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Insurance (Auto) - Intervening Act

. Miceli v. TD Insurance

In Miceli v. TD Insurance (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a LAT SABS claim denial.

Here the court considers what constitutes an 'intervening act' and a 'triggering event', which are causation issues:

The Tribunal erred in law in failing to follow Dittmann

[39] Simply put, I agree with Thompson’s reasoning and result. What the Tribunal in the case at bar failed to appreciate and what Dittmann makes clear is that to qualify as an intervening act that breaks the chain of causation, the event must be an unexpected one. In the Decision, the Tribunal identifies another act, the improperly secured lid, that contributed to the fact that the coffee spilled, but never went on to address whether that act took the incident out of what one would expect to occur as part of the ordinary use and operation of a vehicle. In failing to do so, it not only misinterpreted Dittmann, but it also misapplied the test for determining causation in fact.

[40] As the Tribunal correctly articulated in the Decision, the test for causation in fact requires considering three things in sequential order. First, the “but for” consideration about which there is no dispute. Second, the intervening act consideration which the Tribunal correctly articulated as follows:

... [t]he ‘intervening act’ consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use of operation of the vehicle.(emphaisis added.

[41] In Dittmann SCJ, the court found that an inadvertent spill of hot coffee purchased from a drive-through was part of the ordinary use and operation of a vehicle. This is clear from the following excerpt from Dittmann, at para. 15 (quoted above at para. 29):

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.

[42] In Dittmann, the Superior Court provides examples of what could constitute an unexpected event that could qualify as an intervening act that could break the chain of causation, namely a drive-through attendant throwing coffee at a customer or a contaminated cup of coffee: at para. 15. Both events make it impossible to characterize the incident as an inadvertent spill. The fact that the lid may have been improperly secured in this case does not mean that the incident ceased to be an inadvertent spill of hot coffee purchased from a drive-through.

[43] The Tribunal also erred in its “dominant feature analysis” – the third consideration of the causation test. 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”,

[44] 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.

[45] As set out above, at para. 7 of its decision the Court of Appeal in Dittmann states:

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.

[46] At this point in its decision, the Court of Appeal is stating that while the “triggering event” that caused the injuries was the spill, this did not mean that it was the spill that was the direct cause and dominant feature of incident. The direct cause and dominant feature of the incident was the motor vehicle because the applicant was receiving the coffee while in a car and restrained from taking evasive action to avoid the spill when it occurred. The same is true in this case. Furthermore, the Tribunal made a finding that the same was true in this case when it stated the following in the Decision:

[39] I find that the applicant has established that “but for” the use of her vehicle, the applicant would not have sustained these injuries. Similar to Dittmann, but for the 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, and would not have had the coffee spill on her. Moreover, but for her being seated and restrained by a seatbelt, she may have been able to take evasive action to avoid or lessen the amount of coffee that was spilled on her.

[47] This is a finding of far more than “the motor vehicle simply being the reason or destination for why the [Appellant] was present at this location where the incident occurred.”

[48] The Insurer argues that there was no evidence before the Tribunal that the Appellant was wearing a seatbelt when the incident occurred. This argument ignores the fact that the Tribunal made an explicit finding to the contrary and the fact that the issue is whether the Appellant was in a situation where, seatbelt or not, she could not take evasive action to avoid the consequences of that spill. The Appellant was in a seated position in the back seat of a car when the coffee spilled and would not have been able to stand up or move in time to avoid the consequences of that spill.

[49] As pointed out by the Court of Appeal, the Salamone case is instructive on this issue. In Salamone, Mr. Salamone had a heart attack and lost consciousness while driving his van. The van went out of control and ended up off the road angled over a ditch. The damage to the van, its layout and position prevented a bystander who was trained in CPR from being able to access Mr. Salamone to give him immediate treatment. Mr. Salamone claimed that the delay in his treatment caused him to suffer severe neurological damage. He made a claim to his insurance company under the SABS, which was denied at arbitration because of a finding that the incident failed to meet the definition of “accident”. According to the arbitrator, the heart attack was an intervening event that broke the chain of causation. Mr. Salamone appealed to the Financial Services Commission of Ontario (Appeal Division), which overturned the arbitrator’s decision. It did so by finding that the arbitrator erred by focusing on the fact that the heart attack was the “triggering event” that caused the injury. This did not detract from the fact that it was because Mr. Salamone was in his car that he crashed after his heart attack, and he was unable to obtain immediate treatment. The same is true in this case. It is because of the fact that the Appellant was in her car at a drive-through that she experienced an inadvertent spill (a normal incident of the risk created by that use according to Dittmann) and that she was unable to take the evasive action necessary to avoid the consequences of that spill.