In Willoughby v.Dominion of Canada General Insurance Co, 2014 ONSC 1136 (S.C.J.), the plaintiff
sustained injuries in a motor vehicle accident on July 8, 2004. The plaintiff settled her claim
for income replacement benefits with her insurer and proceeded to bring a claim
for non-earner benefits.
The insurer brought a motion for summary judgment on the
basis that the plaintiff did not satisfy the test for non-earner benefits. To
support the motion, the insurer submitted an affidavit relying on the oral
evidence given by the plaintiff at her examinations for discovery that showed
she had continued to engage in her pre-accident activities. The plaintiff
opposed the motion and submitted an Affidavit sworn by the plaintiff, a report
of a neurologist and a report from an occupational therapist, all highlighting
the differences in her pre and post-accident life. The insurer did not
cross-examine on the affidavit nor did they submit an affidavit in response. Given
this the court held that the evidence provided by the plaintiff would be
considered undisputed.
In their reasoning, the court relied on the Ontario Court of
Appeal’s decision in Heath v. Economical [2009]
O.R. (3d) 785 for the general principle that in cases where pain is a primary
factor preventing the claimant from
engaging in substantially all of her pre-accident activities the
question is not whether the insured is physically able to do these activities,
but whether the degree of pain experienced is such that the claimant is
practically prevented from engaging in those activities. The court applied a qualitative perspective requiring the
activities to be viewed as a whole and held that the evidence led by the
insurer was insufficient. Therefore the motion was dismissed.
Willoughby indicates
the high standard courts will apply in summary judgment motions to dismiss
applications for non-earner benefits. Defendants who bring such motions should
not merely rely on the plaintiff’s evidence provided at examinations for
discovery to satisfy the court’s qualitative approach.