December 11, 2018


In Aviva Insurance Company of Canada v. Dittmann, released on March 15, 2018, the Supreme Court of Canada dismissed a leave to appeal application by Aviva and ordered the insurer to pay Ms. Dittmann’s legal costs.

Several years earlier, Ms. Dittmann suffered serious burns while attempting to place a drive-through coffee into her cup holder. She applied for accident benefits from Aviva under her automobile insurance policy. Aviva denied the claim because it felt that the injuries were unrelated to her operation of the car. Under the Statutory Accident Benefits Schedule (SABS), an accident is described as, “an incident in which the use or operation of an automobile directly causes an impairment.” Aviva’s position was that the use or operation of the stationary vehicle was not the direct cause of Ms. Dittmann’s impairment.

On October 24, 2016 in the Superior Court, Justice Gordon disagreed with Aviva’s position. He explained that:

… 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.

As a result, Justice Gordon concluded that the use and operation of the vehicle was a direct cause of Ms. Dittmann’s impairment and her application for accident benefits was legitimate.

While this decision pushed the envelope of “direct causation”, it is not unreasonable. In contrast, for example, it is less likely that Ms. Dittmann would have succeeded if she entered the restaurant to purchase her coffee, only to spill it on herself as she was getting settled into her car again. Aviva would have had a stronger argument that the use and operation of the car was incidental to the resulting impairment.

Cases like this are troubling for insurers because they broaden the scope of potential claims for benefits under auto policies. As well, personal injury lawyers can use Ms. Dittmann’s accident as an basis for initiating other envelope-pushing claims.

Rather than accepting defeat, Aviva took the case to the Ontario Court of Appeal, arguing that Justice Gordon had made misinterpreted the “direct causation” test. The three judges hearing the appeal unanimously upheld the lower court decision. They found that Justice Gordon had applied the test correctly to the evidence before him and concluded correctly that the use and operation of her car was a direct cause of Ms. Dittmann’s injuries. The Court explained:

… 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.

Therefore, the appeal was dismissed with costs against Aviva.

If you have been seriously injured, you deserve the same level of commitment to push the envelope that was demonstrated by Ms. Dittmann’s legal team. At Campisi LLP, our professional philosophy is “Clients first, excellence always”. We take great pride in representing our clients in challenging, innovative claims that improve the life of the client and help all of us receive the accident benefits we deserve. Put us to work for you.

Cesar Carranza

Cesar Carranza is the head of Campisi Law's Accident Benefits Department. He represents the firm’s clients at mediations and pre-arbitration hearings at the Financial Services Commission of Ontario (FSCO). Under Cesar’s representation, clients are in very good hands. Cesar is a veritable encyclopaedia of accident benefits and is well-versed in the intricate issues that surround Accident Benefits claims.

In the unfortunate event of a car accident, ensure you are prepared.
Download our FREE car accident app today!
Download our FREE accident benefit book
Click here to subscribe and get free insights delivered right to your inbox.