Executive Summary: Key Legal and Evidentiary Issues

• Section 268(1.1) of the Insurance Act excludes statutory accident benefits for transit passengers unless the vehicle collided with another automobile or object.
   
• Whether a raised manhole cover constituted an "object" within the meaning of that exception was a central issue.
   
• Evidentiary support for the Tribunal's finding that the manhole cover was a "temporary, independent feature" separate from the road surface was contested.
   
• Speed of the bus and force of impact were considered in assessing whether a "collision" occurred.
   
• Judicial review alleged the Tribunal made findings of fact unsupported by evidence.
   
• Statutory appeal rights were limited to questions of law under the Licence Appeal Tribunal Act, 1999.
   

Facts of the case

Kathleen Janes was a passenger on a Toronto Transit Commission bus that drove over an elevated manhole cover, caused by ongoing construction, and was thrown from her seat as a result. She suffered catastrophic injuries and applied for statutory accident benefits under section 268(1) of the Insurance Act, R.S.O. 1990, c. I.8. Toronto Transit Commission Insurance Company Ltd. ("TTCIC") denied the claim, relying on section 268(1.1), which excludes benefits for transit occupants unless the vehicle collided with another automobile or object. Janes challenged the denial before the Licence Appeal Tribunal, which ruled in her favour in a decision reported at 2025 CanLII 23490 and a Reconsideration Decision reported at 2025 CanLII 86542. TTCIC appealed and sought judicial review of both decisions before the Divisional Court.

Policy and legislative provisions at issue

Section 268(1.1) of the Insurance Act provides that no statutory accident benefits are payable to a transit occupant "if the public transit vehicle did not collide with another automobile or any other object in the incident." Before the Tribunal, TTCIC argued the manhole cover did not qualify as "any other object" and that the bus's contact with it was not a "collision." The appeal to the Divisional Court was further constrained by section 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, which restricts such appeals to questions of law.

Reasoning and analysis

On judicial review, TTCIC argued the Tribunal made findings of fact unsupported by evidence, submitting that the only available finding was that the manhole cover was an ordinary part of the road rather than a "temporary, independent feature" separate from the continuous road surface. The Divisional Court rejected this, holding there was ample evidence supporting the Tribunal's conclusion that the protrusion was significant — including the bus's speed of 57 km/hr, the fact that Janes was thrown from her seat, and video evidence from inside the bus. On the appeal, TTCIC argued the Tribunal erred in law by treating "collision" and "object" as separate elements of section 268(1.1) rather than considering them together. The Court disagreed, finding these are distinct terms with different meanings and that the Tribunal did not err by first determining whether the manhole cover was an "object" before separately assessing whether a "collision" occurred. TTCIC also argued the Tribunal erred by considering the bus's speed in assessing whether a "collision" took place and by requiring "something beyond a de minimis impact." The Court found no error, holding the Tribunal was entitled to consider the force of impact — a function of the bus's speed — in that assessment, while declining to decide whether speed and force are always relevant to the collision inquiry.

Ruling and overall outcome

The Divisional Court dismissed both the appeal and the application for judicial review, upholding the Tribunal's decisions in favour of Kathleen Janes. By agreement of the parties, costs of $7,500.00, inclusive of taxes and disbursements, were ordered payable by TTCIC to Janes.