C.A. Clarifies Requirements for Non-earner Benefits

It was apparent from its ruling yesterday in Heath v. Economical Mutual Insurance Company, that the Court of Appeal was not very impressed with the trial decision of Mr. Justice John C. Kennedy.

The plaintiff had been involved in a rear-end collision in 1998. At the trial in 2006, Justice Kennedy held that “a claimant is entitled to non-worker benefits for the first 156 weeks following his accident provided that he suffers ‘a partial inability to carry on a normal life. That test changes after 156 weeks to the following: The plaintiff must have sustained “a complete inability to engage in substantially all of the activities in which he or she would ordinarily engage.”ice Kennedy had awarded to the plaintff non-earner accident benefits and declared that the ““entitlement to nonearner benefits [shall] continue as long as he remains in the condition where he suffers from [a] complete inability to engage in substantially all of the activities in which he would ordinarily engage.”

But the Court of Appeal set aside Justice Kennedy’s decision and dismissed the plaintiff’s action against Economical Mutual because the trial judge had applied the wrong legal test (which is rather surprising, given that the correct test is clearly set out in a regulation to the Insurance Act).

The Court observed that “the entirety of the trial judge’s reasons” on the issue of entitlement to a non-earner benefit consisted of the following two paragraphs:

I am satisfied that the plaintiff has met the onus of establishing that his injuries and his impairment from chronic pain have continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

He is a lonely man, who has few friends and contacts, whose activities are substantially impaired and I accept the fact that he must pace himself as a result of his continued, constant and chronic pain. I accept the fact that part of the problem is that he has de-conditioned.

The trial judge set out in his reasons various formulations of the test for entitlement to a non-earner benefit, several of which were, said the Court of Appeal, “plainly wrong” and “inaccurate”. For instance, Justice Kennedy said in his reasons that “the plaintiff is entitled to non-worker benefits for the first 156 weeks following his accident provided that he suffers ‘a partial inability to carry on a normal life’.” He added that “that test changes after 156 weeks to the following: The plaintiff must have sustained ‘a complete inability to engage in substantially all of the activities in which he or she would ordinarily engage.'” In fact, the requirement in the Statutory Accident Benefits Schedule is that the claimant experience a complete, not a “partial”, inability to carry on a normal life. And that must occur within two years, not three years, of the accident.

The Court noted that, in other parts of his reasons, Justice Kennedy had described the applicable test in a way that more closely approximated the actual wording of the regulation. But it remained convinced that Kennedy J.’s decision had been “tainted” because of various misapprehensions of the evidence on his part.

The decision has some broader value to practitioners because the Court of Appeal observed that claims for non-earner benefits had not been the subject of much discussion before the courts. In its reasons, the Court of Appeal distilled from the decisions a set of “general principles” to be applied to such claims. Those general principles appear at paragraph 50 of the reasons. In a nutshell though, the principles are these:

  • The starting point will usually be a comparison of the claimant’s pre- and post-accident activities and life circumstances;
  • The court should not look only at a “snapshot” of the claimant’s activities during the period immediately preceding the accident, but should consider such longer period as is warranted by the circumstances of the case;
  • Although all of the claimant’s activities should be considered, greater weight may be given to those that he or she identifies as having been important to his or her pre-accident life;
  • The claimant must do more than prove that his or her life was changed by the accident. “Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities.”
  • The manner in which the claimant carries on an activity is to be considered. If he or she can only go through the motions, it cannot be said that this amounts to an ability to “engage in” the activity.

Having this set of guidelines from the Court of Appeal at least salvages something from a dispute that has evidently been going on, in some form, for some twenty years.

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