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  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.