Citation: Ashman v. CAA Insurance Company, 2026 ONLAT 24-015760/AABS

Licence Appeal Tribunal File Number: 24-015760/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:

Devante Ashman

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

George Campbell, Paralegal

For the Respondent:

Jacqueline Fortner, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Devante Ashman, the applicant, was involved in an automobile accident on July 9, 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, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2By Procedural Order, dated June 6, 2025, given the parties’ failure to adhere to the preliminary issue hearing submissions deadlines set out in the Case Conference Report and Order, the preliminary issue was ordered to be addressed at the substantive issue hearing.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?

SUBSTANTIVE ISSUES

4The substantive issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 7, 2022 to July 9, 2024?

iii. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by Complete Rehab in a treatment plan submitted July 18, 2022?

iv. Is the applicant entitled to $1,794.70 for physiotherapy services, proposed by Complete Rehab in a treatment plan submitted August 24, 2023?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant was not involved in an “accident” as defined in section 3(1) of the Schedule. The Application is dismissed.

PRELIMINARY ISSUE

Was the applicant involved in an “accident”?

6Section 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, prothesis or other medical or dental device.

7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

8The applicant submits that he was involved in an “accident” as defined in s. 3(1) of the Schedule. He submits that he was a pedestrian, lawfully crossing a roadway on July 9, 2022, when he was struck by a reversing motor vehicle. He claims that the police report and the respondent’s own adjuster notes confirm the event. The applicant further submits that the respondent’s conduct demonstrates that it treated this as an accident throughout its investigation. The applicant further submits that the medical record evidence, especially the Clinical Notes and Records (“CNRs”) of Dr. Maria Bagovich, rheumatologist, document persistent pain, limited range of motion, sleep disturbance, concentration deficits and emotional distress.

9The respondent submits that based on the evidence before the Tribunal, the applicant has failed to establish on a balance of probabilities that he was involved in an “accident”. The respondent argues that the applicant’s name is not reported anywhere on the police documents, including the Motor Vehicle Collision Report, the Toronto Police Services Motor Vehicle Accident Report – Driver Copy, or the Collision Field Notes, and there are no contemporaneous medical records produced to date supporting his involvement in the accident.

10The respondent relies on multiple correspondence sent to the applicant which indicates that the applicant’s involvement in the accident was under investigation and that the claim was being handled on a without prejudice basis. It argues that at no time has it conducted itself in any manner that would cause the applicant to believe that his claim was accepted.

11The applicant in reply states that he was a pedestrian crossing the street with his then fiancé, and now wife, who was heavily pregnant. He states that both of them were hit by a vehicle, and both suffered injuries as a result of the subject accident. The applicant further submits that he participated in an Examination Under Oath on September 26, 2022. The applicant argues that the police report and officer’s notes are not determinative of accident participation as the omission of his name may have been an administrative error or the result of incomplete information at the scene. He submits that what is determinative is the totality of the evidence before the Tribunal, particularly his sworn testimony at the EUO and the medical and rehabilitation documentation contemporaneous with the accident. He further submits that the CNRs of Dr. Rahim Jessa and Dr. Bagovich, identify his accident-related injuries consistent with the described mechanism of his injury.

12I am not persuaded that the applicant was involved in the subject accident based on the police reports relied upon by the applicant. I find upon review of the Motor Vehicle Collision Report, dated July 9, 2022, there are three involved persons listed, the driver, the owner of the vehicle and a pedestrian. I find upon review of the Toronto Police Services Motor Vehicle Accident Report – Driver Copy, the three same involved persons are listed. I find upon review of the Collision Field Notes, two involved persons, the driver and the pedestrian, are indicated as well as the owner of the vehicle. I find that the applicant’s name is not mentioned anywhere in the reports and there is also no mention that there was more than one pedestrian involved in the accident. The pedestrian, who is the applicant’s fiancé according to his reply submissions, provided a Statement to the police at the scene which is contained in these notes. I find there is no mention in this statement that she was accompanied by the applicant or that he was involved in the accident.

13While I accept that there can be errors made in police reports as suggested by the applicant, I give significant weight to the fact that there is no mention of the applicant’s involvement in either of the police reports or the statement of his own fiancé.

14Upon review of the medical documentation submitted by the applicant, specifically the CNRs of Dr. Bagovich and the report dated December 11, 2024, there is no mention of his involvement in an accident on July 9, 2022. Dr. Bagovich notes in her report, her previous diagnosis of the applicant with axial spondyloarthritis in February 2017 and notes the applicant’s complaints of a flare up in his back because he missed his regular injection of Simponi in December. While the applicant in his reply submissions refers to the CNRs of Dr. Jessa, these records have not been submitted to the Tribunal for review. I therefore find that the medical evidence relied upon by the applicant in his submissions does not mention nor support his involvement in the subject accident.

15In addition, while the applicant refers to his attendance at an EUO, a copy of this transcript has not been provided by either party for my review and therefore the evidence is not before the Tribunal.

16I further do not accept the applicant’s submission that the respondent’s conduct demonstrates that it treated this as an accident throughout its investigation and led him to believe that his claim was accepted. I find that the correspondence of the respondent, specifically the letters dated September 16, 2022, October 3, 2022, June 29, 2023 and September 1, 2023, consistently advises the applicant that his involvement in the accident is under investigation and that the applicant’s claim was being handled on a without prejudice basis.

17For the reasons outlined above, I find that the applicant has not met his onus of proving on a balance of probabilities that he was involved in an “accident” pursuant to s. 3(1) of the Schedule. I therefore find that applicant’s Application is dismissed and there is no need to address the substantive issues in dispute.

ORDER

18For the reasons outlined above, I find:

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

ii. The Application is dismissed.