Licence Appeal Tribunal File Number: 21-002779/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:
Jennifer L PELTIER
Applicant
and
Aviva Insurance Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Jennifer Peltier, Applicant
Joel McCoy, Counsel
For the Respondent:
Aimee Draper, Counsel
Heard by way of written submissions:
OVERVIEW
1Jennifer Pelletier, the applicant, was involved in an incident on February 18, 2019 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 the respondent, Aviva General Insurance Company (“Aviva”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is whether the incident involving the applicant constitutes an accident under section 3(1) of the Schedule.
RESULT
3The applicant’s injuries did not result from an “accident’ as defined in s. 3(1) of the Schedule.
ANALYSIS
Background
4On February 18, 2019, the applicant went to the McDonald’s that is located on Biscayne Boulevard in Ingersoll. She parked her car and went inside. She ordered a peppermint tea, which was handed to her by an employee at the restaurant. She left the restaurant and walked to the car. She placed the tea on the roof of her car, opened the car door with her left hand, put her purse on the front passenger seat and then retrieved her cup from the roof. As she was positioning herself in the driver’s seat, she heard a pop. The lid came off of the cup. As a result, the tea spilled on her coat, seat and right leg. The tea burnt the back of her leg.
5The applicant submits that she was in an accident as defined by the Schedule. She was using her vehicle at the time, including closing a door and putting the cup in the cup holder. She did not have any issue with the cup and lid until she was using her vehicle. She would have not been burnt if she was not using her vehicle.
6The respondent submits that the applicant was not involved in an accident. It asserts that the applicant’s alleged impairments were caused directly by the lid that popped off, not the use of the automobile.
Was the incident an “accident”?
7For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
10In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
11The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
12The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on satisfying the following considerations in sequential order:
a. The “but for” consideration;
b. 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 use or operation of the vehicle; and,
c. Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.
The Purpose Test
13I am satisfied on a balance of probabilities that the purpose test has been met because the incident arose out of the ordinary and well-known activities for which automobiles are put. I find that the use and operation of the car began as the applicant was in the process of entering her vehicle.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
14I find that the applicant would not have sustained these injuries “but for” her need to enter her automobile with her tea. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.”
15Since the but for test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severs the chain.
Was there an intervening cause?
16The applicant submits that a spilled hot beverage while trying to use a cupholder is not out of the ordinary course of things and is a normal incident of risk created by the use of a vehicle. The lid coming off of the cup is not an intervening act. The applicant is relying on Dittmann v Aviva Insurance Company 2016 ONSC 6429, which was affirmed by the Court of Appeal in Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617.
17The respondent submits that the vehicle is not the dominant feature and that the injuries are not directly caused by the use or operation of the vehicle but rather the action of the McDonald’s employee in failing to properly secure the lid or the manner in which the cup was held by the applicant. The respondent states “that fact and the applicant’s subsequent moving of the cup and lid are intervening acts that break the chain of causation.” The respondent is relying on M.P. v Allstate Insurance Company of Canada, 2020 CanLII 30398 (ON LAT) in support of its position.
18Furthermore, it is the respondent’s position that Dittmann is distinguishable. In Dittmann, the applicant was a restrained operator of a vehicle going through a drive-through when she was handed a hot beverage and attempted to move it into her cup holder. Her vehicle engine was running and in gear to access the drive-through. In that case, but for the use of the vehicle, she would not have been in the drive-through lane, would not have received the coffee while in a seated position and would not have been forced to transfer the coffee cup to the cup holder across her body and the coffee spill into her lap. The Court of Appeal held that the use of a vehicle with the engine running and in gear to access the drive-through and the seatbelt restraint were direct causes and dominant features of the injuries sustained by the claimant.
19In Dittmann, the applicant went through the McDonald’s Restaurant drive-through to purchase a coffee. She ordered her coffee and then pulled alongside the drive-through window where she paid for and was handed her coffee. The car was running at the time. She transferred the cup of coffee across her body to the vehicle’s cup holder while holding it by its lid. During this process, the cup released from the lid. As a result, the coffee spilled all over the applicant’s thighs. The applicant was seated in the vehicle and had her lap and shoulder harness on, which prevented her from taking any evasive action to avoid the spill or lessen the amount of coffee that spilled on her.
20At paragraph 16, the Superior Court of Justice found that:
In the case before me the automobile was being used to allow the Plaintiff to acquire a hot beverage at a drive-through window of a fast-food restaurant. That the beverage might inadvertently spill is a normal incident of the risk created by that use. Accordingly, it cannot be said to have been outside the “ordinary course of things” as would be the case with such intervening acts as a drive-through attendant deliberately throwing hot coffee on the claimant or the claimant falling ill due to impurities in the coffee that was served. Such intervening acts would not be a normal incident of the risk created by the use of the car and would effectively break the chain of causation.
21The Court of Appeal affirmed this decision and found that there was no intervening act. The respondent sought leave to appeal to the Supreme Court of Canada. The application for leave to appeal was dismissed (Aviva Insurance Company of Canada v. Erin Dittmann, 2018 CanLII 12956).
22In my view, Dittmann is distinguishable because the facts are different. I agree with Justice Gordon that a beverage might spill when an individual is acquiring it from the drive-through window of a fast-food restaurant. However, that was not the case in this particular scenario as the applicant did not use a drive-through window.
23Moreover, in the Statement of Claim issued on May 28, 2020, the applicant has alleged, amongst many other things, that she was provided with an improperly secured lid by the employee at McDonald’s. I agree with the distinction made by the Tribunal in M.P. regarding the fact that the Dittmann decision does not mention the lid being improperly secured to the cup or that a restaurant employee was negligent in the securing of the lid. I also take that to mean these were not an issue in the Dittmann case.
24In my view, the fact that the employee allegedly failed to secure the lid properly was the intervening act that caused the injuries and broke the chain of causation. I find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. Rather, I find that her injuries resulted from an intervening cause, which was the improperly secured lid that caused the tea to spill onto her.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
25As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident” Justice Labrosse found, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”
26The respondent submits that the dominant feature of the incident is the lid that popped off of the cup and the tea spilled on the applicant. The applicant submits that the use of the vehicle is clearly a dominant feature of why the injuries were sustained and not just the place where the incident occurred. It is her position that there can be multiple concurrent causes of an accident as noted in Derksen v. 539938 Ontario Ltd, 2001 SCC 72 and that the vehicle does not have to be driving or in active use at the time of the accident as established in Caughy.
27I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries. The dominant feature that caused the applicant’s injuries was the improperly placed lid, which resulted in the tea spilling on the applicant. I am bound by the decision in Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”) where the Divisional Court stated that direct causation requires more than the motor vehicle simply being the reason or destination for why the applicant was present at this location where the incident occurred.
28I disagree with the applicant’s assertion that if the automobile were to be taken out of the equation, the incident would not happen as it did. The applicant is conflating the “but for” test with the direct causation test. Legal entitlement to accident benefits requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause.
29In my view, the applicant’s injuries were not as a result of any uninterrupted chain of events without the assistance of any other act or intervention of any other force. The direct cause was the improperly placed lid. If the lid had been placed properly on the cup, then the tea would not have spilled all over her in the car. This broke the chain of events from her ordinary use of the vehicle. In my opinion, the improperly placed lid was an intervening act that took place and was the direct cause of the applicant’s injuries. The vehicle was not the dominant feature of this incident, rather the improperly placed lid was.
30Furthermore, I find the Derksen decision to be of limited assistance. Derksen involved the interpretation of exclusion clauses in insurance policies where a loss occurs due to more than one cause. I do not find this applicable to the facts before me
31Accordingly, I cannot conclude the use or operation of an automobile directly caused the applicant’s injuries. Thus, this incident does not meet the definition of an “accident” as per s. 3(1) of the Schedule.
ORDER
32The applicant has not demonstrated the incident on February 18, 2019 constituted an “accident”, as defined in s. 3(1) of the Schedule.
33The application is dismissed.
Released: June 14, 2023
___________________________
Tavlin Kaur
Adjudicator