Burtch v. Aviva Insurance Company of Canada [Indexed as: Burtch v. Aviva Insurance Co. of Canada]

97 O.R. (3d) 550

Court of Appeal for Ontario,

Goudge, Simmons and Juriansz JJ.A.

June 15, 2009

Insurance -- Automobile insurance -- Statutory accident benefits -- Income replacement benefits -- Insured not capable of engaging in his former employment after receiving income replacement benefits for 104 weeks but capable of working as long-haul trucker -- Insured not having requisite licence and lacking financial resources to pay for long-haul trucking training program -- Trial judge erring in concluding that insured was completely unable to engage in any employment for which [page551] he was reasonably suited by education, training or experience -- Job for which insured not already qualified may be suitable alternative if substantial upgrading or retraining not required -- Long-haul trucking suitable alternative for insured even though he lacked formal qualifications for it at time of trial -- Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 5(2)(b).

The plaintiff was injured in a motor vehicle accident in March 2001 and was unable to return to his job as a general labourer. The defendant insurer paid him income replacement benefits for 104 weeks as he was suffering a substantial inability to perform the essential tasks of his employment. After 104 weeks, the plaintiff was only entitled to income replacement benefits if he was suffering a complete inability to engage in any employment for which he was reasonably suited by education, training or experience (Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, s. 5(2)(b)). The defendant took the position that the plaintiff did not meet that standard and terminated the income replacement benefits. The plaintiff sued. There was evidence before the trial judge that the plaintiff was suited for employment as a long-haul trucker, but did not have the requisite licence and could not afford the training program. The trial judge found that the plaintiff met the s. 5(2)(b) standard and that he was entitled to continuing income replacement benefits. The defendant appealed.

Held, the appeal should be allowed.

The trial judge applied the wrong test in concluding that the plaintiff met the s. 5(2)(b) standard. It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. The trial judge found as a fact that the plaintiff did not require substantial upgrading or retraining to engage in long-haul trucking. On the findings of the trial judge, long-haul trucking was clearly a suitable alternative for the plaintiff, even though he lacked the formal qualifications for it at the time of the trial. The plaintiff was not entitled to continuing income replacement benefits.

APPEAL by the defendant from the judgment of Belch J., [2007] O.J. No. 2452, 2007 23332 (S.C.J.) for the plaintiff in action for declaration of entitlement to continuing income replacement benefits.

Cases referred to Neumeyer v. Wawanesa Mutual Insurance Co., 2005 27522 (ON SC), [2005] O.J. No. 3314, [2005] O.T.C. 676, 29 C.C.L.I. (4th) 21, 141 A.C.W.S. (3d) 474 (S.C.J.) Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, ss. 280(1) [as am.], 281 [as am.] Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, ss. 4 [as am.], (1), 5(1) [as am.], (2)(b) [as am.], 15 [as am.], 55 [as am.], 56 [as am.]

Joseph W.L. Griffiths, for appellant. Scott D. Laushway, for respondent. [page552]

The judgment of the court was delivered by

JURIANSZ J.A.: --

I. Overview

[1] The defendant at trial, Aviva Insurance Company of Canada ("Aviva"), appeals from the judgment of the trial judge dated October 28, 2008, following the delivery of reasons for judgment dated June 21, 2007. Following a four-day trial, the trial judge concluded that the respondent, who was injured in an automobile accident on March 27, 2001, was completely unable to engage in any employment for which he was "reasonably suited by education, training or experience" under s. 5(2)(b) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 (the "Schedule") of the Insurance Act, R.S.O. 1990, c. I.8. Accordingly, the trial judge held that the respondent was entitled to receive a continuing income replacement benefit under s. 4 of the Schedule. The appellant appeals the trial judge's finding that the appellant satisfied the test under s. 5(2)(b) of the Schedule for entitlement to a continuing income replacement benefit under s. 4 of the Schedule.

[2] I would allow the appeal because the trial judge applied the wrong test in concluding [at para. 94] that the respondent was completely unable to engage in any employment for which he was "reasonably suited by education, training or experience" under s. 5(2)(b) of the Schedule and therefore entitled to a continuing income replacement benefit under s. 4 of the Schedule. On the findings made by the trial judge, the application of the correct test leads to the conclusion that the respondent is not entitled to a continuing income replacement benefit.

II. Relevant Background and Facts

The respondent's accident and claims for an income replacement benefit

[3] The appellant insured the respondent under a standard Ontario policy of automobile insurance. The respondent was injured on his way to work in an automobile accident on March 27, 2001. At the time of the accident, the respondent was 29 years old and was employed as a general labourer. His employment position required some heavy lifting, the ability to drive a vehicle, and the ability to receive instructions and to communicate with the employer's representatives and others. In the year before his accident, the respondent earned approximately $25,000. [page553]

[4] After the accident, the respondent was unable to pick up heavy objects and was therefore unable to perform his job. He underwent an assessment at a Disability Assessment Center (the "First DAC Assessment"), which concluded that he was unable to meet all of the physical demands of his pre-accident employment. He applied for and received from the appellant an income replacement benefit in the amount of $400 per week under s. 4 of the Schedule since he was suffering "a substantial inability to perform the essential tasks of [his] employment".

[5] Section 4(1) of the Schedule provides for an employee's entitlement to an income replacement benefit:

4(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. (Emphasis added)

[6] Section 5(2)(b), however, limits an insured's entitlement to an income replacement benefit under the s. 4 test to 104 weeks. After 104 weeks, the insured must satisfy the stricter standard under s. 5(2)(b). Sections 5(1) and 5(2)(b) confirm this stricter standard:

5(1) Subject to subsection (2), an income replacement benefit is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.

(2) The insurer is not required to pay an income replacement benefit, . . . . . (b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. (Emphasis added)

[7] On March 27, 2003, after 104 weeks of paying the respondent an income replacement benefit, the appellant took the position that the respondent did not meet the stricter s. 5(2)(b) standard and terminated his income replacement benefit. The respondent disagreed with the appellant's decision and agreed to undergo a second assessment at a Disability Assessment Center (the "Post-104 DAC"). The Post-104 DAC concluded, in effect, that the respondent did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. Consequently, on July 24, 2003, [page554] the appellant confirmed its decision to terminate the respondent's income replacement benefit effective August 11, 2003.

The commencement of the action

[8] After mediation permitted by s. 280(1) of the Insurance Act [See Note 1 below] through the Financial Services Commission of Ontario (the "FSCO") was unsuccessful, the respondent chose to commence an action rather than referring the issues in dispute to an arbitrator. That choice was available to him under s. 281 of the Insurance Act. In his brief Statement of Claim dated January 14, 2004, the respondent stated that:

[H]e was completely unable to engage in any occupation within his education, training and experience. The Plaintiff did not complete Grade 11 in high school. His entire working experience before the accident was in heavy to very heavy labour occupations. His back and shoulder injuries completely prevent him from returning to his occupation at the time of the accident or any similar occupation.

[9] The sole issue raised by the respondent in his Statement of Claim was his entitlement to an income replacement benefit in the amount of $400 from August 11, 2003 to the date of trial. In his reasons for judgment, the trial judge stated [at para. 11] that both parties had framed the issue as follows: "Is Wade Burtch completely unable to perform the duties of any occupation for which he is suitable by virtue of education, experience and training?"

[10] Extensive medical and vocational rehabilitation evidence was filed at trial. The trial judge noted that the committee that administered the First DAC Assessment had the opinions of two orthopaedic surgeons who had examined the respondent and had observed surveillance videos of him. These surgeons concluded that there was no objective evidence of musculoskeletal factors that would preclude the respondent from returning to his pre-injury employment. The committee was nonetheless satisfied that the respondent suffered a substantial inability to perform the essential tasks of his employment because of the psychometric findings, which suggested "a cognitive impairment which may, in turn, be related to clinical depression and/or subtle brain injury". The videotaped evidence did not [page555] affect the psychometric findings. The committee concluded that the respondent satisfied the s. 5(1) standard for entitlement to an initial income replacement benefit for the first 104 days of disability.

[11] The Post-104 DAC considered medical evidence, a vocational assessment and the report of an occupational therapist. The Post-104 DAC committee indicated that the accident did not impair the respondent's memory, and that his cognitive impairment with respect to arithmetic pre-existed the accident. Further, the respondent did not exhibit the signs of post-traumatic stress disorder. The report concluded that, with adequate physical conditioning, the respondent might be capable of returning to a job involving light to medium physical exertion provided that his shoulder was not elevated and he did not engage in repetitive tasks.

[12] In its report, the Post-104 DAC committee made the following three recommendations:

1. Because of Mr. Burtch's intellectual limitation and poor academics, he should be provided with adequate vocational assistance to secure alternate employment.
2. Because Mr. Burtch has not engaged in any job for the last two years, he is physically de-conditioned. Therefore, he should be provided with an active physical-conditioning program. In the words of Dr. Faris, "if he were to engage in assertive muscle heating and stretching, strengthening routine, along with aerobic conditioning, he could well return to this capacity (i.e. his previous employment) in a period of three to six months."
3. Mr. Burtch is convinced in the belief that the accident has resulted in neurocognitive deficits though objective evidence does not support his contention. A brief period of counselling will hopefully reassure him to allay his concerns.

[13] Following the Post-104 DAC report, R.J. Skirda and Associates was contracted to provide vocational counselling support to the respondent in order to assist him in the process of re-integrating into competitive employment. Melissa Skirda, B.A. (Hons.), RRP Vocational Counsellor, authored their report dated December 9, 2003. She had access to the Post-104 DAC assessment report and considered some of the vocations it identified as potential employment alternatives for the respondent. She concluded that the respondent's "greatest potential for future employment" was in the field of long-haul truck driving. In order to qualify for such employment, however, the respondent needed to complete a truck-driving training course at a cost of about $4,250 and to obtain an i94 waiver card to enable him [page556] to cross the border. The respondent testified that he was prepared to give long-haul trucking a try.

III. The Trial Judge's Findings, Analysis and Reasons

[14] After a comprehensive review of the evidence and a number of reported decisions of arbitrators of the Ontario Insurance Commission and the FSCO, [See Note 2 below] the trial judge posed the questions he had to answer as follows [at para. 77]: "[D]oes the plaintiff exhibit residual effects from injuries suffered in the accident, and, is there any job for the plaintiff, not a notional job but an actual job for which the plaintiff qualifies, paying similar remuneration as the plaintiff's past employment, without the need for substantial retraining?"

[15] In answering these questions, the trial judge adopted a number of key principles from the decisions of the arbitrators. First, a suitable alternative occupation must be reasonably comparable to the insured's former job both in status and reward. Second, a job cannot be considered a suitable alternative if a substantial amount of upgrading is required. Finally, while the primary focus in determining whether a job is a suitable alternative is on the insured's functional limitations, job market considerations are also relevant.

[16] The trial judge found that the respondent suffered impairment and that his impairment was a result of the car accident. The respondent's restriction to light to medium exertion was a physical restriction, particularly given his employment experience and training. He suffered from headaches after the accident. Finally, his personality had changed significantly for the worse since the accident; he experienced frustration, a lack of impulse control, short-term memory problems, forgetfulness and an inability to multi-task. The trial judge found that these personality traits limited the respondent's employment possibilities.

[17] Having made these findings, the trial judge then turned to the main issue at trial, namely, whether the respondent was completely unable to perform the duties of any occupation for which he was suitable by virtue of education, experience and training within the meaning of s. 5(2)(b) of the Schedule, and [page557] therefore entitled to a continuing income replacement benefit under s. 4.

[18] The trial judge noted that while the respondent did not identify prior to trial an alternate job for which he was reasonably suited but which his impairment prevented him from performing, he did testify that he was willing to try long-haul trucking. According to the rehabilitation and vocational counsellors, this was the only job for which the respondent qualified. It was the only job generated by the computer search which "made sense" in the respondent's situation. The trial judge also indicated that remuneration for long-haul trucking was comparable to the respondent's former employment and that the respondent did not need a substantial amount of upgrading.

[19] Despite the apparent availability of long-haul trucking as suitable alternate employment for the respondent, the trial judge remarked [at para. 88] that "there were a number of issues that had to be addressed". For example, the respondent lacked the financial resources to pay for the long-haul trucking training program. Also, the respondent did not qualify at the time for the i94 waiver to permit cross-border trucking, although the trial judge noted that there were opportunities in trucking within Canada that the respondent might have been able to exploit. With respect to long-haul trucking, the trial judge commented [at para. 88]: "Here was the obvious partnership in rehabilitation for these parties but neither pursued it, either at the time of the Post-104 DAC assessment or at the time of trial."

[20] The trial judge then observed that the plaintiff had not qualified for long-haul trucking at the time of his Post-104 DAC assessment or by trial, and might never qualify. He then quoted from Neumeyer v. Wawanesa Mutual Insurance Co., 2005 27522 (ON SC), [2005] O.J. No. 3314, (2005), 29 C.C.L.I. (4th) 21 (S.C.J.), at para. 29, in concluding that the respondent satisfied the test for continued disability in s. 5(2)(b) of the Schedule:

[T]hat on the balance of probabilities the evidence demonstrates that there were no realistic opportunities for full-time employment for the plaintiff given the expectations of a reasonable employer. The plaintiff, in essence, was completely unable to engage in gainful employment for which she was reasonably suited by education, training or experience in the real world as of the date of trial.

[21] The trial judge then concluded that the respondent was entitled to a continuing income replacement benefit under s. 4 of the Schedule. [page558]

IV. Analysis

[22] The trial judge carefully reviewed all of the evidence and made his findings. His findings of fact are not questioned on appeal. I need mention the evidence only to the extent necessary to explain his findings. Moreover, the trial judge quite properly considered the decisions of the arbitrators from the FSCO and its predecessor. As he aptly remarked, although these decisions are not binding upon the court, they are helpful in understanding how these specialized commissions have interpreted and applied the Schedule.

[23] Despite his able discussion of the proper principles, the trial judge ultimately applied the wrong test for determining whether the appellant satisfied the s. 5(2)(b) standard for entitlement to a continuing income replacement benefit under s. 4. In the end, the trial judge found [at para. 93] that the respondent was entitled to the benefit because he "was not qualified either at assessment or by trial time, and might never qualify", for long-haul trucking.

[24] The proper test, which the trial judge recognized [at para. 63] earlier in his reasons, is whether, "as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience". It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required.

[25] The trial judge earlier found as a fact that the respondent did not require substantial upgrading or retraining to engage in long-haul trucking. He also found that job opportunities were available in the field; it paid similar remuneration as the respondent's past employment; and, while an i94 waiver was required to permit cross-border trucking, the trial judge observed that there were trucking jobs within Canada. Most importantly, the medical and vocational evidence indicated that the respondent could perform the duties of the job.

[26] These findings lead inexorably to the conclusion that long-haul trucking was an employment alternative for which the respondent was reasonably suited by education, training or experience. Nonetheless, in what was undoubtedly an effort to devise what he perceived to be an equitable result, the trial judge took into account that the respondent was not qualified for long-haul trucking because he could not afford the training [page559] course and the parties had not pursued the obvious and necessary rehabilitation.

[27] The appellant submits that the trial judge misapprehended the respective roles of the insurer and the insured in the context of an accident benefits claim. It points out that ss. 55 and 56 of the Schedule place an obligation on an insured "to participate in such rehabilitation as is reasonable, available and necessary to" engage in alternative employment for which the insured is reasonably suited, and "to make reasonable efforts to . . . obtain employment for which he or she is reasonably suited".

[28] I find it unnecessary to deal with this argument. This case was not about the respondent's entitlement to a rehabilitation benefit under s. 15 of the Schedule, which encompasses measures to reintegrate an insured person into the labour market, including the cost of vocational training. Nor was it about his obligation to participate in such training. It was also not about which party failed to pursue the rehabilitation opportunities.

[29] The sole issue in this case, as raised by the respondent's Statement of Claim was whether he suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. His position at trial was that no reasonably suitable employment alternative existed. This had been his position even after the report prepared by Melissa Skirda identified long-haul trucking as a suitable employment alternative. He neither pleaded nor raised at trial the issue of his entitlement to a rehabilitation benefit.

[30] On the findings of the trial judge, long-haul trucking was clearly a suitable alternative for the respondent, even though he lacked the formal qualifications for it both at the time of assessment and at trial. The trial judge's findings simply do not support his conclusion that the respondent is suffering from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience under s. 5(2)(b) of the Schedule. Therefore, the respondent is not entitled to a continuing income replacement benefit under s. 4.

V. Disposition

[31] I would allow the appeal, set aside the judgment of the trial judge and dismiss the action of the respondent.

[32] The costs of the appeal are fixed in the amount of $7,500, inclusive of GST and disbursements, in accordance with the [page560] agreement of counsel. The costs of trial are remitted to be fixed by the trial judge.

Appeal allowed.

Notes

Note 1: Section 280(1) of the Insurance Act provides: "Either the insured person or the insurer may refer to a mediator any issue in dispute in respect of the insured person's entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which the insured person is entitled."

Note 2: The FSCO was created on July 1, 1998 as an arm's-length agency of the Ministry of Finance. The FSCO integrates the operations of the former Ontario Insurance Commission Pension Commission of Ontario and Deposit Institutions Division of the Ministry of Finance: see