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 required.
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.