



COURT OF APPEAL FOR ONTARIO

CITATION: Dittman v. Aviva Insurance Company of Canada, 2017
    ONCA 617

DATE: 20170724

DOCKET: C62970

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Erin Dittman

Plaintiff

(Respondent on Appeal)

and

Aviva Insurance Company of Canada

Defendant

(Appellant on Appeal)

Kadey Schultz and Christopher Macauley, for the
    appellant

Michael Gauthier and James Ross, for the respondent

Heard and released orally: July 21, 2017

On appeal from the judgment of Justice R.D. Gordon of the
    Superior Court of Justice, dated October 24, 2016.

REASONS FOR DECISION

[1]

The respondent sustained serious burns to her lower body when the entire
    contents of a coffee cup she ordered at a McDonalds drive-through spilled as
    she attempted to transfer the cup from the drive-through window to the cup
    holder in her vehicle.

[2]

The motion judge determined that the respondent was impaired as a result
    of an accident as defined in the
Statutory Accident Benefits Schedule (O.
    Reg 34/10, Effective September 1, 2010)
and accordingly that she entitled to
    statutory accident benefits in accordance with her insurance policy.

[3]

In our view, the motion judge did not err in his application of the SABs
    causation test. As the motion judge pointed out, at para. 13, and as elaborated
    in para. 28 of the respondents factum, the use and operation of the respondents
    vehicle was a direct cause of the respondents injuries. We refer here in
    particular to the following passage from para. 13 of the motion judges reasons
    where he states as follows:

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 cup while in the 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.

[4]

We are satisfied that these findings are
amply
    justified on the evidence, and that they meet the requirements of the direct
    causation test prescribed by s. 3 of the SABs regulation as this court laid out
    in
Greenhalgh v. ING Halifax Insurance
, [2004]
    O.J. No. 3485 (C.A.), at para 38, and in
Downer v. Personal
    Insurance Co.
, 2012 ONCA 302, at paras. 34, 38 and 39.

[5]

We are also satisfied that, as pointed out in the respondents factum, the
    restraint of the seatbelt increased the respondents exposure to the scalding
    liquid and thereby increased the level of her impairment.

[6]

There was no intervening act, as that phrase had been interpreted in the
    case law, in the circumstances of this case.

[7]

As pointed out in
Salamone

v. Aviva Canada
, 2016 OFSCD
    No 191, at para. 31,
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.

[8]

Accordingly, the appeal is dismissed.

[9]

Costs to the respondent fixed at $12,000, inclusive of disbursements and
    taxes.


