CITATION: Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429
COURT FILE NO.: C-3885/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIN DITTMANN
Plaintiff
– and –
AVIVA INSURANCE COMPANY OF CANADA
Defendant
Michael A. Gauthier, counsel for the Plaintiff.
Joy E. Stothers, counsel for the Defendant.
HEARD: September 22, 2016
r. d. gordon, r. s.j.
Overview
[1] The Defendant asks, by way of motion for summary judgment, that the Plaintiff’s claim be dismissed on the grounds that the Plaintiff’s loss, if any, did not arise from an “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule O. Reg. 34/10.
Background
[2] At about 5:25 a.m. on July 7, 2014 the Plaintiff left her house to purchase a coffee from a McDonald’s Restaurant drive-through. When she arrived at McDonald’s she ordered her coffee and then pulled alongside the drive-through window where she paid for and was handed her coffee. She attempted to transfer 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, spilling scalding coffee on the Plaintiff’s thighs.
[3] Although the vehicle remained in gear and was running during the incident it was not in motion. There was no collision involving the vehicle and no movement of the vehicle that contributed to the incident. However, Ms. Dittman was seated in the vehicle and had her lap and shoulder harness on. These would have prevented her from taking any reflexive evasive action to avoid the spill or lessen the amount of coffee that spilled on her.
[4] At the time of the incident the Plaintiff had in place a valid policy of automobile insurance with the Defendant. By virtue of that policy the Plaintiff was entitled to accident benefits if her injuries arose from an “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule.
[5] Section 3(1) defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”
[6] Both parties agree that this is an appropriate case for determination by way of summary judgment motion because whether the Plaintiff was involved in an “accident” is a question of law. In addition, the main factual elements of the incident are not in dispute and there are no genuine factual issues requiring a trial.
The Law
[7] The determination of whether or not the Plaintiff was involved in an “accident” as defined above requires consideration of what has come to be known as the purpose test and the causation test.
[8] The purpose test was first formulated in Amos v. Insurance Corp. of British Columbia 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 and asks whether the accident resulted from the ordinary and well-known activities to which automobiles are put.
[9] The causation test was first formulated in Amos as well, but has since been modified to reflect the current definition of “accident” in the Statutory Accident Benefits Schedule. In the cases of Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426, and Downer v. Personal Insurance Co., 2012 ONCA 302, the Ontario Court of Appeal has determined that the causation test contained in section 3 of the SABS requires the consideration of two questions:
Was the use or operation of the vehicle a cause of the injuries?
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
[10] In Downer the court went on to say that under this causation test it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.
Analysis
[11] The Defendant concedes that attending at a drive-through window at a fast-food restaurant to order food or beverage is within the range of the ordinary and well-known activities to which automobiles are put. The purpose test has been met.
[12] At issue is whether the use of the vehicle was a cause of the Plaintiff’s injuries (causation-in-fact) and if so, whether there was an intervening act that caused the injuries that cannot be said to be part of the “ordinary course of things”.
[13] Causation-in-fact is normally determined using the “but for” test. I am content that but for the use of the vehicle the Plaintiff’s injuries would not have occurred. I come to this conclusion because but for her 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, would not have been transferring the coffee cup to the cup holder across her body, and would not have had the coffee spill on her lap. In addition, but for her being seated and restrained by a lap and shoulder harness she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.
[14] Given this finding, it falls to determine if there was an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. This aspect of the test arises from the Court of Appeal’s finding in Chisolm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (C.A.) that an intervening act will absolve the insurer of liability if it cannot fairly be considered as a normal incident of the risk created by the use of the car.
[15] 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.
[16] When I apply the test for direct causation prescribed in the cases noted above, I am driven to the conclusion that the Plaintiff’s use of the automobile was a direct cause of her injuries.
Conclusion
[17] The Plaintiff’s impairment is a result of an accident as defined in the Statutory Accident Benefits Schedule. It follows that she is entitled to the Accident Benefits coverage provided for in her policy of insurance.
[18] If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
R. D. GORDON, R. S. J.
Released: October 24, 2016
CITATION: Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429
COURT FILE NO.: C-3885/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIN DITTMANN
Plaintiff
– and –
AVIVA INSURANCE COMPANY OF CANADA
Defendant
decision on motion for
summary judgment
R. D. GORDON, R.S.J.
Released: October 24, 2016