Licence Appeal Tribunal File Number: 24-009311/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:
[JJ]
By her litigation guardian, [MM[B]
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
James Srebrolow, Counsel
Alexander L Chekina, Counsel
For the Respondent:
Sabrina Lucibello, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1[MMB], parent on behalf of the applicant, has a claim which allegedly involves an automobile accident on February 28, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (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 ISSUES IN DISPUTE
2The preliminary issues to be decided 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 with their claim for benefits 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 has not established that the incident that took place on February 28, 2013 was an “accident” as defined in s. 3(1) of the Schedule.
4Since the applicant is not entitled to accident benefits, it is not necessary to determine whether she is statute-barred from proceeding with her application before the Tribunal.
ANALYSIS
Background
5On February 28, 2013, the applicant was a 15-year-old minor, traveling as a passenger on a school bus for children with special needs, when she was attacked by another student on the bus. The applicant is represented by her litigation guardian because she remains under a mental capacity disability. On January 5, 2018, the applicant issued a Statement of Claim in a tort action against the bus company, Sharp Bus Lines Limited and the school board, Grand Erie District School Board. Further, Sharp Bus Lines Limited delivered a Statement of Defence and Crossclaim dated February 19, 2019, wherein it alleges that the incident arose directly or indirectly from the use or operation of a vehicle.
6Subsequently, the respondent received the application for accident benefits (“OCF-1”), on May 15, 2024, which is beyond the time prescribed by s. 32(1) of the Schedule. At the case conference, the respondent raised two preliminary issues that the applicant was not involved in an accident as defined in the Schedule, and she is barred from proceeding with her claim because she did not comply with the timelines set out under s. 32(1) of the Schedule.
7The applicant stated on the OCF-1 that she “…was on the school bus, being driven home, when another student hit her multiple times in the head; later that evening she was taken to the hospital because of a stroke”.
8An incident report dated March 8, 2013 created by [a school] describes the incident as a fight which occurred between the applicant and another student, the applicant exited the bus and suffered a stroke later that evening, and it is uncertain whether the stroke is related to the fight.
9From the available information, it does not appear that the bus moved or struck anything as part of the incident, nor is there mention of any injuries caused by making contact with the vehicle as part of the incident.
10The applicant submits that she was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule. The applicant submits that she was being transported from school to home on the bus, and the incident involving another student was foreseeable because there was a Rider’s Aid on board the bus.
11Although the applicant argues that the respondent admits there was a motor vehicle accident in a pleading in another action involving the same parties and incident, the respondent denies that assertions in a pleading are admissions of fact or law.
12The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused her injuries as required by s. 3(1) of the Schedule.
Was the applicant involved in an “accident”?
13I 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.
14Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The applicant has the onus to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
15In 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?
16The 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), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
17The 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
18In its submissions, the respondent concedes that the applicant has met the purpose test. I agree with the parties that transporting children to and from school on a school bus are part of the ordinary and well-known activities to which these types of vehicles are put. Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test: Would the injuries have occurred “but for” the use or operation of the school bus?
19I find that the applicant has established that the alleged injuries would not have occurred “but for” the use or operation of the school bus.
20The applicant submits that “but for” her riding on the school bus on her way home from school, she would not have sustained injuries as she was assaulted and sustained injuries while traveling as a passenger on the school bus.
21The respondent submits that the applicant has not satisfied the “but for” test on the basis that the incident occurred during the use or operation of the school bus. It claims that the assault was the sole cause of the applicant’s alleged injuries which had nothing to do with the operation of the school bus. The respondent argues that the use or operation of a vehicle must be a direct cause.
22However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 4520 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] but the but for test does not conclusively establish legal causation.
23The 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 that cannot be said to be part of the ordinary course of the use or operation of the school bus?
24I find that the applicant has not established that the use or operation of the school bus was the direct cause of her injuries. Rather, I find that the injuries were caused by an intervening act, namely, the assault by the other student.
25The applicant relies on Chisholm and she submits that an intervening act does not absolve an insurer of liability if it can fairly be considered a normal incident of the risk created by the use or operation of the car-if it is “part of the ordinary course of things.” The applicant submits that the risk of an assault by another student on a special needs bus was anticipated because there was a Rider’s Aid on board the bus. The applicant submits that the assault was a normal incident that is part of the ordinary and well-known activity of transporting children with special needs. However, the applicant does not point or direct me to evidence in support of the proposition that a Rider’s Aid is present on the school bus because assaults are anticipated as a common occurrence and are an ordinary and well-known part of transporting special needs students to and from school.
26The respondent submits that the case law has consistently established that an assault is an intervening act that breaks the chain of causation, making it so the use or operation of a vehicle can no longer be considered the cause of the applicant’s injuries. (See: Guo v. Allstate Insurance Company of Canada, 2024 CanLII 28828 (ON LAT); and Han v. Co-operators General Insurance Company, 2024 CanLII 67363 (ON LAT).
27I am not persuaded by the applicant’s position that assaults on special needs school buses are an acceptable risk to be considered an ordinary and well-known activity of transporting children to and from school. Further, I find that in Chisholm the Court of Appeal rejected the argument that gun shots are an intervening act in the “ordinary course of things” and found that the gun shots were the direct cause of the injuries not the use of a car.
28I am persuaded by the line of authorities raised by the respondent and find that the cause of the applicant’s injuries was the assault and not a consequence directly caused by the use or operation of the vehicle. The assault was the intervening act that broke the chain of causation. As found in the decisions cited by the respondent, it cannot be said that the applicant’s alleged injuries 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 riding as a passenger on the school bus at the time of the assault. I find that this assault was not a foreseeable risk related to the operation of the bus. I therefore find that the use or operation of the school bus was not the direct cause of the applicant’s alleged injures, but rather her alleged injuries were caused by an intervening act: an assault by a third party. The use or operation of the vehicle was ancillary to the assault.
29As a result, I find that the applicant has not satisfied the second part of the causation test.
Was the use or operation of the school bus the dominant feature of the applicant’s injuries?
30I am not persuaded on a balance of probabilities that the dominant feature that caused the applicant’s alleged injuries was the ordinary use or operation of the vehicle.
31The applicant submits that the anticipated behaviour of special needs children while traveling on a school bus caused her injuries.
32The respondent submits that the dominant feature of the incident was solely the assault, and not the use or operation of the school bus.
33As described in the Court of Appeal in Greenhalgh, the “dominant feature” considerations requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused he injuries”. Here, it is clear that the dominant feature was the assault, which resulted in the alleged injuries. 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 the student who assaulted her.
34I therefore find that the applicant has not established on a balance of probabilities, that the use of the vehicle was the dominant feature that caused her alleged injuries, rather than the assault.
Causation Test
35I find that the incident does not meet the causation test of an “accident”. Any alleged injuries the applicant sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule, and therefore, she is not entitled to benefits.
Section 32(1) of the Schedule
36Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
37Since I have found that the applicant was not involved in an “accident” as defined under the Schedule, and therefore she is not entitled to claim accident benefits arising out of the incident occurring on February 28, 2013, it is not necessary to determine whether she complied with the notice provisions set out under s. 32(1), or whether she is statute-barred from proceeding with her application before the Tribunal.
ORDER
38I find that the February 28, 2013 incident does not meet the two-part test to determine whether the incident is an “accident”. Therefore, any impairments the applicant may have sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule.
39As a result, since the applicant is not entitled to accident benefits, it is not necessary to determine whether she is statute-barred from proceeding with her application before the Tribunal.
40The application is dismissed.
Released: March 11, 2026
Lisa Holland
Adjudicator