Alon Barda Successful at Licence Appeal Tribunal

The decision in Al Khazreji v. RSA Insurance, 2023 ONLAT 21-009559/AABS – PI, involves a determination by the Licence Appeal Tribunal over whether the applicant was involved in an “accident”, as defined in the Statutory Accident Benefits Schedule. Alon Barda of Rogers Partners LLP was counsel for the insurer.

The applicant is a taxi driver. He drove a passenger home. After the passenger exited the vehicle, he assaulted the applicant through an open window, causing a concussion and facial injuries.

There is a two-part test to determine whether an incident is an “accident” for the purpose of eligibility for statutory accident benefits:

• Purpose test: did the incident arise out of the use or operation of an automobile?
• Causation test: did the use or operation of an automobile directly cause the impairment?

The Tribunal held that the purpose test was met because picking up and dropping off a passenger is part of the ordinary use and operation of an automobile.

However, the Tribunal determined that the causation test was not met for two reasons. First, the applicant’s injuries were not directly caused by the use or operation of the automobile. Rather, there was an intervening act – the assault. Secondly, the use or operation of the automobile was not the dominant feature of the applicant’s injuries.

As a result, the insurer was successful in the hearing. The applicant is not entitled to statutory accident benefits.