The Court has rendered another decision in relation to a Summary
Judgment Motion brought by an Insurer to dismiss a Plaintiff's
claim for non-earner benefits.
In Willoughby v. Dominion of Canada General
Insurance Company et al., 2014 ONSC 1136, the Plaintiff
was injured in a motor vehicle accident on July 8, 2004. At the
time of the accident the Plaintiff was 18 years old and she was in
college. She returned to school full-time in September 2005. She
graduated and worked as a Registered Nurse. The Plaintiff received
income replacement benefits from July 14 until October 28, 2004 and
once terminated, commenced a claim for income replacement benefits.
The Plaintiff settled this lawsuit. In August 2009, Plaintiff's
Counsel advised the Insurer that his client intended to claim
non-earner benefits. A Financial Services Commission of Ontario
mediation occurred on December 14, 2010 and a claim was issued on
February 24, 2011.
Dominion brought a motion for Summary Judgment on the basis that
the Plaintiff did not satisfy the test for non-earner benefits.
Dominion did not argue that the Plaintiff's claim was
statute-barred pursuant to the Limitations Act. In
response to the motion, the Plaintiff provided an Affidavit from
her lawyer attaching a report of Neurologist, Dr. Rathbone and an
occupational therapy report. Additionally, the Plaintiff swore an
Affidavit which included, amongst other things, an
"extensive" comparison between her pre- and post-accident
life. The Affidavit also included various medical records outlining
her functional and cognitive limitations resulting from the
accident. Justice Broad noted that Dominion did not deliver an
Affidavit in response to either Affidavit and neither deponent was
cross-examined. As such, the Court held that for the purpose of the
motion, the evidence must be considered undisputed.
Dominion did not rely on the fact that the Plaintiff was working
at the time of the action and drew income replacement benefits.
Relying on the Court of Appeal's decision in Heath v.
Economical,  95 O.R. (3d) 785, the Court noted that the
question of whether the injuries sustained by the Plaintiff
prevented her from engaging in substantially all of her activities
was to be viewed from a qualitative perspective requiring the
activities to be viewed as a whole, with the manner in which the
activity was performed and the quality of the performance being
considered. Justice Broad noted that since pain was a primary
factor that allegedly prevented the Plaintiff from engaging in her
former activities, the Court had to determine "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."
The Court held that the evidence led by Dominion fell well short
of equipping the Court with the necessary findings of fact to apply
to the framework set out in Heath. Therefore, the Summary
Judgment Motion was dismissed on the basis that a Trial was
In light of the Supreme Court's decision in Hryniak v.
Mauldin, 2014 SCC 7, with respect to Summary Judgment Motions,
the above decision would likely have been different had there been
cross-examinations on the Affidavits and/or responding material
filed by the Insurer.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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