My family and I were grateful to celebrate Canada Day in Ottawa this year and had wonderful memories. Of course, during our drive, we made the typical stops for refreshments, including beverages, which leads me to this interesting decision in MacNeill v. McDonald's Restaurants of Canada Limited, 2025 ONSC 3780.
The Plaintiff attended at McDonald's in Orillia, Ontario and stated that the paper coffee cup she was served her coffee contained a diluted deliming agent which the Plaintiff claimed led to a condition called Muscle Tension Dysphonia ("MTD"). The incident took place in 2015 and finally went to trial in 2025.
The Plaintiff alleges that because of the delimer solution, she developed a condition, MTD, resulting in an upper aerodigestive tract injury. The Plaintiff alleged that the condition was exacerbated by speaking, eating and drinking and led to ongoing chronic pain and psychological issues. The Plaintiff was working as a Customer Service Representative and was already limited in any physical work as a result of a motor vehicle accident which took place in 2009.
Plaintiff was seeking:
- a) General damages for pain and suffering – $100,000 to $125,000
- b) Past Loss of Income – $297,742 to $344,555
- c) Future Loss of Income – $1,043,037 to $1,101,484
- d) Loss of Competitive Advantage (in the alternative) – $80,000 to $150,000
- e) Future Care Costs – $222,432
The Defendant admitted liability and acknowledged that the Plaintiff consumed the delimer solution but stated that the solution was food safe and in the same PH range as lemon juice. Therefore, the solution could not have caused the physical injuries alleged.
It was concluded that the Plaintiff has failed to establish that ingesting the delimer solution was a "but for" cause of her MTD.
There are other causes for the condition, completely unrelated to the incident. Furthermore, the Plaintiff's credibility was called into question.
But for test
The decision discusses Canadian tort law and the "but for" test.
Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 is the leading decision.
A plaintiff must demonstrate that "but for" the negligent act or omission of the defendant, the plaintiff would not have suffered the injury or loss complained of. In other words, to establish liability, a plaintiff must satisfy the court that the defendant's negligence was necessary to bring about the harm suffered.
Causation need not be determined by scientific precision: Athey, at para. 16, citing Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at p. 328. The "but for" test must be applied using a robust common-sense approach to evidence. The court is permitted to draw inferences from the body of evidence before it to arrive at the conclusion that the defendant's negligence probably caused the loss. It follows that there is no obligation upon a plaintiff to establish that a defendant's negligence is the sole cause of the injury. The presence of other tortious or non-tortious contributing causes does not reduce the defendant's liability.
The Plaintiff had a remarkable pre-accident history, including medical issues and abuse.
McCarthy J stated:
For the reasons which follow, I am not persuaded that the Plaintiff sustained any chemical or caustic injury to her throat because of the incident. At most, she experienced an unexpected, unpleasant, but transient sensation in her mouth when she gulped down the delimer solution served to her at the McDonald's drive-thru. This may have been accompanied by some upset in the stomach, some nausea, and a bout of diarrhea. I am certainly not persuaded that the incident has been a "but for" cause of her MTD, ongoing throat pain, voice hoarseness, and difficulty with swallowing, which she continues to report to this day.
Credibility
In fact, it was found that the Plaintiff had exaggerated her symptoms and gave evidence about side effects and issues, not reflected by any treating doctor. Furthermore, there was no biochemical expert opinion that the delimer solution ingested by the Plaintiff could have caused the injuries as alleged.
The Plaintiff's own ENT gave evidence:
Dr. Wong acknowledged that MTD has many causes. She conceded that stomach acid content from repeated vomiting over a number of years is likely higher than the acidic content of the delimer solution ingested on one occasion. She also conceded that MTD can develop from acid reflux/gastroesophageal reflux, cigarette smoking, and heavy voice use.
McCarthy J further stated:
While I accept that the Plaintiff may continue to suffer from MTD, I find that the Plaintiff has failed to prove on a balance of probabilities that "but for" the trauma she sustained from the incident, she would not have the MTD condition. It is just as plausible that the acid reflux from vomiting hundreds (perhaps thousands) of times, combined with heavy voice use and the negative effects of smoking, has caused the MTD. The scientific and non-scientific evidence, either treated separately or taken together, is insufficient to discharge the Plaintiff's burden to prove on a balance of probabilities that her condition is casually related to the incident.
Spoliation of Evidence and Adverse Inference
Curiously, the Plaintiff advanced the argument of spoliation of evidence and was seeking an adverse inference stating that McDonald's staff discarded the coffee delimer solution.
The following was concluded:
One, it was not unreasonable in the circumstances for McDonald's staff to discard the contents of the coffee cup. The evidence suggests that the Plaintiff returned to the drive-thru in good spirits, accepted her replacement coffee and free ice cream, and did not complain of anything other than the beverage having a foul taste. McDonald's could not have reasonably predicted any injury or foreseen litigation arising from this obscure and benign incident.
Two, asserting privilege over an incident report does not amount to spoliation. If the Plaintiff had wished to challenge the claim for privilege, she ought to have done so by way of an interlocutory motion. There is no evidence that the report was destroyed. I am not prepared to make an adverse finding against the Defendant if the Plaintiff did not think it important enough to challenge the claim for litigation privilege by way of an interlocutory motion long before trial.
Three, there is no evidence that the items in question were intentionally destroyed with the intention of manipulating or limiting the record available for trial.
Four, in respect of the CCTV security footage of the drive-thru, I cannot see how the evidence would be relevant to any issue. There is no dispute about how, when, or where the Plaintiff purchased the product. It is not denied that the product contained a quantity of deliming agent, that the Plaintiff returned the product almost immediately, that the product was promptly replaced, and that the original product was discarded. The CCTV footage would not add to or subtract from those facts. Moreover, the CCTV cameras are focused on the area of the cash registers, not on the area where the coffee vats were cleaned.
Five, McDonald's responded to the Plaintiff's formal complaint by furnishing her with the MSDS for the Kay Delimer in the immediate aftermath of the incident. By the time the request was made from Ecolab for the actual Kay Delimer used by McDonald's at the time of the incident, the product was no longer available. The Defendant cannot be blamed for that.
Finally, the drawing of an adverse inference is discretionary: see Liquid Capital Exchange Corp. v Daoust, 2024 ONCA 489, at para. 39. The facts of this case do not weigh in favour of drawing an adverse inference against McDonald's.
The Plaintiff was ultimately awarded damages of $5,000.00 and nothing for past or future loss of income and future treatment.
What I found interesting in this decision was that although the doctors had concluded the Plaintiff's MTD was related to the Plaintiff's ingestion of delimer, the basis for their conclusions was the Plaintiff's description of ailments without there being any objective findings to support her assertions. Testing and a further deep dive into the Plaintiff's history, led to other possibilities for the Plaintiff's MTD. The admissions by the doctors in stating that their conclusions were based on the Plaintiff's narrative, and given her credibility issues, led to the decision.
Credibility is an important factor and the best way to test credibility, especially in a case like this, is through oral discovery.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
