SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-508024
DATE: 20150707

RE: Tsinfeadam Ambachew, Plaintiff

AND:

Royal & Sunalliance Insurance Company of Canada, Defendant

BEFORE: Carole J. Brown

COUNSEL:
Alon Rooz, for the Plaintiff

Be-Nazeer Damji, for the Defendant

HEARD: June 30, 2015

ENDORSEMENT

[1] The plaintiff, Tsinfeadam Ambachew ("the plaintiff") brings this motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure.

[2] The action arises from a motor vehicle accident which occurred on October 5, 2012 in which the plaintiff was allegedly injured. The property damage amounted to $872.93, based on documentation provided by the insured to the insurer, Royal & Sunalliance Insurance Company of Canada ("RSA").

[3] Due to the alleged personal injuries, the plaintiff applied for SABs, commencing October 22, 2012. RSA took the position from the outset that the plaintiff had sustained minor injuries, which fell under the Minor Injury Guidelines ("MIG"). RSA denied coverage as regards treatment falling outside MIG, without the provision, by the plaintiff, of other documentation and examinations requested by it.

[4] The plaintiff issued a statement of claim for payment of the full amounts of treatment and assessment plan forms; payment for all medical and rehabilitation benefits, assessments and exams; payment for additional fees for preparation, review and approval of OCF-18s; an order for attendant care expenses in the amount of $1,337.79 per month; payment of treatment plans in the amount of $400 per week from one week post-accident; and punitive damages.

[5] As regards this motion for partial summary judgment, the plaintiff seeks payment of 2 of 17 OCF-18 treatment plan claims submitted by the treatment clinic on the plaintiff's behalf, which it states were not paid. The first claim is for a chronic pain assessment in the amount of $2,000, and the second for treatments for chronic conditions in the amount of $9,236.44. The plaintiff seeks partial summary judgment as regards payment of these two claims on the ground that there was statutory non-compliance by the defendant, which entitles the plaintiff to the amounts claimed.

[6] It is the position of the plaintiff that RSA failed to give reasons for the denials in the notices of denial dated January 31, 2014 for the chronic pain assessment in the amount of $2,000 and in its notice of June 12, 2014 for treatment for chronic conditions in the amount of $9,236.44, as it was required to do pursuant to SAB s38(8). The plaintiff submits that the insurer, where it denied coverage, failed to provide "the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments, and examinations, or the proposed costs of them not to be reasonable and necessary".

[7] As regards the notice of January 31, 2014, RSA responded that

"In accordance with section 38(8) of the Statutory Accident Benefits Schedule, based on a review of the information and medical documentation provided to date, we do not agree to pay for the following goods and/or services outlined in this Treatment and Assessment Plan (OCF-18)."

And further:

"The insurer is awaiting your reasonable explanation for missing your scheduled insurer examinations on 2013-05-15 & 2013-05-23 before considering rescheduling these insurer examinations. Additionally, as you failed to submit the requested 0HIP release so that the insurer can obtain an OHIP summary, your entitlement to all benefits was stopped effective 2013-06-26."

[8] As regards the notice of June 12, 2014, RSA responded as follows:

In accordance with section 38(8) of the statutory accident benefits schedule, based on a review of the information and medical documentation provided to date, we do not agree to pay for the following goods and/or services outlined in this treatment and assessment plan (OCF-18).

The reason given was "MIG limit exceeded".

[9] The plaintiff alleges that neither of the denials included reasons required by the Schedule.

[10] The defendant, RSA states that it responded to treatment plans submitted by the plaintiff, explaining the reasons for denial throughout the material time. It advised the plaintiff that its injuries appear to fall within the Minor Injury Guidelines for which maximum amounts payable were limited to $3,000. It requested that if the treatments were required due to a pre-existing medical condition that would prevent recovery if limited to the MIG for medical treatment, pre-accident medical records would be required. Further, as more claims were received, it reiterated this requirement, and further required the plaintiff to undergo a section 44 medical examination.

[11] The defendant maintains that the treatment plans submitted on behalf of the plaintiff during the material times were not consistent as regards injuries recorded, indication of barriers or no barriers to recovery and description of the plaintiff's improvement with treatment.

[12] The evidence includes all letters from the RSA in response to various claim forms (17 in number). The evidence indicates that throughout, when the RSA denied claims, it did so with reasons provided. These included the fact that the defendant’s assessment was that the injuries fell within MIG and those benefit limits excluded further payment. The plaintiff failed, throughout, to provide pre-accident records as requested, and failed to attend several scheduled section 44 medical examinations. Indeed, based on the evidence, the plaintiff never provided pre-accident medical records nor attended any medical examinations. RSA wrote to the plaintiff requesting his reasons for failure to attend the medical examinations and required a response before rescheduling the medical examinations. There is no evidence that a response was ever received from the plaintiff. However, RSA subsequently advised the plaintiff's counsel that it would agree to reschedule the medical examinations, as it required a MIG assessment in order to process numerous OCF-18s and psychological reports subsequently received from the plaintiff. New medical examinations were scheduled for May 15 and 23, 2013.

[13] Again, the plaintiff failed to attend both of these examinations. As a result of the plaintiff's failure to attend these examinations, RSA advised of the plaintiff that he would be held within the Minor Injury Guidelines. RSA further requested an explanation for the plaintiff's failure to attend at the medical examinations. On June 5, 2013, RSA requested the plaintiff complete and return an Authorization to Disclose Personal Health Information within 10 business days of receipt of the said request pursuant to section 33 of the SABs. No information was received from the plaintiff and RSA advised the plaintiff that, as a result, the plaintiff's entitlement to medical benefits would be stopped effective June 26, 2013. RSA advised the plaintiff that it was still awaiting the requested consent. RSA provided notice that failure to provide all documents requested and failure to attend at medical examinations may result in the benefits being terminated. That authorization for release of the decoded OHIP form was ultimately returned.

[14] In this motion, the plaintiff is seeking payment of 2 of 17 treatment plans, which it submitted, with the 15 remaining to be determined at trial. The plaintiff maintains that due to the alleged non-compliance of RSA with the statute, and pursuant to the provisions of SAB section 38(8) and (11), he is, at law, entitled to payments for the two treatment plans. Based on the evidence before me, I am not satisfied that the responding notices given by RSA to the treatment plans submitted on behalf of the plaintiff failed to comply with the SABs requirements. Further, based on the evidence before me, the plaintiff was, throughout much of the material time, not in compliance with the SABs provisions and the requests of the defendant pursuant to those provisions.

[15] Pursuant to the SABs, Part III, s. 18, the onus is on the insured to prove that the insured fits within the scope of coverage and to establish entitlement to the appropriate level of benefits.

The Issue

[16] The issue to be determined by this Court is whether partial summary judgment should be granted, or whether there is a genuine issue requiring a trial.

Rule 20 and Summary Judgment

[17] Rule 20 provides for summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence.

[18] The Supreme Court of Canada, in Hyrniak v Mauldin, 2014, SCC 7 and Bruno Appliances and Furniture Inc. v Hyrniak, 2014 SCC 8, reinterpreted Rule 20, taking into account the recognized need for access to justice for the majority of Canadians. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It found that the Court of Appeal, in Combined Air Mechanical Services Inc. et al v. Flesch et al, 2011 ONCA 764, placed too high a premium on the "full appreciation " of evidence that can be gained in a conventional trial, given that such a trial is not a realistic alternative for most litigants. It held that a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[19] On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring trial based only on the evidence before the judge without using the judge's new fact-finding powers.

[20] There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute on the merits within the meaning of Rule 20.04(2)(a) and is a proportionate, more expeditious and less expensive means to achieve a just result. Where a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceedings at trial would generally not be proportionate, timely or cost-effective. However, a process that does not give the judge confidence in conclusions to be drawn can never be the proportionate way to resolve the dispute.

[21] Madam Justice Karakatsanis, writing for the Court, observed as follows in the companion case, Bruno Appliances, supra, at paragraph 22:

a. The motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is the proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided 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.

[22] To grant summary judgment, on a review of the record, the motion judge must be "of the view that sufficient evidence has been presented on all relevant points to allow him/her to draw the inferences necessary to make dispositive findings under Rule 20.

[23] The Supreme Court recognized that concerns about credibility or clarification of evidence can often be addressed by calling oral evidence on the motion itself, using the powers given to the court pursuant to Rule 20.04(2.1). However, it also recognized that there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

[24] The enhanced fact-finding powers granted to motion judges in Rule 20.04(1.1) may be employed on a motion for summary judgment unless it is in the "interest of justice" for them to be exercised only at trial. The Supreme Court observed that inquiry into the interest of justice to be served by summary judgment must be assessed in relation to the full trial and the relative efficiencies of proceeding by way of summary judgment as opposed to trial, including the cost and speed of both procedures, the evidence available at trial versus that on the motion, as well as the opportunity to fairly evaluate such evidence.

[25] The Supreme Court further commented that the interest of justice inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. In cases where some claims against the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.

[26] The parties must each "put their best foot forward". A party is not entitled to sit back and rely on the possibility that more favorable facts may develop at trial. The court is entitled to assume that all of the evidence the parties intend to rely on at trial is before the court.

Analysis

[27] In determining this Rule 20 motion, I have considered the provisions of the SABs, ss 18, 38, and 44 (5). I have further considered the caselaw referenced by the parties.

[28] In my view, in this action, there are genuine issues for trial. All issues and claims are related and intertwined. Granting partial summary judgment on only two of the treatment forms sought by the plaintiff would not resolve all issues. Based on the evidence before me, this Court is not able to fairly and justly determine the issues as regards these two claims in a vacuum, without consideration of the other 15 claims, the ongoing correspondence between counsel for the respective parties, the documentation provided or not provided by the plaintiff and the medical examinations scheduled by the insurer and not attended by the plaintiff throughout the material time. The two treatment plans for which summary judgment is sought are, in my view, part of the larger claim and all arising from the same factual matrix and exchanges between the parties. The two claims cannot, in my view, be determined in isolation, without considering all of the responses and requests for information of RSA. Moreover, as previously noted at paragraph 14, supra, I am not satisfied that the responding notices given by RSA to the treatment plans submitted failed to comply with the SABs requirements. I do not find that it will be in the interest of justice to consider and determine these two claims in a vacuum. Further, I do not find that determination of these two issues, without considering the complete context, is in the interest of justice. I do not find this summary process to be a proportionate, more expeditious, less expensive means to achieve a just result.

[29] Accordingly, I dismiss the plaintiff's partial summary judgment motion and order that this matter proceed, in its entirety, expeditiously to trial.

Costs

[30] The defendants are entitled to their costs, which I award on a partial indemnity basis in the amount of $7,456.72 all inclusive, based on the Bill of Costs provided.

Carole J. Brown, J.

Date: July 7, 2015