Ganci v. Wawanesa Mutual Insurance Company, 2026 CanLII 4136

Citation: Ganci v. Wawanesa Mutual Insurance Company, 2026 ONLAT 25-006881/AABS - PI

Licence Appeal Tribunal File Number: 25-006881/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:

Antonietta Ganci

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant: Jabbour Yousef, Counsel

For the Respondent: Marko Radulovic, Counsel

HEARD: In writing

OVERVIEW

1Antonietta Ganci, the applicant, was involved in an incident on October 4, 2024, and sought benefits from Wawanesa Mutual 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 (“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 has not proven on a balance of probabilities that the incident of October 4, 2024 was an “accident” as defined in section 3(1) of the Schedule.

BACKGROUND

4On October 4, 2024, the applicant, aged 74 years at the time, drove to Walmart to pick up a few items. She returned home and parked her vehicle in her designated handicapped parking spot. She placed the vehicle in park and turned the engine off. She opened the vehicle door with her left hand and placed her right hand on the door, placing both feet on the ground and stood up onto the parking lot. With her right hand on the driver’s side door, she stepped out of the way of the door in order to close it. After closing the door, she began walking to the sidewalk of her residence which was directly in front of her. She had her purse on her right shoulder, and a Walmart shopping bag in her left hand. She had her vehicle fob in her hand and pushed the button to lock it.

5After taking three steps, while walking and holding on to the driver’s side of her vehicle with her right hand, she came to the raised curb of the sidewalk. She put her right hand on the hood of the vehicle to push off and put her left foot on the curb. Her knee buckled; she heard her knee “pop”. She felt a great deal of pain and leaned on the hood of her vehicle for several minutes.

6The applicant submits that she suffered severe injuries as a result of the accident, namely, a left knee medial femoral condyle avulsion fracture, pain to her left leg from hip to foot, left shoulder, lower back, right leg and headaches.

7The applicant attended an Examination Under Oath (“EUO”) on February 5, 2025.

8On March 25, 2025, the respondent denied the applicant’s claim on the basis that the incident was not an “accident” as defined by the Schedule.

ANALYSIS

9For reasons that follow, I find that this incident does not meet the definition of an “accident” as defined by the Schedule.

10The Schedule provides that insurers are liable to pay certain benefits to or on behalf of insured persons who sustain an impairment as a result of the use or operation of an automobile. Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

11The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

12In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

a. Purpose test: did the incident arise out of the use or operation of an automobile? and

b. Causation test: did the use or operation of an automobile directly cause the impairment?

The Purpose Test - Did the incident arise out of the use or operation of an automobile?

13I find the purpose test has not been met.

14As set out in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at paragraph 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?

15The respondent submits that the applicant has not satisfied the purpose test as walking onto the sidewalk is not an ordinary and well-known activity to which vehicles are put.

16The applicant submits that parking her vehicle is an ordinary and well-known activity to which automobiles are put. She argues that she drove her vehicle to her destination, parked, and exited her vehicle “to proceed to her destination and while within close proximity of the vehicle.” She relies on Caughy as well as Penhale v. Aviva General Insurance Company, 2024 CanLII 126320 (ON LAT) (“Penhale”).

17I do not accept either of the parties’ submissions relating to the purpose for which the vehicle was being used at the time of the incident. The respondent submits that the purpose was “walking onto the sidewalk” and the applicant submits that the purpose was “parking her vehicle”. Based on the information submitted, more specifically the transcripts of the EUO, neither of these submissions accurately reflect the purpose for which the vehicle was being used at the time of the incident.

18Based on the applicant’s testimony at the EUO on February 5, 2025, I find that the vehicle was being used for the purpose of supporting the applicant as she made her way from the vehicle to the sidewalk. As she described it, she was holding on to the driver’s side of the vehicle as she walked towards the sidewalk, and she put her right hand on the hood of the vehicle to push off and lift her left foot onto the curb. This, in my view, is not an ordinary and well-known activity for which automobiles are put. The applicant had arrived at her destination, turned off the vehicle and was proceeding to her residence. Aside from using the vehicle as support, I do not see another reason for which the vehicle was being used.

19The applicant relies on Caughy and submits that the Court of Appeal found that parking a vehicle is an ordinary and well-known activity for which automobiles are put. She argues that the parking spot of one’s residence is typically where a car is put when there is no intention to use it.

20I find that Caughy is distinguishable from the facts in this matter. In Caughy, the insured tripped over a motorcycle which was parked in a walkway between trailers at a campsite. It was found that the temporary parking of the motorcycle on the walkway constituted an ordinary or well-known use of the vehicle and was the dominant feature in the incident. Here, the applicant did not hit or trip on any part of the vehicle; she was using the vehicle to support herself while she made her way to the sidewalk.

21She also relies on Penhale where the Tribunal found that an applicant, who was in the process of walking towards the vehicle and was knocked to the ground by the driver while at the rear of the vehicle, is an accident. More specifically, the Tribunal found that attempting to enter a vehicle in order to be driven somewhere is an ordinary and well-known activity for which automobiles are put. I disagree with the applicant that this is similar to her situation. I am not bound by Penhale, but nonetheless, I find that the applicant was not in the process of entering her vehicle. She had arrived home, turned off the engine, exited the vehicle and was in the process of returning to her home. The only use for which the vehicle was being used was as support.

22I also note that the applicant relies on Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”) and submits that the Schedule is considered consumer protection legislation and therefore should be applied for the benefit of the consumer. She also submits that it has been held consistently that the Schedule must be interpreted generously as the legislation is remedial in nature.

23I agree that the Schedule is consumer protection legislation and I acknowledge the direction provided by the Court in Davis, however, this does not allow the Tribunal to disregard or circumvent the established legal test to determine whether an incident is an accident pursuant to the Schedule. In this matter, I find that the facts are clear and require no special interpretation of the Schedule. The vehicle was being used to help support the applicant while she was making her way from the vehicle to the sidewalk which, as I have found, is not an ordinary and well-known activity for which automobiles are put.

24In any event, even if providing support to an individual is found to be an ordinary and well-known activity for which vehicles are put, I find that the applicant has not satisfied the second part of the test regarding causation.

The Causation Test – Did the use or operation of the automobile directly cause the impairment?

25As set out in Greenhalgh, the causation test requires me to determine if the ordinary and well-known activity was the direct cause of the applicant’s impairments by focusing on the following considerations:

a. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;

b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and

c. whether the use or operation of the motor vehicle was the dominant feature of the incident.

26First, I am not satisfied that the applicant has shown that ‘but for’ the use or operation of the vehicle, she would not have sustained her injuries. I note that in her submissions on this part of the test, the applicant submits she was in very close proximity to her vehicle, and that “exiting her vehicle” is an “ordinary and well-known activity for which automobiles are put.” She argues there is therefore a nexus between the use of the vehicle and the incident.

27I am perplexed by the applicant’s submission that the activity referenced here – exiting the vehicle – is not the activity the applicant submitted in her submissions on the purpose test. As noted above, the activity the applicant relied on to support the purpose test was “parking the vehicle”. I agree with the applicant that it is well-established that an incident does not need to occur with the individual inside the vehicle to be determined an “accident”, but regardless of the discrepancy regarding the applicant’s description of the “activity”, I find that the applicant has not shown how her injuries would not have occurred but for parking the vehicle or, relevant to her submissions on this part, how exiting the vehicle contributed to her impairments.

28On the second part of the causation test, as noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the automobile.

29Greenhalgh also provides direction on the “dominant feature” consideration. The Court requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident”, Justice Labrosse found that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”

30On both the intervening cause consideration and the dominant feature consideration of the causation test, the applicant submits that her impairments were caused by the vehicle “as it was the dominant feature of the incident” since she was pushing herself against the vehicle to be able to step up on the curb. She adds that her foot did not touch the curb nor was the curb involved in any way, shape, or form in causing the impairment.

31The applicant’s submissions appear to conclude that because the curb was not involved in causing the injuries, the conclusion would therefore be that the injuries were caused, predominantly, by the vehicle.

32I find that the applicant’s submissions fail to consider what I find to be an intervening cause: the applicant lifted her foot to step onto the curb. It was subsequent to lifting her foot that her knee “popped”. In my view, lifting one’s foot to step onto a curb is not a normal incident of the risk created by the use or operation of an automobile as described in Greenhalgh. I find it to be an intervening cause.

33I also find that her lifting her foot is the dominant feature that contributed to the “popped” knee and the injuries she subsequently sustained, and not the use or operation of the vehicle. It is what directly caused her impairments, and the use of the vehicle as support was ancillary to those injuries.

34The applicant put forth several cases in support of her submissions on the causation test: Davis, supra; Penhale, supra; North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143; Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (ON LAT); V.B. v. Economical Insurance Company, 2020 CanLII 87992 (ON LAT); and Miceli v. TD Insurance, 2025 ONSC 496. I note, however, the applicant does not provide sufficient analysis on how these cases apply to the factual background in this matter, specifically. Having reviewed the cases, I find they are distinguishable and have little, if any, application to the applicant’s set of facts.

35I therefore find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of her injuries. Rather, I find that the injuries were caused by an intervening act, namely, the lifting of her foot which, as the applicant submits caused her knee to “pop”, the dominant feature, and resulted in her impairments.

36I find the incident does not meet the causation test of an “accident”. Any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule, and therefore, she is not entitled to the benefits sought in this application.

ORDER

37The applicant has not established that the incident that took place on October 4, 2024 was an “accident” as defined in section 3(1) of the Schedule.

38The application is dismissed.