The Ontario Divisional Court has allowed an appeal in an accident benefits coverage case, confirming that a claimant who was injured from spilled coffee in a McDonald’s drive-through was involved in an automobile “accident”.
In Miceli v. TD Insurance, the claimant was a back-seat passenger of a car that her husband was driving. They went to the drive-through of a McDonald’s restaurant, where she ordered an extra-large black coffee. The employee passed the cup of coffee to the claimant’s husband, who then passed it to the claimant. Hot coffee started to spill on her hands, forcing her to drop the coffee onto her lap. The scalding coffee pooled and caused several burns to various parts of her body. There was some evidence that the coffee cup lid wasn’t fully secured.
As a result of the incident, she applied to TD Insurance for accident benefits. TD Insurance denied her claim on the basis she wasn’t involved in an “accident” under 3 (1) of the Statutory Accident Benefits Schedule, which is defined as “an incident in which the use or operation of an automobile directly causes an impairment.”
When does an incident become an “accident” for coverage?
At the risk of oversimplifying a very complex subject, the term accident benefits means benefits in relation to an accident. The benefits are clear, as they are outlined in the SABS. However, the definition of “accident” has been debated in many cases since the 90s.
There is a three-part test adjudicators and judges use to determine whether an incident is an “accident” under SABS:
- The purpose test asks whether the accident resulted from the ordinary and well-known activities to which automobiles are put. If the answer is “no”, the analysis stops and there was no “accident”. If the answer is “yes” …
- The causation test asks whether the use or operation of the vehicle was a cause of the injuries. If the answer is “no”, the analysis stops and there was no “accident”. If the answer is “yes” …
- The direct causation test asks whether there was an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
If there are several possible causes, the ‘dominant feature’ consideration focuses on whether the ordinary and well-known activity of an automobile is what directly caused the injury. If the answer is “no”, the analysis stops and there was no “accident”. If the answer is “yes”, we have ourselves an accident.
Being a coverage issue, a claimant has the onus to satisfy each step of the test.
The purpose test is usually easy to find in most cases because it excludes aberrant uses of vehicles. For example, using the back of a pickup truck as a diving board isn’t exactly an ordinary and well-known activity to which automobiles are put (well, maybe it is in Listowel).
The first causation test can be tricky, but most incidents involving vehicles tend to meet the test. A common submission claimants make is “but for the use of the automobile, I wouldn’t have been at the scene of the incident”.
But the direct causation test is often the most scrutinized. Miceli provides an excellent example.
The Miceli LAT decisions find there was no “accident” and no coverage
After TD Insurance denied her claim, the claimant disputed the denial at the Licence Appeal Tribunal. The adjudicator agreed with the insurer and held that the claimant was not involved in an “accident”.
The parties agreed that the claimant satisfied the purpose test, namely, that using a vehicle to order food in a drive-through is an ordinary use of an automobile. They also agreed that the claimant satisfied the causation test, as the injuries wouldn’t have happened had the claimant not been using the vehicle as a passenger wanting to drink some java.
But on the direct causation test, the adjudicator held that the improperly secured coffee lid was an intervening act and the dominant feature of the incident. Put another way, the adjudicator found the unsecured coffee lid was a “triggering event” that caused the injuries.
The claimant sought a reconsideration of the decision at the LAT. The tribunal assigned that task to the same adjudicator who issued the first decision. Funny enough, the adjudicator agreed with her original decision and dismissed the reconsideration request.
Of note, the LAT distinguished this case from the Court of Appeal’s 2017 decision in Dittmann v. Aviva[1], which also involved hot coffee injuries in a McDonald’s drive-through. In Dittmann, the Court found the claimant was involved in an “accident”. The LAT held that in Dittmann, there was no evidence that the coffee lid was not secured properly.
The Divisional Court finds that there was an “Accident”.
The claimant appealed the LAT decisions. In a unanimous decision, the Divisional Court sided with the claimant and held that the LAT made legal errors. The Court held the LAT erred by not following Dittman in the circumstances, finding that the LAT should not have focused on whether the coffee cup lid was secure. In Dittmann, the Court of Appeal restated that when assessing direct causation:
the issue is not, what was the “triggering event” of the incident, but rather, what caused the impairment. In this case, the use of a running motor vehicle in gear to access the drive-through and the seatbelt restraint were direct causes and dominant features of the impairment the respondent suffered.
The Divisional Court stated:
As outlined above, the Tribunal found that “the use or operation of the automobile was not the dominant feature of the [Appellant’s] injuries”. In its view, “the dominant feature that caused the [Appellant’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”.
This analysis both ignores the distinction between a “triggering event” and an “intervening act” that breaks the chain of causation delineated in Dittmann ONCA and contradicts the Tribunal’s previous findings as to the role that the motor vehicle played in the incident.
Coverage Takeaways
Miceli reminds us that when assessing whether an incident is an “accident”, we must look beyond the triggering event (loose coffee lids, slippery ice, kids screaming, etc) and focus on what caused the injuries. Further, there could be more than one direct cause of an incident. Although the loose coffee lid directly caused the claimant’s injuries, she was entitled to accident benefits because the use or operation of the vehicle was also a direct cause of her injuries.
Accident benefits claims adjusters should be mindful of these subtle differences when assessing direct causation on any given claim.
If you have any questions or want to run some scenarios by me, please feel free to reach out. I’ll bring the coffee.
See Miceli v. TD Insurance, 2025 ONSC 496 (CanLII)
[1] Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617 (CanLII).
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