Thompson v. Certas Home and Auto Insurance Company, 2024 CanLII 97891

Citation: Thompson v. Certas Home and Auto Insurance Company, 2024 ONLAT 23-013183/AABS-PI

Licence Appeal Tribunal File Number: 23-013183/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:

Colin Anthony Thompson

Applicant

and

Certas Home and Auto Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Darcy W. Romaine, Counsel

For the Respondent:

Marcin J. Panasewicz, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Colin Anthony Thompson (“the Applicant”) was involved in an incident on July 7 1, 2023 and sought benefits from Certas Home and Auto Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the Applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

RESULT

3The Applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

ANALYSIS

Background

4The Applicant sustained burn injuries to his thigh as a result of coffee spilling on him while in his vehicle. The Applicant was in the drive-through of a fast-food restaurant and received a coffee from an employee of the restaurant with an improperly secured lid. The coffee was spilled on the Applicant as he received the cup from the fast-food restaurant, which resulted in burn injuries to his thigh.

5The parties disagree as to whether this incident meets the definition of an accident, as outlined in the Schedule.

Was the incident an “accident”?

6I find that the Applicant was involved in an “accident” as defined by section 3(1) of the Schedule.

7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the Applicant to demonstrate on a balance of probabilities that his injuries were caused by the use or operation of an automobile.

8As outlined in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, an analysis of whether an accident occurred involves a two-part test to determine whether an incident is an “accident” as follows:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,
2. The causation test: Did the use or operation of an automobile directly cause the impairment?

9The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.”

10The 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 the following considerations:

1. The “but for” consideration;
2. The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and,
3. 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

11The parties agree that the operation of a motor vehicle in a restaurant drive-through is an ordinary activity to which automobiles are put. They agree that the purpose test is met.

The Causation Test

12The Applicant directs me to the Court of Appeal’s determination in Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617 (“Dittmann”). He submits that in Dittmann the Court of Appeal found that an accident occurred when the insured spilled hot coffee on themselves in the drive-through lane while transferring the beverage from one hand to another in order to place it in the cup holder and the lid came off while passing the cup form one hand to another, causing the coffee to spill on the insured person. Here, the Applicant submits that Dittmann highlighted that the insured person was secured in the vehicle by a lap and shoulder restraint and that the difficulty in removing the restraints, combined with the pooling of the hot coffee, are a direct cause of the Applicant’s injuries. He suggests that he would not have sustained such injuries had he been seated at a table instead of in a motor vehicle.

13The Respondent submits that it cannot be said that the Applicant would have sustained his injuries had he been seated at a table, rather than in a motor vehicle. It submits that the Applicant’s position is based purely on speculation and there is no evidence to suggest that the Applicant’s injuries were made more severe because the coffee was spilled on him while seated in a motor vehicle.

14The Respondent further submits that if the “but for” test is met, the intervening act and dominant feature of the incident is the improperly secured lid. It submits that a similar course of events was previously addressed in Rathbone v. Co-operators General Insurance Company, 2023 CanLII 58468 (ONLAT) (“Rathbone”), where the Tribunal addressed the connection between being seated and restrained by a lap and shoulder harness and the limited ability to take evasive action to avoid or lessen the impact of a coffee spill. In Rathbone, the Tribunal concluded that being seated and restrained by a lap and shoulder harness did not change the fact that the improperly secured lid was the intervening cause and dominant feature of the injuries sustained and, therefore, it found that the incident did not constitute an “accident” under the Schedule.

15To the Respondent, the Applicant has downplayed the key fact that that the Applicant’s coffee spilled because it had an improperly secured lid. It submits that the improperly secured lid here is an intervening act similar to the intervening acts identified by the court in Dittmann, discounting the possibility that an accident occurred pursuant to section 3 of the Schedule.

16The Respondent also directs me to Peltier v. Aviva Insurance Canada, 2023 CanLII 52326 (ON LAT) (“Peltier”), in which a person returned to their vehicle with a hot beverage and spilled it on themselves while reattaching an improperly secured lid, causing them to suffer burns to the back of their legs. In Peltier, the Tribunal found that the improperly secured lid was the intervening act that caused the injuries and broke the chain of causation. A similar outcome occurred in Miceli v. TD General Insurance Company, 2024 CanLII 18090 (ON LAT) (“Miceli”), when it was determined that the fast-food restaurant employee’s failure to properly secure the lid was the intervening act that broke the chain of causation for a person who was burned after spilling hot coffee on themselves while securing an improperly secured lid to a takeaway cup while in a vehicle.

17The Applicant submits that Peltier is factually different than his case because, in Peltier, the spill occurred when the person was re-entering their vehicle. Here, the spill was as a result of acquiring the beverage from the employee at the drive-through window while operating a motor vehicle. The Applicant encourages the Tribunal to look at the cause of his impairments, rather than the triggering event. He submits the Respondent fails to appreciate that the vehicle was critically involved in the burn injury to the back of his leg because the burns to the back of his leg were due to his entrapment in the vehicle. To the Applicant, the dominant feature of the incident is his inability to exit the vehicle following the spill because the drive-through lane blocked his ability to open his door and because he was fastened to the seat by his shoulder and waist restraint.

18I find that the “but for” test is met. The Applicant’s injuries would not have occurred but for the incident involving hot coffee while operating a motor vehicle in the drive-through lane. The Applicant submitted photos of his burns to corroborate his claims that he was injured by the incident involving hot coffee. The photographs, together with the Applicant’s sworn statements, are compelling evidence indicating that the Applicant was injured but for the incident. At issue is whether the improperly secured lid is an intervening act or the dominant feature that most directly caused the injury.

19I am not bound by Peltier and Miceli and find Dittmann to be binding on me and informative. Peltier and Miceli are decisions from the Tribunal, and adjudicators are not bound by the decisions of their peers. However, Dittmann is binding on me and in it, the court highlighted that no intervening act contributed to the incident and that it was the insured person’s action of passing the cup from one hand to another that resulted in the lid becoming displaced. Dittmann contemplated that intervening acts could disrupt the chain of causation when a person is injured while accessing a drive-through window, but the incidents contemplated are clearly unexpected events. Such events include the drive-through attendant deliberately throwing hot coffee on a claimant, or a person falling ill from impurities in the coffee.

20I find no unexpected event occurred here that would disrupt the chain of causation. Dittmann found that an accident occurred because an automobile was being used to acquire a hot beverage at a drive-through window of a fast-food restaurant and that the beverage might inadvertently spill is a normal incident of the risk created by that use. The Applicant’s case is similar in that it is reasonable risk that hot beverage lids may be or become unsecured and hot liquid may be spilled as a result. The injury was compounded by the Applicant’s inability to exit the vehicle in the drive-through lane.

21For the reasons above, I find that the improperly secured lid is a normal incident of risk created by the use or operation of a vehicle. Accordingly, I find that the Applicant was involved in an “accident” as defined in section 3 of the Schedule.

ORDER

22The Applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

23The application may proceed to a hearing on the substantive issues.