Licence Appeal Tribunal File Number: 25-009870/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:
Jacek Gadomski
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Jacek Gadomski, Applicant
For the Respondent: Nathalie Rosenthall, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jacek Gadomski, the applicant, was involved in an incident on April 24, 2025, 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 Definity Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
4The application is dismissed.
ANALYSIS
Background
5The applicant submits that on April 24, 2025, at approximately midnight, he was working as an Uber driver and was delivering food at the back of a plaza when an individual parked in another vehicle (“other involved party”) flashed a green laser which shone into his left eye while he was driving. The applicant further submits that his ability to evade the laser was severely compromised by the fact that he was driving, trying to avoid a collision, and wearing his seatbelt. The applicant learned that the other involved party was the intended recipient of his food delivery, who shone the laser at him to get his attention. After providing the customer with his food, the applicant submits that he called Uber Emergency Support to file an accident report. Although a police investigation was conducted, the applicant submits that charges were not laid.
6The applicant argues that this was an accident as defined in s. 3(1) of the Schedule. The respondent submits that it was not.
The applicant was not involved in an “accident”
7For the following reasons, I find that the applicant has not established on a balance of probabilities that he was involved in an “accident” as defined in s. 3(1) of the Schedule.
8In s. 3(1), an “accident” is defined 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, prosthesis or other medical or dental device.
9The respondent submits that there was no collision in this matter and there was no physical contact between the applicant and the other involved party leading to the applicant’s injuries. The respondent takes the position that the incident was not an “accident” because the applicant’s injuries were not directly caused by the use or operation of an automobile, and therefore, he is not entitled to receive accident benefits.
10The respondent relies on the Ontario Court of Appeal decision of Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) (“Greenhalgh“) at paras. 10-12, where the Court confirmed the two-part test to determine whether an insured was involved in an accident: the “purpose test” and the “causation test.” The test in Greenhalgh was reiterated by the Court of Appeal in the more recent decision of Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.
11The purpose test is a determination of whether the incident resulted from the ordinary and well-known activities to which automobiles are put. The causation test requires a determination of whether the use or operation of an automobile directly caused the impairment.
12The Court provided the following considerations that may provide useful guidance in determining whether causation has been established:
i. The “but for” test.
ii. The “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of the use or operation of the vehicle.
iii. The “dominant feature” consideration: It may be useful to ask if the use or operation of the automobile was the dominant feature of the incident. If not, the link between the use or operation and the impairment may be too remote to be called “direct.”
13The respondent submits that, to establish that an “accident” occurred pursuant to s. 3(1) of the Schedule, the applicant must not only satisfy the purpose test, but he must also satisfy all elements of the causation test.
14The respondent further argues that the use or operation of a motor vehicle did not cause, contribute to, or directly lead to the injury because:
i. There was no collision and no risk inherent in the ordinary operation of a motor vehicle.
ii. Nothing about the movement, mechanism, or function of the automobile contributed to the alleged injury.
iii. The applicant’s vehicle did not malfunction, collide, swerve, or interact with the laser in any way.
iv. The cause of injury was purely the other involved party’s deliberate conduct, not the characteristics of vehicle operation. The vehicle’s involvement was purely ancillary.
15The respondent refers to the decision of Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), which dealt with an applicant who fell while walking towards a stationary Lyft car. The Divisional Court held that the use or operation of the Lyft car was not the direct cause of the applicant’s injuries. The Court pointed out that more is required than establishing that the car brought the applicant to the location of the incident, and more is required than the car being the reason why the applicant was at the location where the incident occurred. The respondent argues that this case is similar, in that the applicant’s vehicle is merely the location where the incident occurred.
16The applicant relies on the decision of Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429 (“Dittmann”), where the Superior Court of Justice held there was an accident as defined in s. 3(1) of the Schedule, when a seat-belted driver in her car with the engine running was injured by hot coffee that was handed to her at a drive-through window. The Court of Appeal affirmed this decision and leave to appeal to the Supreme Court of Canada was dismissed (see Aviva Insurance Company of Canada v. Erin Dittmann, 2018 CanLII 12956 (SCC).
17The respondent refers to the decision of Miceli v. TD General Insurance Company, 2024 CanLII 18090 (ON LAT), where the Tribunal held that it was not an accident when the applicant, a seat-belted passenger in a vehicle, spilled hot coffee on herself because the lid was not secured. I note that this decision was overturned by the Divisional Court: see Miceli v. TD Insurance, 2025 ONSC 496 (“Miceli”). The court in Miceli held that what the Tribunal failed to appreciate and what Dittmann makes clear is that to qualify as an intervening act that breaks the chain of causation, the event must be an unexpected one. In Dittmann, the Superior Court provided the example of a drive-through attendant throwing coffee at a customer as an unexpected event that could qualify as an intervening act that could break the chain of causation.
18The applicant takes the position that comprehensive vehicle coverage includes missiles or flying objects as possible causes of an accident. He further submits that if a vehicle is covered against flying objects, then the occupant should also be covered. Further, he argues that since a laser beam is projected and “flies through the air,” it qualifies as a “missile.” The applicant does not direct me to any statutory or legal authority for this proposition.
19The applicant also relies on the decision of Gilbraith v. Intact Insurance Company, 2019 ONSC 1875 (“Gilbraith”), submitting that the Superior Court of Justice found that a pedestrian who was struck and injured by an egg thrown from a passing vehicle was involved in an “accident.” The applicant submits that one could argue that a flying egg was an intervening act that caused the injuries, and yet the Court ruled in favor of the plaintiff.
20I find that Gilbraith is distinguishable for the following reasons. First, this case involved motions on behalf of two defendants for summary judgment dismissing the action. In dismissing the motions and finding that “there was a genuine issue for trial,” the Court in Gilbraith found that the plaintiff met the purpose test and the causation test because the egg was thrown from a vehicle travelling 50 to 60 kph, resulting in injury. The Court relied on a report indicating that absent increased speed and kinetic energy imparted into the egg by the vehicle, the plaintiff would not have suffered injuries to her eye when struck by the egg. The court concluded that, only by speeding did the driver make the plaintiff's injury more likely than not, relying on the report as "some evidence" for the limited purpose of assessing whether there was a genuine issue requiring a trial. The Court held that the report was hearsay because it was not accompanied by an affidavit. Here, the vehicle occupied by the other involved party was not moving, and therefore speed was not a factor. Further, in this case, the test is “on a balance of probabilities” rather than whether there was “some evidence.”
21The applicant also relies on the Supreme Court of Canada decision of Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC) (“Amos”), where the Court held that the insured, who was shot while in his van, was entitled to insurance coverage because his injuries arose out of the ownership, use or operation of a vehicle. I find that Amos does not apply here because Amos was decided prior to the change in the definition of “accident” in the Schedule, and therefore prior to the two-part test that was established in Greenhalgh. In Amos, the Court applied a test for causation where the use or operation of an automobile need not “directly” cause the impairment. At para. 21, the Court stated that, with respect to causation, “it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle.”
22The applicant submits that the “but for” test is satisfied in that the incident resulted from the ordinary and well-known use of a vehicle because he was delivering food while the other person was also sitting in his vehicle. The applicant argues that there was an unbroken chain of events that would not have happened if not for the use and ownership of the two vehicles, and that the use of the vehicle was not an incidental factor. The applicant points out that if the other involved party was in his house as is the case for most deliveries, the injury would not have happened because the applicant would have delivered to his door and there would be no need to use the laser to get the applicant’s attention. Further, if the other involved party had been outside of his car, he would have waved and would not have had to use the laser to notify the applicant of his location. The applicant also indicates that the other involved party told the investigating officer that he was not trying to injure the applicant but was shining the laser at the moving vehicle.
23I find that the applicant has established the purpose test because the incident resulted from food delivery, and I find that food delivery with a vehicle is an ordinary and well-known activity to which automobiles are put. I must now turn to whether the applicant has established causation.
24I find that the applicant has established that “but for” the use of his vehicle, he would not have sustained his injuries. Like Dittmann, but for the use of the vehicle, he would not have been in the vicinity of the other involved party who used the laser and would not have been flashed by the laser.
25However, as pointed out by the respondent, the “but for” test of causation is an exclusionary test, which serves to eliminate from consideration factually irrelevant causes, and this test does not conclusively establish legal causation: see Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) at para. 25.
26For the following reasons, I find that the causation test, as set out in binding caselaw, has not been met in this case. Like the example of an intervening act provided by the Court in Dittmann, i.e., a drive-through attendant deliberately throwing hot coffee on the claimant, thereby causing injury, in this case, the other involved party deliberately shone a laser at the applicant’s vehicle, causing injury. I find that the shining of the laser was an unexpected event, and it was an intervening act. Further, applying Greenhalgh, I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries, rather it was the shining of the laser into the eye of the applicant. As in Porter, although the vehicle provided the opportunity and location for this incident, it did not directly cause the impairment.
27For these reasons, I find that the applicant has not established on a balance of probabilities that he was involved in an “accident” as defined in s. 3(1) of the Schedule.
ORDER
28For the above reasons, I find:
i. The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
ii. The application is dismissed.
Released: January 30, 2026
Laura Goulet
Adjudicator