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Ontario’s Licence Appeal Tribunal (LAT) has ruled in favour of an insurer in an accident benefits case after finding a driver’s use and operation of his vehicle did not directly cause his injuries and thus did not meet the definition of an accident.

However, even if the incident in which the driver spilled coffee on himself were an “accident,” he wouldn’t be able to proceed because he did not comply with the prescribed timelines in the Statutory Accident Benefits Schedule (SABS), the LAT found.

On Aug. 17, 2021, Jeffrey Rathbone was stopped at a drive-thru window at Tim Hortons.

“As he was transferring the second coffee cup, the lid came off and the upper brim of the cup collapsed inward,” LAT adjudicator Tavlin Kaur wrote in the recent decision, Rathbone v. Co-operators General Insurance Company. “The coffee spilled over the sides of the cup and onto his lap and groin area. He reacted and dropped the remainder of the coffee onto his lap.”

Rathbone was unable to get out of the vehicle because he was wearing a seatbelt and his vehicle’s position in the drive-thru. Once he was able to park, Rathbone received first aid from the restaurant employees. He later went to emergency and was treated for his injuries.

Rathbone said he was involved in an accident and “has a reasonable explanation for the delay in submitting his application.” Co-operators denied the claim, arguing Rathbone was not involved in an accident and that he should be barred from submitting a late application.

Kaur ruled Rathbone was not involved in an accident as defined in SABS which says an accident is “an incident in which the use or operation of an automobile directly causes an impairment.”

Two-part test

To determine whether it’s an “accident,” Kaur referred to a two-part test as referenced by the Ontario Court of Appeal in Economical Mutual Insurance Company v. Caughy:

1. Purpose test: did the incident arise out of the use or operation of an automobile?
2. Causation test: did the use or operation of an automobile directly cause the impairment?

While Kaur found the incident met the purpose test, it did not meet the causation test.

Part of the causation test looks at whether the use or operation of the vehicle was a direct reason for the driver’s injuries.

While Rathbone did not provide “clear submissions” on this factor, Co-operators said the coffee cup lid was the dominant feature that brought about the driver’s injuries and without it, Rathbone would not have dropped the cup.

Kaur agreed with the insurer.

“The dominant feature that caused (Rathbone’s) injuries was the improperly placed lid, which resulted in the coffee spilling onto (Rathbone),” Kaur wrote. “If the lid had been placed properly on the cup, then the coffee would not have spilled in his lap and groin area.

“This broke the chain of events from his ordinary use of the vehicle… The vehicle was not the dominant feature of this incident, rather the improperly placed lid was.

“Accordingly, I cannot conclude the use or operation of an automobile directly caused (Rathbone’s) injuries. Thus, this incident does not meet the definition of an ‘accident’ as per s. 3(1) of (SABS).”

- Canadian Underwriter