Willoughby v. Dominion of Canada General Insurance Company et al., 2014 ONSC 1136

Willoughby v. Dominion of Canada General Insurance Company et al.

[Indexed as: Willoughby v. Dominion of Canada General Insurance Co.]

Ontario Reports

Ontario Superior Court of Justice,

Broad J.

February 20, 2014

119 O.R. (3d) 133 | 2014 ONSC 1136

Case Summary

Insurance — Automobile insurance — Statutory accident benefits — Non-earner benefit — Insurer moving for summary judgment dismissing insured's action claiming entitlement to non-earner benefit — Motion dismissed — Trial required in order to make necessary findings of fact.

The plaintiff brought an action against the defendant insurer claiming entitlement to a non-earner benefit as a result of injuries suffered in a 2004 motor vehicle accident. The defendant brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking dismissal of the action on the basis that there was no reasonable issue requiring a trial.

Held, the motion should be dismissed.

Based on the evidence on the motion, it was not possible to make the necessary findings of fact and apply the law to those facts. A trial was required in order to make a fair and just adjudication of the issues. The need for a trial could not be avoided in the circumstances of this case by using the powers under rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure.

Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, apld

Other cases referred to

Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] S.C.J. No. 8, 2014 SCC 8, 314 O.A.C. 49, 453 N.R. 101, 2014EXP-318, 366 D.L.R. (4th) 671, J.E. 2014-161, EYB 2014-231952, 27 C.L.R. (4th) 65, 47 C.P.C. (7th) 1, 37 R.P.R. (5th) 63; Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th) 242, 13 R.P.R. (5th) 167, 93 B.L.R. (4th) 1, 10 C.L.R. (4th) 17, 211 A.C.W.S. (3d) 845; Galdamez v. Allstate Insurance Co. of Canada (2012), 111 O.R. (3d) 321, [2012] O.J. No. 3394, 2012 ONCA 508, 294 O.A.C. 133, [2012] I.L.R. I-5313, 36 M.V.R. (6th) 117; [page134] Heath v. Economical Mutual Insurance Co. (2009), 95 O.R. (3d) 785, [2009] O.J. No. 1877, 2009 ONCA 391, 249 O.A.C. 164, [2009] I.L.R. I-4838, 73 C.C.L.I. (4th) 31, 177 A.C.W.S. (3d) 483

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(2) [as. am. by O. Reg. 438/08, s. 13], (2.1), (2.2), 20.05, 31.11(2)

Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96 [as am.], ss. 2(4), 12, (1)

MOTION by the defendant for summary judgment.

J. Harrison, for plaintiff.

B. Kurpis, for defendants.

1Endorsement of BROAD J.: — In this action, the plaintiff claims entitlement to a non-earner benefit under a policy of insurance issued to her by the defendant the Dominion of Canada General Insurance Company ("Dominion") as a result of injuries suffered by her in a motor vehicle collision on July 8, 2004. The defendant Karen Robinson ("Robinson") is employed by Dominion and was responsible for the adjustment of the plaintiff's claim. In the statement of claim, the plaintiff also claimed against both defendants for wrongful infliction of mental distress, negligent delivery of benefits, bad faith for unreasonable conduct in the claims process, and aggravated, punitive and exemplary damages.

2The defendants have brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking dismissal of the action against them on the basis that there is no issue requiring a trial in respect of the plaintiff's claims set forth in the statement of claim.

3At the commencement of argument, counsel for the plaintiff advised that the claims for extra-contractual damages were abandoned and that all claims against Robinson were also abandoned. Following the completion of argument, counsel agreed in correspondence to the court that the action be dismissed as against Robinson.

4Counsel for the Dominion advised that it would not be pursuing the argument that the plaintiff's claim is statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

5The remaining question for determination is therefore whether there is a genuine issue requiring a trial respecting the plaintiff's claim for a non-earner benefit pursuant to the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 (the "Schedule"). [page135]

Background

6At the time of the accident, the plaintiff was 18 years of age and worked as a cook in a restaurant, having just finished the first year of a two-year general arts and science program at Mohawk College.

7The plaintiff did not return to Mohawk College in the fall of 2004, and returned to work in the restaurant approximately four months after the accident on modified duties and returned to full-time regular duties three to four months after that.

8In September 2005, the plaintiff returned to school in a full-time nursing program, ultimately obtaining her nursing degree, and now works as a registered nurse on a full-time basis.

9The plaintiff received income replacement benefits from Dominion from July 14 to October 28, 2004. When those benefits were discontinued, the plaintiff brought an action claiming entitlement to income replacement benefits and she was examined for discovery in that action. The action respecting income replacement benefits was settled and an order was taken out dismissing that action.

10In August 2009, the plaintiff's counsel corresponded with Dominion, stating that she was now claiming the non-earner benefits. Dominion did not respond to that letter and the plaintiff applied for mediation with the Financial Services Commission of Ontario ("FSCO") in February 2010. The mediation took place before FSCO on December 14, 2010 and failed and the statement of claim in this action was thereafter issued on February 24, 2011.

Statutory Framework and Applicable Principles for Claim for a Non-Earner Benefit

11Section 12(1) of the Schedule provides as follows:

12(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:

1. 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.

2. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

3. 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, [page136]

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.

12Section 2(4) of the Schedule provides that a person suffers "a complete inability to carry on a normal life as a result of an accident" if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

13In Heath v. Economical Mutual Insurance Co. (2009), 2009 ONCA 391, 95 O.R. (3d) 785, [2009] O.J. No. 1877 (C.A.), the Court of Appeal adopted, at para. 50, a set of general principles as being part of a proper approach to the application of ss. 12 and 2(4) of the Schedule, 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. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant's pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant's post-accident condition.

Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snap-shot 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.

Although this approach differs somewhat from the approach taken in Walker v. Ritchie 2003 17106 (ON SC), [2003 CarswellOnt 10 (Ont. S.C.J.)], 2003 17106, in which the trial judge focused on those activities that were "most important" to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focussed inquiry.

It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a [page137] claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. 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.

In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

14In support of the motion, Dominion led evidence by means of an affidavit from its lawyer Daniel J. Rosenkrantz. In his affidavit, Mr. Rosenkrantz deposed that the only evidence produced by the plaintiff, including oral evidence from her two examinations for discovery, the first in the earlier action respecting income replacement benefits, and the second in the current action, suggests that the plaintiff does not meet the test for non-earner benefits in that she continued to engage in substantially all of her pre-accident activities.

15Mr. Rosenkrantz points to an apparent discrepancy between her first and second examinations for discovery on what her plans were respecting a return to Mohawk College in the fall of 2004. On the first examination, the plaintiff stated that about halfway through her first year at college, and prior to the accident, she had decided that she was not going to return to school in September and was going to work instead. On her examination in the current action, when asked what her plans were at the end of her first year at Mohawk College, she stated "general arts and sciences was a two year program so I planned on going back for the second year".

16In response to the motion, the plaintiff provided an affidavit of her lawyer Nathan Tischler, appended to which was a neurology report of Dr. M. Rathbone dated July 6, 2013, as well as an occupational therapy report of Julie Geronimo dated November 15, 2013. The plaintiff also swore an affidavit in which she described in detail the circumstances of the accident, the injuries [page138] which she suffered from the accident in the immediately following weeks, the circumstances of her absence from work as a result of the accident, her educational status at Mohawk College at the time of the accident, and extensive details of her pre-accident and post-accident life comparison covering the following areas:

(a) the physical symptoms which she suffers as a direct result of the accident which she did not have prior to the accident;

(b) the emotional symptoms which she suffers as a direct result of the accident which she did not have prior to the accident;

(c) the conditions that she has been diagnosed with within 104 weeks of the accident;

(d) the conditions that she has been diagnosed with after 104 weeks post-accident;

(e) the activities that she was able to participate in prior to the accident;

(f) her emotional stability, capacity for work and activities and her mood balance prior to the accident;

(g) the physical, emotional and psychological impairments that adversely affect her ability to engage in activities of daily living following the accident;

(h) difficulties that she has experienced with aspects of her job as a registered nurse in order to accommodate her accident-related physical impairments;

(i) the medications which she takes on a regular basis due to her accident-related impairments.

17Referenced in, and appended to, the plaintiff's affidavit were various medical records outlining her functional and cognitive limitations resulting from the accident.

18Dominion delivered no affidavit in response to the affidavits of Mr. Tischler and the plaintiff and neither of them were cross-examined on their affidavit. Their evidence must therefore be considered, for the purpose of the motion, to be undisputed.

19It is noted that Dominion did not rely on the fact that the plaintiff was working at the time of the action and drew income replacement benefits in support of its motion for summary judgment. The Court of Appeal has held in Galdamez v. Allstate Insurance Co. of Canada (2012), 2012 ONCA 508, 111 O.R. (3d) 321, [2012] O.J. No. 3394 (C.A.), at para. 29, [page139] that a claimant's status as an employed person does not, by itself, establish that the claimant is ineligible for non-earner benefits.

Principles Governing Motions for Summary Judgment

20Pursuant to rule 20.04(2), as amended January 1, 2010, the court shall grant summary judgment, on a motion supported by affidavit material or other evidence, if it is satisfied that there is no genuine issue requiring a trial. Under rule 20.04(2.1), in determining whether there is a genuine issue requiring a trial, the motion judge has the power, unless it is in the interest of justice for such powers to be exercised only at trial, to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

21The Court of Appeal in the case of Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764 determined that, on the motion for summary judgment, the motion judge must ask whether a full appreciation of the evidence and issues required to make a dispositive finding can be achieved by way of a summary judgment motion, or whether a trial is required for such full appreciation (see para. 50).

22The Supreme Court of Canada handed down its decisions on the appeals taken from Combined Air on January 23, 2014 in two companion decisions: Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] S.C.J. No. 8, 2014 SCC 8. These decisions were released following the argument of this motion. Accordingly, I invited counsel to provide written submissions with respect to the effect of the Supreme Court of Canada decisions on the issues to be determined on the motion. Those submissions have now been received and considered.

23The Supreme Court discussed the principles governing the use of the summary judgment mechanism under Rule 20 in Hryniak v. Mauldin.

24In recognition that a culture shift is required to promote timely and affordable access to the civil justice system which would entail simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case, Karakatsanis J., writing for the court, moved away from the "full appreciation" test laid down by the Court of Appeal, stating that it placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial (see para. 4). [page140]

25In place of the "full appreciation" test, Karakatsanis J. laid down, at para. 49, a new test for determination of whether a trial is not required. A trial will not be required if a summary judgment motion can achieve a fair and just adjudication

(a) by allowing the judge to make the necessary findings of fact;

(b) by allowing the judge to apply the law to the facts; and

(c) it is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

26At para. 50, Karakatsanis J. emphasized that "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute".

27Karakatsanis J. spoke to the appropriate use of the new fact-finding powers under rule 20.04(2.1) and (2.2), at para. 66, as follows:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2) (a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[Emphasis in original]

Analysis

28In the present case, I am not satisfied that I am able to make the necessary findings of fact and to apply the law to those facts, in order to make a fair and just adjudication, based upon the evidence before me on the motion.

29As indicated in Heath, the question of whether the injuries sustained by the plaintiff's accident prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident is to be viewed from a "qualitative perspective" requiring the relevant activities to be viewed as a whole, with the manner in which each activity is performed and quality of performance post-accident to be considered. [page141]

30Moreover, since pain is a primary factor that allegedly prevents the plaintiff from engaging in her former activities, the court is called upon to determine, not whether she can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that she is practically prevented from engaging in those activities.

31The evidence led by Dominion on the motion falls well short of equipping me to make necessary findings of fact on these issues and to apply those facts to the legal framework laid down in Heath. In my view, a trial is required to carry out this exercise in order to make a fair and just adjudication of the issues in this case.

32I must then turn to the question of whether the need for a trial can be avoided by using the new powers under rule 20.04(2.1) and (2.2).

33Dominion submits that I should, under rule 20.04(2.1), evaluate and make an adverse finding respecting the credibility of the plaintiff as a result of the discrepancy in her testimony on her examination for discovery in the previous action and on her discovery in the current action respecting whether she had formed an intention not to go back to college prior to the accident.

34Rule 31.11(2) provides that "[t]he evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness". It is noted that it was open to Dominion to cross-examine the plaintiff on her affidavit in support of the motion and to put the inconsistency between her testimony on the two examinations to her in order to attempt to impeach her credibility. As indicated above, Dominion did not take that step. Moreover, counsel for Dominion did not put the apparent discrepancy arising from her earlier discovery to the plaintiff on her examination for discovery in this action.

35I am not satisfied, based upon a review of the testimony of the plaintiff on her two discoveries, and upon the lack of centrality of the question of whether the plaintiff had formed an intention not to return to school to the issues in the action, that an adverse finding against the plaintiff on her credibility is justified so as to support the granting of summary judgment in favour of Dominion.

36Moreover, given the nature of the determinations called for under Heath, I am not of the view that the use of the "mini-trial" process under rule 2.04(2.2) permitting oral testimony on [page142] the motion will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

37I find that there are genuine issues requiring a trial and accordingly the motion for summary judgment should be dismissed.

38I hasten to add that this determination should not be taken as a finding that an action for non-earner benefits will never be amenable to a motion for summary judgment, but only that the evidence in this particular case does not support the granting of summary judgment for the reasons I have given.

39At paras. 74 to 79 of Hryniak, Karakatsanis J. discusses the use of the trial management tools laid out in rule 20.05 following an unsuccessful motion for summary judgment and concludes by stating that "where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge".

40Counsel for the plaintiff, in her supplementary written submissions, suggested that I may remain seized of the remainder of the action in order to enable the efficient management of the action and may order appropriate terms and directions as to the remaining steps to be completed in relation to it.

41Since this aspect of the matter was not addressed fully in argument, the parties are directed to make an appointment with the trial coordinator at Hamilton for a teleconference with me to review whether I should remain seized of the action and what, if any, terms and directions should be ordered with respect to the remaining steps in the action.

Disposition

42For the foregoing reasons, it is ordered as follows:

(1) On consent, the claims of the plaintiff at subparas. 1(b), (c), (d), (e), (f) and (g) of the statement of claim are dismissed;

(2) on consent, the action is dismissed as against the defendant Karen Robinson;

(3) the balance of the motion of the defendant the Dominion of Canada General Insurance Company for summary judgment is dismissed.

43If the parties cannot agree on costs, the plaintiff may make written submissions on costs within 21 days of the release of this endorsement, and the defendant may make written [page143] submissions within 14 days thereafter. The submissions shall be limited to five double-spaced pages, exclusive of bills of costs and offers to settle, and should be delivered to my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario, N2H 0A7.

44As indicated above, the parties are directed to arrange a teleconference with me, through the trial coordinator in Hamilton, to review the remaining steps in the action.