In August 2023, the claimant was involved in an incident while operating a Boomer Beast 2 D Deluxe electric three-wheeled vehicle. The vehicle “spontaneously broke” and caused the claimant to fall onto the roadway and sustain injuries. The preliminary issue in dispute at the LAT was whether the claimant was involved in an “accident” as defined by the SABS. The first part of the three-part test to address this issue, pursuant to Adams v. Pineland (2007 ONCA 844), is to determine whether the involved vehicle is an “automobile” in ordinary parlance. The LAT considered the characteristics of the vehicle and determined that it was an “automobile”, and the claimant was involved in an “accident” as defined by the SABS. Among other things, Adjudicator Levitsky noted: (1) it has a seat with a back, handlebars, a headlight, and brake lights; (2) its maximum speed is approximately 40 km/hr, and it is equipped with a speedometer; and (3) the purpose and function of the Boomer Beast is for it to be used on-road and off-road. Adjudicator Levitsky stated: “given the features indicated above, I am not persuaded that the Boomer Beast fits neatly into the category of mobility scooter.” Adjudicator Levitsky concluded: “I find that the Boomer Beast was designed for and is capable of the transportation of passengers on streets and highways. Applying Grummett, I find that the Boomer Beast is accordingly an automobile in ordinary parlance, and the applicant was accordingly involved in an accident pursuant to s. 3(1) of the Schedule.” With regards to medical benefits, the LAT found the claimant, who would be outside of the MIG due to a fracture, was not entitled to the disputed attendant care assessment. Adjudicator Levitsky stated: “I am not satisfied by the applicants argument that an insured person is automatically entitled to an attendant care assessment so long as they have sustained an injury that is not minor. In my view, the applicant has the onus of proving, on a balance of probabilities, that the fees charged are reasonable, and that an assessment is necessary for the preparation of an attendant care needs form.”
