Citation: Pilon v. CAA Insurance Company, 2026 ONLAT 25-001511/AABS

Licence Appeal Tribunal File Number: 25-001511/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:

Bryan Pilon

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: David Himelfarb, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bryan Pilon, the applicant, was involved in an incident on February 1, 2024, 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.

ISSUES

2The issues in dispute are:

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

ii. Is the applicant barred from proceeding with his claim for benefits as he failed to submit his Application for Benefits (“OCF-1”) within the time prescribed in the Schedule?

RESULT

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

BACKGROUND

4On February 1, 2024, the applicant was conducting routine repair and maintenance work on a trailer at Mill Creek Feight Ltd. At the time of the incident, he was sealing the roof of a trailer with caulk. He had gone on top of the trailer to perform the repair. Partway through the job, he ran out of caulk. As he stood up to get more caulk, his forehead was struck by the retaining blade of an industrial fan that was affixed to the ceiling. The applicant was standing on the top of the roof of the trailer when he was hit by the fan.

5The applicant submits that he suffered severe injuries as a result of the accident. He retained the services of his legal representative on March 6, 2024. On September 10, 2024, he submitted his Application for Accident Benefits (“OCF-1”) to the respondent.

6On September 10, 2024, the respondent acknowledged receipt of the applicant’s OCF-1. The applicant attended an Examination Under Oath (“EUO”) on October 31, 2024. Subsequently, the respondent denied the applicant’s claim on the basis that the incident was not an “accident” as defined by the Schedule.

ANALYSIS

The applicant was not involved in an “accident” pursuant to s. 3(1) of the Schedule

7For the reasons that follow, I find that this incident does not meet the definition of an “accident” as defined in s. 3(1) of the Schedule.

8The 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.”

9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

10In 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?

11I find that the Purpose Test has been met.

12As 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?

13The applicant submits that he satisfies the Purpose Test as the incident arose out of the use or operation of an automobile. He submits that he was repairing the roof of the trailer when the incident occurred which is an activity that is consistent with routine maintenance of a vehicle. He relies upon the Tribunal decision in Fehr v. Intact Ins. Co, 2022 CanLII 14951 (ON LAT) (“Fehr”) and the Superior Court of Justice decision in Madore v. Intact, 2023 ONSC 11 (“Madore”) where it was determined that performing routine maintenance on a parked vehicle is one of the “ordinary and well-known activities to which automobiles are put” that satisfies the purpose branch of the test.

14The respondent concedes that the Purpose Test has been met.

15I find that the incident on February 1, 2024, occurred while the applicant was performing maintenance on a trailer. I am satisfied on a balance of probabilities, that the Purpose Test has been met because performing maintenance on a trailer is one of the ordinary and well-known activities to which automobiles are put.

The Causation Test

16As 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 trailer?

17I find that the applicant has established that his impairments would not have occurred ‘but for’ the use or operation of the trailer.

18The Court of Appeal decision in Chisholm v. Liberty Mutual Group, 2022 CanLII 45020 (ONCA) (“Chisholm”), requires 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.

19The applicant submits that ‘but for’ repairing the roof of the trailer, he would not have been injured.

20The respondent submits that the ‘but for’ element of the Causation Test has been met.

21I find that the applicant would not have sustained his injuries ‘but for’ repairing the roof of the trailer. However, pursuant 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.

22The 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 trailer?

23I find that the applicant has not established that the use or operation of the trailer was the direct cause of his injuries. I find that the injuries were caused by an ‘intervening act’.

24As 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.

25The applicant submits that being injured as he was conducting routine maintenance to a vehicle is a normal incident of the risk created by use that is reasonably foreseeable. He submits that the connection between the use or operation of the automobile and the incident is not too incidental or remote. He argues that the incident occurred as he was actively involved in the ongoing use or operation of the trailer. He had not yet completed the maintenance and was still on the roof of the trailer. He stood up so that he could get more caulk to finish the maintenance of the vehicle and was struck by the blade of the ceiling fan. He submits that the incident was directly linked to the repair of the trailer, which is an accepted normal use.

26The applicant relies on the Ontario Divisional Court decision in Madore, which found that a fall from the top of a trailer was an accident. The Court noted,

In this case Madore fell when he was physically on top of the trailer conducting an inspection and cleaning. Slipping and falling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by use and is reasonably foreseeable.

27The respondent submits that there was an intervening act that took place that cannot be said to be part of the ordinary course of use or operation of the trailer. It submits that the low hanging, obstructed and unguarded ceiling fan was a hazard and dangerous flaw with the layout of the Mill Creek depot that was not a normal risk associated with maintaining and repairing a trailer. The respondent argues that the ceiling fan broke the chain of causation as it was not a continuous chain of events or played a continual causal role in the applicant’s repair of the trailer. The respondent submits that it was an intervening act arising from a new independent source unconnected to the trailer.

28The respondent relies upon the Tribunal decision in Li v. Economical Insurance Company, 2024 CanLII 40992 (ON LAT) (“Li”), where the applicant was inspecting his vehicle when the mechanical hoist, which was lifting up the vehicle, malfunctioned and caused the vehicle to land on the applicant causing injury. The Tribunal held that the malfunction of the hoist was an intervening act that broke the chain of causation as it was not within the normal incident of risk created by the inspection of the automobile.

29The respondent further relies upon the Tribunal decision in 17-009102 v. Western Assurance Company, 2018 CanLII 110946 (ON LAT) (“17-009102”), where the applicant tripped and fell into an open but netted service bay of a mechanic’s garage while seeking an emissions test on her vehicle. The Tribunal held that an “accident” did not occur because the tripping hazard was not a reasonably foreseeable risk associated with operating an automobile.

30The applicant in his reply submissions submits that the ceiling fan was not an intervening act, but rather the ceiling fan was part of the uninterrupted sequence of events initiated by the ordinary and well-known activities associated with the repair of the trailer’s roof.

31The applicant relies upon the Divisional Court decision in Davis v. Aviva General Insurance Co., 2024 ONSC 3053 (“Davis”), where the applicant slipped and fell on black ice in a parking lot as she was walking towards her car. The applicant submits that the Divisional Court noted that the Schedule is considered consumer protection legislation and should therefore be applied for the benefit of the consumer. It further noted that the definition of “accident” under the Schedule must be interpreted in a manner consistent with the substantive objective of reducing economic dislocation and hardship to victims of a motor vehicle accident. The applicant argues that like the black ice in Davis, the ceiling fan was just one event in a series of events that connects to the use of the trailer to the injury.

32The applicant further distinguishes the decisions relied upon by the respondent. He argues that the decision in 17-009102 is distinguishable in that the applicant was no longer actively involved in the use or operation of the automobile when she tripped. He also argues that the decision in Li is distinguishable because the hoist was malfunctioning. The applicant submits that there was no malfunction in the fan that broke the chain of causation.

33I find that while the applicant was on the trailer at the time of the incident, his injuries were sustained from a new and independent source unconnected to the trailer. I find that what caused the applicant’s injuries was the ceiling fan. The ceiling fan had nothing to do with the use or operation of the trailer but instead was a hazard and dangerous flaw with the layout of the Mill Creek depot. I find that this was not a normal risk associated with maintaining and repairing a trailer. I therefore find that the ceiling fan broke the chain of causation as it was not part of a continuous chain of events in the applicant’s repair of the trailer.

34The applicant and the respondent have put forth several cases in support of their submissions on the causation test. I find that each of these decisions are highly fact specific and have little, if any, application to the applicant’s set of facts.

35I find that the decision in Madore is distinguishable from the facts in this matter. In Madore, the Court held that “slipping and falling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by such use and is reasonably foreseeable.” In Madore, the Court held that there was no evidence that “suggest the fall was caused by an unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof”. However, in the present case, unlike falling from the roof of an automobile which is a likely occurrence, it was unforeseeable that the applicant would be injured by a ceiling fan when repairing the trailer. I find that the ceiling fan had no connection to the use or operation of the trailer and his maintenance of it.

36With respect to the applicant’s reliance on the decision in Fehr, I do not agree that a slipping ladder is akin to a ceiling fan causing an injury. The Tribunal in Fehr held that,

The ladder was an essential component to inspect the roof of the truck, so it cannot be said that it was not part of the ordinary course of things. The inspection of the truck was ongoing when the ladder gave way, necessitating the applicant hold onto the top of the truck, which led to the eventual fall to the ground and impairments. I see no break in the chain of causation.

37I find unlike the use of the ladder in Fehr which was an essential component of the inspection, the ceiling fan played no part in repairing the trailer and was unconnected from this activity and severable from the subsequent injury. I find that the contact with the ceiling fan was an intervening act that broke the chain of causation.

38I also find that the decision in Davis is distinguishable from the facts in this matter where the applicant slipped on black ice while holding her key fob. The current matter is not a situation where the applicant slipped and fell while attempting to get into or out of a vehicle. Rather the injuries were caused by an independent act of getting hit by a ceiling fan which broke the chain of causation. I do not agree that the ceiling fan is connected to the act of repairing the trailer.

39As a result, I find that the applicant has not satisfied the second part of the causation test.

Was the use or operation of the trailer a dominant feature of the applicant’s injuries?

40As described by the Court of Appeal in Greenhalgh, the ‘dominant feature’ consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries”.

41The applicant submits that the dominant feature in this case is the act of the applicant repairing the trailer and therefore arises out of the use or operation of a vehicle. He argues that being struck in the head by a ceiling fan and sustaining injuries while performing maintenance on a vehicle clearly flows from the initial use and operation akin to hitting the pavement after being struck as a pedestrian The applicant argues that his head was struck by a blade of a ceiling fan that was in motion, rather than hitting his head on the ground as was the case in Fehr.

42The respondent argues that this condition of the Causation Test “requires that the presence of a motor vehicle be the dominant feature, or constitute the true nature, of the claim and not be ancillary to it.” The respondent further argues that it is insufficient to show that the vehicle was simply the place or part of the incident, it is necessary that the automobile be a direct cause of the injury.

43The respondent submits that the use of the trailer did not directly cause the applicant’s injuries. The trailer is merely the location of the injury, and it was ancillary to being hit in the head by a low hanging and unguarded ceiling fan. The respondent submits that it was the low hanging and unguarded ceiling fan that directly caused the applicant injuries. The injuries sustained from the unguarded ceiling fan are not a foreseeable risk associated with repairing a trailer.

44The respondent relies upon the Tribunal decision in Li, where the dominant feature was the malfunctioning hoist, not the inspection of the vehicle. The respondent further relies on the long line of cases from the Tribunal and the Court of Appeal which find that an “accident” does not occur when an applicant is assaulted while operating or using an automobile. The assault is considered an intervening act that is not a foreseeable risk normally associated with operating an automobile.

45I find that the use or operation of the trailer was not the dominant feature of this incident, it was the ceiling fan hitting the applicant in the head. I find that there is no evidence that the use or operation of the trailer directly caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by the ceiling fan. I agree with the respondent that the injuries sustained from the unguarded ceiling fan are not a foreseeable risk associated with repairing the trailer.

46For the reasons outlined above, I find that this incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.

Late filed OCF-1 and Reasonable Explanation for the Delay

47As I have concluded that this incident does not meet the definition of an “accident, it is not necessary for me to consider the second issue in dispute of whether the applicant is barred from proceeding to a hearing for failing to submit his OCF-1 within the time prescribed in the Schedule.

ORDER

48For the reasons outlined above, I find that the February 1, 2024 incident was not an “accident” as defined in s. 3(1) of the Schedule. The Application is dismissed.