The Ontario Court of Appeal in Dittman v Aviva 2017 ONCA 617 upheld the default motion judgement from Justice R.D. Gordon who found that the respondent was impaired due to an accident as defined in the Statutory Accident Benefits Schedule (O. Reg 34/10, Effective September 1, 2010) (SABS). The respondent was therefore entitled to statutory accident benefits under her insurance policy. 

On July 17, 2014, the respondent purchased a coffee at a McDonald’s drive-through. The car was stopped but the engine was running. After taking the coffee, the respondent attempted to transfer the cup of coffee across her body to the cup holder holding it by its lid. The respondent was buckled into her seat. The cup slipped from the lid, spilling scalding coffee on her thighs. The respondent sustained serious burns as a result of the spill.

The respondent sought statutory accident benefits from her automobile insurer, Aviva Insurance Company of Canada, for benefits for injuries sustained from an “accident” which is “an incident in which the use or operation of the automobile vehicle directly causes an impairment.” On the motion for summary judgment it was held that the respondent was involved in an “accident.” 

Test for Causation 

The motion judge clarified the test for causation for an accident set out in Greenhalgh v IN Halifax Insurance Co.(ONCA 2004) and Downer v Personal Insurance Co (ONCA 2012).: 

(1) Was the use or operation of the vehicle a cause of the injuries? 

(2) 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?

In Downer the Court elaborated that the automobile cannot simply be the location of the incident or somehow involved in the incident, but the use or operation of the automobile must have directly caused the injury. 

Analysis

The parties agreed that attending a drive-through is an ordinary activity for which automobiles are put. The issue remaining was whether the use of the vehicle was a cause of the injuries, and if so, was there an intervening act that cannot be said to be part of the “ordinary course of things”?

The motion judge held that but for the use of the vehicle, the respondent’s injuries would not have occurred. The respondent was at a drive-through because she was driving. If she was not in the vehicle she would not have been in a seated position, and would not have attempted to transfer the cup to a coffee holder. In addition, if she had not been strapped into the seat by the seat belt, she may have been able to move to avoid the incident, or lessen the amount of coffee spilled on her. 

The motion judge found that a spilt beverage from a drive-through is a normal incident expected to occur in a vehicle and not an intervening act. An unexpected incident would be an attendant deliberately throwing the beverage at the driver, or the claimant falling ill due to impurities in the coffee. Such intervening acts would not be a normal risk created by the use of the vehicle and would break the chain of causation. 

Disposition

On appeal, the appellants argued that the motion judged erred in his application of the SABS test for causation. The Court of Appeal disagreed with the appellants and found the test for causation was correct. The Court held that the respondent’s use and operation of the vehicle was a direct cause of her injuries, in particular the use of a running motor vehicle in gear to access the drive-through and the seatbelt restraint caused the accident. The respondent was therefore entitled to statutory accident benefits in accordance with her insurance policy. 

Shawn O’Connor	Sasha Willms, Summer Student