Citation: Kaya v. Definity Insurance Company, 2026 ONLAT 25-008332/AABS - PI

Licence Appeal Tribunal File Number: 25-008332/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:

Kubilay Kaya

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Michael Silver, Counsel

For the Respondent:

Jennifer Griffiths, Counsel

HEARD

By way of written submissions

OVERVIEW

1Kubilay Kaya (“the Applicant”) was involved in an incident on January 18, 2025, and sought benefits from Definity 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.

RESULT

3The Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.

4The Application is dismissed.

BACKGROUND

5The Applicant sustained a broken ankle and other injuries in an incident that occurred while completing a food delivery involving his vehicle (“the incident”).

6In the moments leading up to the incident, the Applicant parked his vehicle in an available parking spot on the north side of an urban street. He exited the vehicle and retrieved the food delivery package from the trunk. The Applicant then closed the trunk and crossed the street from the rear end of his vehicle, travelling to the south side of the street and onto the sidewalk. The Applicant walked along the sidewalk towards the delivery location and slipped on an uneven and icy surface, causing him to fall and sustain injuries. He was unable to complete the food delivery as a result of the incident.

7The Respondent contends that the incident is not an accident as defined in section 3(1) of the Schedule because, it submits, the Applicant was no longer involved in the use or operation of his vehicle when he slipped and fell. The Applicant submits that the incident occurred while he was competing a food delivery, which is a well-known used of a vehicle, and that he would not have been travelling to the location of the incident but for completing his food delivery.

ANALYSIS

8Section 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 his injuries were caused by the use or operation of an automobile.

9As 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:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,

2. The causation test: Did the use or operation of an automobile directly cause the impairment?

10The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.”

11The 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:

1. The “but for” consideration;

2. 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,

3. 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

12I find that the incident does not meet the purpose test.

13The Applicant submits that the purpose is test is met because the incident occurred while he was completing a food delivery, which he submits is a well-known use or operation of a vehicle. The Respondent submits that incident did not arise out of the use or operation of a vehicle because the Applicant was no longer involved in the use or operation of his vehicle when he slipped and fell.

14I agree with the Applicant that using a vehicle to delivery food is an ordinary and well-known use of the vehicle. The purpose test is broad and may include many uses, including food delivery. To me, this includes transporting the food, retrieving the food from the vehicle, and securing the vehicle to be left alone and parked once the food is retrieved.

15However, I find that the purpose test is not met in this incident. To me, the purpose test does not extend beyond transporting and retrieving food deliveries from the vehicle, and that the use of a vehicle for food delivery ends once that process is complete, and the user leaves the parked vehicle. Moreover, it cannot be said that the use and operation of a vehicle continues after leaving a parked vehicle and extends to the duration of the delivery, including walking from the vehicle to the delivery location with the package, and back to the vehicle.

16The Applicant relies on Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”). In Davis the insured person slipped on ice while approaching their vehicle with their key fob in hand, and sustained injuries. The Divisional Court concluded that the use of a key fob was the dominant role in the accident and that the presence of ice was not an intervening event that would break the chain of causation. The Applicant submits that his case is akin to Davis. He submits that the presence of black ice is not an intervening event, and that completing a food delivery is akin to operating a key fob because it is a well-known use to which vehicles are put. I disagree.

17I find Davis to be distinguishable from the Applicant’s case. This is because the insured in Davis was actively engaged in the use or operation of her vehicle when she slipped and fell on ice, resulting in injuries. This is because she was approaching the vehicle with her key fob in hand, which is used to unlock the vehicle. In the Applicant’s case, he stopped using the vehicle once he retrieved the food delivery package and left the parked vehicle. Additionally, the Applicant was not using a device to operate any part of the vehicle when the incident occurred, further distinguishing his case from Davis.

18In this case, I find that the end of his use of the vehicle occurred once he retrieved the food package and left the vicinity of his vehicle to complete the delivery. To me, it would be unreasonable to find that the use or operation of a vehicle continues because the Applicant intended to return to the vehicle, even if promptly.

19Accordingly, I find that the incident does not meet the purpose test. It then follows that I find that the Applicant was not involved in an accident as defined in section 3(1) of the Schedule.

The Causation Test

20If I am wrong, and the purpose test extends beyond the Applicant parking his vehicle and retrieving the food for delivery, I find that the Applicant has not demonstrated that the causation test is met.

21The Applicant submits that the use or operation of his vehicle played a dominant role in his injury because he would not have been at the location of the accident had he not been in the process of completing his food delivery. He submits that he was briefly exiting his vehicle in order to complete the “small portion of the delivery process that could not be completed from inside the vehicle itself”.

22To support this case, the Applicant relies on Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (ON LAT) (“Seung”). In Seung, the insured was injured after they used a key fob to open their trunk remotely but slipped and fell during the process of raising the trunk gate. The Tribunal concluded that the incident in Seung constituted an accident and that the snowy, icy conditions on the sidewalk where the insured fell are an inextricable factual element of the use of the vehicle, that do not displace the use of the vehicle as the dominant feature in the accident.

23The Respondent submits that it cannot be said that the Applicant would have slipped on the sidewalk but for the use of his vehicle. According to the Respondent, this is because the Applicant’s mode of transportation before continuing his journey on foot had no connection whatsoever to the hazards that caused him to fall at a distance from his parked car. It further submits that there is a considerable separation in terms of time, distance and activity between the Applicant’s use and operation of the vehicle and his subsequent slip and fall.

24I find that the use or operation of a vehicle was not a direct cause of the Applicant’s injuries. I agree with the Respondent that the vehicle was used to bring the Applicant to the location of the food delivery where the incident occurred. This is because he stopped using the vehicle as a mode of transportation and started a new journey by foot once he retrieved the package and left the parked vehicle. Additionally, the Applicant travelled by foot from the location of the vehicle, across the street and along a sidewalk for several meters. Given these facts, I find that it cannot be said that the use of the vehicle was a direct cause of the Applicant’s injuries.

25I further find that the dominant feature of this incident was a slip and fall on an uneven and icy surface, and this event broke the chain of causation linking the Applicant’s injuries to the use and operation of a vehicle. In the Applicant’s case, he exited his vehicle, retrieved the food delivery package, and left the parked vehicle before he started on his journey by foot to complete the delivery. He was not using his vehicle at the time of the incident, nor was he attempting to use it by means of engaging the key fob or circling the vehicle to retrieve an item from within it. He was simply walking on the sidewalk from the location of the vehicle to complete his food delivery. The fact that the Applicant intended to return to his vehicle once the delivery was completed does not mean that his use of the vehicle continued during the entirety of the food delivery. Accordingly, I find that the causation test is not met in the incident.

26Having found that the incident does not meet the purpose test or the causation test, it follows that I find that the Applicant was not involved in an accident as defined in section 3(1) of the Schedule.

Conclusion and ORDER

27The Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.

28The application is dismissed.