26The substantive issues do not need to be considered because I concluded that the Applicant was not involved in an accident.
Conclusion and ORDER
27The Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
28Having determined that the Applicant was not involved in an accident, it follows that a decision regarding the substantive issues is unwarranted.
29The application is dismissed.
Released: February 26, 2026
Brian Norris
Adjudicator```