COURT OF APPEAL FOR ONTARIO
CITATION: Martin v. TD General Insurance Company, 2013 ONCA 331
DATE: 20130523
DOCKET: C54889
Feldman, Tulloch and Lauwers JJ.A.
BETWEEN
Melissa Martin
Plaintiff/Respondent
and
TD General Insurance Company
Defendant/Appellant
Dwain C. Burns and Jennifer Matic, for the appellant
Jane Poproski, for the respondent
Heard and released orally: May 3, 2013
On appeal from the judgment of Justice John Cavarzan of the Superior Court of Justice, dated December 16, 2011.
ENDORSEMENT
[1] The appellant insurer challenges two findings made by the trial judge: 1) that the respondent qualified for the non-earner SABS benefits following her car accident on August 16, 2003, and 2) that the benefits should be payable for four years following the accident. The respondent cross-appeals on the issue of the duration of her entitlement, claiming that it is ongoing and should not have been limited to four years following the accident.
[2] The test for non-earner benefits entitlement is set out in s. 12(1)1 of the Statutory Accident Benefits Schedule: Part III of O. Reg. 403/96 under the Insurance Act, which provides:
12.(1)1 The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:
- The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
[3] There is no appeal of the trial judge’s finding that the respondent did not qualify for an income replacement benefit. The appellant challenges the trial judge’s finding that the respondent suffered “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.”
[4] The trial judge made his findings at paras. 76-82 of his reasons. Applying the test set out by Simmons J.A. in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, he concluded at paras. 82-83:
I find that in the immediate post-accident period it cannot be said that the plaintiff “engaged in” most of her pre-accident homemaker and recreational activities. Pain prevented her from doing so. In my view, the plaintiff met the criteria for entitlement to the NEB. It remains only to determine the period for which the NEB must be paid.
[5] The issue of the effect of post-accident employment was discussed and decided by this court in the case of Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508. The trial judge only had the trial decision in that case to consider. Based on this court’s decision in Galdamez, the fact that the respondent was employed following the accident does not disqualify her from receiving non-earner benefits if she otherwise qualifies.
[6] The respondent argues that the trial judge erred by using the post accident job that she held for approximately two years at the Avondale convenience store as a point of comparison under the Heath test. The respondent says that because she did not have that kind of job before the accident, it is not something that can be properly compared to her pre-accident activities under the Heath formula.
[7] We do not accept this submission. The trial judge did not err in considering the post accident job not as a disqualifying factor for non-earner benefits (Galdamez), but as a point of comparison in the respondent’s pre-accident and post accident activities. The test is found at para. 50 of Heath:
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. This follows from the language of the section as well as a review of the predecessor provisions.
[8] The respondent’s approach would force the court to ignore significant post accident activities in the analysis that show her level of functioning. In order for the Heath test to be workable, it is necessary for the court to factor into the analysis, any significant post accident activities.
[9] Having 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 the deference of this court. The first ground of appeal is therefore dismissed.
[10] The second issue raised by both parties is the duration of the payment period of the benefits. The appellant says that the trial judge had no basis on the evidence to extend the benefits to 4 years following the accident. Three assessments done in late 2005 that the trial judge accepted found that at that time the respondent was not substantially disabled from carrying on her usual daily activities. This represented “a significant improvement in the plaintiff’s ability to conduct her pre-accident activities including full-time employment.”
[11] The respondent was later assessed by Dr. Challis in January 2008. His assessment confirmed the findings in the 2005 assessments. The trial judge concluded, based on all these assessments, that the respondent no longer qualified for the non-earner benefit after 4 years following the accident.
[12] In our view, the evidence relied on by the trial judge justifies payment of the non-earner benefit only up until the end of November 2005, i.e for 2 years and 3.5 months following the accident.
[13] The appeal will be allowed to that extent and the amount of the judgment will be reduced accordingly. The cross-appeal will accordingly be dismissed.
[14] In light of the divided success, there will be no costs of the appeal.
“Kathryn Feldman J.A.”
“M. Tulloch J.A.”
“P. Lauwers J.A.”