Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 234

FSCO A13-014331

BETWEEN:

DUNYA SHABO

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: May 17, 18, 20, 24, 25, 27, July 14, 2016 and March 29, 30 and 31, 2017, in Hamilton, Ontario.

Written submissions were received on April 14, May 5, and 19, 2017.

Appearances: Jonah Waxman for Ms. Shabo

Arthur R. Camporese for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Dunya Shabo, was injured in a motor vehicle accident on August 7, 2011. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Royal denied payment of other benefits and contests a finding that Ms. Shabo has suffered a catastrophic impairment as a result of the accident. The parties were unable to resolve their disputes through mediation, and Ms. Shabo 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:

1. Is Ms. Shabo catastrophically impaired as a result of the accident as defined in the Schedule at section 3(2) (f) in that she suffered an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, results in a class 4 impairment (marked impairment) due to mental or behavioural disorder?²

2. Is Ms. Shabo entitled to a special award in relation to the denial of the catastrophic impairment claim?

3. Is Ms. Shabo entitled to a non-earner benefit at the rate of $185 weekly from October 16, 2012 to date and ongoing?

4. Is Ms. Shabo entitled to an attendant care benefit at the rate of $991.59 monthly from October 16, 2012 to September 13, 2014 and then at the rate of $3491.57 monthly from September 14, 2014 to date and ongoing?

5. Is Ms. Shabo entitled to housekeeping benefits at the rate of $100 weekly from August 8, 2011 to date and ongoing?

6. Is Ms. Shabo entitled to the following medical benefits?

• $1933 for a speech language pathology assessment as per an OCF-18 dated November 18, 2011

• $843.27 for a weight loss program as per an OCF-18 dated June 22, 2012

7. Is Ms. Shabo entitled to interest on any overdue payments in accordance with the Schedule?

8. Are the parties entitled to their expenses?

Result:

1. Ms. Shabo is not catastrophically impaired as a result of the accident as defined in the Schedule at section 3(2) (f) because she did not suffer an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, results in a class 4 impairment (marked impairment) due to mental or behavioural disorder.

2. Ms. Shabo is not entitled to a special award in relation to the denial of the catastrophic impairment claim.

3. Ms. Shabo is not entitled to a non-earner benefit.

4. Ms. Shabo is entitled to a monthly attendant care benefit of $364.67 from September, 2012 to September 2013.

5. Ms. Shabo is not entitled to housekeeping benefits.

6. Ms. Shabo is not entitled to medical benefits for a speech language pathology assessment or for the weight loss program.

7. Ms. Shabo is entitled to interest on the amounts owing in accordance with the Schedule.

8. Each party shall each bear its own expenses.

EVIDENCE AND ANALYSIS:

Ms. Shabo was a rear seat passenger in a motor vehicle travelling to Niagara Falls that rear-ended a bus. The accident was serious enough that Ms. Shabo’s injuries included a fractured right femur, which required surgery, a fractured left thumb and a hernia at L4-L5. As a result, her mobility was limited for a time with six months in a wheelchair, crutches for another four or five and then the use of a cane for over a year.

While her physical injuries healed, Ms. Shabo continues to experience pain and has had ongoing psychological difficulties both of which are the bases for her additional claims.

Given that both Ms. Shabo’s pre- and post-accident history and activities are relevant to her claims for a catastrophic impairment designation and a non-earner benefit, I summarise some of the evidence in that regard here.

Pre- and post-accident history and activities

Ms. Shabo has lived in Canada since 2008, first in Windsor with immediate family and then in Hamilton after her marriage. Upon arrival she pursued ESL training and eventually achieved a reasonable level of facility in English in 2010. She obtained her first job also at this time and worked in a greenhouse as a picker and packer for one month. After her February 2011 wedding, she and her husband went to Mexico for their honeymoon and enjoyed activities such as dancing and scuba diving. As for recreational activities generally, Ms. Shabo attended church, went shopping and attended aerobics/Zumba classes at the local YMCA. She obtained her G2 licence in May 2011. In August 2011, her husband purchased a used car with a view to facilitating her search for a job. She was involved in the accident a few days later.

Since the accident, Ms. Shabo has not worked and has not pursued further education. She failed her citizenship exam in September 2012 but then passed it one year later with assistance. She obtained her full G licence in 2013 with the assistance of a trainer but she has not driven a car since then. She and her husband have attempted to have a child but Ms. Shabo was treated unsuccessfully for infertility in 2012 and 2013. Ms. Shabo was approved for ODSP in May 2013.

Ms. Shabo’s recreational activities have decreased. She continues to visit family in Windsor, travelling by public transit, and visiting the mall with friends but she does not experience as much pleasure in these activities as before. She goes shopping. She spends a lot of time watching TV. She stopped going to the gym or attending church on a regular basis. She is depressed and irritable. She testified that no longer feels capable of working or caring for the household.

Catastrophic impairment under 3(2) (f):

Ms. Shabo claims that she suffered a catastrophic impairment as a result of the accident as defined in the Schedule at section 3(2) (f) in that she suffered an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, results in a class 4 impairment (marked impairment) due to mental or behavioural disorder.

In order to be successful in that claim, Ms. Shabo must show that she is significantly impeded in useful functioning in one area of function due to a mental or behavioural disorder. The parties do not dispute that Ms. Shabo sustained a mental or behavioural disorder as a result of the accident. They also agree that in three of four areas of function she has a moderate impairment.

The parties disagree only in one aspect: Ms. Shabo claims that she has a marked impairment in the area of function described as “deterioration or decompensation in work or work-like settings”; Royal asserts that Ms. Shabo’s impairment in this area is no more than moderate.

I find that Ms. Shabo does not have a marked impairment in any area of function and therefore has not sustained a catastrophic impairment as a result of the accident.

Where it is agreed that Ms. Shabo sustained a mental or behavioural disorder as a result of the accident, the analysis then focuses on what is the impact of the mental or behavioural disorder(s) on her daily life and, in view of the impact, what is the level of impairment? ³

The preponderance of the evidence before me shows the following to be some of the impacts on Ms. Shabo’s daily life:

She has been prescribed medication for depression by her family doctor since October 2011 and engaged in psychological counselling from 2012 to 2013.

She was approved for ODSP in May 2013.

Although she has her full G license, she does not drive due to anxiety.

She and her husband have a fractious relationship as a result of the continuing consequences of the accident. He was also injured in the accident and both have pain issues and low mood. They sleep separately and argue a lot.

There was some evidence that Ms. Shabo attempted to harm herself, once with a knife but her husband stopped her and another time she contemplated an overdose of her pain medication but the thought of her mother prevented her from following through.

She is less able to take care of the household and does not cook very much. She had assistance from Zinah, a friend from ESL classes, every day for a year after the accident. That assistance tapered off to twice per week for a year, and then no assistance for 15 months. Since March 2015, Zinah assists her once per week for 3-4 hours.

It is clear from the evidence that Ms. Shabo’s mental or behavioural disorder has had an impact on her daily life. In view of these impacts, what is her level of impairment? Royal’s assessment team concluded that Ms. Shabo was only moderately impaired in the area of “decompensation in a work or work-like setting” whereas Ms. Shabo’s assessment team found her to have a marked impairment.

Dr. Velikonja’s Catastrophic Impairment Psychological Assessment Report of February 2015⁴, on which Ms. Shabo relies, presents a diagnosis of Pain Disorder associated with both psychological factors and a general medical condition. Dr. Velikonja also finds Major Depressive Disorder, Adjusment Disorder with Anxiety, and PTSD in relation to the accident.

Dr. Velikonja and her team gathered information from Ms. Shabo and from other medical reports to consider the impact of the mental or behavioural disorders on Ms. Shabo’s daily life. They also reviewed the findings of the occupational therapist who assessed Ms. Shabo’s functioning through an interview and situational assessment.⁵

I find that the conclusions of Dr. Velikonja’s team and relied on by Ms. Shabo are incongruent with the preponderance of the other evidence and with some of the team’s own observations about the impact of the disorders on Ms. Shabo’s daily life. As a result, I am not satisfied that Ms. Shabo has a marked impairment in the area of “decompensation”.

In assessing function and level of disability in “decompensation”⁶, Dr. Velikonja repeats for consideration many aspects of function that were dealt with in the other three domains and where she found only a moderate impairment. In addition, Dr. Velikonja appears to analyze Ms. Shabo’s abilities or limitations based on Ms. Shabo’s feelings about how she would perform under stress or in a work-like setting. There is in fact no objective evidence before Dr. Velikonja, or me for that matter, about Ms. Shabo’s abilities to cope with work either before or after the accident. But there is objective evidence, some of it Ms. Shabo’s own evidence that refutes the conclusions about her being significantly impeded in useful functioning in a work or work-like setting.

For example, Dr. Velikonja considers as significant Ms. Shabo’s deficits with respect to sustained concentration and persistence in this domain but has already determined her to be moderately impaired in this regard in considering the domain of concentration, persistence and pace. While she also notes that Ms. Shabo had to complete the cognitive testing over 2 days rather than the usual one, and needs to take breaks frequently, these challenges are not sufficient to constitute a significant impediment. The concern that Ms. Shabo’s physical pain would limit her ability to be on time and be consistent with attendance is not borne out in any other evidence. Ms. Shabo has attended many assessments and appointments over the years and I was not directed to any significant problems in her attendance or punctuality. None of the assessors ever remarked on any significant limitations in her ability to sit and talk and her participation in an examination.

The concerns expressed about Ms. Shabo’s limitations having a negative impact on her workplace interactions were not supported by some of Ms. Shabo’s own statements in the assessment - she did not express any significant concerns with respect to interacting with the general public or colleagues but worried instead that she would not handle criticism well.

There was also a concern expressed about Ms. Shabo’s understanding and memory deficits and that without some support these challenges could present some difficulty to her. Again, the requirement for some level of support with a return to work for a person with so little work experience, is not sufficient to constitute a marked impairment.

Finally, the area of adaptation was explored as relevant to Ms. Shabo’s ability to respond appropriately to changes in the work setting. Ms. Shabo’s performance of the tasks in the situational assessment showed that she has some limitations. But the effect of these limitations does not amount to a significant impediment to her ability to function in a work or work-like setting. She did 50% of the sorting tasks in 18 minutes. It took her 45 minutes to make an omelette rather than the expected 30. She required cueing and had to re-read some instructions and had some low physical tolerances. Generally, she was capable of performing the tasks with more time to accommodate her limitations.

Dr. Velikonja observed that she is highly anxious and distressed and she would therefore find it difficult to navigate both psychologically and physically in a work environment. Again, the evidence about Ms. Shabo’s capabilities in this regard does not indicate that she is markedly impaired in navigating situations that cause her some anxiety. With respect to passenger anxiety, she has used public transit to travel form Hamilton to Windsor. Dr. Velikonja concluded that Ms. Shabo’s source of notable stress was her not receiving any services or supports because of the lack of available funds⁷ when her paid psychological therapy was ending, but there is also evidence that Ms. Shabo was ready to put some of her learned coping skills into practice, and she declined publicly-funded group therapy for personal reasons. She appeared capable of coping with the absence of such psychological support.

Regarding her vocational aspirations, Dr. Velikonja noted that it was difficult for Ms. Shabo to find employment before the accident because of her limited education and job experience. Ms. Shabo worried that these limitations combined with her accident related impairments will make it difficult to find employment. But she also expressed an interest in receiving vocational supports to explore career possibilities that would accommodate her specific limitations⁸ in my view demonstrating self-awareness and an ability to understand and manage her limitations.

An examination of the GAF score that Dr. Velikonja assigned to Ms. Shabo also demonstrates a moderate impairment more than a marked one. In fact, a comparison of GAF⁹ scores also assists with teasing out the perceived limitations to Ms. Shabo. Dr. Saracino, in 2013 found a GAF of 60 whereas in 2015 Dr. Velikonja found little difference with a score of 55. Even at 55, the GAF scale itself considers the described symptomatology as moderate symptoms of impairment: moderate symptoms include flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). Ms. Shabo demonstrated more of these types of symptoms than she did those of a marked impairment rating in the GAF scale.

The evidence about the actual impact of the mental or behavioural disorder on Ms. Shabo’s everyday activities is not sufficient to indicate that she has been significantly impeded in useful functioning. There is no doubt that she has limitations and must pace herself in activities, but these limitations amount to a moderate impairment as opposed to a marked impairment. As such, Ms. Shabo has not sustained a catastrophic impairment as a result of the accident.

Special award related to catastrophic impairment assessment

As I conclude that Ms. Shabo has not sustained a catastrophic impairment and find no fault with the assessment conducted by Royal in this regard, there is no special award payable.

Non earner benefit

Law

The NEB that Ms. Shabo seeks has as its purpose to provide compensation to persons who have suffered a severe diminution in their overall quality of life¹⁰. The legal test that Ms. Shabo must meet to be entitled to the benefit is that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.¹¹ The Schedule says that this means that I must be satisfied that Ms. Shabo was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident¹².

The jurisprudence of the Courts and the Commission tells arbitrators to compare pre- and post-accident activities¹³ and assess the degree to which the insured has been prevented from engaging in those activities. Whether the insured is “engaging in” activities is to be interpreted from a qualitative perspective with (i) all activities being considered but important activities given greater weight and, (ii) where pain is the primary factor, examining whether the degree of pain practically prevents the insured from engaging in the activities.

Change in activities post-accident

Ms. Shabo seeks a non-earner benefit because she claims that her life has changed so significantly that she now has a complete inability to carry on a normal life. Many of the changes Ms. Shabo alleges have already been noted herein.

Ms. Shabo’s mother testified that her daughter has changed especially in terms of her social circle and her marital life. Her mother visits now and assists with some personal care and housekeeping. She has witnessed arguing between Ms. Shabo and her husband.

Ms. Shabo’s husband testified that his wife is constantly tired and agitated and in pain. He confirmed that she has travelled to Windsor to see her family and that her friends visit on occasion and they go to the mall but has little information about the nature of their relationships.

Ms. Shabo’s friend Nita has known her for more than six years and testified that after the accident she walks slower, gets tired quicker and is more withdrawn, nervous and sad. She doesn’t take care of herself like before and has gained a lot of weight.

Dr. Velikonja’s catastrophic report echoes many of these post-accident changes even in early February 2015. Ms. Shabo told Dr. Velikonja that she sometimes skips a shower and doing her makeup because she is not motivated. She has to sit down to put on pants and underwear and this exacerbates her pain. She asks her friend to help her do her hair regularly.¹⁴

Ms. Shabo reported to Dr. Velikonja that with respect to household tasks, she has modified how she completes them, takes frequent breaks, paces herself and gets help from her husband. She can do light cleaning and cooking. She used a swiffer to clean floors, and she dusts but not when she needs to bend down low. Her husband helps with cleaning the bathtub and toilet when her pain levels are up. She avoids some of these activities when her mood is low.

Ms. Shabo submits that she had a clear plan to return to the work force and was looking to return to school by obtaining her licence and buying a car. Beyond these two facts, however, there was not sufficient other evidence to show a clear plan. Because she did not work pre-accident, except for one month, she was responsible for most of the household chores. There is some evidence that, post-accident, Ms. Shabo does fewer of the household tasks and has some limited assistance with heavier tasks and with some minimal personal care.

Medical Evidence

The medical evidence regarding Ms. Shabo’s psychological state within 104 weeks of the accident provides useful and significant context to the anecdotal evidence about her daily activities.

Dr. Saracino, psychologist, treated Ms. Shabo following the accident for approximately one year, from May 2012 to July 2013. Dr. Saracino’s progress report¹⁵ and the subsequent clinical session notes¹⁶ show a real improvement in Ms. Shabo’s cognitive abilities, her degree of depression and her level of anxiety.¹⁷ For example, both scores for depression and anxiety improved from severe to moderate between June 2012, the first report, and May 2013. Though Ms. Shabo still had challenges cognitively in terms of concentration, sustained attention and short term memory, she had become better able to cope using some of the strategies learned in treatment and would not likely require ongoing support in this respect. Moreover, the clinical notes of her last sessions with Dr. Saracino¹⁸ indicated that Ms. Shabo would not likely seek out publicly funded supports (her accident benefits had been exhausted) without trying to manage independently with the skills she had learned in treatment. Nevertheless, the July 30, 2013 note indicates that public services are being coordinated through her GP. This improvement in her psychological state and her willingness to confront her challenges using the skills she had acquired in treatment indicates that Ms. Shabo felt able to cope to a significant degree during the two years post-accident.

Conclusions regarding pre- and post-accident activities comparison

The changes from pre- to post-accident activities must amount to the insured being continuously prevented from engaging in substantially all of the activities, with continuously meaning “uninterrupted”. I find that there is insufficient evidence that after the accident Ms. Shabo was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

There is insufficient evidence of the kind of compromise in activities that is expected to qualify an insured for non-earner benefits. There is evidence of limitation in some activities, decreased activity and decreased tolerances for certain activities but these limitations in her activities are not changes that are sufficient to meet the NEBs test.

Is Ms. Shabo entitled to a non-earner benefit?

Ms. Shabo is not entitled to a non-earner benefit as a result of the accident because a comparison of her pre- and post-accident activities taken together with the preponderance of the medical evidence does not show that she suffered a complete inability to carry on a normal life within 104 weeks after the accident.

Attendant Care Benefits

Royal paid attendant care benefits to Ms. Shabo until October 16, 2012. Royal accepted that Ms. Shabo’s husband and a friend, Zinah, had provided attendant care to Ms. Shabo (because Ms. Shabo had been in a wheelchair and then required crutches in the year following the accident), and also accepted that the expenses for attendant care had been incurred. Royal terminated benefits based on an occupational therapy assessment dated September 28, 2012¹⁹ that found Ms. Shabo capable of functioning and performing her own pre-accident self-care.

Ms. Shabo asserts that she requires attendant care to this day and ongoing because she continues to experience limitations in her ability to care for herself and perform activities in her home.

I find that the preponderance of the evidence only supports a claim for very limited further attendant care benefits. The evidence indicates that by late 2012 Ms. Shabo required much less assistance than before and was receiving much less assistance because, in part, her capabilities had increased substantially.

Ms. Shabo’s own assessor for the occupational therapy assessment report²⁰ found her mostly independent in respect of her mobility, and generally normal in terms of range of motion²¹ even though she still had pain. The total number of hours recommended for attendant care demonstrates that Ms. Shabo was virtually independent in most self-care activities though she lacked the range of motion to bend over and put on socks/shoes, shave her legs and give herself a pedicure. Most of the other tasks identified were more in the nature of housekeeping tasks such as preparing food, cleaning the bathroom and changing sheets.

These limited needs were corroborated by the evidence of Zinah who testified that she was only attending Ms. Shabo’s home twice per week for 3-4 hours each day. Zinah did not attend Ms. Shabo at all from January 2014 until March 2015 and since then has only attended once per week for 3-4 hours each time. Much of the other time allotted by the assessor appears to be assistance with walking, exercising and some supervision, needs that were not identified by Ms. Shabo herself or most other assessors therefore I am not satisfied on the evidence that such assistance was necessary.

Given the evidence, I find it reasonable to allow some of the attendant care assessed in the OT report of September 2012 for one year, until September 2013, for the routine personal care which still challenged Ms. Shabo because of her decreased range of motion. Zinah’s evidence of her attendance twice per week until late 2013 supports Ms. Shabo’s more pressing personal needs at this time.

Using the calculation of the OT, the total time assessed for personal grooming care was 70 minutes per week²². The total time assessed for assistance with food preparation was 315 minutes per week. Using the calculation chart within the report²³, the total monthly attendant care benefit for these tasks is $363.93. Again, using the calculation of the OT, the total time and assistance with bedding is 10 minutes per week. Using the calculation chart within the report, the total monthly attendant care benefit for this task is $0.74. Therefore, the total monthly attendant care benefit is $364.67, payable for twelve months from September 2012 to September 2013.

In conclusion, Ms. Shabo is entitled to a monthly attendant care benefit of $364.67 from September, 2012 to September 2013.

Housekeeping Benefits

The Schedule requires an insurer to pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. ²⁴

Given my finding that Ms. Shabo did not sustain catastrophic impairment as a result of the accident, she is not eligible to receive this benefit.

Medical Benefits

Is Ms. Shabo entitled to the following medical benefits?

• $1933 for a speech language pathology assessment as per an OCF-18 dated November 18, 2011

• $843.27 for a weight loss program as per an OCF-18 dated June 22, 2012

The onus is on the applicant to show that the expenses for the claimed treatment plans are reasonable and necessary as a result of the accident. I heard no evidence during the course of the hearing directed to the reasonableness and necessity of the speech language pathology assessment. It is not clear to me why Ms. Shabo requires such a specific assessment nor is it clear how such assessment relates to any issues she might have arising from the accident.

In relation to the expenses for the weight loss program, I fail to see how these expenses are reasonable and necessary to treat injuries arising as a result of the accident. While I heard evidence that Ms. Shabo gained weight after the accident, I heard no evidence about the efficacy of this proposed weight loss program, and why such program was reasonable and necessary as a result of the accident. As such, Ms. Shabo has failed to show that these expenses are payable under the Schedule.

EXPENSES:

Each party shall each bear its own expenses.

September 5, 2017

Rosemary Muzzi Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 234

FSCO A13-014331

BETWEEN:

DUNYA SHABO

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Ms. Shabo’s claim for a catastrophic impairment designation is dismissed.

2. Ms. Shabo’s claims for housekeeping benefits is dismissed.

3. Ms. Shabo’s claim for a non-earner benefit is dismissed.

4. Royal shall pay Ms. Shabo a monthly attendant care benefit of $364.67 from September, 2012 to September 2013.

5. Royal shall pay Ms. Shabo interest in accordance with the Schedule on the amounts owing.

6. Ms. Shabo’s claims for medical benefits for a speech language pathology assessment and the food associated with a diet program are dismissed.

7. Each party shall bear its own expenses.

September 5, 2017

Rosemary Muzzi Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2In the event of a positive finding, the parties have agreed that five specific treatment plans, not in issue at this arbitration, are to be funded.
3. 3Mujku and State Farm Mutual Automobile Insurance Company (FSCO A10-002979, November 14, 2013)
4. 4Exhibit 19
5. 5Exhibit 23
6. 6Exhibit 19, pages 26-30
7. 7Exhibit 19, page 13
8. 8Exhibit 19, page 18
9. 9Exhibit 40. This scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness.
10. 10Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 (20120724) and Walker v. Ritchie 2003 CanLII 90084 (ON SC), [2003] OJ No.5596 at paras 41-31. The non-earner benefit, if it is akin to any head of damages in a court action, is akin to non-pecuniary or general damages.
11. 11Section 12(1) of the Schedule provides for a three-part test
12. 12Section 2(4) of the Schedule
13. 13Heath v. Economical Mutual Insurance Company, [2009] O.J. No. 1877, 2009 ONCA 391, 2009 CarswellOnt 2443 (May 11, 2009)
14. 14Exhibit 19, page 17
15. 15Exhibit 6 – dated May 2013
16. 16Exhibit 6
17. 17Exhibit 6, pages 3-4
18. 18Exhibit 61
19. 19Exhibit 25
20. 20Exhibit 21
21. 21Exhibit 21, pages 5-8
22. 22Exhibit 21, Form 1, page 2 of 6
23. 23Exhibit 21, Form 1, page 6
24. 24Section 23