



COURT OF APPEAL FOR ONTARIO

CITATION: Wilken v. Sun Life Assurance Company, 2017 ONCA 975

DATE: 20171212

DOCKET: C63979

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Robert Wilken

Plaintiff (Appellant)

and

Sun Life Assurance Company

Defendant (Respondent)

Douglas M. Bryce, for the appellant

Stephen H. Shantz, for the respondent

Heard: December 7, 2017

On appeal from the judgment of Justice Ian F. Leach of
    the Superior Court of Justice, June 12, 2017.

REASONS FOR
    DECISION

[1]

The appellant, who is claiming the payment of long-term disability
    (LTD) benefits from the respondent, seeks to distinguish this courts
    decision in
Richer v. Manulife Financial
, 2007 ONCA 214,
85 O.R. (3d) 598
. The appellant was injured in a motor vehicle
    accident while working and started collecting Workplace Safety and Insurance
    Board (WSIB) benefits before retroactively re-electing to proceed with a tort
    action against the other driver involved in the accident. The
Richer
case involved the same situation.

[2]

Under the LTD policy in
Richer
, the insurer was the second payor
    and could reduce the LTD monthly benefit payable by the amount of any
    disability payment to which the insured was entitled under the
Workers'
    Compensation Act,
RSO 1990, c W.11

or similar law. The LTD policy in this case is different in that it
    provides that the insurer can subtract from the LTD payment any payment or
    benefit for which the insured is eligible under the
Workers Compensation
    Act
or similar law.

[3]

The motion judge, on the respondents summary judgment motion, provided
    careful and detailed reasons for finding there are no meaningful or relevant
    distinctions between the
Richer
case and the situation before me. As
    he pointed out:

the plaintiff's voluntary decision to make a retroactive
    election, foregoing WSIB benefits to pursue a tort action, effectively would
    deny the insurer its contemplated and permitted offset, thereby elevating the
    insurer's relevant coverage obligation to a "first payor" status that
    obviously was not intended.

[4]

The motion judge explained that his conclusion would:

give effect to the observation of Ritchie J. in
Madill v.
    Chu
, at p. 410 S.C.R., that an insurer's obligation under the policy
    should not be "varied adversely to its interest after the happening of the
    event insured against by the independent act of the insured".

[5]

We adopt the motion judges his reasons and conclusion:

in the calculation of any LTD benefits to which the plaintiff
    in this case otherwise may be entitled, a deduction or "deemed
    offset" accordingly should be applied in relation to the amount of WSIB
    benefits the plaintiff could have received had he exercised his entitlement to
    them, and not the amount of WSIB benefits actually received and retained in the
    wake of the plaintiff's retroactive election to proceed with his tort claim.

[6]

Having concluded the insurer was entitled to an offset, the motion
    judge dismissed the appellants claim for benefits during the period November 26,
    2012 to August 23, 2014 because the WSIB benefits for which the appellant was
    eligible exceeded the amount of the benefit that would have been payable under
    the LTD policy. The appellant recognizes that this result follows from the
    application of the offset.

[7]

The motion judge also dismissed the appellants claim for the period
    August 23, 2014 to June 1, 2015. During this period, the WSIB reduced the
    appellants monthly benefit because of his unexplained persistent failure to
    comply with the work training (WT) plan the WSIB required. On the record, the
    motion judge was entitled to infer that the WSIB would have continued to pay
    the appellant benefits at the for loss of earnings level but for his
    noncompliance with the WT plan. The deduction of full loss of earnings
    benefits results in an LTD benefit of nil for this period as well.

[8]

The appeal is dismissed with costs payable to the respondent in the
    amount of $3,450 all inclusive.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

Grant Huscroft J.A.


