Licence Appeal Tribunal File Number: 25-012524/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:
Wilfred Poisson
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Jeffery Crannie, Counsel
For the Respondent:
Christine Mckenna, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Wilfred Poisson, the applicant, was involved in an incident on June 29, 2023, 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.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided is:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. Does the applicant meet the definition of an “insured person” as defined in section 3(1) of the Schedule?
RESULT
3I find that the applicant was “involved” in an “accident” as defined in s. 3(1) of the Schedule. I find that the applicant meets the definition of an “insured person” as defined in s. 3(1) of the Schedule. The application shall proceed to a hearing on the substantive issues as previously scheduled.
ANALYSIS
Background
4On June 29, 2023, the applicant and his partner were both asleep in their bedroom on the second floor of their house, when the incident occurred at 4:30 a.m. The applicant and his partner were awoken when a pick-up truck crashed into the first floor of their house. The smoke detectors went off, causing flashing strobe lights and a voice command yelling “Fire Fire Fire”.
5The applicant got dressed and went downstairs to see what happened. He saw a white pick-up truck embedded in the house and the headlights beaming through the wall. When he looked out the window, he saw someone lying on the driveway and he thought the person was dead. The applicant called 911 to report the incident.
6The pick-up truck caused extensive damage to the applicant’s house. He lost the use of his home from the date of the incident until at least July 5, 2024. The applicant was forced to change accommodations numerous times.
7The applicant subsequently applied for accident benefits under his personal motor vehicle policy and sought funding for psychological treatment because of the subject incident.
8The respondent denied coverage of accident benefits on the basis that the applicant was not an “insured person” involved in an “accident” as defined in s. 3(1) of the Schedule.
The applicant was involved in an “accident” pursuant to s. 3(1) of the Schedule
9For the reasons that follow, I find that this incident meets the definition of an “accident” as defined in s. 3(1) of 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 his injuries.
12The Ontario Court of Appeal in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), 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 that the Purpose Test has been met.
14As set out in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA) (“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 attending the scene after an accident occurs and when the vehicle is no longer in use and operation does not meet the Purpose Test. It relies upon the four propositions set out in the Divisional Court decision in Francia v. Economical, 2021 ONSC 7847 (“Francia”) which were reiterated by the Divisional Court in Travis v. Aviva Insurance Company, 2024 ONSC 1684 (“Travis”), as follows:
i. The purpose test is not satisfied where a vehicle is not operational when an applicant arrives on the scene.
ii. A vehicle that is non-operational does not qualify as ordinary and well-known activities to which automobiles are put.
iii. An applicant who attends the accident scene after an accident has already occurred will not satisfy the purpose test.
iv. Being in the vicinity of an automobile accident that has already occurred will not satisfy the purpose test.
16The respondent submits that an insurer is not responsible for any impairments that arise out of the aftermath of an accident that has already occurred. It submits that the applicant’s psychological impairments arose in relation to the aftermath of the collision and not the collision itself where the applicant heard the sound of the collision and then went to view the scene. The respondent argues that the vehicle was not in use or operation at the material time and therefore cannot be said to have been the direct cause of the applicant’s alleged psychological impairments.
17The applicant submits that the incident satisfies the Purpose Test, as the collision by the vehicle into his home arose out of the use or operation of an automobile. He submits that at the time of the incident, the third-party driver was operating his pick-up truck on a roadway when he drove his pick-up truck into the applicant’s house. The applicant argues that the respondent is mischaracterizing his condition, as his psychological impairments did not arise from witnessing the aftermath of an accident, but arose from the impact of the vehicle with his house while he was sleeping and as a result caused a psychological impairment. The applicant claims that immediately after the impact, he experienced terrifying fear and panic from the traumatic event, which directly caused his Post-Traumatic Stress Disorder (“PTSD”) and other diagnosed psychological injuries.
18The applicant further submits that the decisions in Francia and Travis are distinguishable as this is not a case where he was injured by coming onto the scene of an accident and witnessing the aftermath of the accident.
19The respondent counters that the applicant is conflating hearing/feeling the collision and reacting to the alarms as a result of the collision with sustaining an injury directly caused by the use or operation of a vehicle. The respondent submits that the Schedule requires more than proximity, awareness or aftermath induced-distress. The respondent argues that the applicant’s own materials accept there was no physical contact with the pick-up truck, no witnessing of the collision, and all psychological responses developed after the impact had already occurred.
20I find that the Purpose Test has been met.
21Based on the applicant’s submissions and the medical documentation provided in support, I accept that his psychological impairments did not arise from witnessing the aftermath of the incident, as suggested by the respondent. Rather, I find that the evidence supports that the applicant’s psychological impairments resulted from the impact of the pick-up truck hitting his house, waking him up, the applicant hearing the smoke detectors go off and seeing the strobe lights, which caused panic. I find support for this in the Clinical Notes and Records (“CNRs”) of Dr. Shreekant Sharma, psychologist, dated December 27, 2023, who diagnosed the applicant with PTSD and specifically noted that the applicant woke up in panic mode when he heard a loud bang, which sounded like an explosion and all of the alarms in his home were going off. Similarly, the CNR of Dr. Peter Farvolden, psychologist, dated March 5, 2024, notes that the applicant woke up screaming and reported that the fire alarm system and strobe lights had activated. Further, the Psychological Assessment report, prepared by Kaplan and Levitt Psychologists, dated August 12, 2024, diagnosed the applicant with PTSD and adjustment disorder with anxiety and depressed mood. The report also notes that the applicant was “totally panicked after the impact, and the smoke detectors went off.”
22I agree with the applicant that the decisions in Francia and Travis are distinguishable from the facts in the subject matter, because this is not a case where the applicant was injured by coming onto the scene of an accident and witnessing the aftermath of the accident. I find that the pick-up truck was operational when it hit the applicant’s home and the applicant was inside his house when the pick-up truck hit his house.
23I find that the incident on June 29, 2023, occurred when the third-party driver drove his pick-up truck into the applicant’s home. I am satisfied on a balance of probabilities, that the Purpose Test has been met because driving a vehicle is an ordinary and well-known activity to which automobiles are put.
The Causation Test
24As set out in Greenhalgh, the causation branch of the 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 pick-up truck?
25I find that the applicant has established that his impairments would not have occurred ‘but for’ the use or operation of the pick-up truck.
26The Court of Appeal decision in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), requires the applicant go further than to simply establish that ‘but for’ the use or operation of the automobile, the incident in question would not have occurred. The use or operation of a vehicle must be a direct cause.
27The Court in North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018, ONSC 2143 (“Samad”), expands on whether the use or operation of a vehicle must be a direct cause. Samad adopts the analysis from Greenhalgh at paragraph [12] and [13]:
12What will amount to direct causation will depend on the circumstances. However, some of the following considerations may provide useful guidance in ascertaining whether or not it has been established in a given case:
(a) The ‘but for’ test can act as a useful screen;
(b) In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
(c) In other cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairments is too remote to be called “direct” (Greenhalgh paras 11 and 12).
13There may be more than one direct cause; it is not necessary that all of the causes be part of the use or operation of the automobile.
28The respondent submits that the ‘but for’ test only serves to eliminate from consideration factually irrelevant causes that made no difference to the outcome. It argues that the ‘but for’ test is not determinative of legal causation, meaning the next parts of the test must be considered.
29The applicant submits that ‘but for’ the pick-up truck driving into his house, he would not have suffered a psychological impairment because it triggered the smoke detector and strobe lights, and the warning jolted him out of bed. The applicant argues that this was an uninterrupted series of events.
30I find that the applicant would not have sustained his psychological injuries ‘but-for’ the pick-up truck driving into his house, him waking up suddenly, the smoke detector and strobe lights going off, and the warning jolting him out of bed. 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 serves to “eliminate from consideration factually irrelevant cause”. It screens out factors that made no difference to the outcome.
31The 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 pick-up truck?
32I find that the applicant has established that the use or operation of the pick-up truck was the direct cause of his injuries. I do not find that the applicant’s injuries were caused by an ‘intervening act’.
33As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot be fairly considered a normal incident of the risk created by the use or operation of the automobile.
34The respondent submits that the pick-up truck had ceased operation when the applicant first saw both it and the driver and therefore was not the direct cause of the applicant’s psychological impairments. The respondent argues that it was the visual aftermath of the incident including seeing significant property damage, the prostrate form of the driver, the near miss of the gas line and the continued issues with the home repair that is the cause of the impairment.
35The applicant submits that there was no intervening act or independent cause between the pick-up truck impacting his house and his psychological injuries. He submits that his psychological impairments flowed immediately and directly from the collision. He states that the automobile was not merely incidental to the injury, it was the dominant and operative cause. He submits that ‘but for’ the pick-up truck hitting his house, causing him to be awoken by a very loud noise and almost being thrown out of bed; hearing the alarm yelling Fire Fire Fire and seeing the strobe lights; and being in fear for his life, his psychological injuries would not have occurred.
36The applicant further submits that his psychological impairments are not a result of witnessing the aftermath of the incident, as claimed by the respondent, but arose from the incident itself. The applicant submits that he was present at the moment the vehicle crashed into his home, and the force of that collision directly caused his psychological injuries.
37The respondent argues that the medical records show that the applicant’s psychological response is tied to being jolted awake, hearing a bang, seeing strobe lights, hearing the smoke detector’s voice prompts, perceiving damage and seeing the driver outside. The respondent argues that these are independent sources of distress that followed the collision, not part of the vehicle’s use or operation. The respondent further argues that they are intervening events that break the direct causation between use or operation and impairment as required by Greenhalgh.
38I find that the pick-up truck hitting the applicant’s house was the direct cause of the applicant’s impairments and there was no intervening act that severed the chain of causation. I find that upon the pick-up truck hitting the applicant’s house, he was jolted awake from hearing the crash, heard the smoke detector and the voice prompts, saw the strobe lights, which caused him panic and resulted in his psychological impairments. I agree with the applicant that this was a series of uninterrupted events resulting from the use or operation of a vehicle. I further accept that the applicant’s psychological impairments were not caused by witnessing the aftermath of the accident. While I accept that the applicant also made complaints about the damage to his home and his distress about having to move accommodations, I am persuaded on a balance of probabilities that his PTSD was caused by the pick-up truck hitting his house and the panic he experienced as a result of the crash.
39As a result, I find that the applicant has satisfied the second part of the causation test.
Was the use or operation of the pick-up truck a dominant feature of the applicant’s injuries?
40I find that the use or operation of the pick-up truck was the dominant feature of the applicant’s injuries.
41As 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”.
42The respondent submits that the link between the use or operation of the pick-up truck and the applicant’s impairment is too remote to be called ‘direct’ when one contemplates the whole incident. The respondent submits that the jurisprudence confirms that accident benefits provided in the Schedule are not meant to be available to a person whose only connection to a vehicle is that of second-hand knowledge, or as a witness to the aftermath of the incident, no matter how traumatic that incident may be.
43The applicant submits that he did not suffer a psychological impairment from witnessing the aftermath of the incident. He was present at the moment the pick-up truck crashed into his home, and the force of that collision caused his injuries. He submits that his impairments arose from the impact itself.
44The respondent argues that the dominant feature of the applicant’s claimed psychological impairments are the home alarm system, flashing strobe lights, perceived fire risk, property damage, displacement form the home, and ongoing repair disruption.
45I find that the dominant feature of this incident was the pick-up truck crashing into the applicant’s home which startled him awake, followed by an alarm and strobe lights going off which caused him a psychological impairment. I find that use or operation of the pick-up truck was the dominant feature of this incident which directly caused the applicant’s psychological impairments. I find that it is reasonable that an ordinary person would suffer a psychological impairment from enduring the traumatic experience of this incident.
46For the reasons outlined above, I find that this incident meets the definition of an “accident” pursuant to s. 3(1) of the Schedule.
The applicant was an “insured person” pursuant to s. 3(1) of the Schedule
47I find that the applicant is an “insured person”.
48Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy,
(a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependent of the named insured or of his or her spouse,
(i) If the named insured, specified driver, spouse or dependent is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or
(ii) If the named insured, specified driver, spouse or dependent is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparents, brother, sister, dependent or spouse’s dependent,
(b) a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario, or
(c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident, if the accident occurs outside Ontario.
49In reviewing the definition of “insured person” in s. 3(1) of the Schedule, I find that the analysis is whether the applicant has established that he was “involved” in an accident under s. 3(1)(a)(i), in order to be eligible for accident benefits.
50The respondent submits that the applicant was not “involved” in an “accident”. The respondent argues that the applicant’s involvement in this incident was entirely after the fact. At the time of the incident, he was asleep. He was not the driver or passenger; he did not see the incident take place; he was not struck by the vehicle; and he did not touch the vehicle. The pick-up truck was no longer in use or operation by the time the applicant’s impairments were established. The respondent therefore argues that the applicant was not “involved” in the incident as he heard and witnessed the aftermath of the incident which does not meet the definition of an “insured person”.
51The respondent submits that the jurisprudence confirms that someone who suffers psychological issues after hearing or witnessing the immediate aftermath of an accident, is not a person who was “involved” in an accident. (See: Boyle v. Travelers Canada, 2020 CanLII 103481 (ON LAT) (“Boyle”); Amiri and Mireskandari v. The Co-Operators, 2021 CanLII 45657 (ON LAT) (“Amiri”); and Bustin v. Economical Insurance Company, 2022 CanLII 87718 (ONLAT) (“Bustin”)).
52The respondent further relies upon the Tribunal decisions in Howes v. CAA Insurance Company, 2023 CanLII 42592 (ON LAT) (“Howes”), where the applicant was asleep when a vehicle impacted her home and then ran downstairs and saw the aftermath of the accident. The Tribunal held that the applicant was not “involved” in an accident as the respondent is not responsible for any psychological impairments that arise out of the aftermath of an accident that has already occurred, and the automobile was no longer in use or operation by the time the impairments were established. The respondent further relies upon the Tribunal decision in Gray v. Intact Insurance, 2023 CanLII 133 (ON LAT) (“Gray”), where the applicant heard the impact of a vehicle into a neighbour’s home and ran out of her home witnessing that the driver was unconscious. The Tribunal found that the applicant only witnessed the immediate aftermath of the incident and was determined not to be “involved” in the accident.
53The applicant submits that it is clear that he was a named insured under a valid automobile policy at the time of the accident. The applicant submits that he is an “insured person” under s. 3(1)(a) of the Schedule as he was involved in an accident involving an automobile that struck his house while he was asleep inside it, directly causing his impairments.
54The applicant submits that he did not witness the aftermath of the accident as the respondent has claimed. He submits that he was present at the moment the pick-up truck hit his house, and the force of that collision directly caused his injuries. He argues that this is not a case where he later went to observe an accident scene and suffered psychological harm. His psychological impairments arose from the impact itself when he was awoken suddenly. Immediately after the impact, he was experiencing terrifying fear and panic, which is what caused his PTSD and other diagnosed psychological injuries, not going outside and seeing the driver on the pavement.
55The applicant distinguishes the case law referred to by the respondent. He submits that this is not a case where he simply heard an accident and went to assist, as in Boyle, or witnessed the aftermath of an accident as in the Amini, Gray and Howe cases.
56I find that the applicant was “involved” in the accident that occurred on June 29, 2023.
57As set out in my analysis above, I find that this incident meets the definition of an “accident”. I further find that the applicant’s injuries did not arise from the aftermath of the accident as alleged by the respondent. I find that the applicant’s injuries arose directly from the use or operation of a vehicle. I therefore find that he was “involved” in the incident and meets the definition of “insured person”.
58I find that the cases referred to by the respondent deal with the situation where someone sees or hears an accident and suffers psychological impairments. As I have found that the applicant’s injuries were not caused by the aftermath of the incident, these cases are distinguishable from the subject matter. I find that the applicant’s injuries were directly caused by the accident.
59I find on a balance of probabilities that the applicant has proven that he was “involved” in the subject accident. Therefore, the applicant is an “insured person” pursuant to s. 3(1) of the Schedule.
ORDER
60For the reasons outlined above, I find that the applicant was “involved” in an “accident” as defined in s. 3(1) of the Schedule. I further find that the applicant meets the definition of an “insured person” as defined in s. 3(1) of the Schedule. The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: June 8, 2026
___________________________
Melanie Malach
Adjudicator