CITATION: Traders General Insurance Company v. Rumball, 2022 ONSC 7215
DIVISIONAL COURT FILE NO.: DC-20-00000231
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Traders General Insurance Company
Appellant
– and –
Shelley Rumball
Respondent
Eric K. Grossman and Patrick M. Baker, for the Appellant
A. Fabio Longo and James Armstrong, for the Respondent
HEARD: May 10, 2022
REASONS FOR DECISION
EDWARDS R.S.J., LEDERER and DAVIES JJ.:
OVERVIEW
[1] The Appellant Traders General Insurance Company (“Traders”) appeals from the Preliminary Issue Decision of Adjudicator Ferguson of the Licence Appeal Tribunal (the “LAT”) dated February 5, 2018, which found that the Respondent Shelley Rumball’s application for income replacement benefits (“IRBS”) was not statute-barred because the two-year limitation period had not begun to run (the “Preliminary Issue Decision”). Traders argues that Adjudicator Ferguson erred in law by holding that Traders’ letter terminating benefits was not clear and unequivocal. Traders seeks an order setting aside the Preliminary Issue Decision and declaring that Ms. Rumball’s application for IRBS is statute-barred by operation of the two-year limitation period under the Schedule.
[2] Ms. Rumball cross-appeals from the decision of Adjudicator Thérèse Reilly dated July 24, 2020 (the “Decision”) and the reconsideration decision of Adjudicator Reilly dated February 3, 2021 (the “Reconsideration Decision”). The decision found that Ms. Rumball was entitled to IRBS for the 104 weeks following the accident but dismissed her claim for IRBS from December 29, 2016, onwards. Adjudicator Reilly dismissed Ms. Rumball’s request for reconsideration, upholding the decision. Ms. Rumball argues that Adjudicator Reilly made several errors of law, including applying the wrong legal test, making factual findings in the absence of evidence, and substituting her own opinion for uncontroverted medical evidence.
[3] For the reasons set forth below, Traders’ appeal of the Preliminary Issue Decision as it relates to the limitation issue is dismissed. The cross-appeal of Ms. Rumball is also dismissed.
FACTS
[4] Shelley Rumball was involved in a motor vehicle accident on December 28, 2014, and applied for statutory accident benefits from her insurer, Traders, under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, which are colloquially referred to as the “SABS”. Ms. Rumball submitted a Disability Certificate (“OCF-3”) on January 23, 2015, and an Employer’s Confirmation Form (“OCF-2”) on February 23, 2015, claiming IRBS. Ms. Rumball worked as an educational assistant prior to the accident. She returned to work on February 25, 2015.
[5] By letter dated March 4, 2015 (the “March 2015 letter”), Traders advised Ms. Rumball that it would pay her IRBS from January 4, 2015, to February 25, 2015.
[6] Ms. Rumball stopped working again on May 31, 2015. She asserts that she has been unemployed ever since. Prior to the accident, Ms. Rumball had opened a wedding planning business in 2014. She had four weddings booked for 2015. Ms. Rumball asserts that after the accident, she was unable to sustain this work and while she completed those contracts, she was only able to do so with the help of family members. Ms. Rumball claims that she made no profit from these contracts, nor did she earn any profit from her wedding planning business prior to the accident.
Ms. Rumble Applies for Dispute Resolution - the Adjudicator’s Decision
[7] Ms. Rumble submitted a second claim for IRBs on June 13, 2017. The June 13, 2017 OCF-3 (disability certificate) was not actually submitted to Traders until October 26, 2017. On July 17, 2017, more than two years after the March 2015 letter, Ms. Rumball applied to the LAT seeking an order that Traders pay IRBS from May 31, 2015 onwards.
[8] There are two statutory tests for entitlement to IRBS depending on the period in question. Pre-104 IRBS requires the insured person to establish that they were employed at the time of the accident and within the 104-week period after the accident, they suffered a “substantial inability to perform the essential tasks of their pre-accident employment.” Post-104 IRBS requires the insured person to establish that they suffer from a “complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience”. Ms. Rumball sought both pre-104 IRBS and post-104 IRBS.
Traders’ Appeal -The Procedural History and the Limitation Issue
[9] Following a request made by Traders, the Licence Appeal Tribunal held a preliminary hearing into whether the application was statute-barred. Section 56 of SABS provides:
An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. [Emphasis added.]
[10] Traders submitted that the March 2015 letter was a refusal of the claim. Traders argued that because July 2017 was in excess of two years later, the request for an income replacement benefit was out of time. The Licence Appeal Tribunal did not agree. The applicable test was that the refusal had to be “clear and unequivocal”. The March 2015 letter included the following:
As per Section 37 (2) (e) of the Statutory Accident Benefits Schedule (SABS), we are therefore determining your IRB effective February 25, 2015 as you have resumed your pre-accident employment duties. Should you be off work again due to the injuries sustained as a result of the subject motor vehicle accident, we would require an updated Disability Certificate (OCF-3) to determine your eligibility. Per Section 36 (2) (3) of the SABS an applicant for a specified benefit shall submit a completed Disability Certificate (OCF-3) that indicates you meet the disability test. There is no entitlement to benefits for any period before the updated Disability Certificate is submitted.
Should you wish to dispute this decision please refer to the Applicant’s Rights to Dispute on the following pages. Your first step is to apply for mediation. Should you require information regarding your rights to dispute or the appropriate forms please do not hesitate to contact the writer. Please ensure you initiate your dispute within TWO YEARS.
[11] The LAT concluded this was not a “clear and unequivocal” termination of the income replacement benefit Shelley Rumball had received. The letter left open the proposition that with a further completed Disability Certificate, a further entitlement could be recognized. Traders appealed this ruling to the Divisional Court. The court determined that the appeal was premature (Traders General Insurance Company v Rumball, 2019 ONSC 1412). Traders had sought a reconsideration by the LAT which had not, at the time the matter came to the Divisional Court, been determined.
[12] The matter proceeded to a hearing on the merits. In a decision dated July 24, 2020, Adjudicator Reilly held that Ms. Rumball was entitled to pre-104 IRBS in the weekly amount of $80.28 from May 30, 2015, to December 28, 2016. Adjudicator Reilly dismissed the claim for post-104 IRBS from December 29, 2016.
[13] Adjudicator Reilly held that Ms. Rumball had established that from May 30, 2015, to December 28, 2016, her physical injuries and psychological impairments were such that she was unable to perform the essential tasks of her pre-accident employment. She was accordingly entitled to pre-104 IRBS. This conclusion has not been appealed.
[14] Adjudicator Reilly held that Ms. Rumball did not satisfy the more stringent post-104 test which required her show “a complete inability to engage in any employments or self-employment for which he or she is reasonably suited by education, training, or experience”. Schedule, s. 6(1).
[15] The Adjudicator noted that Ms. Rumball was trained as a wedding planner and that some of her projects were still active in mid-2017. She also noted that Ms. Rumball had provided no evidence of any other attempts to return to this wedding planning work or other alternative work beyond 2017. Adjudicator Reilly referred to evidence that Ms. Rumball’s condition was showing signs of improvement and that doctors’ notes from January 2017 referred to Ms. Rumball acting as a caregiver for her terminally ill father, serving as “evidence of an ability to perform caregiver activities.”
[16] Ms. Rumball relied on medical reports from Dr. Ta and Dr. Waisman, both psychiatrists. They opined that Ms. Rumball was unable to return to any employment. However, Adjudicator Reilly noted that the reports of Drs. Ta and Waisman were “limited in time, application and scope as they assessed the applicant in October and November 2017, and neither obtained a detailed work history from the applicant enabling them to assess her employment.”
[17] The Adjudicator noted the evidence that in March 2018, Ms. Rumball began volunteering in a retail environment (a consignment store) and that this provided evidence of some functional ability to work in a retail setting.
[18] Prior to the accident, Ms. Rumball had volunteered at a camp for the deaf. The Adjudicator found that Dr. Ta’s evidence that Ms. Rumball was unable to work in any capacity was “not consistent with the evidence including the applicant’s testimony that she has returned to her volunteer camp work.”
[19] The Adjudicator found that on the totality of the evidence, as of December 29, 2016, and onwards, Ms. Rumball did not suffer a complete inability to engage in employment for which she is reasonably suited by education, training, or experience. The Adjudicator held Ms. Rumball was entitled to pre-104 IRBS from May 30, 2015, to December 28, 2016, and dismissed the claim for post-104 IRBS.
Ms. Rumble Applies to the LAT for Reconsideration of the Adjudicator’s Decision
[20] Ms. Rumball filed a request for reconsideration of the decision, alleging that Adjudicator Reilly erred in dismissing her claim for post-104 IRBS. Ms. Rumball also alleged that the decision was procedurally unfair because Adjudicator Reilly was biased against her. Adjudicator Reilly found no evidence of bias and dismissed that allegation, denying Ms. Rumball’s request to have the request for reconsideration heard by a different adjudicator.
[21] Ms. Rumball argued that the Adjudicator made several errors of law and fact, misapprehending the evidence regarding several issues. Adjudicator Reilly found no errors in her apprehension of the evidence, with one exception.
[22] Adjudicator Reilly acknowledged that she made an error at para. 43 of the decision where she stated that Ms. Rumball had testified to performing various work tasks at the camp after the accident, when these tasks were instead those that Ms. Rumball had performed prior to the accident. However, the Adjudicator held that this error would not have led to a different conclusion. The Adjudicator noted these work tasks at the camp were only one of several factors considered by the Adjudicator in denying post-104 IRBS. Other evidence included Ms. Rumball’s work in a retail setting as a volunteer, her training as a wedding planner, her completion of wedding planning projects in the post-104-week period, and her caregiver activities. Taken together, these demonstrated that Ms. Rumball did not meet the post-104 IRBS test.
[23] The Adjudicator rejected Ms. Rumball’s submission that she misapprehended the evidence of Dr. Ta and Dr. Waisman by relying on the fact that neither obtained a detailed work history from Ms. Rumball. The Adjudicator found that Ms. Rumball could have, but did not present updated medical reports, and the Adjudicator had correctly concluded that their opinions were limited as a result and did not support the claim for post-104 IRBS. The Adjudicator gave less weight to the reports of Dr. Ta and Dr. Waisman and more weight to the evidence of Ms. Rumball and her family doctor, which indicated that Ms. Rumball’s condition was improving and that she was engaging in work activities.
[24] Regarding Ms. Rumball’s submission that she misapprehended the evidence of Ms. Rumball’s involvement in wedding planning post-accident, the Adjudicator found no error. Ms. Rumball had testified that she completed five to six weddings in the post-104-week period, and there was further evidence that Ms. Rumball took on an additional wedding in 2017. Arbitrator acknowledged that Ms. Rumball testified to needing assistance to complete those projects, but this was still evidence of work she did in fact complete and it was work that Ms. Rumball is trained for.
[25] The Adjudicator also noted that the only evidence that Ms. Rumball made no profit from this business is Ms. Rumball’s testimony, and no explanation was provided. Further, the decision stated that the absence of a wage is only one factor to consider.
[26] The Adjudicator rejected Ms. Rumball’s argument that she incorrectly applied the post-104-week test and that the proper test requires that reasonably suitable employment be “comparable in terms of status and wages.” The Adjudicator held that the formulation of the test argued by Ms. Rumball “would ignore education, training and experience and ignore the statutory language specified in s. 6(2)(b) of the Schedule.” The correct test is that the applicant must demonstrate a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
[27] The Adjudicator in the original decision provided a detailed analysis of the factors considered in determining whether Ms. Rumball met this test. Ms. Rumball had testified about her work at the camp (which was far less than what she used to do), the wedding planning projects completed after the accident, her regular volunteer work at a consignment shop, her training and experience as a wedding planner, and some skills at caregiving for her father.
[28] The decision also considered the medical evidence. The Adjudicator noted that the decision outlined how in cross-examination, Dr. Ta clarified that his report did not give an opinion about Ms. Rumball being incapable to engage in any competitive employment in the post-104-week period, and his opinion was limited to whether she could return to her pre-104-week employment.
[29] The Adjudicator dismissed Ms. Rumball’s request for reconsideration.
Jurisdiction and Standard of Review
[30] The Divisional Court has jurisdiction to hear this appeal on a question of law only, pursuant to sections 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. The standard of review on errors of law is correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Fariad v. Intact Insurance Company, 2021 ONSC 6965 (Div. Ct.), at para. 3. There is no right of appeal on fact, or on mixed fact and law without an extricable question of law: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Ct.) at para. 17.
ANALYSIS
The Limitation Issue
[31] Traders appeals the order of the LAT. The decision in respect to the application of the two-year limitation period is not a question of law. It requires the application of the March 2015 letter, to the requirement that the termination of the income replacement benefit “be clear and unequivocal.” As such, it is a question of mixed fact and law and not subject to appeal.
[32] The finding that the letter was ambiguous, that it allowed for the reintroduction of the claim with the provision of a further Disability Certificate while limiting to two years any appeal of the refusal to extend the claim as it stood at the time, is an entirely plausible interpretation of the letter. This understanding of the letter has the decided advantage of accounting logically for each of the provisions found in it. Otherwise, the insured is left to understand that if there is a change in circumstances leading to a reason to reintroduce the claim, it has to happen within two years. If this is the situation, it should be, as the decision of the Licence Appeal Tribunal suggests, clearly explained.
[33] Counsel for Traders submits that this fails to deal with a significant number of decisions from the Court of Appeal which establish that there can only be one claim. With a proper termination in place, there is no ability to start again. The insured is required to appeal within two years. The problem is that the termination had to be “clear and unequivocal”. In this case the LAT found that it was not. The appeal by Traders is therefore dismissed
Ms. Rumball’s Appeal and the Post-104 Test
[34] Ms. Rumball submits that Adjudicator Reilly erred in law by (1) failing to apply the proper test for determining post-104 IRBS; (2) finding that Ms. Rumball had a reasonably suitable alternative job in the absence of any factual basis; (3) finding that Ms. Rumball returned to her volunteer camp work in the absence of any factual basis; and (4) substituting her own opinion in place of Ms. Rumball’s medical evidence.
[35] Ms. Rumball’s appeal focuses on the test to be applied as it relates to an insured’s entitlement to post-104 IRBS. Specifically, this court is asked to determine the applicable test. Is the test whether as a result of a motor vehicle accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education or experience. Or does the test also incorporate an analysis of whether other suitable alternative employment must be reasonably comparable to the insured’s former job both in status and reward?
[36] Ms. Rumball submits that in determining whether the insured person suffers a “complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience”, the reasonably suitable alternative employment must be commensurate with the insured person’s pre-accident employment in nature, status, and remuneration/reward.
[37] Ms. Rumball relies on Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479, where she asserts that the Court of Appeal at para. 15 endorsed the test for post-104 IRBS as including the following, as identified by the trial judge:
In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant’s employment experience and the length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.
[38] Ms. Rumball argues that Adjudicator Reilly failed to apply this legal test. Specifically, she argues Adjudicator Reilly failed to consider whether Ms. Rumball had reasonably suitable alternative employment in terms of nature, status, and remuneration. Traders did not call evidence addressing status or reward, nor offer alternative employment options.
[39] Ms. Rumble argues that the Adjudicator did not consider Ms. Rumball’s pre-accident employment as an educational assistant in terms of status and wages, and so failed to consider the elements of the legal test. Instead, it is argued that the Adjudicator erred by using the wrong occupation, wedding planning, as her point of comparison. Wedding planning was not Ms. Rumball’s primary occupation prior to the accident, and she had not earned any taxable income from it prior to the accident. Further, Adjudicator Reilly did not actually make a finding that Ms. Rumball could return to wedding planning or any other work.
[40] It is argued on behalf of Ms. Rumble that the finding that wedding planning was suitable employment is inconsistent with the requirement that the employment be comparable in status and reward, because Ms. Rumball did not make any money from her prior wedding planning work. It is argued on behalf of Ms. Rumble that the Adjudicator’s statement in the Reconsideration Decision that the absence of a wage is only one factor to consider misstates the law. Ms. Rumble argues that the Adjudicator was required to consider this factor.
[41] Ms. Rumball argues that Adjudicator Reilly erred in law by inferring that wedding planning was a reasonably suitable alternative employment, as this inference was made in the absence of evidence. The only available conclusion was that Ms. Rumball was completely unable to engage in any employment or self-employment for which she was reasonably suited by education, training, or experience.
[42] Ms. Rumball argues that Adjudicator Reilly erred in law by finding that Ms. Rumball returned to her volunteer work at a camp for the deaf after the accident despite clear evidence to the contrary. Ms. Rumball did testify that she had not returned to the same role she had performed before the accident. However, in her decision Adjudicator Reilly rejected the opinion of Dr. Ta that Ms. Rumball was unable to do this work. The Adjudicator found this opinion was “not consistent with the evidence including the applicant’s testimony that she has returned to her volunteer camp work.”
[43] Finally, Ms. Rumball argues that Adjudicator Reilly erred in law by substituting her own opinion that Ms. Rumball did not meet the post-104 test in the face of the uncontroverted medical evidence. The only medical evidence was advanced by Ms. Rumball, and those opinions stated that she was totally disabled from engaging in any employment that she was reasonably suited for. Adjudicator Reilly did not give reasons explaining why the opinions of Ms. Rumball’s experts were to be afforded less weight.
[44] Ms. Rumball points to various cases in support of her position that an adjudicator may not substitute her own opinion and must rely on the medical evidence before her. For example, in L.D. v. Certas Home and Auto Insurance Company, 2020 43088 (ON LAT), the adjudicator held “I am not qualified to overrule the diagnosis and advice of a regulated medical professional in the absence of any opinion to the contrary.”
[45] Ms. Rumball submits that the evidence called on her behalf included the opinion evidence of Dr. Ta. He opined that Ms. Rumball could not return to her pre-accident educational assistant job and that she was “unable to work in any capacity, at any job.” As Ms. Rumball sees it, Adjudicator Reilly erred in law by failing to accept this uncontroverted evidence.
[46] Finally, Ms. Rumball says it was an error of law for Adjudicator Reilly to be critical of her experts because their assessments were approximately two years old. She submits this finding ignores the financial constraints that prevented Ms. Rumball from obtaining updated reports, and ignores the delays created by the Tribunal in providing hearing dates.
Traders’ Position to Ms. Rumble’s Post 104 Appeal
[47] Traders argues that Ms. Rumball’s cross-appeal does not identify any true questions of law and instead is concerned only with questions of fact or questions of mixed fact and law.
[48] Traders argues that the Adjudicator applied the post-104 test correctly. Ms. Rumball’s reliance on Burtch for the proposition that a “suitable alternative occupation must be reasonably comparable to the insured’s former job both in status and reward” is not accurate. Juriansz J.A. made this statement in summarizing an arbitral decision noted by the trial judge below, without accepting this summary as a correct statement of the law. Instead, Burtch endorsed the test set out in s. 6(2)(b) of the Schedule, with Juriansz J.A. holding at para. 24 that “[t]he proper test…is whether, ‘as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education or experience’.” This did not include additional factors such as status or reward.
[49] Traders also argues that Ms. Rumball has misapprehended the burden of proof by arguing that Traders did not call evidence addressing status, reward, or alternative employment options. Traders did not bear the burden of proof and simply tested Ms. Rumball’s evidence at the hearing. Ms. Rumball failed to discharge her onus of proving the components of the post-104 test.
[50] The case law relied on by Ms. Rumball endorsing an expanded test for post-104 IRBS runs contrary to the binding decision of the Court of Appeal in Burtch. This court, it is argued, should reject the expanded test and endorse the test as found in the Schedule and as applied by Adjudicator Reilly.
[51] Traders argues that the Adjudicator’s finding that Ms. Rumball had reasonable suitable alternative employment available to her was supported by the evidence and is not subject to review by this court. The evidence established that Ms. Rumball worked as a wedding planner both prior to and after the accident, working at least one wedding in 2017. Adjudicator Reilly also found that the evidence established some functional ability to work in a retail setting, given that Ms. Rumball had been volunteering in a retail setting since 2018.
[52] Adjudicator Reilly acknowledged on reconsideration that she had made an error of fact in finding that Ms. Rumball returned to her volunteer work at the camp for the deaf after the accident. However, she held that this error would not lead to a different outcome in light of her other findings with respect to wedding planning, caregiving activities, and volunteer work in a retail setting. This factual error was corrected on reconsideration and does not give rise to an error of law.
[53] It is argued on behalf of Traders that Ms. Rumball’s allegation that Adjudicator Reilly substituted her own opinion for the unconverted medical evidence of Dr. Ta and Dr. Waisman is incorrect. It is the role of the trier of fact to weigh and make factual findings based on the evidence. Ms. Rumball’s medical evidence was not “uncontroverted.” It was tested by Traders at the hearing. Some of that evidence was outdated and inconsistent. Traders points to various problems in the evidence, such as Adjudicator Reilly’s finding that the reports were generated in late 2017 and had not been updated, and so were not persuasive beyond late 2017. Further, neither Dr. Ta nor Dr. Waisman obtained a detailed work history from Ms. Rumball, which undercut the credibility of their opinions as to her ability to work in any occupation to which she was reasonably suited.
[54] Traders also argues that Adjudicator Reilly specifically addressed the ways in which this medical evidence was out of date and noted the evidence that Ms. Rumball’s condition had improved over time. The fact that Ms. Rumball chose not to incur the expense of updated reports is not an error on the part of the Adjudicator. Ms. Rumball’s outdated medical evidence was in contrast to the primary medical evidence that indicated significant improvements in her condition since 2017.
Analysis of the Post-104 Appeal
[55] The words of a statute will always be open to judicial interpretation. An insured is entitled to receive an income replacement benefit so long as he or she meets the definition of disability in s. 6 of the Schedule.
[56] An insured person is disabled when he or she “suffers a substantial inability to perform the essential tasks of his or her employment or self-employment”. The disability test changes 104 weeks after the accident. No longer is the test one which requires the insured to establish a substantial inability to perform the essential tasks of his or her employment. Rather, the test is more stringent. It requires the insured to demonstrate that because of the accident he or she is “suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”.
[57] Counsel for Ms. Rumball argues that a proper interpretation of the post-104 disability test includes an assessment of what is “reasonably suitable employment”. It is argued that reasonably suitable employment must be commensurate with the insured person’s pre- accident employment in nature, stature and remuneration. In support of that argument, heavy reliance is placed on Burtch.
[58] In his Reasons in Burtch, Juriansz J.A. at para. 24 makes it clear that the proper test to establish post-104 entitlement to an income replacement benefit is the one in the Schedule. While it is accepted at para. 22 of his Reasons that it is quite proper for arbitrators at FSCO (now the LAT) and for trial judges to consider earlier jurisprudence interpreting the post-104 test, those decisions are not binding on the court. Ultimately, at para. 24 Juriansz J.A. concludes that:
….It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading is not required.
[59] Burtch was cited for the proposition that “suitable employment” means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity, and that the work must be comparable in terms of status and wages. A careful reading of Burtch does not support that proposition. In fact, the insured in Burtch was employed as a general labourer pre-accident. His employment position required him to do heavy lifting, drive a vehicle and receive instructions from his employer. He earned $25,000 per annum. He argued at trial there was no reasonably suitable employment alternative. The trial judge made a factual finding that long haul trucking was a suitable alternative despite the fact he lacked formal qualifications for this type of employment. Despite making this factual finding, the trial judge concluded the insured met the post-104 test for disability. The Court of Appeal reversed the decision of the trial judge because “the trial judge’s findings simply did not support his conclusion that the respondent was suffering from a complete inability to engage in any employment for which he is reasonably suited by education training or experience under s. 5 (2) (b) of the Schedule…”
[60] I do not accept that Burtch incorporates any other disability test other than that set forth in s. 6 of the Schedule. While the Court of Appeal endorses reference to earlier jurisprudence, including cases from FSCO and now the LAT, as clarifying how specialized tribunals interpret and apply the Schedule, those decisions are not binding on the court. While those decisions include as part of the post-104 disability test a test that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages, we do not accept that is the test set forth in the Schedule. As such this court, being bound by the decision of the Court of Appeal in Burtch, concludes that the only test to be applied in establishing an entitlement to post-104 IRBS is the one set forth in the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages.
[61] The Adjudicator in this case heard the evidence and made a factual determination that Ms. Rumball had reasonable suitable alternative employment available to her, specifically the evidence as it related to her work as a wedding planner and the evidence that she had some functional ability to work in the retail sector. While counsel for Ms. Rumball takes issue with the factual findings of the Adjudicator as they relate to the medical evidence, those findings are not reviewable on this appeal. Furthermore, even if those findings of fact were reviewable, it is noteworthy that the evidentiary foundation for Ms. Rumball’s claim that she was disabled was grounded in the evidence called on her behalf.
[62] The onus was on Ms. Rumball to establish that she was disabled and met the test of post-104 disability as set forth in the Schedule. At the very least, where the hearing was being heard in March 2020, it was incumbent on the moving party to put before the decision maker evidence, including opinion evidence, that was not only persuasive but also timely. In this case, apart from the evidence of the family doctor, the expert evidence came from two medical doctors whose reports were prepared in 2017. The conclusions reached by the Adjudicator as they relate to this opinion evidence were not only supported by the evidence but also a matter of common sense. In addition, where the disability test speaks to “suitable alternative employment”, I question why Ms. Rumball chose not to call any evidence from a vocational expert. Ms. Rumball had the onus in this case and the evidence did not meet that onus.
[63] The cross-appeal of Ms. Rumball is therefore dismissed.
COSTS
[64] The parties agreed that in the event of their success on the appeal and or cross-appeal, that the appropriate costs award would be $4,000. As each side was successful, the costs cancel each other out and the appropriate award is to make no order of costs.
Edwards R.S.J.
Lederer J.
Davies J.
Released: December 21, 2022
CITATION: Traders General Insurance Company v. Rumball, 2022 ONSC 7215
DIVISIONAL COURT FILE NO.: DC-20-00000231
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
EDWARDS R.S.J., LEDERER and DAVIES JJ.:
BETWEEN:
Traders General Insurance Company
Appellant
– and –
Shelley Rumball
Respondent
REASONS FOR DECISION
Released: December 21, 2022