



COURT OF APPEAL FOR ONTARIO

CITATION:
    Martin v. TD General Insurance Company, 2013 ONCA 331

DATE: 20130523

DOCKET: C54889

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Melissa Martin

Plaintiff/Respondent

and

TD General Insurance Company

Defendant/Appellant

Dwain C. Burns and Jennifer Matic, for the appellant

Jane Poproski, for the respondent

Heard and released orally: May 3, 2013

On appeal from the judgment of Justice John Cavarzan of
    the Superior Court of Justice, dated December 16, 2011.

ENDORSEMENT

[1]

The appellant insurer challenges two findings made by the trial judge:
    1) that the respondent qualified for the non-earner SABS benefits following her
    car accident on August 16, 2003, and 2) that the benefits should be payable for
    four years following the accident. The respondent cross-appeals on the issue of
    the duration of her entitlement, claiming that it is ongoing and should not
    have been limited to four years following the accident.

[2]

The test for non-earner benefits entitlement is set out in s. 12(1)1 of
    the Statutory Accident Benefits Schedule: Part III of O. Reg. 403/96 under the
Insurance
    Act
, which provides:

12.(1)1 The insurer shall pay an insured person who
    sustains an impairment as a result of an accident a non-earner benefit if the
    insured person meets any of the following qualifications:

1. The insured person suffers a complete inability
    to carry on a normal life as a result of and within 104 weeks after the
    accident and does not qualify for an income replacement benefit.

[3]

There is no appeal of the trial judges finding that the respondent did
    not qualify for an income replacement benefit. The appellant challenges the
    trial judges finding that the respondent suffered a complete inability to
    carry on a normal life as a result of and within 104 weeks after the accident.

[4]

The trial judge made his findings at paras. 76-82 of his reasons. Applying
    the test set out by Simmons J.A. in
Heath v. Economical Mutual Insurance
    Company
, 2009 ONCA 391, he concluded at paras. 82-83:

I find that in the immediate post-accident period it cannot be
    said that the plaintiff engaged in most of her pre-accident homemaker and
    recreational activities. Pain prevented her from doing so. In my view, the
    plaintiff met the criteria for entitlement to the NEB. It remains only to
    determine the period for which the NEB must be paid.

[5]

The issue of the effect of post-accident employment was discussed and
    decided by this court in the case of
Galdamez v. Allstate Insurance Company
    of Canada
, 2012 ONCA 508. The trial judge only had the trial decision in
    that case to consider. Based on this courts decision in
Galdamez
, the
    fact that the respondent was employed following the accident does not
    disqualify her from receiving non-earner benefits if she otherwise qualifies.

[6]

The respondent argues that the trial judge erred by using the post
    accident job that she held for approximately two years at the Avondale
    convenience store as a point of comparison under the
Heath
test. The
    respondent says that because she did not have that kind of job before the
    accident, it is not something that can be properly compared to her pre-accident
    activities under the
Heath
formula.

[7]

We do not accept this submission. The trial judge did not err in
    considering the post accident job not as a disqualifying factor for non-earner
    benefits (
Galdamez
), but as a point of comparison in the respondents
    pre-accident and post accident activities.  The test is found at para. 50 of
Heath
:

Generally speaking, the starting point for the analysis of
    whether a claimant suffers from a complete inability to carry on a normal life
    will be to compare the claimant's activities and life circumstances before the
    accident to his or her activities and life circumstances after the accident.
    This follows from the language of the section as well as a review of the
    predecessor provisions.

[8]

The respondents approach would force the court to ignore significant
    post accident activities in the analysis that show her level of functioning. In
    order for the Heath test to be workable, it is necessary for the court to
    factor into the analysis, any significant post accident activities.

[9]

Having applied the correct test from
Heath
, and having taken
    all of the relevant evidence that he accepted into account, the trial judges
    conclusion that the respondent met the test for the receipt of non-earner
    benefits is entitled to the deference of this court. The first ground of appeal
    is therefore dismissed.

[10]

The
    second issue raised by both parties is the duration of the payment period of
    the benefits. The appellant says that the trial judge had no basis on the
    evidence to extend the benefits to 4 years following the accident. Three
    assessments done in late 2005 that the trial judge accepted found that at that
    time the respondent was not substantially disabled from carrying on her usual
    daily activities. This represented a significant improvement in the
    plaintiffs ability to conduct her pre-accident activities including full-time
    employment.

[11]

The
    respondent was later assessed by Dr. Challis in January 2008. His assessment
    confirmed the findings in the 2005 assessments. The trial judge concluded,
    based on all these assessments, that the respondent no longer qualified for the
    non-earner benefit after 4 years following the accident.

[12]

In
    our view, the evidence relied on by the trial judge justifies payment of the
    non-earner benefit only up until the end of November 2005, i.e for 2 years and
    3.5 months following the accident.

[13]

The
    appeal will be allowed to that extent and the amount of the judgment will be
    reduced accordingly. The cross-appeal will accordingly be dismissed.

[14]

In
    light of the divided success, there will be no costs of the appeal.

Kathryn Feldman J.A.

M. Tulloch J.A.

P. Lauwers J.A.


