Licence Appeal Tribunal File Number: 24-014867/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:
Cathy Fedoruk
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Todd Reybroek, Counsel
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written decisions
OVERVIEW
1Cathy Fedoruk, the applicant, was involved in an incident on November 7, 2022, 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.
ISSUE
2The issues in dispute 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 to a hearing because she 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
3I find that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
4I find that the applicant is not barred from proceeding to a hearing.
PROCEDURAL ISSUES
Adding the issue of compliance with section 32(1) of the Schedule
5In its submissions, the respondent has raised the issue of whether the applicant provided proper notification of her intention to seek accident benefits pursuant to s. 32(1) of the Schedule. This issue was not raised at the Case Conference, was not identified as an issue in dispute in the Case Conference Report and Order (“CCRO”), and there is no evidence that the respondent raised this issue prior to the service and filing of its submissions for this hearing. Pursuant to Rule 20.4 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”) any preliminary issue a party intends to raise must be included in their Case Conference Summary or added by a Motion.
6The applicant in her submissions states that despite s. 32(1) of the Schedule not being a listed issue in the CCRO, she will address the issue, out of an abundance of caution. Detailed submissions are provided by the applicant.
7The respondent in its reply submissions disagrees that a challenge pursuant to s. 32(1) is one that ought to have been included as a separate issue in the CCRO. It argues that this issue should be addressed in this hearing and views this issue as covered under the umbrella of determining whether an accident has occurred that would entitle the applicant to accident benefits.
8As both parties have provided detailed submissions on the issue of s. 32(1) of the Schedule and its applicability to the applicant’s entitlement to benefits, I will use my discretion and agree to consider this issue. I find that the applicant had an opportunity to make submissions and did so, and that not deciding this issue will only cause a further delay in assessing the applicant’s entitlement to benefits.
Non-Compliance with Production Order
9The respondent submits that the applicant has not produced the documentation and information requested at the Case Conference in contravention of the CCRO. Specifically, the applicant has not produced “any incident reports, footage, and photos that the TTC may have concerning the incident”. While the respondent has made the submission that this documentation has not been provided, no relief is being requested by the respondent.
ANALYSIS
The applicant was involved in an incident on November 7, 2022
10I find that the applicant was involved in an incident on November 7, 2022.
11The applicant submits that she was involved in an incident on November 7, 2022, while riding as a backseat passenger in a Wheel-Trans vehicle. She submits that she had an appointment with her family physician, Dr. Janice Bacher, on November 7, 2022, and was returning home after the appointment when the incident occurred.
12The respondent submits that the applicant has not established via any compelling evidence produced to date that the incident occurred, or that she suffered any injuries while riding in the Wheel-Trans vehicle. The respondent submits that the applicant has not provided any evidence nor established that the incident occurred as alleged, as no witnesses or property damage evidence has been produced to date. It argues that an applicant giving evidence without providing any documentary proof of same, does not constitute objective evidence. It further argues that a phone call and resulting letter from the Toronto Transit Commission (“TTC”) or late reporting of the incident to her family doctor, does not serve as proof that the event happened, and in the described manner, as alleged.
13I find that the applicant has proved on a balance of probabilities that an incident occurred on November 7, 2022, in which she sustained injuries.
14I find that the applicant’s version of the incident is confirmed in her Statutory Declaration dated October 23, 2023, and the evidence provided at her Examination Under Oath (“EUO”). While the respondent states that there are discrepancies in the applicant’s version of events, I find that the applicant’s evidence consistently reports that as a result of the drive in the Wheel-Trans vehicle, which was unsafe, speeding and bumpy, she suffered increased back pain. The specifics of whether the driver was speeding to pick up another passenger or to get to the washroom may vary in the applicant’s evidence, but the fact remains that her evidence is that the speeding vehicle resulted in her injuries. I find that these minor discrepancies related to the reasons why the driver was speeding should not be given any weight and accept the applicant’s evidence that the driver was speeding during her ride.
15Further, while the respondent submits that the events cannot be confirmed because they are based on hearsay, I do not agree. I find that the applicant’s submissions are not based on hearsay, but on the applicant’s self-reported experience on November 7, 2022. I find that the respondent has not provided any evidence to refute the applicant’s credibility, and I therefore accept her evidence as reported to her family physician, Dr. Janice Bacher, her Statutory Declaration and the evidence provided under oath at her EUO. In addition, while the respondent submits that there are no witness statements or property damage documentation provided to support the applicant’s version of events, there was no collision with another vehicle or object. Therefore, property damage documentation and witness statements would not be relevant.
16I find that the applicant has provided sufficient evidence to support that she reported the incident to the TTC following the incident. I accept the applicant’s submission that she contacted the TTC with complaints about her experience while riding in the Wheel-Trans vehicle on November 7, 2022. While the applicant has not provided the specific details as to the number of calls or emails she made to the TTC following the incident, it is clear from the evidence that she initiated contact. In the CNR of Dr. Bacher, dated November 17, 2022, Dr. Bacher notes that the applicant reported to her that she made a complaint to Wheel-Trans. In addition to this, I find that there is a copy of the applicant’s email to the TTC Customer Service Manager on March 5, 2023, contained within the CNRs of Dr. Bacher which notes the subject incident on November 7, 2022. The email advises as follows:
In November 2022 I had an incident in a mini van. My spine was hurt. I don’t know the damage as the MRI has not been discussed with me yet. The driver had poor suspension as in many mini vans, sped along Eglinton Ave so fast to get to a gas station to use the washroom. I had to be helped out to sit on the cold cement waiting for another ride. My back hurt so badly. I pray my surgery was not damaged.
17In addition, it is clear that contact was made by the applicant following the incident based on the TTC’s letter dated August 15, 2023, which acknowledges her involvement in an incident while using Wheel Trans on November 7, 2022. The letter states “we regret to hear about the accident you were involved in while utilizing Wheel-Trans on November 7, 2022”. It enclosed an Accident Benefits Package and advised her that, as she has a valid automobile insurance policy with Intact Insurance, it is her responsibility to initiate any Accident Benefits claims directly through her own auto insurance provider.
18With respect to the injuries sustained in the incident, I accept the applicant’s evidence that she experienced increased back pain after her ride in the Wheel-Trans vehicle. I find that the applicant reported the incident to Dr. Bacher at her first post-incident appointment, ten days later, on November 17, 2022. The CNR notes she complained of “fighting a lot of pain – back, shoulder, foot.” The applicant reported that “after in office visit, was on way home with wheel trans – sped along road and bumped up and down and felt back very sore. Had to get out and wait for someone else pick her up”. The CNR further notes that she put a complaint into Wheel-Trans because of the state of the car/drive. The CNR indicates that examination is deferred due to the limitations of the virtual appointment, but Dr. Bacher assessed her with low back pain likely secondary to Degenerative Disc Disease. She was scheduled for an in-person appointment on December 5, 2022.
19I find that, subsequent to the applicant’s initial post-incident appointment, she consistently reported the incident to Dr. Bacher and indicated increased back pain as a result of the incident. This is set out in the CNRs dated December 5, 2022, March 8, 2023 and March 20, 2023. On December 5, 2022, Dr. Bacher completed a Wheel-Trans Vehicle Exception Request Form which notes that the applicant has “worsening low back pain – recently in a van and reported that the drive caused worsening back pain post. Patient reports she is only comfortable in a sedan otherwise her back pain flairs”. On January 23, 2023, Dr. Bacher provided an update on the Wheel-Trans Vehicle Exception Request Form, stating that “more recently, patient felt van caused worsening of her low back pain, please allow patient to travel by sedan only.” On March 8, 2023, Dr. Bacher referred the applicant to Dr. Kevin Grant orthopaedic surgeon. The referral notes the applicant’s incident after taking a Wheel-Trans vehicle a few months ago.
20Upon review of the CNRs of Dr. Grant, I find that the Progress Report dated May 10, 2023, notes that, while the applicant has always had some degree of low back pain following her surgery in 2017, in November 2022, following a commute in a Wheel-Trans which was quite rough and bumpy, she developed significant low back dominant pain with radiation into her right buttock. Dr. Grant notes that the applicant’s symptoms have improved since this incident in November 2022, but her symptoms range from 5 out of 10 to 7 out of 10 in intensity. The applicant was seen in follow-up on July 26, 2023, with ongoing issues with mechanical back pain and on May 22, 2024, following which she was referred to a pain clinic.
21I therefore find based on the evidence provided by the applicant, namely the Statutory Declaration, the EUO, the correspondence to and from the TTC and the CNRs of Dr. Bacher, that the applicant has proven on a balance of probabilities that she was involved in an incident on November 7, 2022 and suffered injuries as a result of the incident.
The applicant was involved in an “accident” pursuant to s. 3(1) of the Schedule.
22I find that the November 7, 2022 incident meets the definition of an “accident” as defined by the Schedule.
23The 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 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.”
24The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
25In 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:
i. Purpose Test: did the incident arise out of the use or operation of an automobile? and
ii. 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?
26I find the purpose test has been met.
27As 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?
28I note that the respondent in its submissions states that the applicant “slipped” after opening her driver-side door. However, there are no submissions or evidence provided by the applicant claiming that she “slipped” in this incident. In addition, the respondent has not pointed to any evidence to support its submission that the applicant slipped.
29Instead, I find that the incident on November 7, 2022, occurred while the applicant was riding as a passenger in the Wheel-Tran vehicle. I am satisfied on a balance of probabilities that the purpose test has been met because the vehicle was being used for the purpose of transporting the applicant, an ordinary and well-known activity for which vehicles are put.
The Causation Test
30As set out in Greenhalgh, the causation test requires me to determine if this 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?
Would the alleged injuries not have occurred ‘but for’ the use or operation of the automobile?
31I find that the applicant has established that the alleged impairments would not have occurred “but-for” the use or operation of the automobile.
32The Court of Appeal decision in Chisholm v. Liberty Mutual Group, 2022 CanLII 45020 (ONCA) (“Chisholm”), requires that the applicant go further than to simply establish that “but-for” the use or operation of an automobile, the incident in question would not have occurred. The use or operation of a vehicle must be a direct cause. This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where at paragraph 39, the Divisional Court rejected the Director’s Delegate finding “that the accident in issue must be sufficient in itself to have caused the impairment: it must be “the cause” as opposed to “a necessary cause”.
33The applicant submits that “but-for” her ordinary use of the vehicle, this incident would not have taken place. She argues that she was only injured because the vehicle was being driven at excessive speeds and the actions of the driver operating in an unsafe manner, combined with the bumpy road and the hard seat, caused her to be inured. Had this vehicle not been moving, this injury would not have happened.
34The respondent does not expressly address the “but for” consideration in its submissions. The respondent simply submits that the applicant does not satisfy the causation test. The respondent argues that the applicant has not established that her pre-existing back pain was exacerbated by the alleged mechanics of the incident or impacted at all by the incident. The respondent cites the Divisional Court decision in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 and the Tribunal decision in Sinnicks v. Northbridge General Insurance Company, 2022 CanLII 109481 (ON LAT), where both claimants slipped on ice. I find that the facts in each of these cases are distinguishable from the subject incident, as in this case the applicant’s injuries occurred as a result of being a passenger in the vehicle, not slipping on ice in the vicinity of the vehicle. Therefore, the location of the injury which is the focus of these decisions is not relevant to the facts in the subject dispute.
35Having considered the evidence before me, I find that the applicant would not have sustained her injuries “but-for” being a passenger in the Wheel Trans vehicle, which was driving in an unsafe manner, at an excessive speed, on a bumpy road.
36I further find that it is clear that the applicant had a pre-accident back impairment as set out in the CNRs of Dr. Bacher. However, I find that the CNRs support that, following the incident, she had an exacerbation of her pre-existing back injury which was consistently reported to Dr. Bacher following the incident. I find that Dr. Bacher opined that the incident exacerbated her pre-accident back impairment and referred the applicant for further assessment by Dr. Grant, who also noted the exacerbation in his records. I therefore find that the applicant satisfies the “but-for” test in that she would not have exacerbated her pre-existing back impairment “but for” being a passenger in the Wheel-Trans vehicle.
37Pursuant to Chisholm, the “but-for” test does not conclusively establish legal causation, the cause that attracts legal liability. The “but-for” test is an exclusionary test which services to “eliminate from consideration faulty irrelevant causes.” It screens out factors that made no difference to the outcome.
38The analysis must next turn to a consideration of whether there was an intervening act that severed 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 motor vehicle?
39I find that the applicant has established that the use or operation of the vehicle was the direct cause of her injuries. I find that the injuries were not caused by an “intervening act”.
40As 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.
41The applicant submits that there was no “intervening act” that broke the link of causation between the incident and the ordinary use of the vehicle. She argues that the incident and the injuries arose from the actual operation of the vehicle.
42The respondent has not provided any specific submissions as to whether there was an “intervening act”.
43I find that the drive in the Wheel-Trans vehicle directly caused the applicant’s injuries and there was no “intervening act”. The injuries were caused by the speed of the vehicle, the bumpy road and the condition of the seating within the vehicle. I therefore find that the applicant has proven on a balance of probabilities that there was no “intervening act” that broke the link of causation between the incident and the ordinary use of the vehicle.
Was the use or operation of the automobile the dominant feature of the applicant’s injuries?
44I am persuaded on a balance of probabilities that the dominant feature that caused the applicant’s injuries was the ordinary course of use or operation of the vehicle.
45As described in Greehalgh, the “dominant feature” consideration requires an adjudicator to determine what element of the incident is “the aspect of the situation that most directly caused the injuries”. For instance, in Greehalgh, 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”.
46The applicant submits that it was the use or operation of the motor vehicle that was the “dominant feature” of the accident. The incident and injuries arise from the actual operation of the vehicle. The driver was operating the vehicle in a manner that involved excessive speeds and unsafe driving.
47The respondent has not made specific submissions on this issue.
48I find that the applicant has proven on a balance of probabilities that the “dominant feature” that caused the applicant’s injuries was the unsafe driving, excessive speeding and the condition of the seating in the vehicle. I therefore find that she has met the test that travelling as a passenger in the Wheel Trans vehicle was the dominant feature that caused her injuries.
Conclusion – Causation Test
49I find that the incident meets the causation test of an “accident”. The applicant’s impairments sustained as a result of the incident resulted from an “accident” as defined in the Schedule, and therefore she is entitled to Statutory Accident Benefits.
Compliance with s. 32(1) of the Schedule
Law
50Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
51Once an insurer receives notice of an applicant’s intention to apply for Statutory Accident Benefits, the insurer must provide the applicant with the appropriate Application for Accident Benefit (“OCF-1”) forms, a written explanation of benefits available, information to assist the person in applying for benefits and information on the election relating to income replacement benefits, non-earner benefits and caregiver benefits, if applicable. Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed Application for benefits to the insurer within 30 days after receiving the Application forms.
52Section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay.
53The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT) (“K.H.”). The guiding principles are summarized as follows:
i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
ii. The onus is on the insured person to establish a “reasonable explanation”.
iii. Ignorance of the law alone is not a “reasonable explanation”.
iv. The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.
v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
vi. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
54Pursuant to s. 55(1)1 of the Schedule, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to the benefit or has not submitted an Application for the benefits within the timelines set out in the Schedule.
Reasonable explanation for the delay
55I find that a reasonable explanation for the delay was provide by the applicant pursuant to s. 34 of the Schedule.
56The applicant submits that she has provided a reasonable explanation for the delay in advising the respondent of her involvement in the accident and submitting her OCF-1 pursuant to s. 34 of the Schedule. She argues that she contacted the TTC about the incident a day, or so, after the accident happened. She submits that she had numerous conversations with the TTC about the accident but was never advised by the TTC that she could make an accident benefits claim or told to contact her own insurer in order to initiate a claim. It was not until August 15, 2023, that the TTC provided her with a letter advising her to contact her own insurer, if she had one, to initiate an accident benefits claim. She was also provided with an Accident Benefits package. She then immediately retained counsel and submitted her OCF-1 to the respondent on August 21, 2023.
57The applicant submits that this was not a typical type of motor vehicle accident where one would automatically advise their own insurer and be aware of their access to an accident benefits claim. Rather, this is a unique scenario and s. 32(1) and s. 34 of the Schedule must be assessed in that context. She argues that she was confused and unaware of her rights, until she was advised of her possible access to accident benefits through her own insurer on August 15, 2023.
58The respondent submits that the applicant’s reasons for the late reporting of the accident and submission of her OCF-1 do not meet the threshold of a reasonable explanation under s. 34 of the Schedule. The respondent submits that the applicant first notified it of the alleged incident via correspondence from her newly appointed legal representative on August 21, 2023, which also included a completed OCF-1. The respondent notes that it may be understandable that an individual with the psychological history and age of the applicant may not be familiar with the process for making a claim in what is otherwise not a typical “accident”, and that it is not out of the question for the applicant to have been directed accordingly from those conversations with TTC. However, the respondent argues that the applicant has not provided any evidence of the calls/reports the applicant claims to have made to the TTC in the months immediately following the incident.
59The parties agree that the applicant did not notify the respondent of her intention to apply for accident benefits within seven days after the circumstances arose that give rise to her entitlement to accident benefits as required by s. 32(1) of the Schedule. Rather, the applicant notified the respondent of her intention to apply for accident benefits on August 21, 2023. The issue before me is whether the applicant has provided a “reasonable explanation” for the delay pursuant to s. 34 of the Schedule.
60In keeping with the principles in Horvath and K.H., an assessment of reasonableness includes a balancing of prejudice to the respondent, hardship to the applicant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
61I find that in assessing these principles, consideration must also be given to the principles set out in the Court of Appeal decision in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438 (“Tomec”), with respect to consumer protection, and the Divisional Court decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), where it must be recognized that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident.
62The respondent takes issue with the applicant’s explanation for the delay, namely that she was not aware of her rights or that she had access to accident benefits. However, I accept the applicant’s evidence that this was the true reason why there was a delay in reporting the accident to the respondent. I find that it is clear, from the evidence, that the applicant was not aware of her rights or told by the TTC that she was required to submit an OCF-1 and report the accident to her insurer. It was not until August 15, 2023, that the TTC advised the applicant of her rights. She then quickly retained counsel and submitted her OCF-1 six days later on August 21, 2023.
63While ignorance of the law alone is not a reasonable explanation, the test of “reasonable explanation” is both a subjective and objective test that should take into account both the personal characteristics and the “reasonable person” standard. I accept the applicant’s evidence that the TTC did not direct her on how to proceed until its letter dated August 15, 2023. I find that the applicant is an unsophisticated insured who was involved in atypical accident. I find that this is supported by the respondent’s acknowledgement that it is understandable that an individual with the applicant’s psychological history and age would not be familiar with the process for making an accident benefits claim, particularly as this was not a typical accident.
64While the respondent has not provided submissions on the prejudice it has suffered by the delay, it is reasonable to conclude that the respondent has been prejudiced by the delay because it was not aware of the applicant’s intention to seek accident benefits and could not assess her claim. However, in contrast, I find that the applicant will face significant hardship if she is prevented from proceeding with her Application for Accident Benefits.
65In my view, the hardship to the applicant if she is prevented from proceeding with her Application for Accident Benefits, would be far greater than any prejudice faced by the respondent. On balance, I find that it would be equitable to relieve against the consequences of the applicant’s non-compliance with s. 32(1) of the Schedule because I find that the applicant has provided a reasonable explanation for the delay under s. 34 of the Schedule. Accordingly, I find that the applicant has met her onus and may proceed with her Application for Accident Benefits.
ORDER
66For the reasons outlined above, I find:
i. The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule; and
ii. The applicant is not barred from proceeding to a hearing.
Released: May 4, 2026
Melanie Malach
Adjudicator