



COURT OF APPEAL FOR ONTARIO

CITATION: Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854

DATE: 20161114

DOCKET: C61565

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Catherine Hamblin

Appellant

and

The Standard Life Assurance Company of Canada

Respondent

Erin M. Neal, for the appellant

Gordon Jermane, for the respondent

Heard: November 8, 2016

On appeal from the judgment of Justice John R. McCarthy
    of the Superior Court of Justice, dated December 15, 2015.

ENDORSEMENT

[1]

After hearing submissions of counsel we dismissed the appeal with
    reasons to follow. These are our reasons.

[2]

The application judge held that the respondent was entitled to reduce the
    Long-Term Disability Income (LTD) payments it was making to the appellant,
    under its Group Insurance Plan as a result of the appellants first accident,
    by the amount of the Non-Earner Benefit (NEB) she was receiving from her own
    insurer under O. Reg. 34/10
Statutory Accident Benefits Schedule 
    Effective September 1, 2010
(
SABS
), as a result of her second
    accident.

[3]

The appellant was not working at the time of her second accident. She
    elected to receive the NEB under s. 12(1) of the
SABS
. In order to
    qualify, she was required to establish that she suffered complete inability to
    carry on a normal life as a result of and within 104 weeks after the accident
    and that she did not qualify for an income replacement benefit.

[4]

Under s. 12(2) of the
SABS
, the appellants automobile accident
    insurer was entitled to deduct the LTD payments from the amount of the NEB
    payable but, for reasons that were not explained, it did not do so.

[5]

However, under the terms of its Group Insurance Plan, the respondent was
    entitled to reduce the monthly LTD payments by any disability or retirement
    benefit  payable  under  a provincial auto insurance law. After being
    notified by the appellant that she was receiving the NEB, the respondent began
    to deduct the amount of the NEB from its LTD payments. It takes the position
    that it is entitled to do so as long as the appellants auto insurer does not
    deduct the LTD payment from the NEB.

[6]

The application judge found that the words any disability  benefit
    were broad enough to cover the NEB, which he found was a disability benefit
    payable because of impairments which render a person completely unable to carry
    on a normal life. The deduction of the NEB was consistent with the LTD policy
    being one of indemnity.

[7]

The parties agree that the standard of review applicable to the
    insurance policy was correctness. In the absence of any evidence about the
    factual matrix of the contract, we proceed on this basis.

[8]

In our view, the application judges interpretation was correct. There
    was no dispute that the NEB was payable under provincial auto insurance law and
    it was clearly a disability  benefit.

[9]

The appellant relies on
Bannon v. McNeely
(1998), 38 O.R. (3d)
    659 (C.A.), to support her argument that the no-fault
SABS
are to be
    deducted from other payments on an apples for apples basis. She argues, based
    on
Walker v. Ritchie
(2005), 197 O.A.C. 81 (C.A.), revd on other
    grounds, 2006 SCC 45, that the NEB is not an income benefit. Based on the
    apples from apples principle, she says, the NEB should not be deducted from
    the LTD payments, which are income benefits.

[10]

We do not accept this submission.
Bannon
dealt with
    statutorily-mandated deductions from tort damage awards pursuant to s. 267 of the
Insurance Act
, R.S.O. 1990, c. I.8. By contrast, the deduction at
    issue in this appeal arises by virtue of the terms of the respondents policy
    of insurance. One must look to the language of the policy to determine the
    issue of deductibility. In our view, the policy language was clear and
    unambiguous and mandated the deduction.

[11]

Nor do we accept the submission that the result gives the respondent a
    windfall. A deduction permitted by the plain language of the policy is not a
    windfall.

[12]

For these reasons, the appeal is dismissed, with costs payable to the
    respondent fixed at $2,500.00, inclusive of disbursements and all applicable
    taxes.

G. R. Strathy C.J.O.

G. Pardu J.A.

D.M. Brown J.A.


