ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-45756
DATE: 2015-11-27
BETWEEN:
Lynne Stone
Plaintiff
– and –
Ayr Farmers Mutual Insurance
Defendant
Andrew Rudder, Counsel for the Plaintiff (Respondent to the Motion)
Hermina Nuric, Counsel for the Defendant (Moving Party on the Motion)
HEARD: August 11th, 2015
REASONS FOR JUDGMENT
Parayeski, J.
[1] The defendant moves for summary judgment in respect of “some or all of the following portion of the Plaintiff’s claim:
(i) The claim for non-earner benefits;
(ii) The claim for damages for breach of contract, specifically the Plaintiff’s claim for non-earner benefits;
(iii) The claim for damages for the defendant’s wrongful infliction of mental distress upon the Plaintiff;
(iv) The claim for damages for bad faith for unreasonable conduct in the claims process;
(v) The claim for aggravated, punitive, and exemplary damages.”
[2] The above quoted exercise in being both redundant and obtuse flows, in part at least, from the plaintiff’s equally ill-drafted Statement of Claim.
[3] The thrust of the defendant’s motion is its assertion that although the plaintiff claims, inter alia, in respect of non-earner accidents benefits, she has yet to provide a proper application for that benefit or those benefits.
[4] A proper application consists of:
An application for accident benefits (Form OCF-1) that supports eligibility for benefits; and
A disability certificate (Form OCF-3) that states that the claimant meets the requisite disability test of entitlement for the specified benefit or benefits.
[5] The defendant’s position is that neither of the OCF-3 certificates completed by one Dr. Spicer and submitted by the plaintiff meets the requisite disability test.
[6] The first such certificate is dated July 27th, 2011. While all of the answers given to the questions posed under “Part 6 Disability Tests” and Information are potentially relevant, the focus is upon the answers “no” to the questions “Is the applicant substantially unable to perform the essential tasks of his/her employment at the time of the accident as a result of and within 104 weeks of the accident?” and “Does the applicant suffer a complete inability to carry on a normal life? (i.e., Has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?)”. This OCF-3 form was tendered in support of the plaintiff’s claim for accident benefits wherein she partially completed an Employer’s Confirmation Form for herself inasmuch as she described herself as being self-employed. She was denied benefits. The second OCF-3 certificate is dated June 11th, 2013. This time, the plaintiff describes herself as working as a “volunteer” and enrolled in a post-secondary education program. To the pertinent questions (see above) Dr. Spicer answered “no” and added a note reading “not all but many”. Equally cryptic are the comments of Dr. Spicer in an “attached sheet”. Those comments read “PT states that she is the primary caregiver of her daughter who requires care due to disabilities”, “the patient was enrolled in a university degree program, but due to memory loss she was not able to complete the program”, “the patient no longer has the ability to perform most housekeeping and home maintenance that she performed prior to the accident due to severe pain and limited mobility”, and “medical issues have already persisted beyond 12 weeks, symptoms have persisted for approximately 2 years”. Benefits claimed by this application were denied as well.
[7] The parties went to mediation relative to non-earner benefits on November 19th, 2013. The result of the mediation is the notation “unresolved”.
[8] As I understand the defendant’s position, it is that without an OCF-3 certificate that has the requisite box regarding disability checked off as “yes”, then there is no application. Without an application, there is no entitlement to benefits, and thus there is no tenable action for non-payment of those benefits in first instance.
[9] I reject this position as being the appropriate basis for summary judgment relative to the accident benefit or benefits at issue. The defendant’s argument relies upon an interpretation of the filing requirements which is both too literal and too simplistic. It leaves to the plaintiff’s physician complete power to effectively negate a claim simply by means of checking the “no” box. I cannot imagine a defendant insurer accepting the corollary, which would be automatic entitlement to benefits if the doctor checked the “yes” box instead. While I have a great deal of difficulty with the plaintiff’s assertion that Dr. Spicer’s answer “no... not all but many” really means “yes, substantially all”, what he really meant is not something that can be decided upon the evidence before me. I also feel that a trial is necessary to determine the issue of whether proceeding to mediation (requested by the plaintiff) notwithstanding the assertion that there was no real application in first instance gives rise to estoppel. In that regard, I am not satisfied that the defence answer to my question about mediation that it was attended simply because it is part of the process and that it was easier to participate than to not participate is adequate. The question is whether the defendant should have advised that it would not mediate because without a proper application there was nothing to mediate upon. Similarly, should the defendant have told the plaintiff that as far as it was concerned, there was no proper application for benefits and thus nothing to consider, rather than having considered what it did have and then rejecting the supposedly non-existent application?
[10] The ruling above deals with items (i) and (ii) above. I now turn to items (iii), (iv) and (v) which I perhaps simplistically call the extra contractual claims, although obviously all flow from the contract of insurance that existed between the parties.
[11] For any or all such claims made here to succeed, the plaintiff must prove some degree of malfeasance or gross misfeasance in the processing of the claim. Plaintiff counsel asserts that by rejecting the claims in issue the defendant must have “ignored the views of the plaintiff’s doctor or doctors”. I disagree. There is no evidence before me that those views were overlooked. They were reviewed and rejected. That is not the same thing as having ignored them.
[12] The evidence before me is that the claims process followed by the defendant was quite normal and devoid of anything approaching ill will or gross misfeasance. Contrary to what the plaintiff appears to assert here, the mere denial of a claim is not proof, per se, of wrongdoing.
[13] The plaintiff has had opportunity to put forward her best evidence in respect of her claims under the headings made under (iii), (iv) and (v) above, by means of responding to this motion. What little evidence she did produce in this regard was utterly unconvincing. The defendant is entitled to dismissal of those claims.
[14] Success being divided here, there shall be no costs of this motion.
[15] I decline to be seized of the issues remaining to be tried. I do so because scheduling in this region is such that my being so seized would very likely result in the trial being substantially delayed. That would offset any potential benefit to be derived from my having heard this motion.
Parayeski, J.
Released: November 27, 2015
COURT FILE NO.: 14-45756
DATE: 2015-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lynne Stone
Plaintiff
– and –
Ayr Farmers Mutual Insurance
Defendant
REASONS FOR JUDGMENT
MDP:co
Released: November 27, 2015