Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260
1-800-255-2214
TTY: 416-916-0548
1-844-403-5906
Fax: 416-325-1060
1-844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260
1 800 255-2214
ATS : 416 916-0548
1 844 403-5906
Téléc. : 416 325-1060
1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
Date: 2017-07-06
Tribunal File Number: 16-000347/AABS
Case Name: 16-000347 v Intact Insurance Company
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
H. W.
Applicant
and
Intact Insurance Company
Respondent
ADJUDICATOR: Jeanie Theoharis
APPEARANCES:
For the Applicant: H. W. Ron Folkes, Counsel
For the Respondent: Matthew Kennedy, Representative Nan Diaram O’Reilly, Counsel
HEARD: in Brampton on March 7, 8, and 10, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW:
H.W. (the “applicant”) was injured in an automobile accident on January 29, 2015, and seeks non-earner benefits from December 31, 2015 and ongoing pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
The respondent initially paid the non-earner benefit. In late September, the respondent requested that the applicant attend multiple insurer’s examinations to determine her continued eligibility for the non-earner benefit. Based on a review of the insurer’s examinations, the respondent denied the benefit on November 11, 2015 and stopped paying on December 30, 2015, indicating that the applicant does not suffer a complete inability to carry on a normal life as a result of her accident related injuries, as required by the Schedule.
The applicant submits that, despite her prior health and disability circumstances, the accident has caused her to not be able to engage in a substantial number of the activities that she could engage in prior to the accident, and that the pain she experiences practically prevents her from engaging in those activities. The respondent submits that the applicant is able to participate in and enjoy a substantial number of the activities she engaged in prior to the accident, and that the modified manner in which she is engaging in them does not amount to a complete inability to continuously engage in the activities.
The evidence showed that the applicant is not continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged in before the accident. Therefore, I find that she is not entitled to a non-earner benefit because she did not establish that as a result of her accident related impairments she suffers a complete inability to carry on a normal life.
LAW:
Section 12(1)1 of the Schedule sets out the test for the non-earner benefit and requires an insurer to pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person “suffers a complete inability to carry on a normal life as a result of…the accident.” (emphasis added)
In turn, s. 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as follows:
a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident