Licence Appeal Tribunal File Number: 25-010871/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:
Terry Ritchie
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Sharon Mackay, Counsel
For the Respondent:
Dilenthi Warakaulle, Counsel
Heard:
By way of written submissions
OVERVIEW
1Terry Ritchie, the applicant, was involved in an incident on December 4, 2021, 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, the Motor Vehicle Accident Claims Fund, 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 to a hearing 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 December 4, 2021, was an “accident” as defined in s. 3(1) of the Schedule. Therefore, there is no need to consider the s. 32(1) non-compliance issue. The Application is dismissed.
BACKGROUND
4The applicant submits that on December 4, 2021, while riding his e-bike, he was forced off the roadway by an unidentified motorist and suffered injuries. In his submissions, he concedes that the e-bike is not an automobile. Instead, the applicant argues that the issue in dispute is whether he was involved in an “accident” as defined in s. 3(1) of the Schedule, because his injuries were directly caused by a third-party automobile.
5The respondent submits that the applicant’s credibility is at issue and the evidence is speculative at best. The respondent argues that the applicant has failed to establish the existence of any vehicle at or before the time of the alleged incident which caused his alleged injuries. The respondent therefore submits that the applicant has not proven that his injuries were caused by the use or operation of a motor vehicle.
ANALYSIS
6I find that the applicant has not met his onus of proving that he was involved in an “accident” pursuant to s. 3(1) of the Schedule.
7Section 2(3) of the Schedule provides that the benefits set out in this regulation 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”.
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet the test.
9In 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?
The Purpose Test – Did the incident arise out of the use or operation of an automobile?
10I find that the purpose test has not been met.
11As 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?
12The applicant submits that the purpose test has been met because the third-party driver caused the accident with negligent and/or reckless driving such as ‘brake-checking’.
13The respondent submits that there is limited information regarding the alleged third-party vehicle, and all information is based solely on the applicant’s self-reporting, which is unreliable given the inconsistencies and his admission to lying to authorities. There were no witnesses, and no other vehicle is noted in the unredacted police file. The respondent submits that the existence of a third-party vehicle is not grounded on evidence and therefore the purpose test has not been satisfied.
14I find that this issue turns on the credibility of the applicant with respect to how this incident took place.
15The respondent argues that the applicant has provided multiple, inconsistent accounts of the incident. It submits that all of the information in this matter is based solely on the applicant’s self-reporting, which is unreliable given the inconsistencies and his admission of lying to authorities.
16The respondent submits that in the applicant’s Statement of Claim issued on November 30, 2023, initiating his tort action against the respondent, he alleges that he was riding a bicycle (not an e-bike) when struck by a motor vehicle. The applicant’s medical records have several entries reporting that he was in a “dirt bike accident”. In a Claimspro interview conducted on behalf of the respondent on August 9, 2023, the applicant described the incident as involving an e-bike and alleged that he was clipped by a Mazda that fled the scene.
17The respondent submits that at the applicant’s Examination for Discovery on October 17, 2024, he stated that he was riding an e-bike at the time of the incident. The applicant further stated that a small red car cut in front of him and abruptly braked, causing him to brake, lose control and veer onto the left shoulder. The applicant admitted that he could not recall whether it was a Mazda that clipped him. He confirmed that there was no contact between his e-bike and the alleged vehicle. The applicant testified that he was thrown from his e-bike after it struck gravel. The applicant was unable to identify the red car beyond describing it as a “little red car”.
18The respondent submits that the police notes from the scene note that the “bike hit gravel” and make no reference to a second vehicle. The notes further state, “police not required, bike hit gravel”. The dispatch report notes “male in e-bike went down”. The respondent submits that the applicant told the police at the scene that he was not the driver of the e-bike. When questioned about this at his Examination for Discovery, he admitted he lied to the police because he feared the legal consequences for driving without a licence.
19The applicant submits that his credibility should be judged in the context of this accident, as a serious crash with equally serious injuries following egregious behaviour from an unidentified driver, with difficulties of proof arising from the unidentifiable nature of that driver. The applicant submits that it is unfair to expect an exact factual recounting following the accident when he was suffering from excruciating pain and on pain medications. In addition, the applicant submits that after sustaining serious injuries, it is unfair to expect the applicant to be in a position to start evidence collection, obtain photos or gather contact information for witnesses. The applicant further submits that as he was unconscious after the accident, he was in no position to accurately communicate to the police. He argues that although he did not mention the unidentified motorist to police or hospital staff, this can be attributed to shock from his serious injuries.
20The applicant relies upon the Will Say Statements from his mother and brother which he claims corroborate the fact that he was brake-checked by another car causing him to crash.
21The applicant argues that his testimony is in “harmony with the preponderance of the probabilities” of the accident as understandable by a practical, reasonable person, and this makes it credible. (See: Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., 1971 CanLII 389 (ON CA). The applicant relies upon the Supreme Court of Canada decision in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, where the Court found that assessments of credibility, “must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.”
22The respondent in its Reply submissions submits that the applicant is seeking to disregard significant discrepancies in accounts of the incident, including inconsistencies in his own statement made long after the incident. The respondent argues that the Tribunal has previously ruled that such inconsistencies undermine credibility. The respondent relies upon the tribunal decision in Nanthakumar v. Unifund Assurance Company, 2023 CanLII 50528 (ON LAT).
23The respondent further submits that the applicant’s claim he was unable to accurately communicate with the police due to hitting his head and losing consciousness is contradicted by the evidence. The respondent submits that the applicant testified that he hit his head which cracked his helmet but “all it did was rattle my brain for a minute, but I was okay. It didn’t do any damage.” This is supported by the medical records at the hospital that confirm there was no head injury and no loss of consciousness.
24The applicant in his Sur-Reply submissions submits that the unidentified motorist’s unsafe maneuver caused him to lose control. He argues that there is no other reasonable explanation as to why he would take evasive action on a roadway, creating a situation of danger and resulting in significant injury. The particular circumstances of this case have left the applicant without the ability to provide any additional or corroborating evidence of what occurred.
25Although I acknowledge that the applicant sustained significant injuries in the subject incident, I agree with the respondent that the applicant’s reports as to how this incident occurred are inconsistent and not reliable and therefore, he has not established on a balance of probabilities, that the purpose test has been met.
26Upon review of the notes of Police Constable Fiuza, I find that they note that the “bike hit the gravel”. The notes further indicate that the applicant is not the driver of the e-bike. I find that there is no indication in these notes of involvement of a third-party vehicle in the incident. While the applicant submits that he lied to the Police because he was afraid of the legal consequences of riding his e-bike illegally, there is no mention of a third-party vehicle’s involvement in the incident. In addition, while the applicant submits that he was unable to relay to the police what happened in the incident because he was unconscious, I find that this is contradicted by the Dispatch Report, dated December 4, 2021, which confirms “conscious and breathing” and the Ambulance Call Report which notes that “patient wearing helmet and denies striking his head or LOC”. I therefore do not accept the applicant’s submissions that he could not relay the facts of the incident to the police because he was unconscious.
27I find upon review of the St. Joseph’s Healthcare records, the applicant advised that he was a “passenger on e-bike, driver went into gravel and lost control”. I find that there is no mention of any involvement of a third-party vehicle in the incident. The records further confirm that there was no loss of consciousness.
28I find upon review of the Clinical Notes and Records of Dr. Akerele, family physician, that the only mention of the subject incident was on December 16, 2021, where Dr. Akerele notes that a telephone consultation took place and the applicant “apparently had a bike accident”. I find that there are no particulars noted with respect to how this incident took place.
29Upon review of the Personal Interview of the applicant by ClaimsPro on August 9, 2023, I find that the applicant states, “I do not recall the exact time as I lost consciousness. I fell off my e-bike after being clipped by a Mazda which left the scene”. He then states that, “I was riding my e-bike when I was hit by the Mazda”. I find that these statements are contradicted by the applicant’s evidence that there was no contact between his e-bike and the third-party vehicle as well as the medical evidence that he did not lose consciousness.
30Upon review of the Statement of Claim between the applicant and the respondent, dated November 30, 2023, I find that the applicant claims that the unidentified third-party vehicle struck the plaintiff’s bicycle, causing serious personal injury. Again, I find that the applicant’s own evidence is that there was no contact between his e-bike and the third-party vehicle. In addition, there is no mention in the Statement of Claim that a third-party vehicle cut him off or abruptly braked, causing him to lose control of the e-bike.
31I find that the first mention of the applicant claiming he was “cut off by a vehicle that left the scene” was in the applicant’s Application for Accident Benefits, dated March 13, 2024. At the applicant’s Examination for Discovery, he gives evidence that a small red car cut in front of him and abruptly braked, causing him to brake, lose control and veer onto the left shoulder. He then states that he can not recall if it was a Mazda that clipped him. I find that the OCF-1 and the evidence at his Examination for Discovery are in direct contradiction to the information he provided to the police, the hospital, the ClaimsPro adjuster and his Statement of Claim. I find that the applicant has not provided the Tribunal with a persuasive explanation for this change in the description of how the incident occurred.
32Upon review of the correspondence from counsel for the applicant to the respondent, dated December 19, 2023, counsel states that the applicant is “adamant that vehicle clipped him, causing him to lose control as his bike hit the gravel”. Again, this is inconsistent with the applicant’s evidence that there was no contact between the e-bike and the third-party vehicle. This is further inconsistent with the applicant’s OCF-1 and his submissions which state that he was cut off by a third-party vehicle and abruptly braked.
33I give little weight to the Will Say Statements of the applicant’s mother and brother, as they were not witnesses to the subject incident and their statements are based on what the applicant has reported to them. In addition, I find that there is no indication as to the dates of these Will Say Statements or how long after the incident they were prepared.
34For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that the purpose test has been met. I find that the applicant has not proven that the use or operation of a motor vehicle was directly involved in causing his injuries. Therefore, I find that the applicant’s injuries did not result from an “accident” as defined in s. 3(1) of the Schedule, and therefore he is not entitled to accident benefits.
Compliance with Section 32(1) of the Schedule
35As I have found that the applicant was not involved in an “accident” as defined in section 3(1) of the Schedule, it is therefore not necessary for me to consider whether the applicant is barred from proceeding to a hearing as he 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.
ORDER
36I find that the applicant has not established that the incident that took place on December 4, 2021, was an “accident” as defined in s. 3(1) of the Schedule. Therefore, there is no need to consider the s. 32(1) non-compliance issue.
37The Application is dismissed.
Released: May 19, 2026
Melanie Malach
Adjudicator