In Ntege-Lule v Pafco Insurance Company, 2024 CanLII 2655 (ON LAT), Adjudicator Pahuta found that an Applicant’s injuries from an incident arose directly from assaults that she suffered while she was an occupant of an automobile, and after her occupancy ended, rather than being caused by an “accident”.
The Applicant was involved in an incident within a vehicle during which she was struck by the driver in the left arm and the face. The Applicant claimed that the driver then pushed her out of the vehicle, and she suffered injuries to the right side of her body upon hitting the ground. She further alleged that she suffered psychological injuries as a result of being pushed out of the vehicle. The Applicant had gotten back into the vehicle after being pushed out, and the driver later assaulted the Applicant again in her apartment, pushing the Applicant into her coffee table. After the incident, the Applicant attempted to claim benefits from the Respondent under the Statutory Accident Benefits Schedule (the “Schedule”). The Respondent denied the Applicant’s claim for benefits. The Applicant applied to the Licence Appeal Tribunal (LAT).
The principal issue before the LAT was whether the incident through which the Applicant sustained injuries was an “accident”, as the term is defined in the Schedule. Section 3(1) of the Schedule defines an accident as an “incident in which the use or operation of an automobile directly causes an impairment.” The Adjudicator noted that the burden of proof rested with the Applicant to establish, on a balance of probabilities, that the use or operation of an automobile directly caused the Applicant’s injuries.
To determine whether an incident falls under the definition of an accident under the Schedule, the Adjudicator applied the test from Economical Mutual Insurance Company v Caughy, 2016 ONCA 226. The test has two parts: the purpose test, and the causation test which itself has three parts.
Purpose Test
As Adjudicator Pahuta noted, per Greenhalgh v ING Halifax Insurance Company, 243 DLR (4th) 635, 72 OR (3d) 338, the purpose test requires a determination of “whether the incident resulted from ‘the ordinary and well-known activities to which automobiles are put’”. Essentially, the test is an analysis of the purpose for which the vehicle was being used at the time of the incident. The Respondent conceded that the Applicant had satisfied the purpose test because the vehicle involved in the incident was being used to transport people from one place to another at the time of the incident.
Causation Test
The causation test requires the adjudicator to determine whether the aforementioned ordinary and well-known activities directly caused the Applicant’s injuries. There are three relevant considerations to the causation test which must be satisfied sequentially in order for the Applicant to be successful. First, the Applicant must satisfy the “but for” consideration, meaning they must prove that but for their presence in the vehicle, they would not have sustained the injuries. Second, the Applicant must satisfy the “intervening act” consideration, and prove that the use or operation of the vehicle directly caused the injuries with no intervening event breaking the chain of causation. Finally, if there are multiple possible causes of the injuries, the “dominant feature” consideration requires the Applicant to prove that the ordinary and well-known activities related to the use and operation of the involved vehicle are the most direct causes of the injuries.
The Adjudicator found that the Applicant had satisfied the “but for” test by showing that, on a balance of probabilities, she would not have been injured but for her presence in the vehicle. However, regarding the second step of the analysis, the Adjudicator found that the Applicant had not sufficiently proven her claim. The Adjudicator found that the Applicant’s injuries were caused by an intervening act, specifically, the many assaults committed by the driver. The Applicant claimed that she was assaulted by the driver and then pushed out of the vehicle while it was still moving. However, this assertion contradicted the Applicant’s own statement to police just nine days after the incident, wherein the Applicant stated that the driver stopped the vehicle before pushing the Applicant out, and the police report indicated that the vehicle was not moving at the time of the incident. Further, the Applicant did not report any injuries to police from being pushed out of the vehicle. To the contrary, the Applicant reported to the police that she suffered injuries as a result of being pushed into the coffee table in her apartment, which occurred long after she had been pushed out of the vehicle.
The Adjudicator similarly found that the Applicant did not sufficiently prove that the ordinary course of use or operation of the vehicle was the dominant cause of the Applicant’s injuries. The Applicant attempted to claim that the injuries to her left arm and face were distinct from the injuries to her right side that she claimed to have suffered upon being pushed out of the vehicle. However, the Adjudicator noted that the Applicant did not submit sufficient medical evidence to establish that the Applicant was pushed out of a moving vehicle. Further, the Applicant did not submit any evidence to support her claim that she suffered psychological injuries from being pushed out of the vehicle. The Adjudicator took note of the fact that the police report stated that the vehicle was not moving at the time of the incident, and that the injuries which the Applicant did report to the police were sustained when the Applicant was assaulted in her apartment after the incident involving the vehicle. On that basis, the Adjudicator held that the Applicant did not prove that her status as a passenger in the vehicle was more dominant than the assaults in causing the Applicant’s injuries.
Since the Applicant failed to prove, on a balance of probabilities, that her injuries were the result of the incident involving the use and operation of the vehicle, the Adjudicator held that the Applicant was not involved in an “accident” as defined under s. 3(1) of the Schedule. Accordingly, the application was dismissed.
Jordan Hochman is an articling student at the firm and author of this blog. If you have a question about this decision, or a similar file please contact Jordan, or Bill Sproull, who conducted the initial EUO.
