Licence Appeal Tribunal File Number: 25-002365/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:
Allan J. Cohan
Applicant
and
Certas Direct Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Dale Rosenberg, Counsel
For the Respondent:
Arash Vakili, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Allan J. Cohan, the applicant, claims to have been involved in an automobile accident on October 21, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
RESULT
3The applicant has not established that the incident that took place on October 21, 2024 was an “accident” as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4This dispute arises out of an incident that occurred on October 21, 2024. The applicant claims to have suffered injuries as a result of an assault.
5According to the applicant’s submissions, he was situated in his vehicle on Highway 7, in the process of completing a turn through the intersection. He was waiting for bumper-to-bumper traffic to move forward so that he could clear the intersection. He claims that he was assaulted and sustained injuries while situated inside his vehicle, with the ignition on and his vehicle, at certain points, moving.
6The Application for Accident Benefits (“OCF-1”) dated October 25, 2024, notes that the applicant was stopped in traffic when a person got out of his vehicle, came to his car, and punched him numerous times through the window.
7The respondent refers to dashcam video evidence and a video clip posted on Instagram that were both provided by the applicant. Both videos show the applicant’s vehicle stopped in front of a freight truck and depict the assailant standing beside the applicant’s vehicle throwing several punches through the applicant’s driver’s side window. The assailant then backs away. The applicant rolls his vehicle forward slightly closer to the assailant. The Instagram video clip shows the applicant trying to reach out for the assailant and the assailant slapping the applicant’s hand aside. The applicant and the assailant continue arguing as both videos end.
8The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident” in the Schedule.
9The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused injuries as required by s. 3(1) of the Schedule.
Was the applicant involved in an “accident”?
10I 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.
11Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
12The 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.
13In 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?
14I find that the purpose test has been met.
15As 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?
16The applicant submits that the use of his vehicle, namely to clear the intersection along Highway 7, was within the range of the ordinary and well-known activities to which automobiles are put.
17The respondent submits that the incident does not meet the purpose test as the applicant’s vehicle was nothing more than the venue where the assault occurred. It argues that although the applicant was using his vehicle to drive himself home before the incident occurred, the incident did not arise out of the ordinary and well-known activity for which automobiles are use, but rather from a road rage encounter with the assailant.
18I am satisfied on a balance of probabilities the purpose test has been met because the vehicle was being used by the applicant to drive himself home, an ordinary and well-known activity for which vehicles are put.
The Causation Test
19As set out in Greenhalgh, the causation test requires the Tribunal to determine if these “ordinary and well-known activities” were 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;
c. Whether the use or operation of the motor vehicle was the dominant feature of the incident.
a. Would the alleged injuries not have occurred “but for” the use or operation of the automobile?
20I find that the applicant has established that the alleged injuries would not have occurred “but for” the use or operation of the automobile.
21The applicant submits that “but for” the use of his vehicle, he would not have sustained his injuries as he was assaulted and sustained injuries while situated inside his vehicle. He further submits that the Dashcam footage clearly shows that his break lights are on, meaning he is pressing down on the brake pad with his foot to prevent the vehicle from moving forward. He submits that the footage also shows that his vehicle is moving forward one to two feet as his foot temporarily came off the brake pedal. He submits that the footage shows the assailant assaulting the applicant through his driver side window as he is operating his vehicle.
22The respondent submits that the applicant has not satisfied the “but for” test simply on the basis that he was operating his vehicle at the time of the incident. It claims that the assault was the sole cause of the applicant’s alleged injuries which had nothing to do with the operation of his vehicle. The respondent relies on Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (“Chisholm”) to argue that legal entitlement to accident benefits requires not just that the use or operation of a vehicle be a cause of injuries, but that it be a direct cause. The respondent argues that the applicant’s alleged injuries resulted directly from the assault and only incidentally involved his vehicle.
23I agree with the respondent that 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 Insurance et al., 2019 ONSC 1121 (“Sabadash”), where at paragraph 39, the Divisional Court rejected the Director’s Delegate’s finding that “the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to a “necessary cause”.
24Having considered the evidence before me, I find that the applicant would not have sustained his injuries “but for” his use of the vehicle. But for driving his vehicle and being at the intersection where the incident took place, he would not have sustained his alleged injuries. However, as per 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 faulty irrelevant causes.” It screens out factors that made no difference to the outcome.
25The analysis must next turn to a consideration of whether there was an intervening act that severs the chain of causation.
b. 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?
26I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of his injuries. Rather, I find that the injuries were caused by an intervening act, namely, the assault by the assailant.
27As 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.
28The applicant submits that the assailant’s behaviour was not an intervening event but rather one that can be anticipated. He argues that road rage is often seen in the ordinary course of use or operation of a vehicle and is quite common.
29The respondent submits that the case law has consistently established that an assault is an intervening act that breaks the chain of causation, making it so the use or operation of a vehicle can no longer be considered the cause of an applicant’s injuries. (See: Martin v. 2064324 Ontario Inc., 2013 ONCA 19; Amrok v. Economical Insurance Company, 2021 CanLII 110996 (ON LAT); Mattu v. Intact Insurance Company Inc., 2024 CanLII 112996 (ON LAT); Waite v. Gore Mutual Insurance Company, 2025 CanLII 55800 (ON LAT); and Addison v. Intact Insurance Company, 2025 CanLII 3770 (ON LAT)). The respondent submits that the assault in this matter broke the chain of events from the applicant’s ordinary use of the vehicle. It was not a foreseeable risk related to the operation of a vehicle. Without the assault, the applicant would not have suffered any of the alleged injuries. The respondent relies on the decision in B.A. v. Gore Mutual Insurance Company, 2018 CanLII 112128 (ON LAT), where the principle was succinctly assessed and the Tribunal found:
…when the two-part test is applied to cases involving assault, the “intervening act consideration drives much of the analysis. That is, by viewing these assaults as “intervening acts”, adjudicators often characterize the decision to attack an insured person as a break in the chain of causation between an automobile’s ordinary and well-known activity and the impairment.”
30I am persuaded by the line of authorities raised by the respondent and find that the cause of the applicant’s alleged injuries was the assault and not a consequence directly caused by the use or operation of the vehicle. The assault was the intervening act that broke the chain of causation. As found in the decisions cited by the respondent, it cannot be said that the applicant’s alleged injuries from the assault were directly caused by the vehicle or that they resulted from the ordinary and well-known use of it just because he was in his vehicle at the time of the assault. I find that this assault was not a foreseeable risk related to the operation of the vehicle. I therefore find that the use or operation of the vehicle was not the direct cause of the applicant’s alleged injuries, but rather his alleged injuries were caused by an intervening act: an assault by a third party. The use or operation of the vehicle was ancillary to the assault.
31As a result, I find that the applicant has not satisfied the second part of the causation test.
c. Was the use or operation of the automobile the dominant feature of the applicant’s injuries?
32I am not persuaded on a balance of probabilities that the dominant feature that caused the applicant’s alleged injuries was the ordinary use or operation of the vehicle.
33The applicant submits that the assailant’s behaviour while the applicant was in his vehicle ultimately caused his injuries.
34The respondent submits that the dominant feature of the incident was solely the assault, and not the use or operation of the applicant’s vehicle. It argues that the assault was the aspect of the incident that most directly caused the applicant’s alleged injuries.
35As 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”. Here it is clear that the dominant feature was the assault, which resulted in the alleged injuries. There is no evidence that the use or operation of the vehicle directly caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by the assailant who assaulted him.
36I therefore find that the applicant has not established on a balance of probabilities, that the use of his vehicle was the dominant feature that caused his alleged injuries, rather than the assault.
Conclusion – Causation Test
37I find that the incident does not meet the causation test of an “accident”. Any alleged injuries the applicant sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule, and therefore, he is not entitled to the benefits sought in this application.
ORDER
38The applicant has not established that the incident that took place on October 21, 2024 was an “accident” as defined in s. 3(1) of the Schedule.
39The application is dismissed.
Released: January 23, 2026
Melanie Malach
Adjudicator