March 17, 2014

SABS Update – Entitlement to Non-Earner Benefits: Too Complex for Summary Judgment?

For the week of March 17 to March 21, 2014

Willoughby v. Dominion of Canada General Insurance Company, 2014 ONSC 1136, Justice Broad.

In support of the motion, Dominion filed an affidavit from their counsel. In defense of the motion, the Plaintiff filed an affidavit and Plaintiff’s counsel filed an affidavit, to which were appended various medical reports.

On the summary judgment motion, the court took the opportunity to reiterate the law regarding entitlement to Non-Earner Benefits as set out by the Court of Appeal in Heath v. Economical Mutual Insurance Company (2009). In particular, the court noted:

In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

The court also took the opportunity to reiterate the law as set out by the Court of Appeal in Galdamez v. Allstate Insurance Company of Canada (2012), that an insured’s status as an employed person does not, by itself, establish that the insured is ineligible for non-earner benefits.

The court set out the test for summary judgment as enunciated by the Supreme Court of Canada in Hryniak v. Mauldin(2014 SCC 7) and Bruno Appliance and Furniture, Inc. v. Hryniak (2014 SCC 8), noting:

 A trial will not be required if a summary judgment motion can achieve a fair and just adjudication:

(a) by allowing the judge to make the necessary findings of fact,

(b) by allowing the judge to apply the law to the facts, and

(c) it is proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

The court dismissed the motion, based on the lack of evidence presented at the motion. In particular, the court noted the Defence presented insufficient evidence with which to determine if the injuries sustained by the Plaintiff prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the collision. As pain was the primary factor that allegedly prevented the Plaintiff from engaging in her former activities, the court needed to determine not whether she was physically capable of doing those activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, was such that she was practically prevented from engaging in those activities. The court found the evidence put forth by Dominion fell short of equipping the court to make the necessary findings of fact.

 

IMPLICATIONS

Each case will turn on its own facts. While this case, and in particular the evidence presented by the Defendant, was insufficient for the purpose of a summary judgment motion, the court has left it open for another Defendant to bring such a motion. However, in cases where pain is a primary factor preventing the Plaintiff from engaging in their former activities, the court will likely have difficulty making such a determination based on the limited information available in a summary judgment motion.

 

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