Licence Appeal Tribunal File Number: 24-003081/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:
Kelly Bartok
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Jonathan Farine, Counsel
For the Respondent:
Kevin So, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kelly Bartok, the applicant, was involved in an incident on August 16, 2023, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue in dispute is whether the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Downsview Healthcare Inc., in a treatment plan submitted December 11, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
5The applicant is not entitled to the treatment plan in dispute or interest.
6The respondent is not liable to pay an award.
PROCEDURAL ISSUES
7In an email to the Tribunal on June 27, 2025, the respondent indicated that the applicant included new evidence in reply which the respondent did not have the opportunity to respond to. The evidence was a catalogue from Daymak Inc. However, the respondent did not request that this document be excluded from the hearing. Instead, the respondent’s email included two paragraphs of additional submissions regarding the catalogue.
8The applicant submits that the respondent made submissions out of turn and if it wishes for any further argument to be heard, it should bring a motion. The applicant also submits that the document is publicly available, and its inclusion in his reply submissions was in direct response to an issue raised by the respondent for the first time in its materials.
9While it is generally not appropriate to introduce new evidence in reply, I find that allowing the respondent’s additional submissions mitigates any prejudice to the respondent as it is afforded an opportunity to address the new evidence. I am accordingly prepared to review both the catalogue and the respondent’s additional submissions contained in its email of June 27, 2025.
ANALYSIS
Was the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule?
10I find that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
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, prosthesis, or other medical or dental device.
12The applicant submits that, on August 16, 2023, he was operating a Boomer Beast 2 D Deluxe (“Boomer Beast”) purchased from Daymak Inc., when it spontaneously broke and caused him to fall onto the roadway and sustain injuries. The parties disagree as to whether the Boomer Beast is an “automobile” as specified in s. 3(1).
13The Schedule does not define “automobile”. However, the Ontario Court of Appeal in Adams v. Pineland Amusement Ltd. et al., 2007 ONCA 844 (“Adams”), applied the following three-part test to determine if a vehicle is considered an “automobile”:
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?
14For the following reasons, I find that the Boomer Beast is an “automobile” in ordinary parlance. Having determined that the Boomer Beast meets the first step of the Adams test, I need not make a determination with respect to the subsequent steps.
15The Boomer Beast is an electric three-wheeled vehicle. It has a seat with a back, handlebars, a headlight, and brake lights. According to the Daymak Inc. catalogue, the rear tires on the Boomer Beast Deluxe are 19 inches and the front tire is 21 inches. The tires have large treads. The Boomer Beast measures 72 inches by 39 inches by 58 inches. Its maximum speed is approximately 40 km/hr, and it is equipped with a speedometer. It is described throughout the catalogue from Daymak Inc. as a “mobility scooter” which is capable of going on and off-road. A website provided by the respondent describes the Boomer Beast as a “mobility scooter for all roads”. The catalogue states that it is “road legal allowing it to be rode along the side of the road without a license or insurance”. It is also described as “allowing riders to take it through rough terrain or on the streets”.
16In Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103 (“Grummett”), the Ontario Superior Court of Justice held that, when determining whether a vehicle is an automobile in ordinary parlance, it is appropriate to consider the purpose and function of the vehicle. The Court cited McCart J. in McFarland v. Storm, 1987 CanLII 9937 (ON CJ), who found that an automobile was “a vehicle which was designed for and capable of the transportation of passengers on streets and highways”. The Court in Grummett determined that a race car in that case was not an automobile, as it was designed for competitive racing and no other purpose, did not have any head lights, brake lights, or doors, and the accident did not occur on a public road. The Court found that such cars were not designed for ordinary vehicular traffic on highways or city streets.
17I note that there is an absence of case law with a binding list of factors which are considered mandatory for a vehicle to be considered an automobile. Grummett mentions headlights, braking lights, and doors, as elements it considered, but does not indicate that certain elements, or a lack thereof, will always enable or preclude a vehicle from being an automobile in ordinary parlance.
18In my view, the purpose and function of the Boomer Beast is for it to be used on-road and off-road. Unlike the vehicle in Grummett, the Boomer Beast was operating on a public road when the accident occurred, which was something that it was designed to be able to do. It is equipped with a brake light, handlebars, three wheels, and a seat. It is propelled by a mechanism other than muscular power, and has the function of transporting a person.
19The respondent relies on the Government of Ontario webpage entitled “Pedestrian Safety”, which states that scooters are designed for people who have limited mobility and are considered as pedestrians under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). However, given the features indicated above, I am not persuaded that the Boomer Beast fits neatly into the category of mobility scooter. The respondent acknowledges that mobility scooters are not intended for use on public roads and highways, whereas all of the documentation before me indicates that this is what the Boomer Beast was intended for. While I agree with the respondent that the Boomer Beast is designed to assist individuals with mobility difficulties, I am not convinced that this precludes it from being an automobile as well. Nowhere in the catalogue or the webpages directed to me by the respondent does it indicate that the Boomer Beast is designed or permitted to be used on a sidewalk, indoors, or other areas frequented by pedestrians. In fact, the size and speed of the Boomer Beast signals to me that, unlike a typical mobility scooter, its purpose and function was not for it to be driven in pedestrian areas.
20The respondent also argues that finding that a mobility scooter is an automobile in ordinary parlance would result in absurd real-world consequences for insurers, as individuals with motor vehicle insurance for specific vehicles could operate mobility devices, unbeknownst to the insurer, sustain an injury, and then claim and receive benefits.
21While I appreciate that these consequences may exist, I am bound by the analysis set out in Grummett. Whether a vehicle is insured, is capable of being insured, or is known to an insurer is not described in Grummett as a component of the analysis under this part of the Adams test. In fact, Grummett refers at paragraph 13 to a case (Bergsma v. Canada (Attorney General), [1994] O.J. No. 2572 (Gen. Div.)) where a Department of National Defence truck, which was not required to be insured, was still considered an automobile in ordinary parlance. The ordinary parlance test considers the purpose and function of a vehicle, and not the potential consequences for insurers.
22Additionally, although the ambiguity of the ordinary parlance test may have monetary consequences for insurers, the Schedule is ultimately consumer protection legislation and must be analyzed in that light. Without clear legislative or judicial direction that I must consider the potential consequences to insurers when deciding whether something is an “automobile” in ordinary parlance, I am not prepared to exclude the Boomer Beast as an “automobile” as a result of those potential consequences.
23The respondent also argues that vehicles that travel on public roads and highways can generally travel over 100 km/hr, but the Boomer Beast cannot travel faster than 40 km/hr. However, I am not satisfied that a lower-than-typical maximum speed necessarily precludes a vehicle from being considered an automobile. This is one element that I have considered and I find that it does not supplant the other elements referred to above which indicate to me that the Boomer Beast is an automobile in ordinary parlance.
24Considering the evidence before me, I find that the Boomer Beast was designed for and is capable of the transportation of passengers on streets and highways. Applying Grummett, I find that the Boomer Beast is accordingly an “automobile” in ordinary parlance, and the applicant was accordingly involved in an “accident” pursuant to s. 3(1) of the Schedule.
Attendant Care Assessment
25I find that the applicant is not entitled to the treatment plan for the attendant care assessment in dispute.
26The applicant submits that, pursuant to s. 25(1)4 and s. 25(2) of the Schedule, an insurer must pay reasonable fees charged by an occupational therapist or registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if the insured person has sustained an impairment that is not a minor injury. The applicant relies on an x-ray report indicating that he fractured his clavicle after falling off the Boomer Beast. He submits that it is uncontentious that he should escape the Minor Injury Guideline and that he is accordingly entitled to the attendant care assessment, which he submits that he incurred.
27Section 25(1)4 states that an insurer shall pay “reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose” (emphasis added). I am not satisfied by the applicant’s argument that an insured person is automatically entitled to an attendant care assessment so long as they have sustained an injury that is not minor. In my view, the applicant has the onus of proving, on a balance of probabilities, that the fees charged are reasonable, and that an assessment is necessary for the preparation of an attendant care needs form.
28The applicant makes no submissions with respect to whether the fees charged for the assessment were reasonable, or why an assessment for the preparation of an attendant care needs form was necessary. The only medical evidence relied on by the applicant was the x-ray indicating the fractured clavicle. Despite submitting that the cost of the assessment was incurred, he has not provided a copy of any resulting report or an assessment of attendant care needs form. Evidence of a fractured clavicle alone is not, in my view, sufficient to prove that an assessment was necessary for the preparation of an attendant care needs form.
29I find that, because the applicant has not established that he needed an assessment to apply for attendant care benefits arising from the accident, the respondent is not liable to pay the cost of the assessment pursuant to s. 25(1)4 of the Schedule.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is overdue, interest is not payable.
Award
31The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the cost of the attendant care assessment is not payable, I find that the applicant is not entitled to an award.
ORDER
32The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
33The applicant is not entitled to the treatment plan in dispute or interest.
34The respondent is not liable to pay an award.
Released: March 5, 2026
Rachel Levitsky
Adjudicator