





CITATION: McLinden v. Payne, 2011 ONCA 439



DATE: 20110608



DOCKET: C53136







COURT OF APPEAL
          FOR ONTARIO



OConnor A.C.J.O., Feldman and LaForme JJ.A.



BETWEEN:



Samantha McLinden
, Matthew McLinden and Ashely
          McLinden, minors under the age of eighteen years, by their Litigation
          Guardian Samantha McLinden



Plaintiffs (
Appellant
)



and



Melissa Payne



Defendant



James L. Vigmond and Brian M. Cameron, for the appellant

Bruce Keay, for the Co-Operators General Insurance Company



Heard and released orally:
June 3, 2011



On appeal from the order of Justice
          M.P. Eberhard of the Superior Court of Justice, dated December 13, 2010.



ENDORSEMENT

[1]

The
    appellant appeals from the order of Eberhard J., refusing to permit the
    appellant leave to amend her Statement of Claim to add Co-Operators General
    Insurance Company as a defendant in this action.

[2]

The
    appeal raises two issues.  The first is
    whether s. 40(4) of the
Statutory Accident
    Benefits Schedule
precludes a person from making more than one application
    for a determination that he or she has suffered a catastrophic impairment.  Section 40(4) of the
Schedule
at the relevant time read as follows:

The
    determination by the designated assessment centre is binding on the insured
    person and the insurer, subject to the determination of a dispute, in
    accordance with sections 279 to 283 of the
Insurance
    Act
, relating to whether the impairment is a catastrophic impairment.

[3]

The
    language of the section does not specifically preclude multiple
    applications.  Indeed, counsel for Co-Operators
    fairly concedes that a person may bring a further application provided the
    application is not brought under the same sub-paragraph of the definition of a
    catastrophic impairment as a previous application.

[4]

The
    motion judge went further.  She found
    that a person could also bring a subsequent application based on the same sub-paragraph
    as a previous application provided that, there must be evidence of a change in
    circumstances such that the court is not simply being asked to consider the
    same condition already denied and not challenged by the procedures set out in
    the SABS legislation.

[5]

By
    this, we understand the motion judge to be saying that there must be a material
    change in the condition of the applicant.  If there is no such change, a further application is not permitted as it
    would amount to a reconsideration of the earlier decision.

[6]

We
    agree with the motion judges interpretation of s. 40(4), essentially for the
    reasons she gave.

[7]

The
    second issue is whether the motion judge erred in refusing the amendment to
    claim a catastrophic impairment based on the record before her.

[8]

Having
    found that the appellant could bring a second application under s. 40(4), the
    motion judge considered the material filed by the parties and determined that
    the appellant had not shown that her second application was anything other
    than a rehashing of the evidence that was found to be insufficient in her
    earlier application.  The motion judge
    went on to say that the present application appeared to be a dispute of the
    original denial which dispute was out of time.  We agree with the motion judges conclusions.

[9]

The
    appellant argues, however, that the motion judge erred in treating this matter,
    in effect, as a motion for summary judgment rather than as a motion under Rule
    26.  The appellant submits that on a
    motion for summary judgment, a fuller record on the issue of catastrophic
    impairment would have been filed.

[10]

In
    our view, it was open to the motion judge to consider the issue of potential prejudice
    to Co-Operators should she permit the appellant to amend the Statement of Claim
    and add Co-Operators as a party based on the record before her.  Both parties filed material on the motion
    addressing the issue of whether the appellants second application for catastrophic
    impairment was permissible.  We are not
    persuaded that the motion judge made an error in proceeding to address the
    issue before her under Rule 26.  We note
    that on the motion, neither party submitted that she should do otherwise.

[11]

In
    the result, the appeal is dismissed.

[12]

Costs
    to the respondent fixed in the amount of $5,000, inclusive of all applicable
    taxes.

D. OConnor A.C.J.O.

K. Feldman J.A.

H.S. LaForme J.A.


