Miceli v. TD Insurance, 2025 ONSC 496
Reading Time: 4.5 minutes (approx.)
By: Alexandre Doucet
This case stems from burn injuries sustained in a McDonald’s drive-through. Lyndsay Miceli, the Claimant and Appellant in this matter, was a back seat passenger of a car driven by her husband. At the drive-through the Claimant ordered a large black coffee, which the drive-through employee passed to the Claimant’s husband who then passed it to her. During this transition, a sudden spill occurred and the scalding beverage, which had pooled on the Claimant’s lap, caused burns to various parts of her body.
As a result of the incident, the Claimant applied to TD Insurance, the Insurer and Respondent in this matter, for statutory accident benefits. The Insurer denied her claim on the basis that her injuries were sustained in an “accident” under the Statutory Accident Benefits Schedule (SABS). Section 3(1) of the SABS defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment” [para 7]. After the denial, the Claimant appealed to the License Appeal Tribunal which upheld the Insurer’s decision to deny benefits. The Claimant then appealed to the Divisional Court.
In preparing his analysis of this matter on behalf of the Divisional Court, Justice Sachs reviewed the definition of an “accident”, which was shaped by the legal tests set out by the ONCA in Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045, including the following:
- The Purpose Test: whether the incident arose out of the use or operation of an automobile;
- The Causation Test: whether the use or operation of an automobile directly caused the impairments;
- a) The But For test: but for the use or operation of the automobile, there would have been no injuries;
- b) The Intervening Act test: there was no intervention of other events that cannot be said to be part of the ordinary course of use or operation of the automobile;
- c) The Dominant Feature test: whether the use or operation of the automobile was the dominant feature of the injuries;
In analyzing the incident, the Court found that driving a vehicle through a drive-through is an ordinary use of a car. As for whether the purchase and spill of a coffee was an intervening act that could have broken the chain of causation, the Court looked to Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617, where the Ontario Court of Appeal “found that an inadvertent spill of a hot coffee purchased from a drive through was part of the ordinary use and operation of a vehicle” [para 41].
As for the dominant feature that caused the Claimant’s injury, the court found that the Claimant’s use of an automobile was the dominant feature of her injuries as she could not have accessed the drive-through without a car, and because she was in a car she experienced the spill and was unable to “take the evasive action necessary to avoid the consequences of that spill” [para 50].
For the above-noted reasons, the Court allowed the Claimant’s appeal and found that her injuries were as a result of an automobile “accident” as defined in the SABS.
