Miceli v. TD General Insurance Company, 2024 CanLII 18090

Citation and File Number

Citation: Miceli v. TD General Insurance Company, 2024 ONLAT 23-006365/AABS - PI

Licence Appeal Tribunal File Number: 23-006365/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:

Lyndsy Miceli

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Shane Henry, Counsel

For the Respondent:

Jaclyn Kram, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lyndsy Miceli, the applicant, was involved in an incident on December 6, 2020, 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 (“TD”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES IN DISPUTE

2The preliminary issues to be decided are:

1. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
2. Is the applicant barred from proceeding to a hearing as she failed to notify the respondent of the circumstances giving rise to a claim for benefits, pursuant to s. 55(1)(1)?

RESULT

3I find that:

a. The applicant has not demonstrated the incident on December 6, 2020, constituted an “accident”, as defined in s. 3(1) of the Schedule.

b. As I found the applicant was not involved in an accident, I do not need to consider whether she is barred from proceeding to a hearing pursuant to s. 55(1)(1) of the Schedule.

PROCEDURAL ISSUE

The Applicant’s Submissions will be considered

4The Case Conference Report and Order (“CCRO”), released on January 24, 2024, stipulated a 10-page limit for initial submissions. The CCRO further stated at paragraph 11(i) that the submissions shall be double spaced, 12-point Arial or Times New Roman font with 1.5-inch margins. The applicant did not adhere to the 1.5-inch margins as outlined in the CCRO. TD requests that I exercise my authority to disregard pages in excess of the limit. It argues that it requested additional pages at the CCRO which was denied by the Tribunal, nevertheless it complied with the CCRO.

5The applicant did not provide a reply with respect to this issue.

6In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

7When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of her submissions were otherwise excluded in this matter. However, I agree with TD that Tribunal orders must be followed. I am prepared to admit the applicant’s full submissions in this instance. However, this should not be viewed as tacit acceptance of a blatant breach of the Tribunal’s Order.

Background

8On December 6, 2020, the applicant was a seat-belted rear passenger in a car at a drive-thru of a McDonald’s Restaurant where she ordered some food items and an extra-large black coffee. Subsequently, the extra-large black coffee was handed by the McDonald’s employee to the applicant’s husband, who then handed the coffee to the applicant. Upon being handed the coffee, the applicant noted that it was “quite hot” and that the coffee was escaping out and onto her hands, right leg, thigh, stomach, right buttocks, and vaginal area. The applicant also noted that the lid was not secured on the cup. Within a few seconds of being handed the coffee, the applicant because of the heat/pain, released the cup and all the coffee fell over her.

9The applicant’s husband drove the vehicle forward, and then went inside to speak to the manager of the McDonalds. The manager then came out to the vehicle and tried to administer medical attention to the applicant. The applicant then proceeded to go home, changed her clothing, and went to Mackenzie Health’s Medical Urgent Care Clinic.

10The applicant submits that an accident occurred.

11TD submits that the applicant was not involved in an accident.

ANALYSIS

Timing of the Preliminary Issues

12I find that TD may proceed forward with raising the preliminary issue of whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

13The applicant in her initial submissions raised the issue of whether the respondent raised the preliminary issues in a timely fashion. Her position is that she provided sufficient information on January 7, 2021, January 19, 2021, and March 5, 2021, for the respondent to determine whether this incident was an accident or not. Moreover, the applicant submits that the respondent accepted that the applicant was entitled to accident benefits and continued to pay her benefits for years. To support this position, she relies on a Motion Decision of the Tribunal in Harland-Bettany v. Aviva Insurance Canada, (“Harland-Bettany”) 2022 CanLII 78879 (ON LAT).

14TD submits that the timing of raising these preliminary issues is not an issue in dispute in this hearing and should not be considered by me. TD relies upon the authority of Felipe v. Chubb Insurance Company of Canada (“Felipe”) 2023 CanLII 96317 (ON LAT), where the Tribunal did not grant the applicant permission to add new issues to the hearing. Thus, it argues that it did not have a fair opportunity or sufficient time to defend, consider or prepare submissions on this issue.

15In my view, the facts in Felipe are distinguishable from the matter before me, as in that authority, the applicant attempted to add two new issues pertaining to entitlement for two treatment plans (“OCF-18”). Here, the applicant is not adding a new issue, but raising this issue as a line of defence in response to TD’s position that there was no accident. In my opinion, TD could have addressed this issue in its reply submissions but chose not to do so.

16As I have determined below that the applicant was not involved in an accident, I have not considered the timing issue with respect to the applicant being barred pursuant to s. 55(1)(1). Instead, I have considered the timing of the preliminary issue of whether the applicant was involved in an “accident” pursuant to s. 3(1).

17In Harland-Bettany, the Tribunal found that the insurer did not raise the preliminary issue of whether her injuries were directly caused by an automobile accident as defined in the Schedule in a timely fashion, such that the Tribunal determined that it missed its opportunity to challenge whether the incident constituted an “accident” under the Schedule. The Tribunal found that under s. 32 of the Schedule, insurers have an obligation to adjust an initial application in a timely manner and the tools to determine whether or not the insured person was involved in an accident.

18In that case, the insurer chose not to pursue any of those means to determine if Ms. Harland-Bettany was involved in an accident, but instead commenced the payment of benefits for years until the case conference, when it first alleged there was no accident. The Adjudicator in that case determined that there was no new information that arose between the time the applicant submitted her accident benefit application and the hearing to revive the preliminary issue.

19I find that Harland-Bettany is not binding on me and distinguishable from the facts before me. Here, unlike in Harland-Bettany, the respondent advised the applicant on January 19, 2021, via telephone that it was investigating whether she had been involved in an accident. I acknowledge that the respondent did not send a letter to the applicant denying her claim pursuant to s. 3(1) until May 3, 2023, however I disagree with her assertion that there was no indication that TD had reservations about whether the incident met the definition of the accident. As indicated in the adjuster log notes, the respondent advised the applicant via telephone that it was accepting the claim on a without prejudice basis while investigating whether the incident was an accident, and subsequently conducted a phone interview on March 5, 2021.

20In my view, while TD paid for two OCF-6s on May 27, 2021, and July 28, 2021, and approved an OCF-18 on December 23, 2022, this does not mean that TD accepted this incident was an accident. It advised the applicant on January 19, 2021, that the claim was being accepted on a without prejudice basis, and that it was investigating the matter, which the applicant concedes to in her submissions.

21Meanwhile in Harland-Bettany, the respondent never raised the issue of s. 3(1) until four years after the incident and three years after the start of proceedings before the Tribunal. In comparison, the applicant here, was aware that the respondent would be investigating whether this incident was an accident on January 19, 2021, within two months of the incident.

22I also acknowledge that the applicant argues that on January 9, 2023, her counsel contacted the respondent to discuss potential settlement and was advised instead that the respondent may book an independent assessment. However, upon review of the adjuster log notes, dated January 9, 2023, I note that the entry is silent with respect to whether the respondent was interested in settling. In fact, it was noted that an assessment may be needed, and the previous adjuster would be speaking to a team lead. In my opinion, the fact that the previous adjuster considered conducting an insurer’s examination does not equate to meaning that it accepted the incident was an accident. In fact, in a log note, dated March 29, 2023, the adjuster noted that she received approval to deny this claim as it was not an incident, and the claim was subsequently transferred.

23Next, unlike Harland-Bettany, TD did not continue to pay the applicant accident benefits for several years. I acknowledge the applicant’s position that she was paid benefits for “years”, however I disagree. As indicated in the adjuster log note, dated April 4, 2022, the last payment to the applicant was in September of 2021. Moreover, the applicant’s representative did not return any of the respondent’s calls as indicated in the log notes, dated, July 28, 2021, October 4, 2021, and January 5, 2022.

24Thereafter, TD advised the applicant on January 5, 2022, that it had not received communication from her for a while. Consequently, on April 4, 2022, the respondent closed the claim due to non-communication, and the claim was not reopened until approximately December of 2022, when a treatment plan was received. Here, the applicant did not submit ongoing treatment plans, all of which were paid by the respondent, and then out of nowhere, the respondent blindsided her by raising these preliminary issues for the first time, years after the incident.

25I also take note of the applicant’s arguments that she settled her Tort Claim on April 12, 2022, which she claims was subject to the statutory deductible of $41,503.50. However, the applicant provided an entirely redacted Full and Final Release, which is unhelpful, as I am unable to determine whether a statutory deductible was applied. It is well-settled that submissions do not constitute as evidence.

26In my view, the Tribunal’s application of s. 32 in Harland-Bettany was made on a fact specific basis. In that decision, the Tribunal repeatedly referred to the length of time that had elapsed between the initial application for benefits and when the insurer took the position that the insured person had not been involved in an accident in its application of s. 32. As I have explained above, the factual matrix which drove the Tribunal’s decision in Harland-Bettany is not present in this case. As a result, while I am alive to the applicant’s position that the Schedule is consumer protection and that I should give effect to s. 32, I find that the Tribunal cannot create limitation periods, where none exists, which the Tribunal also recognized in Harland-Bettany.

27It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. Had the legislature intended to create a limitation of when the respondent can raise a preliminary issue with respect to whether an incident is an accident, then this intention would have been clearly reflected in the legislation, which it is not.

28To sum up, I find that the applicant did not raise a new issue with respect to the timing of the preliminary issue, however the issue of whether the applicant was involved in an accident, may proceed forward.

The Incident which occurred on December 6, 2020 is not an “accident”

29I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

30Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

31The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

32In Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in: Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), and the causation test as set out in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA). This test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to satisfy the following tests:

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?

33The 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. Put another way, for what “purpose” was the vehicle being used at the time of the incident?

34The 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 has been met

35Neither party made submissions with respect to the purpose test. In any event, I am satisfied on a balance of probabilities that the purpose test has been met because the incident occurred with the use of a vehicle in the drive-through, which is an ordinary and well-known activity for which automobiles are put.

The Causation Test

The “but for” test has been met

36I find that the applicant has established that “but for” the use of the vehicle, the applicant would not have sustained these injuries.

37The applicant relies on the authority of Dittmann v. Aviva Insurance Company 2016 ONSC 6429 (“Dittmann”) to support her position that an accident occurred. The applicant further submits that the court in Dittmann determined that “but for the use of the vehicle the Plaintiff’s injuries would not have occurred.”

38The respondent submits that the applicant has not established the causation test as the applicant has not provided any evidence that the use or operation of the vehicle directly caused her injuries.

39I find that the applicant has established that “but for” the use of her vehicle, the applicant would not have sustained these injuries. Similar to Dittmann, 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 had the coffee spill on her. Moreover, but for her being seated and restrained by a seatbelt, she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.

40However, the court has held that 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, 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.”

41Since 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.

The lid being improperly secured to the cup was an intervening act

42I find that the improperly secured lid by an employee of McDonalds was an intervening act that caused the applicant’s injuries and broke the chain of causation.

43The applicant submits that the lid coming off the coffee is not the “triggering event” of the incident but rather a running car combined with the seatbelt restraint was.

44The respondent submits that there was an intervening act, which is the improperly secured lid and the hot temperature of the coffee. The respondent further submits that the facts in Dittmann are distinguishable from this matter as that case did not involve the lid of the cup being improperly secured. To this end, it relies upon the previous decisions of this Tribunal in: M.P. v. Allstate Insurance Company of Canada, 2020 CanLII 30398 (ON LAT) (“M.P.”) Rathbone v. Co-operators General Insurance Company (“Rathbone”), 2023 CanLII 58468 (ON LAT), and Peltier v. Aviva Insurance Canada (“Peltier”), 2023 CanLII 52326 (ON LAT).

45In 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.

46At paragraph 15, 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.

47The 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 see: Aviva Insurance Company of Canada v. Erin Dittmann, 2018 CanLII 12956 (SCC).

48This Tribunal has consistently held that the lid being improperly secured to the cup or that a restaurant employee was negligent in securing the lid is distinguishable from the fact pattern in Dittmann, as there is no mention of the lid being improperly secured in Dittmann, and that this constitutes as an intervening act, see: M.P., Rathbone, and Peltier.

49Here, in this matter, the applicant has consistently reported that the lid was not secure, which resulted in the coffee spilling on her. For example, on January 7, 2021, January 19, 2021, and March 5, 2021, the applicant stated that the lid was not secure or that it was improperly secured. In an executed Application for Accident Benefits and a medical note from a plastic surgeon, Dr. Madronich, once again there is reference to the lid not being secured. In any event, the applicant in her submissions concedes to this as she submits that the series of events leading up to the burn as outlined in the respondent’s submissions at paragraphs, 3 to 6 are not disputed.

50The applicant also served a notice letter on McDonald’s on January 5, 2021. I am aware of the applicant’s argument that this letter only mentioned her intention to advance a claim for damages and that there is no evidence as to when the lid became improperly secured. However, this argument is weakened by the applicant’s own subsequent submission that her Tort Claim settled subject to the statutory deductible. In my view, if there was no evidence that the lid was improperly secured, it raises the question of why McDonald’s would resolve the claim for a monetary value subject to the statutory deductible, which is $41,503.50. Surely, if there was no evidence of negligence, no settlement would have been reached or on a without costs basis. Moreover, contrary to the applicant’s submission, she did not pursue a claim as she resolved the file before the two-year limitation to issue a Statement of Claim.

51Although not binding on me, I agree with the distinction made by the Tribunal in the above-referenced authorities, 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.

52The Court of Appeal also made clear in its decision to dismiss the appeal, that there was no intervening act, in the “circumstances of that case”. However, once again, there was no mention of the lid being improperly secured to the cup or that a restaurant employee was negligent in the securing of the lid, here there are difference circumstances, (the improperly secured lid), thus, in my view, there was an intervening act.

53In conclusion, the fact that the lid was not secured 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 coffee to spill onto her.

The use or operation of the automobile was not a dominant feature of the applicant’s injuries

54I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries.

55As described in Greenhalgh v. ING Halifax Insurance Co., 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 v. ING Halifax Insurance Co., 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.”

56The applicant submits that in Dittmann, the Superior Court determined that the lid coming off was not considered the dominant feature. Instead, the dominant features were the use of the running motor vehicle and the seatbelt restraint.

57The respondent submits the improperly secured lid, and the hot temperature of the coffee are the dominant features and caused the applicant’s injuries. Moreover, it submits that the use and operation of the vehicle did not directly cause the coffee to spill/pour onto her, which resulted in her injuries.

58In my view, the dominant feature that caused the applicant’s injuries was not the use or operation of an automobile, rather it was the improperly secured lid, which resulted in the coffee spilling on her. It is trite law 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 see: Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107.

59In the matter before me, I find that 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 improperly secured lid was the direct cause. If the lid had been secured properly on the cup, then the coffee would not have spilled on her and resulted in her numerous impairments. In my opinion, this resulted in breaking the chain of events from her ordinary use of the vehicle, and the improperly secured lid was the direct cause of the applicant’s injuries. Therefore, the vehicle was not the dominant feature of this incident, instead the improperly placed lid was.

60Based on the totality of the evidence before me, I conclude that the use or operation of an automobile did not directly cause the applicant’s injuries. Thus, this incident does not meet the definition of an “accident” as per s. 3(1) of the Schedule.

Is the Applicant barred from proceeding to a hearing as she failed to notify the respondent of the circumstances pursuant to s. 55(1)(1) of the Schedule?

61As I have determined that the incident which occurred on December 6, 2020, is not an “accident” as per s. 3(1) of the Schedule, it follows that the issue of a late application is moot.

ORDER

62For the reasons outlined above, I find that:

a. The applicant has not demonstrated the incident on December 6, 2020, constituted an “accident”, as defined in s. 3(1) of the Schedule.

b. As the applicant was not involved in an accident, I do not need to consider whether she is barred from proceeding to a hearing pursuant to s. 55(1)(1) of the Schedule.

c. The application is dismissed.