Theodore Galarneau v. Allstate Insurance Company of Canada, 2013 ONFSCDRS 124

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 124

FSCO A09-002397

BETWEEN:

THEODORE GALARNEAU

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: May 2 and 4, 2011, in Sault Ste. Marie, Ontario

Appearances: Brian Gualazzi and Richard Thomson for Mr. Galarneau

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Theodore Galarneau, was injured in a motor vehicle accident on November 27, 1999. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Allstate denied Mr. Galarneau’s claim for non-earner benefits (“NEBs”) from November 30, 2005, the date Mr. Galarneau turned 16 and became eligible for NEBs. The parties were unable to resolve their disputes through mediation, and Mr. Galarneau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Galarneau entitled to receive a non-earner benefit, from November 30, 2005, onward, at a rate of $320 per week, pursuant to section 12 of the Schedule?
Is Allstate liable to pay a special award on the basis that it unreasonably withheld or delayed payments, pursuant to section 282(10) of the Insurance Act?
Is Mr. Galarneau entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Galarneau is not entitled to receive a non-earner benefit.
Allstate is not liable to pay a special award.
Mr. Galarneau is not entitled to interest.
If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

(i) Background

Mr. Galarneau was injured in a motor vehicle accident on November 27, 1999, while a passenger, a few days before turning 10 years old. He was in grade 4 at the time. He suffered significant oral injuries in the accident, and underwent a number of surgeries to repair the damage. Mr. Galarneau was able to continue in school, and did so until 2005, when he turned 16 and left school to enter the workforce. He has held jobs intermittently since that time. Mr. Galarneau claims non-earner benefits from November 30, 2005, the date he turned 16.

Pursuant to section 12(1)3 of the Schedule, an insurer is required to pay an insured person non-earner benefits if the person suffers a “complete inability to carry on a normal life” as a result of and within 104 weeks of the accident, and was enrolled on a full-time basis in elementary education at the time of the accident. Pursuant to section 2(4) of the Schedule, a person is considered to have suffered a complete inability to carry on a normal life if they have sustained an accident-related impairment that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” Under section 12(7) of the Schedule, an insurer is not required to pay a non-earner benefit for any period before the insured person turns 16 years of age. Pursuant to section 12(3) of the Schedule, a person entitled to non-earner benefits under section 12(1)3 shall be paid $320 for each week the person remains eligible to receive the benefit.

Mr. Galarneau claims NEBs on both substantive and procedural grounds. He maintains that he was enrolled as a full-time student in elementary school at the time of the accident, suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident, and became eligible for NEBs upon turning 16 years of age. Mr. Galarneau also maintains that, even if he has not established his substantive entitlement to NEBs, Allstate is required to pay those benefits on the basis that it failed to deny him the benefits in accordance with the procedures set out in the Schedule. Finally, Mr. Galarneau submits that, regardless of his substantive or procedural entitlement to NEBs, as a matter of justice and fairness, he should receive those benefits, since he has been put in the position of having to establish his entitlement several years after he first became eligible. Allstate maintains that Mr. Galarneau is not entitled to NEBs, either substantively or procedurally, or as a matter of justice and fairness.

(ii) The Law

In the case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, [2009] 95 O.R. (3d) 785, the Court of Appeal set out the criteria for establishing entitlement to non-earner benefits, in part, as follows:

Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.
In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”
The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.

I accept these as the guiding principles in determining Mr. Galarneau’s substantive entitlement to NEBs.

I also find the following comments from N.I. and Allstate Insurance Company of Canada (FSCO A04-002030, June 26, 2007; upheld on appeal, on other grounds, FSCO Appeal P07-00024, December 2, 2008) helpful in addressing the issue of whether Mr. Galarneau’s impairments “continuously prevented” him from engaging in his pre-accident activities:

The ultimate question is whether the claimant suffered a “complete inability to carry on a normal life as a result of the accident” in accordance with section 12(1)….The words “continuously prevents” must, therefore, be interpreted in keeping with that ultimate test of eligibility. (emphasis in original)

In my view, the inclusion of the words “continuously prevents” in the eligibility test for NEBs means that Mr. I. had to establish that he met that test from the date of the onset of the disability through the first 26 weeks of disability and then continuing through the period for which NEBs were claimed, all without any break or interruption.

Finally, despite the reference to a “normal life”, the test is entirely functional in nature. A claimant’s “quality of life” may well be adversely affected by the pain, discomfort, distress, suffering or anxiety caused by the accident. Still, symptoms of this kind do not establish entitlement to NEBs unless they “continuously prevent…the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

I note the case of Martin v. TD General Insurance Company (2011) ONSC 7512, in which the trial judge found that the plaintiff met the criteria for entitlement to non-earner benefits, since “in the immediate post-accident period it [could not] be said that the plaintiff ‘engaged in’ most of her pre-accident homemaker and recreational activities” (emphasis added). This finding was based primarily on an OCF-12 (an Activities of Normal Life form) the plaintiff completed roughly two-and-a-half weeks after the accident, as well as her testimony that her recreational activities following the accident had been severely limited. The trial judge found that the plaintiff qualified for non-earner benefits “as of the date of the accident” and that the only additional issue was to “determine the period for which the NEB must be paid.” In upholding this aspect of the decision, the Court of Appeal stated that “[h]aving applied the correct test from Heath, and having taken all of the relevant evidence that he accepted into account, the trial judge’s conclusion that the respondent met the test for the receipt of non-earner benefits is entitled to deference.”² The trial judge stated that in applying the test in Heath and “looking at the broad picture painted by the evidence in this case”, the plaintiff was continuously prevented from engaging in her normal pre-accident activities for four years following the accident (despite having engaged in employment-related activities for roughly three years of that time). The Court of Appeal found that the plaintiff was only entitled to non-earner benefits for approximately two years and three months following the accident.

I do not understand these decisions to establish that entitlement to non-earner benefits can be established immediately following an accident, regardless of the progression of the insured’s disability in the subsequent weeks and months. For example, a person could not be said to be “continuously prevented” from engaging in their pre-accident activities within the meaning of section 2(4) of the Schedule and the Court of Appeal’s decision in Heath, based on a single day of disability immediately upon the happening of an accident. On the other hand, given that section 12(1) of the Schedule refers to a complete inability to carry on a normal life as a result of and “within” 104 weeks of the accident, I do not see (as might be gleaned from the arbitration decision of N.I.) that an insured must establish that they suffered a complete inability for the entire 104-week period without any break or interruption whatsoever.

In my view, a broader assessment of a person’s post-accident situation must be undertaken, in determining whether they were “continuously prevented” from engaging in their pre-accident activities. This is consistent with the caution in Heath that consideration of a person’s pre-accident activities must involve more than a “snap-shot of [their] life in the time frame immediately preceding the accident”, and that the phrase “continuously prevents” means that a person must establish the requisite post-accident disability “which is and remains uninterrupted” (emphasis added). It is also consistent with the view in N.I. that a person must show continuous disability throughout at least the initial 26-week period in which an insurer is not required to pay non-earner benefits, pursuant to section 12(7)(a) of the Schedule (a period which does not appear to have been addressed in either of the decisions in Heath). A broader approach to the nature and extent of a person’s disability within the first 104 weeks of an accident is even more important where, as here, an insurer is not required to pay non-earner benefits for any period before the insured turns 16 years of age (pursuant to section 12(7)(b)) and there are several years between the happening of the accident and the insured turning 16 years old. In my view, therefore, while “absolutely continuous” disability for two years following an accident is not required to meet the first part of the test of entitlement, neither is a brief period of disability immediately following the accident sufficient to meet the test. The extent of an insured’s disability in the two years following the accident must be broadly considered in light of the activities in which they were normally engaged prior to the accident.

Finally, the arbitration appeal decision of Mulhall and Wawanesa Mutual Insurance Company (FSCO Appeal P06-00002, October 15, 2007) is instructive in determining Mr. Galarneau’s entitlement to NEBs in light of his young age at the time of the accident. There, the Director’s Delegate seemed to approve of the arbitrator’s approach to the issue of non-earner benefits, namely, considering whether the insured’s “accident-related impairments continuously prevent[ed] him from engaging meaningfully in school, work, and social and recreational activities after the accident.” The Director’s Delegate noted that a “poor pre-accident academic record does not preclude entitlement if accident-related impairments continuously prevent the claimant from pursuing education in a meaningful way” and that because of the “importance of education in a young person’s life, inability to continue because of accident-related impairments will generally be given significant focus in determining NEB entitlement.” The Director’s Delegate approved of the Arbitrator’s approach in that case (in dealing with an insured person who was 17 at the time of the accident), namely, measuring the insured’s post-accident activities with his pre-accident “potential and trajectory.” The Director’s Delegate noted that, although assessing the insured’s employment prospects in that case was made difficult by the insured’s “age and very limited employment history”, the best evidence available “painted a consistent picture”, namely, that the insured was “demonstrably not unemployable after the accident, and he was likely to have worked in similarly unskilled jobs if the accident had not occurred.”

(iii) Mr. Galarneau’s pre-accident life

Mr. Galarneau was just shy of his tenth birthday, and in Grade 4, at the time of the November 1999 accident. He testified that he has almost no recollection of his life before the accident. He acknowledged that there had been problems of some sort with his school principal while in Grade 2, that “weird things started” and that he received a month-long detention. He said that he had been home-schooled for two years prior to the accident, was held back a year when he returned to school in the fall of 1999, and was, therefore, at the beginning of Grade 4, instead of Grade 5, at the time of the accident. He said that his only playmate at the time he was home-schooled was his younger sister and that he used to swim, ride his bike and play outdoors with her. He testified that he did not fight with others at the time.

Mr. Galarneau’s mother, Mary Forget, testified that, prior to the accident, her son was a confident and outgoing boy, a good student who went to school almost every day, had lots of friends and played sports. However, she acknowledged that her son had missed 18.5 days of school in Grade 1 (apparently due to her “pulling him out”) and 10 days in Grade 2, due to his having pneumonia. Ms. Forget stated that her son had never failed school prior to the accident. She stated that she had home-schooled her son for two years before the accident and that this had gone well, although he was held back a year when he returned to his regular school because he had been home-schooled. Ms. Forget testified that her son had never been physically abusive to others prior to the accident, although in a 1992 affidavit for interim custody of her children, she deposed that her common-law husband had “taught [her son] to be physically abusive with others…” Ms. Forget testified that she could not recall “that far back”, that her son was only two years old at the time and that he did not continue the behaviour taught to him by his father. Ms. Forget stated that her son was a babysitter for his younger sister prior to the accident and that he did well at this, and was a good big brother.

(iv) Mr. Galarneau’s post-accident life

Mr. Galarneau testified that, as a result of the injuries he suffered in the accident, he has had to undergo approximately three oral surgeries, with one or two more still required, that his jaw locks occasionally, he has to eat soup when his jaw hurts and that he slurs his speech. He also stated that he has back pain every day of varying degrees, and that this affects his sleep.

Mr. Galarneau stated that, after the accident, he was “picked on…right up to high school” because of his oral injuries, that he was not able to concentrate on school work, and that he got through school because his friends helped him a lot. He said that he eventually quit because he got sick of going, he could not read, he was not learning anything new, and because he could not sit for very long or participate in the football team because of his back. Mr. Galarneau testified that he developed friends “about the same as before the accident.” He said that he has held short-term jobs (most of them seasonal) since the accident, but that he cannot lift things because of his sore back.

In March 2011, two of Mr. Galarneau’s school teachers (from Grades 4 and 8), reported that they recalled Mr. Galarneau as an average student with some learning difficulties, who participated in most activities, but who was frustrated with others or his work completion. Mr. Galarneau’s school transcripts indicate that he passed all grades following the accident, but with mostly average and below average marks. The records also indicate that Mr. Galarneau missed an average of approximately 20 days of school per year.

Mr. Galarneau stated that, after he left school, he held various jobs. In the spring, summer and fall of 2005, he worked at Agawa Crafts, where he pumped gas, did roofing, cleaned up the yard and moved things around the store. His employer reported him to be a “good, dependable worker.” From 2006 to 2008, Mr. Galarneau did seasonal, full-time work for Freshwater Construction, building decks, fences and additions on houses, installing windows and doors, minor plumbing and simple electrical work. He said that he was let go from that position, because he was not keeping up with his correspondence course school work. The owner of Freshwater Construction reported that Mr. Galarneau was “overall…a good employee” but that over time, he became “less dependable”, using his cell phone at work apparently to call friends and not keeping up with his correspondence courses (when the employer was trying to keep Mr. Galarneau in school to complete Grade 12). Employment notes and records from the company also indicate that Mr. Galarneau was terminated due to a “shortage of work”, and that he “quit because he had another job.” On November 28, 2010, Dr. D.B. Misener, a rehabilitation psychologist and kinesiologist who saw Mr. Galarneau at the request of his counsel, reported Mr. Galarneau as saying that he quit his job at Freshwater Construction “due to severe back pain.” Mr. Galarneau said that, during the off-season, he received Employment Insurance benefits. In 2008, Mr. Galarneau worked with All Class Renovations, building decks and fences, and installing windows and doors. He stated that he stopped working there because he was not getting paid. Dr. Misener reported Mr. Galarneau as saying that he quit this position “primarily owing to back pain.” He worked as a night manager at Howard Johnson, but left because there was too much pain sitting all night long. He stated that, because he only completed a Grade 9 education, it is difficult finding work, and that he went on welfare well after working at All Class Renovations. He recently started working full-time with a cleaning company, cleaning grocery stores. He stated that he has to sit down for 10 to 15 minutes every couple of hours, and that he cannot leave this position because he needs the money.

Socially, Mr. Galarneau stated that he dated a number of girls, before meeting his fiancée, Janey, in the spring of 2009. He said that he and Janey have been living continuously since then, that Janey has a daughter about 3 years old from a previous relationship, and that they have just had a son together. He lives with Janey in a two-bedroom apartment, where he cooks, cleans and takes care of his children.

Mr. Galarneau moved out of his mother’s home when he was 19 years old, and lived with 2 roommates, with whom he split the rent. He moved back with his mother after he left All Class Renovations, because he had no money, but eventually left again, due to conflicts with his stepfather.

He said that he has tried to upgrade his education and employability by taking correspondence courses, but has not been successful in those courses.

Mr. Galarneau stated that, to deal with his back pain, he first tried pills, and then when those stopped working or made him feel sick, he turned to alcohol. He said that he was smoking a lot of marijuana at the time he left school. He said that he stopped when he met his fiancée. He said that he still has a temper and that it is getting worse. He said that he is currently sweeping and mopping floors at grocery stores, but that he needs to go home and lie down at the end of a shift because he is in so much pain. He says that he “has to keep going” because he “has kids to support.” He said that he is able to play with his children and go out “the odd night” for drinks, dinner or a movie, but only for 2 to 3 hours because of his pain.

Mr. Galarneau stated that for a few months after the accident, he played floor hockey, dodge ball, basketball, volleyball and track and field at school. He said that he continued to swim after the accident. He said that, in high school, he got onto the football team on the defensive line, but did not play very much. He played slow-pitch baseball for about 2 to 3 seasons when he was approximately 13 to 15 years old. He said that his back was a problem with school sports, but that he deals with his back pain because he has to. He said that he can drive, but lost his licence due to a driving violation. He said that, after the accident, he was left to babysit his younger sister, and that he could do that. He said that he could also cook, clean and do dishes after the accident.

Mr. Galarneau said that his close friends, whom he has had for many years, usually come over to his home to socialize, due to his young children, but mostly due to his pain.

On December 7, 1999, approximately 10 days following the accident, Mr. Galarneau’s mother submitted an OCF-12 form regarding her son’s Activities of Daily Living to the Insurer. In it, Ms. Forget reported that her son could do all of his previous tasks, but experienced problems with speech, concentration, frustration, anger, depression and fear. Ms. Forget also reported that her son was unable to return to school until his doctor gave him permission, and that he had a hard time concentrating on homework. Ms. Forget testified that, as a result of the accident, her son missed a lot of school and only returned in March 2000 (roughly three months post-accident). She said that her son also had “low back injuries” approximately a year after the accident, that there was no fall or event after the accident to cause this, and that these prevented him from standing or sitting for long periods of time. Ms. Forget said that, due to the accident, her son became frustrated, would lose his temper and began to lose his friends. She said that, unlike prior to the accident, her son lost confidence and preferred to stay home from school. She said that his social problems worsened, since his friends would make fun of him because of the injuries to his mouth. He did not participate in sleep-overs, school dances, or go on a Grade 8 field trip because of these problems. Ms. Forget said that her son’s social problems got worse in high school. She said that her son ultimately quit school out of frustration in Grade 10, because he could not understand the work. She also stated that he has tried to work, but ends up quitting out of frustration, because of the back pain he began to experience roughly a year after the accident. Ms. Forget stated that her son has had to go on welfare, because of his inability to work. Ms. Forget said that, after her son left school, he supported himself (“feeding and clothing himself”), through either work or welfare, that he supported his family when he was working and that he supported his mother with part of his paycheque.

Ms. Forget said that her son became a father in March 2011, that he is a good father, but that he often has arguments with his partner, because of his frustration. Ms. Forget said that her son “does everything a father should do for his own child and his step-daughter.” Ms. Forget stated that her son started to take drugs and alcohol to deal with his pain, that he does not participate in any forms of recreation and that he has become a “loner.”

Mr. Galarneau’s sister, Kayla, testified that she did not really remember what her brother was like before the accident, but that after the accident, he would babysit her, and ride bikes, swim and play in tree forts with her. Kayla said that she sees her brother on a regular basis now and that he loses his temper quite easily, and is always in pain. She said that she does not know when his back pain began. She said that her brother is “doing amazing as a father”, that he is patient with his children, plays with them, takes them for walks, and looks after them when Janey is out. Kayla said that her brother has a few good friends.

Mr. Galarneau’s fiancée, Janey Dunn, said that when she met Mr. Galarneau in 2009, he was “detoxing from major alcohol abuse” and that he had been drinking because “he was unhappy with himself.” She said that he is “frustrated and scatter-brained”, is hard to live with and does not want to talk about the accident. Ms. Dunn said that Mr. Galarneau complains of jaw and back pain every day, but that he is not a complainer and is trying to work. She stated that he comes home sore every day and goes straight to bed. Ms. Dunn stated that Mr. Galarneau is a wonderful father, who plays with his children and who has taught Ms. Dunn’s daughter to swim. She said that he cooks and vacuums, and will help out if she asks, but that he does not do the dishes, because he cannot stand for that long. She said that Mr. Galarneau has a number of good friends, and that he goes fishing and hunting with them, and occasionally helps them move.

On January 8, 2000, Dr. G. Wong, one of the dentists treating Mr. Galarneau’s oral injuries, reported that Mr. Galarneau would be able to return to his normal daily activities after 3 or 4 weeks of his jaw healing.

On November 9, 2000, Dr. A. Gelmych, a psychologist who treated Mr. Galarneau for adjustment disorder and anxiety following the accident, reported that, based on information from his home and school, Mr. Galarneau had “made considerable progress and is now achieving close to grade level in all areas” but required a “higher level of supervision and attention than other children.”

On January 4, 2001, Dr. Gelmych reported that he saw no further need for psychological intervention. He stated that Mr. Galarneau appeared to be “managing quite well both at home and at school and…that he is much better able to manage his emotions and has been a model student.” Ms. Forget testified that this was “all a lie”, that Dr. Gelmych was an “idiot” and that he “was not helping” either her son or herself. Ms. Forget took her son to see Dr. Gelmych again in November 2001. At that time, Dr. Gelmych reported being told that Mr. Galarneau was having difficulty at school, was more frustrated and angry, and was having nightmares and difficulty with his sister at home. Ms. Forget testified that this was more reflective of what was actually going on with her son. Dr. Gelmych suggested to Ms. Forget that she speak to her son’s school about having him undergo an educational assessment.

On February 4, 2003, Dr. C. Pryor, a psychologist who assessed Mr. Galarneau because of difficulties he was having at school, reported that Mr. Galarneau had a “history of academic difficulties” which “surface[d] by the Grade 3 level”, was noted to have “abilities…in the Low Average range” when he was 9 years old, and was now “achieving at expected levels with most academic skills, although his achievement level remains below grade level.”

On July 23, 2007, Dr. K. Floreani, an orthodontist, reported that Mr. Galarneau’s impairments affected his ability to carry out his activities of normal life, in that his chewing had been impaired.

On February 19, 2010, Dr. Misener submitted an OCF-22 (Application for Approval of an Assessment or Examination) to the Insurer, reporting that, in a screening assessment, Mr. Galarneau’s symptoms were consistent with a “severe depressive condition.” According to Dr. Misener, Mr. Galarneau reported the following:

He feels sad all of the time, does not expect things to work out for him. He views himself as having experienced a lot of failures, and has come to feel more worthless as compared to other people. He is disappointed in himself. He does not derive any pleasure from the things he used to enjoy; he finds it hard to get interested in anything. He has trouble making any decisions. He has less energy and tires easily. He is much more irritable and agitated than usual. He has difficulty concentrating. His appetite is much less.

His self report indicates that he is restricted from prolonged standing and for lifting heavy objects.

On March 7, 2010, at the request of the Insurer, Dr. R. Keleher, a psychologist, conducted a paper review of Dr. Misener’s request for a psycho-vocational evaluation, and reported as follows:

Medical documentation reveals the presence of mild psychological difficulties approximately one year post-accident. These difficulties reportedly resolved quickly and fully. This was to the degree that no further psychological intervention was foreseen. There is no other record of ongoing or emergent psychological difficulties in the intervening time period….[F]indings or observations of back pain and restricted activities are not present in medical documents. In the absence of medical documentation and information that might associate the individual’s currently reported psychological and pain difficulties with the motor vehicle accident, it is not possible to conclude that the proposed assessment is reasonably required and necessary for rehabilitation of MVA related injuries.

In November 2010, Dr. Misener reported that, while Mr. Galarneau had “become a loner” following the accident, he began “developing new peer relations” in Grade 7 and “now appears to have maintained many close friends with a good support system.” He noted that Mr. Galarneau’s “attention and concentration appeared satisfactory” and that the “judgment necessary for managing routine decision making of everyday life is satisfactory.” Dr. Misener reported as follows on Mr. Galarneau’s activities of normal life:

On an Activities of Normal Life index, he continues to engage in all activities including personal care. With the exception of driving he has general difficulties with prolonged standing. He has difficulty with shopping, requires assistance with carrying heavier grocery bags. He is able to do meal preparation, cooking and washing dishes. He has difficulty owing to fatigue and stiffness in performing some homemaking chores, such as sweeping, vacuuming, bedmaking, bathroom cleaning or washing floors. He requires assistance with grass cutting [and] snow shovelling. He indicated that cognitive activities that cause him difficulty include keeping appointments, remembering to do errands, reading and remembering what he has read, remembering and following directions, keeping track of conversation, finding words to express himself and writing so others understand. Emotionally, he indicated that he has some difficulty relating to others without irritability or temper, and with participating in social activities.

Dr. Misener reported that Mr. Galarneau’s “clinical picture remains consistent with an Adjustment Disorder with moderate Depressed Mood and Anxiety”, that he “has become more socially withdrawn” and that, “as a consequence of his pain, disruption to his personal lifestyle, and inability to pursue his vocational interests, he lacks self-esteem, is less confident and more self-critical.”

Dr. Misener reported that Mr. Galarneau’s inability to return to any form of employment is “in part owing to his pain, his limited education, not having a valid driver’s licence, and a general shortage of jobs in the region he resides.” Dr. Misener further reported as follows:

This man, as a result of his motor vehicle accident occurring when he was only in Grade 4, experienced a significant setback to his potential career trajectory. The prediction of educational achievement in children is closely correlated with a) natural intellectual ability, b) psychological adjustment, c) educational attainment of parents, d) socioeconomic considerations. Mr. Galarneau was not identified as having significant academic difficulties prior to the accident. The development of his cognitive difficulties appear to have been exacerbated by the accident. His emotional difficulties were likely largely if not entirely due to the accident. Both his cognitive and emotional symptoms have remained problematic for him throughout his academic career, and are permanent.

Had the accident not occurred, his academic difficulties would probably have resolved spontaneously, or with remedial support he would have been able to successfully complete his high school diploma with advancement to a technical program at the college level. No learning disability had been diagnosed pre-accident and most early developmental problems usually resolve within a few years time. Post injury, his subsequent difficulties have compromised his academic performance, and are likely to limit the range of occupational choices available to him, likely precluding him from more cognitively challenging careers which includes the vast majority of those at the upper end of the wage scale. From this perspective, his impairment is a serious and permanent.

Dr. Misener concluded as follows:

…he is struggling and grieving the loss of his pre-accident lifestyle owing to injuries sustained physically that have resulted in a more sedentary lifestyle; this is in sharp contrast to his pre-accident social and recreational lifestyle. He is also experiencing the grief of an altered career path as a consequence of the accident. He no longer will be able to pursue his desire to work in the automotive mechanics and autobody fields. He is in need of mental health support, pain management, sleep hygiene, and cognitive behaviour therapy…in order to attempt to stabilize him so that further efforts toward rehabilitation can be considered.

…Mr. Galarneau did…suffer a complete inability to carry on a normal life within 104 weeks from the date of the accident…and…continued to suffer a complete inability to carry on a normal life on November 30, 2005.

On January 31, 2011, Dr. Misener reported that Mr. Galarneau experienced a “compromise to his academic progress” as a result of the physical and psychological injuries suffered in the accident, and that “the quality of his life deteriorated significantly.”

Dr. Misener testified that Mr. Galarneau reported that he was not seeing his children or friends at the time, because he was working night shifts, and that he sleeps during the day. Mr. Galarneau also stated to Dr. Misener that he was not involved in his normal social activities, such as playing hockey, snowmobiling, hunting and fishing. Dr. Misener testified that while Mr. Galarneau experienced academic difficulties prior to the accident, they “appeared more substantially” after the accident. Dr. Misener initially reported in November 2010 that Mr. Galarneau had “moderate depression”, but testified that he felt Mr. Galarneau had a “clinical depression” because, as reported, Mr. Galarneau was “likely to be experiencing a great deal of distress and turmoil.” Dr. Misener testified that Mr. Galarneau “tended to minimize his concerns.”

(v) Findings

I am sensitive to the fact that, as a young boy, Mr. Galarneau suffered significant oral injuries in a motor vehicle accident, and that, as a result, he required a number of surgeries, as well as time away from school. I accept that he was teased as a result of these injuries, and that this undermined his self-esteem. I also accept that Mr. Galarneau experienced sadness, frustration and a lack of concentration as a result of these problems. Finally, as discussed more below, I acknowledge that determining whether he suffered the requisite degree of disability at age 16 and beyond is rendered somewhat more challenging by his young age at the time of the accident. However, on the evidence before me, I find that Mr. Galarneau has not shown either that he suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident, or that he continued to do so upon turning 16 years of age. Specifically, I find that Mr. Galarneau has not shown that his accident-related impairments continuously prevented him from engaging in substantially all of his usual pre-accident activities.

I find that, within the first two years of the accident, Mr. Galarneau was able to do most, if not all, of the activities in which he was engaged prior to the accident. Before the accident, Mr. Galarneau was being home-schooled and spent his free-time playing with his younger sister (swimming, riding, playing outdoors), and babysitting her. Based on Mr. Galarneau’s evidence, as well as that of his mother and sister, Mr. Galarneau was able to do all of these activities following the accident. I find it significant that, shortly after the accident, his mother reported that he was able to do all of his previous activities of daily living.

Mr. Galarneau did miss approximately three months of school following the accident. In my view, however, this initial absence from school does not amount to a continuous inability to engage in substantially all of the activities in which he normally engaged. As noted, Mr. Galarneau was able to do most, if not, all of his usual pre-accident activities. His initial absence from school must also, in my view, be considered in the context of his subsequent return to school in the two years following the accident. Upon returning to school, Mr. Galarneau did not appear to suffer a material decline in his academic performance. Ms. Forget testified that her son was a good student prior to the accident. However, Dr. Pryor reported that Mr. Galarneau had a history of academic difficulties which emerged by Grade 3, and that he had abilities in the low-average range. Mr. Galarneau also underwent a standardized aptitude test just before the accident, which indicated average and below average abilities in reading, writing and mathematics, among other things. As reflected in his school report cards, as well as the evidence of his Grade 4 teacher, Dr. Gelmych and Dr. Pryor, Mr. Galarneau was able to function, at least at his pre-accident level upon his return to school. Although Ms. Forget characterized Dr. Gelmych as an “idiot” and as lying, based on Mr. Galarneau’s Grade 5 report card and consistent with Dr. Gelmych’s January 2001 report, Mr. Galarneau’s academic performance actually improved considerably in the 2000-2001 academic year (to what appeared to be above pre-accident levels). As reflected in Mr. Galarneau’s Grade 6 report card, Dr. Gelmych’s November 2001 note and a December 2001 Referral for Psycho-Educational Services, Mr. Galarneau’s academic performance did decline during the 2001-2002 academic year. However, as noted in the clinical notes and records of Mr. Galarneau’s family physician, Dr. Wacker, as late as September 25, 2001 (the beginning of Grade 6 for Mr. Galarneau), Ms. Forget was reporting that her son was having “no problems at school”, was “doing excellent”, was “getting [his] homework done” and was “doing well academically.” I, therefore, find that, within the first two years of the accident, the injuries Mr. Galarneau suffered as a result of the accident did not continuously prevent him from engaging meaningfully in school.

Ms. Forget and Dr. Misener suggested that Mr. Galarneau had become somewhat of a “loner” following the accident. Based on his Grade 4 report card (prepared at the end of the academic year in which the accident occurred) and Dr. Gelmych’s May 2000 note (roughly six months after the accident), I acknowledge that Mr. Galarneau experienced social difficulties and conflicts as a result of the injuries he suffered in the accident. However, these problems significantly improved the following year, and as late as September 2001, Ms. Forget was reporting to Dr. Wacker that her son had “lots of friends.” Mr. Galarneau, himself, testified that he developed friends in roughly the same manner as before the accident (although Dr. Misener did say that he tended to underreport his difficulties). I also note that in Grades 4, 5 and 6, Mr. Galarneau was stated to fully participate in a variety of sports in his Physical Education classes. Therefore, coupled with the evidence of his continued social interaction with his sister following the accident, as well as his own evidence of playing various sports at school and continuing to swim after the accident, I find that, within the first two years of the accident, Mr. Galarneau was not continuously prevented from engaging meaningfully in his pre-accident social and recreational activities.

I, therefore, find that, within 104 weeks of the accident, Mr. Galarneau’s impairments did not continuously prevent him from engaging in substantially all of his usual pre-accident activities, and on this ground alone, I find that he is not entitled to non-earner benefits.

Assuming, however, that Mr. Galarneau suffered the requisite degree of disability within the first two years of the accident, the question is whether he suffered the same degree of disability upon turning 16 years of age. While this is a somewhat more challenging question (since it requires a comparison of Mr. Galarneau’s activities at two different stages of his life), I nevertheless find that he has not shown that, upon turning 16, he experienced a complete inability to carry on a normal life as a result of the accident.

I am cognizant of the comments in Mulhall that a poor pre-accident academic record will not preclude entitlement to non-earner benefits if accident-related impairments continuously prevent a person from meaningfully pursuing their education, that because education is important in a young person’s life, it will be given particular attention in the analysis, and that a person’s post-accident activities must be compared with their pre-accident “potential and trajectory.” Here, the challenge is to compare Mr. Galarneau’s activities as a young adult to those when he was a young boy, and to determine if, as a result of the accident, he was prevented from meaningfully engaging in the activities he would likely have engaged in based on his circumstances at the time of the accident. As noted in Mulhall, the relevant areas of consideration are his school, work and social and recreational activities.

The issue of education is particularly important in Mr. Galarneau’s case since he dropped out of school at the age of 16. According to Dr. Misener, and based on his own evidence, this limited the employment options open to Mr. Galarneau. The question is whether Mr. Galarneau’s accident-related impairments prevented him from continuing with school, and thereby substantially altered his pre-accident potential and trajectory. I find that they did not.

Dr. Misener reported that Mr. Galarneau was incapable of returning to any form of employment due to pain, limited education, not having a driver’s licence and a general shortage of jobs in the area. While Mr. Galarneau’s fiancée testified that Mr. Galarneau complains of both jaw and back pain every day, there is no evidence that his jaw pain prevented him from working. The only evidence is that his back pain resulted in him quitting different jobs (as well as his not being able to play football, and potentially other sports, in high school). However, Mr. Galarneau did not state that his back pain started at the time of the accident. The only evidence potentially linking Mr. Galarneau’s back pain to the accident is a note by Dr. Wacker in late October 2001 that Mr. Galarneau had a “sore back on [and] off since [the] accident.” However, this note was made roughly two years after the accident, and the source of the information is unclear. The preponderance of evidence is that Mr. Galarneau’s back problems started approximately a year after the accident, of unknown origin, with no medical evidence establishing a connection between it and the accident. I conclude that his back pain was not related to the accident. There is also no evidence to suggest that Mr. Galarneau’s losing his driver’s licence was due to his accident-related impairments. And the shortage of jobs in Mr. Galarneau’s area is, of course, not related to the accident. The issue, then, is whether Mr. Galarneau’s limited education is due to his accident-related impairments. I find that it is not.

Dr. Misener reported that the prediction of a child’s educational development depends on their natural intellectual ability, their psychological adjustment, the educational attainment of their parents, and socio-economic factors. Dr. Misener opined that Mr. Galarneau experienced a significant setback to his potential career trajectory, and that, had the accident not happened, his academic difficulties would likely have resolved on their own, or with remedial support he would have been able to complete high school and move on to a technical programme at a community college. There are a number of problems with Dr. Misener’s opinion.

Dr. Misener stated that Mr. Galarneau’s academic problems were more pronounced after the accident. He suggested that this was largely, if not exclusively, due to the psychological adjustment problems Mr. Galarneau experienced as a result of the accident. However, Dr. Misener acknowledged that he was not in possession of Dr. Gelmych’s November 2000 and January 2001 reports, as well as Dr. Wacker’s September 2001 clinical note, all to the effect that Mr. Galarneau had experienced significant academic improvement, to at least pre-accident levels. He stated that it would have been important to have this information. Dr. Misener did not comment on the significant improvement reflected in Mr. Galarneau’s Grade 5 report card. Dr. Misener acknowledged that he was unaware of Mr. Galarneau’s disciplinary problems before the accident. He was also under the impression that Mr. Galarneau was not in need of any remedial support prior to the accident, although Dr. Gelmych’s May 17, 2000 clinical note indicates that Mr. Galarneau had received special education assistance and tutoring as of September 1999, roughly three months before the accident. I note, as well, that in Grades 5, 7 and 8, where Mr. Galarneau did not appear to be receiving remedial help, and despite the accident, Mr. Galarneau’s school performance remained at roughly his pre-accident level. This is also reflected in the 2004 (Grade 8) standardized aptitude test results. I am, therefore, not persuaded that Mr. Galarneau’s post-accident academic performance was materially affected by the psychological difficulties he experienced as a result of the accident.

However, even if it could be said that Mr. Galarneau’s post-accident emotional and cognitive difficulties were “problematic” for him, and “compromised” his academic progress (as stated by Dr. Misener), Dr. Misener failed to address the role played by the other three factors he identified in the prediction of a child’s educational achievement. He stated, for example, that a child’s scholastic success is closely correlated to their natural intellectual ability, and yet suggested that any academic problems Mr. Galarneau might have had prior to the accident would have “resolved spontaneously” had the accident not occurred. Dr. Misener also noted that the academic attainment of a child’s parents is also an important predictor, but failed to comment on the educational background of Mr. Galarneau’s parents. In this regard, Ms. Forget testified that she did not complete high school, and Dr. Gelmych’s November 13, 2001 clinical note reports Ms. Forget as saying that Mr. Galarneau’s biological father had “quit school in Grade 9.” Dr. Misener made no mention of any socioeconomic conditions affecting Mr. Galarneau’s progress in school or his decision to drop out when he turned 16. Ms. Forget testified that she gave him permission to drop out, and that when her son then began to work, he supported her with part of his paycheque. I find that Dr. Misener’s failure to address these matters significantly undermine his conclusion that the accident materially contributed to Mr. Galarneau’s failure to complete high school, thereby altering his anticipated pre-accident potential and trajectory.

I am also not satisfied that the evidence of Mr. Galarneau and his mother establish that the accident materially contributed to his decision to leave school. Both Mr. Galarneau and his mother suggested that he continued to experience social problems as a result of the accident in high school. While Mr. Galarneau testified that he continued to be teased about his injuries right up to high school, he did not say that this played a part in his decision to drop out of school. Ms. Forget testified that her son’s social problems worsened in high school. However, she did not give any examples of this, and her son did not state that this was the case. I am also unable to rely on Ms. Forget’s evidence of the extent of her son’s difficulties, given that she had understated her son’s academic difficulties prior to the accident, and overstated her son’s academic and social problems after the accident.

Mr. Galarneau testified that he ultimately left school because he could not read, he was not learning anything new, he got sick of going, and he could not sit for very long or participate in the football team due to his back pain. Ms. Forget said that her son eventually quit school out of frustration, because he could not understand the work. In three-and-a-half of the four-and-a-half academic years prior to Mr. Galarneau entering high school, his academic performance was at least as good as it had been prior to the accident. There is no suggestion that Mr. Galarneau’s academic difficulties after the accident were the result of any form of brain injury suffered in the accident. While Mr. Galarneau testified that he could not read, this is not reflected in his report cards, in particular his Grade 9 report card, which states that he “demonstrates a considerable understanding of texts read.”

It is true, however, that Mr. Galarneau’s reading skills remained problematic, as evidenced in the Grade 8 aptitude test, and that Mr. Galarneau’s overall grades did decline in Grade 9, as they did in the first half of Grade 10 (when he seems already to have decided to leave school upon turning 16, part way through Grade 10). However, there is no indication of any accident-related change in Mr. Galarneau’s life to explain this decline. The only difference seems to be the extent of assistance he received in class upon entering high school. While Mr. Galarneau did not appear to receive formal remedial support in the years leading up to high school (as he had in the academic year of the accident), his report cards frequently mention that he was able to grasp concepts and perform work “with assistance.” This comment no longer appears in his Grade 9 and 10 report cards. There is also no indication that Mr. Galarneau received remedial support to address the reading problems that were apparent towards the end of Grade 8 (and which had also existed prior to the accident). I find it reasonable to infer that the curriculum had become more demanding in high school, and that Mr. Galarneau was expected to do more of the work on his own. In addition, Mr. Galarneau identified his back pain as interfering both with his ability to sit while at school, and with his ability to participate in what was an important recreational activity for him, namely, playing on the football team. I find that these factors, and not those stemming from the accident, significantly affected Mr. Galarneau’s ability to participate meaningfully in his education and school life, and ultimately lead to his leaving school.

The decision to leave school was, of course, an important one, since it likely restricted the type of work Mr. Galarneau could do. He was, however, able to secure employment, and for the most part did well at this. Mr. Galarneau attempted to suggest to Dr. Misener that his back pain was the reason he did not continue at either Freshwater Construction or All Class Renovations. If this was in fact the case, it would not have been related to the accident. The only possible connection to the accident would be Mr. Galarneau’s not keeping up with his correspondence courses while at Freshwater Construction. However, the evidence does not establish that this was, in fact, the reason he was let go from that firm, and even if it were, there is no evidence that this was related to the impairments he suffered in the accident. Mr. Galarneau’s most recent position (cleaning grocery stores with a cleaning company) is also difficult for him, not because of the accident, but because of his back pain. Therefore, upon deciding to leave school, Mr. Galarneau was successful in obtaining employment, but has had difficulty in maintaining that work for non-accident-related reasons.

Mr. Galarneau experienced some substance abuse while in high school or shortly afterwards. However, the only evidence (from Mr. Galarneau and his mother) is that he began to use alcohol and marijuana to deal with his back pain. I am, therefore, not prepared to find that his substance abuse was related to the accident.

Ms. Forget attempted to suggest that her son does not participate in any forms of recreation and that he has become a loner. However, Mr. Galarneau stated that he dated a number of girls before he met his fiancée (with whom he now has both a step-daughter and son), that he has had close friends for a number of years, and that he socializes with them both in and out of his home (but mainly at home, due to his young children and his pain). Mr. Galarneau’s mother, his sister Kayla, and his fiancée Janey, all testified that he has done very well with his children and is very active with them. Ms. Dunn testified that, although Mr. Galarneau experiences considerable pain from work, he is able to assist with most of the household chores and (contrary to what Mr. Galarneau reported to Dr. Misener) is able to go hunting and fishing with his friends, as well as occasionally help them move. Therefore, I find that Mr. Galarneau’s accident-related impairments have not continuously prevented him from engaging meaningfully in either his pre- or post-accident social and recreational activities.

I, therefore, conclude that Mr. Galarneau has not, as a result of the accident, suffered a complete inability to carry on a normal life (either within 104 weeks of the accident, or upon turning 16 years of age), and is, therefore, not entitled to non-earner benefits.

Mr. Galarneau submitted that, even if he were found not to be entitled to non-earner benefits on substantive grounds, he would be entitled to those benefits on the basis of various procedural lapses by Allstate in processing his claim. For example, Mr. Galarneau maintained that Allstate had failed to comply with its obligations to promptly provide him with a written explanation of benefits available (as required under section 32(2) of the Schedule), to advise him of the basis of its denial of benefits (as required under section 37(6)), or to clearly and promptly advise him of his rights to engage the dispute resolution process (as required under section 49, as well as the Supreme Court of Canada’s decision in Smith v. Co-Operators General Insurance Company, 2002 SCC 30, [2002] 2 S.C.R. 129)).

Even if the alleged breaches occurred, they would not, in my view, entitle Mr. Galarneau to the benefits claimed. I rely on the case of Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, [2010] 103 O.R. (3d) 73 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada dismissed, without reasons, [2010] S.C.C.A. No. 334), where the Court of Appeal found, in part, that the failure of an insurer to provide adequate notice of the denial of income replacement benefits did not “automatically entitle the insured to payment of benefits. She was still required…to prove her claim.” I find that, even if the procedural breaches occurred as alleged, Mr. Galarneau would still be required to establish his substantive entitlement to non-earner benefits. A full hearing on this issue has now occurred, and I have found on all of the evidence that Mr. Galarneau is not so entitled. I, therefore, do not find that any procedural breaches by Allstate would entitle him to those benefits.

Mr. Galarneau argued that the case of Stranges was distinguishable from the present case in that it involved an adult, rather than a child, claiming benefits, and that based on the procedural breaches alleged in the present case, Mr. Galarneau had had no opportunity at all to pursue his claim. In my view, nothing turns on whether Mr. Galarneau was a child or adult at the time the claim arose. While perhaps not determinative, I note that Mr. Galarneau was represented throughout by both his litigation guardian (his mother) and counsel. In any event, I find the case of Stranges clear that, regardless of the breaches alleged, an applicant must ultimately establish their substantive entitlement to the benefits claimed at a full hearing on the merits of the issue.

Finally, Mr. Galarneau submitted that, even if he were not entitled to non-earner benefits on substantive or procedural grounds, he ought to be granted those benefits as a matter of justice and fairness. This argument was, essentially, a variation of his argument in respect of the procedural breaches allegedly committed by Allstate, and that given that those breaches had the effect of requiring a minor to address various issues well after the accident, the consumer protection principle underlying the no-fault benefits scheme (as enunciated in Smith v. Co-Operators) ought to entitle him to the benefits claimed. I do not accept this argument. I find that, in the absence of any substantive or procedural basis upon which to grant Mr. Galarneau benefits, I do not have the authority to order Allstate to pay those benefits. I note, in particular, that the Court in Stranges considered the case of Smith v. Co-Operators and found that the insured there was nevertheless required establish her substantive entitlement to the benefits claimed.

Finally, given my conclusion that Mr. Galarneau is not entitled to non-earner benefits, I find that there is no basis upon which to grant a special award or interest in this case.

EXPENSES:

The parties did not address the issue of expenses. If required, the parties may make submissions on this issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

September 18, 2013

Eban Bayefsky Arbitrator

Date