CITATION: Wilken v. Sun Life Assurance Company, 2017 ONSC 3609 COURT FILE NO.: DATE: 2017/06/12 SUPERIOR COURT OF JUSTICE ONTARIO

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1 CITATION: Wilken v. Sun Life Assurance Company, 2017 ONSC 3609 COURT FILE NO.: DATE: 2017/06/12 SUPERIOR COURT OF JUSTICE ONTARIO RE: BEFORE: ROBERT WILKEN And: SUN LIFE ASSURANCE COMPANY Justice I. F. Leach (Plaintiff) (Defendant) COUNSEL: Douglas M. Bryce, for the plaintiff Stephen H. Shantz, for the defendant HEARD: July 20, 2016 ENDORSEMENT [1] Before me is a motion for summary judgment brought by the defendant insurer, seeking formal dismissal of the plaintiff s claim against it for long term disability benefits, ( LTD benefits ). [2] The defendant relies principally on its asserted ability to apply an offset in respect of benefits said to be available to the plaintiff pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, ( WSIB benefits ). Such WSIB benefits are said, in turn, to eliminate the possibility of the plaintiff being owed anything by the defendant, even if the plaintiff is found to be totally disabled within the meaning of the relevant underlying policy of group disability insurance. 1 1 In my view, the summary judgment motion, as framed and advanced by the defendant, clearly did not request any ruling from the court on the question of whether the plaintiff satisfied or did not satisfy applicable definitions of total disability set forth in the relevant policy of insurance. Certainly, summary judgment dismissing the plaintiff s action in its entirety was not sought on that basis. Moreover, although the plaintiff filed considerable evidence relating to the plaintiff s alleged total disability, in responding to the defendant s motion, there was no formal cross-motion for any declaratory relief in that regard. Although the plaintiff informally requested such declaratory relief during hearing of the motion, based on undisputed but arguably irrelevant evidence filed by the plaintiff relating to disability, I do not think that would be fair or appropriate in the circumstances. In that regard, I am aware of authority, including my own decision in Demide v. Attorney General of Canada, [2015] O.J. No (S.C.J.), at paragraphs 31-34, confirming that the court does not require a cross -motion for summary judgment when it can decide the issue that was the subject matter of another party s motion for summary judgment. In this case, however, the responding plaintiff effectively sought to raise, for adjudication, an issue that was not raised by the

2 2 [3] In the circumstances, the defendant submits that there is no genuine issue requiring a trial with respect to the plaintiff s claim, and that the claim therefore should be dismissed in its entirety, with costs awarded to the defendant on a substantial indemnity basis. [4] In response, the plaintiff denies the defendant s ability to assert any offset in relation to WSIB benefits in the circumstances of this case. In particular, the plaintiff asserts that he is not currently eligible for any WSIB benefits, owing to the plaintiff s election to pursue a tort claim against a driver said to be responsible for the plaintiff s injuries. [5] The plaintiff also contends that, even if the defendant is entitled to an offset for WSIB benefits, quantifying such benefits and any corresponding offset is not a straightforward proposition, and not something capable of being done at present and/or without a trial. [6] The plaintiff therefore says the defendant s motion for summary judgment should be dismissed in its entirety, with costs awarded to the plaintiff on a substantial indemnity basis. Evidence - Background [7] In support of its motion, the defendant filed affidavit evidence sworn by one of its Senior Disability Claims Consultants, (Gina Deligianis), including a considerable number of documentary exhibits. Described in broad terms, that material outlines: the nature and terms of the group disability insurance coverage, (including potential LTD benefits), extended to the plaintiff through his employment as a driver and equipment operator for a farm supply company; the plaintiff s involvement in a motor vehicle accident on November 12, 2012, at which time the plaintiff was engaged in his employment; the plaintiff s initial pursuit and receipt of WSIB benefits, for approximately two years following his aforesaid accident; the plaintiff s subsequent application for disability benefits, pursuant to the aforesaid disability coverage provided by the defendant; the defendant s decision to consider that application for disability benefits, (notwithstanding its delayed submission), which the defendant viewed as dependent on the plaintiff s entitlement to WSIB benefits; the defendant s receipt of information confirming that the plaintiff had advised the Workplace Safety and Insurance Board, (responsible for administration of WSIB benefits), of his intention to reimburse the Board in full for all WSIB defendant s motion for summary judgment. In my view, the plaintiff should not be permitted to do so informally, without an appropriate cross-motion putting his opponent on full notice of such an intention.

3 3 benefits received to date, and withdraw his claim for WSIB benefits, in order to pursue a tort claim and a different avenue of income replacement; and an explanation of the defendant s position that the plaintiff was not entitled to payment of LTD benefits pursuant to its policy of insurance, even if he satisfied applicable definitions of total disability set forth in the relevant insurance policy 2, based on its view that the LTD coverage was intended to be secondary to WSIB entitlement, and its calculation that the plaintiff s WSIB entitlement more than offset possible LTD benefits to which the plaintiff might otherwise be entitled. [8] The plaintiff responded by filing his own substantial material, including a ten page affidavit sworn by the plaintiff, together with three volumes of exhibits. Described in broad terms, that material outlines: the family status of the plaintiff, and the circumstances of the motor vehicle accident in which he was involved on November 26, 2012; his application for WSIB benefits; his accident related injuries and medical treatment; his employment and income history; expert medical opinion concerning his injuries, prognosis and ability to work; his decision to make a re-election, whereby he would forego his claim to WSIB benefits in order to pursue a tort action, (against the estate of the other driver said to have caused the plaintiff s motor vehicle accident), which in turn led to the plaintiff s advancement of claims for statutory accident benefits, (from his own motor vehicle insurer), and LTD benefits, (from the defendant); his efforts to arrange reimbursement of the WSIB benefits he had received through directions and assignments relating to his perceived entitlements from other sources, (including his statutory accident benefits and claimed LTD benefits); and the defendant s denial of LTD benefit payments, leading to commencement of the litigation herein. 2 As indicated in its motion material and statement of defence, the defendant accepted and accepts that the plaintiff was totally disabled within the meaning of the qualifying provisions app licable to a 24 month own occupation period, from March 11, 2013, to March 11, 2015, requiring that the plaintiff be continuously unable due to an illness to do the essential duties of [his] own occupation. It nevertheless denies that the plaintiff ha s been totally disabled within the meaning of the qualifying provisions applicable to the period after March 11, 2015, requiring that the plaintiff be continuously unable due to an illness to do any occupation for which [he is] or may become reasonably qualified by education, training or experience.

4 4 [9] In my view, leaving aside the parties differing views as to whether the plaintiff s injuries and medical evidence satisfies the relevant definitions of total disability, (which the defendant says is not relevant to determination of the issues it asks the court to decide on this motion), and the parties differing views concerning the proper approach to determining the impact of the plaintiff s WSIB rights on his entitlement to payment of LTD benefits, (which the defendant effectively asks the court to address and resolve on this motion), the material filed by the parties is complimentary, and contains little or no contradiction as to the underlying background or facts. [10] That reality seems likely to have influenced the decision of the defendant not to file any evidence in reply, and the decision of both sides not to pursue any cross-examination in relation to the evidence filed for purposes of the motion. [11] In the result, (and while I will have more to say about certain aspects of the evidence in the course of my analysis below), it seems to me that the evidence filed includes the following specific facts and circumstances that are pertinent, not controverted, and not in dispute: From April of 2002 until the time of his motor vehicle accident, the plaintiff s employment included work as a truck driver for Boyd s Farm Supply Ltd. ( the employer ). Effective June 1, 2012, the defendant issued a policy of insurance to the employer, (contract number ). In consideration of monthly premium payments by the employer, the policy provided insurance benefits to all eligible employees of the employer, (including the plaintiff), in accordance with the terms of the policy and the description of benefits set forth in the employee benefit booklets. The relevant insurance was in effect at all material times, and included long term disability coverage, (the specific provisions of which, including possible deductions corresponding to entitlements pursuant to any Workers Compensation Act or similar law, are considered in more detail below). It also included provisions requiring claims to be submitted to the defendant within one year after a loss. On November 26, 2012, while engaged in the course of his employment and driving a transport truck for the employer, (earning a basic monthly salary of $3,523.33), the plaintiff was involved in a serious motor vehicle accident. According to the plaintiff and the relevant motor vehicle accident report prepared by investigating police, the accident was caused by the driver of a pickup truck failing to stop, at an intersection stop sign, before crashing into the side of the plaintiff s vehicle with sufficient force to make it roll over. The driver of the pickup truck was killed in the collision. The plaintiff is said to have sustained injuries to his head, neck, right shoulder, upper back, low back and sciatic nerve, all of which has resulted in ongoing conditions that include headaches, debilitating low back pain, sciatic nerve pain, severe muscle spasms, restricted movement, depression, severe anxiety, stress and sleep disturbance.

5 5 The plaintiff s employer was a Schedule 1 employer, within the legislative scheme of benefits established by the Workplace Safety and Insurance Act, 1997, supra. Within days of the accident, the plaintiff took steps to apply for WSIB benefits. In particular, a WSIB employer s report of injury/disease (Form 7) was completed on November 28, 2012, and a WSIB worker s report of injury/disease (Form 6) was completed on December 3, As a result of this information reported to the Workplace Safety & Insurance Board, an Election Form was issued to the plaintiff. 3 On January 21, 2013, the plaintiff signed the relevant Election Form, opting to receive WSIB benefits. The plaintiff subsequently began receiving WSIB benefits, retroactive to the date of the accident. In particular, the plaintiff initially began receiving full loss of earnings (FLOE) benefits, pursuant to s. 43 of the Workplace Safety and Insurance Act, 1997, supra, as he was being fully compliant with the work transition (WT) plan established by the WT specialist assigned to his case by the Board. That WT plan was designed to provide the plaintiff with the skills required to help him transition to a new and safe vocational goal that would work to restore his pre-injury employment earnings, and contemplated a return to work (RTW) date of June 1, As noted and confirmed by the Board in later correspondence, (sent to plaintiff counsel on May 27, 2014), an injured worker entitled to benefits from the WSIB can receive WSIB benefits or bring a legal act ion against a relevant tortfeasor for recovery in relation to the same loss, but cannot do both. Such an injured worker is required to make an election. In that regard: Where a worker elects to accept WSIB benefits, he or she may later make an application to withdraw the claim for benefits, in order to pursue legal action. Except in relation to certain accidents that took place in , there generally is no statutory right to withdraw a claim to receive benefits in order to proceed with a civil action. However, the Board occasionally will exercise its discretion to permit a worker to withdraw his or her claim for WSIB benefits, in order to pursue a civil action for damages. In such cases, the Board nevertheless normally requires full and immediate reimbursement of WSIB benefits that have been paid. The Board generally will not accept an assignment, promissory note, letter of credit or any other means of securing future repayment of the funds. If withdrawal of the claim for WSIB benefits is permitted, there usually is then no further entitlement to any WSIB benefits, and the Board will not thereafter pay the costs of any current or future medical treatment. However, pursuant to s. 30(14) of the Workplace Safety and Insurance Act, 1997, supra, when a worker elects to take legal action against a tortfeasor, instead of receiving WSIB benefits, he or she still can preserve his or her entitlement to future WSIB benefits by complying with that section. In particular, the worker s claim for WSIB benefits may still be considered in the future if the worker obtains a judgment in the legal action and is awarded less than what he or she may have received through a claim for WSIB benefits, or the Board approves a settlement of the legal action before it is made. The Board then adjudicates the claim for WSIB benefits at that point, and deducts, from any WSIB benefits the worker would have received but for the litigation, the amount of the judgment or settlement in the litigation.

6 6 Pursuant to the defendant s policy of insurance, no LTD benefits were payable in any event during an initial 15-week elimination period following the onset of any plaintiff disability. If the plaintiff was disabled as of the date of his motor vehicle accident, the relevant elimination period therefore expired on March 12, 2013, after which the plaintiff may have been entitled to LTD benefits, subject to the provisions of the defendant s policy. For the next 24 months thereafter, (described in the defendant s policy as the own occupation period ), that would include a requirement that the plaintiff satisfy the definition of totally disabled applicable to that period; i.e., continuous inability of the plaintiff to do the essential duties of his own occupation, due to an illness. On May 16, 2014, legal counsel retained by the plaintiff wrote to the Workplace Safety & Insurance Board. The letter indicated that it had been determined that the injuries sustained by the plaintiff in the motor vehicle accident were permanent, and that the plaintiff accordingly was requesting a re-election to move from WSIB coverage to pursue an independent tort action. Plaintiff counsel also indicated that he was prepared to protect the interests of WSIB within the contemplated tort action, and asked for a breakdown of the WSIB benefits the plaintiff had received to date. On May 27, 2014, the Workplace Safety & Insurance Board sent a responding letter to plaintiff counsel. The letter began with a brief summary of how the plaintiff s claim for WSIB benefits had proceeded to date, followed by an overview of the relationship between claims for WSIB benefits and litigated claims, the need for an election, and the circumstances in which an election to pursue a claim for WSIB benefits might be withdrawn. 4 The Board also indicated that, in relation to the plaintiff s particular case, it would be inclined to allow the claim for WSIB benefits to be withdrawn, on the condition that the Board be reimbursed for the amount of loss of earnings (LOE) benefits paid to the plaintiff. In particular, considering the significant amount of LOE benefits paid to the plaintiff in relation to his claim for WSIB benefits, the Board indicated its willingness to allow the plaintiff s claim for such benefits to be withdrawn on the basis that the Board would be reimbursed from amounts that would be payable by the plaintiff s statutory accident benefits insurer; i.e., the plaintiff s own automobile insurer. The Board indicated that it was willing to waive repayment of the plaintiff s health care costs. It also asked plaintiff counsel to let the Board know whether the proposed arrangement was agreeable. The Board s proposal apparently was agreeable to the plaintiff, as subsequent developments indicate that the plaintiff, with the assistance of counsel, began taking steps to pursue a claim for statutory accident benefits, and implement arrangements designed to satisfy the Board s demand for reimbursement of WSIB benefits paid to the plaintiff as a condition of permitting retroactive 4 See footnote number 3, supra.

7 7 withdrawal of his claim for such benefits. In the meantime, the plaintiff simultaneously became less compliant in terms of satisfying the requirements for continued receipt of full loss of earnings (FLOE) benefits, pursuant to s. 43 of the Workplace Safety and Insurance Act, 1997, supra. In particular, he began demonstrating non-compliance with the work transition (WT) plan established by the WT specialist assigned to his case by the Board. On June 2, 2014, the plaintiff completed an application for statutory accident benefits from his own automobile insurer, the Howick Mutual Insurance Company, ( Howick ). The application apparently was submitted to Howick the following month; i.e., in July of By July 25, 2014, the plaintiff was indicating to his WT specialist that the plaintiff was meeting with his lawyer to discuss the possibility of a re-election to pursue litigation against the other driver involved in the motor vehicle accident. The plaintiff also indicated that he would make that re-election if possible, knowing what it would entail, including the termination of any WT plan. In the meantime, the plaintiff felt unable to address any possible retraining options. By August 1, 2014, (as documented by the case manager assigned to deal with the plaintiff s claim for WSIB benefits), the plaintiff had declined further WT services, in respect of which compliance was required for further payment of full loss of earning (FLOE) benefits. On or about August 11, 2014, the plaintiff spoke by telephone with his WSIB case manager to discuss the WT plan that had been proposed for him, and concerns about compliance. The plaintiff confirmed that he was in the process of withdrawing/re-electing from WSIB to pursue his case from a private legal angle. However, the WSIB case manager emphasized that the plaintiff was fast approaching a line in the sand where non-compliance with his WT plan would lead to adverse action by the Workplace Safety and Insurance Board, in the hopes of encouraging the plaintiff to resume compliance with the WT plan. The case manager required a formal confirmation of intended compliance from the plaintiff by August 15, 2014, and indicated that no answer would be taken as an answer of non-compliance. The plaintiff also was sent a WT Sponsorship Letter and a copy of a Work Transition Plan Agreement, allowing him another opportunity to participate in the WT services as required. On August 14, 2014, the plaintiff s WSIB case manager attempted to contact the plaintiff by telephone, to follow up on the status of the WT plan documentation and the plaintiff s possible agreement and compliance with that plan. However, the plaintiff did not answer, and did not respond to a voic message left by the case manager. On August 26, 2014, the plaintiff s WSIB case manager wrote to the plaintiff, confirming his continued non-compliance with the WT process. The letter

8 8 emphasized the importance of claimant co-operation with WT plans; e.g., as a prerequisite to continued receipt of full loss of earnings benefits, without their being interrupted and adversely adjusted. In that regard, the letter also made reference to a specified standing policy of the Workplace Safety and Insurance Board, concerning the consequences of non-cooperation with WT plans. The plaintiff s WSIB case manager then indicated his decision, pursuant to that policy, to impose an initial penalty whereby the plaintiff s WSIB benefits wage loss benefits would be reduced by 50% for a period of 14 days, (starting on August 23, 2014, and ending on September 5, 2014), or until the plaintiff started co-operating again, whichever [was] earlier. It was emphasized that the resulting partial loss of earnings (PLOE) benefits would be adjusted back to full loss of earnings (FLOE) benefits on September 6, 2014, if the plaintiff returned to full compliance with his WT plan during the specified penalty period. On September 5, 2014, the plaintiff s WSIB case manager spoke again with the plaintiff. The case manager asked the plaintiff if he had changed his stance on compliance with the mandated WT plan. The plaintiff responded that there was no changes to discuss, and that the plaintiff s lawyer had asked him to stall for more time as they were still negotiating with Legal Branch in Toronto. The case manager warned the plaintiff that continued non-compliance would have consequences. In particular, it was emphasized that the plaintiff s noncompliance to date already had been the subject of a 7 day warning and 14 day warning process, such that the first day of further non-compliance would make the situation jump straight to closing of the WT plan and further loss of earning benefit adjustments. The case manager indicated that, while he would delay his further decision until September 12, 2014, he would not be extending the current partial loss of earning arrangement beyond September 5, In particular, the decision he would be making on September 12, 2014, would be retroactive to September 5, On September 10, 2014, the plaintiff s counsel wrote a letter to legal counsel for the Workers Safety and Insurance Board. On September 16, 2014, the plaintiff s WSIB case manager sent the plaintiff a further letter, confirming that the plaintiff remained non-compliant with his mandated WT plan, and continued to decline participation in his recommended work transition program. In the result, the case manager made further reference to provisions of the same Workplace Safety and Insurance Board policy, (noted in the earlier initial penalty letter of August 26, 2014), dealing with claimant failure to cooperate with WT plans. In particular, the case manager emphasized provisions of the policy dictating that, in cases of continued non-cooperation, the Board terminates the WT assessment and/or the WT plan and reduces the worker s wage loss benefits to reflect the earnings the worker would have been capable of earning had he or she completed the WT plan. In accordance with that policy, the case manager indicated his decision to permanently close the plaintiff s WT plan, and make a further adjustment to the plaintiff s WSIB

9 9 benefits. In particular, effective September 5, 2014, the 50% partial loss of earning (PLOE) WSIB benefits the plaintiff had most recently been receiving, (in accordance with the initial penalty imposed for the plaintiff s non-compliance), would be further adjusted to partial loss of earnings benefits based on a vocational wage of $13.00 per hour over a 44 hour week. 5 That setting of the plaintiff s WSIB benefits was to remain in effect through to November 26, 2018, (the sixth anniversary of the plaintiff s motor vehicle accident), subject to material changes/material change reviews. On November 26, 2018, the plaintiff s case would be reviewed again for final loss of earnings and lock-in, (with the partial loss of earnings benefits being adjusted again, but against experienced worker wages in accordance with the appropriate policies ). On October 8, 2014, the plaintiff signed an authorization directing Howick to pay the Workplace Safety and Insurance Board the sum of $57,962.10, (i.e., as reimbursement for previously received WSIB benefits), from any income replacement benefit otherwise payable by Howick to the plaintiff for the period from November 26, 2012, (the date of the accident), through to September 3, On October 27, 2014, the plaintiff formally commenced his tort claim against the estate of the alleged at-fault driver who is said to have caused the relevant motor vehicle accident. On December 9, 2014, the defendant received its first notice of the plaintiff s claim for LTD benefits, when it received a claim form from the policyholder, (i.e., the plaintiff s employer). On January 21, 2015, the plaintiff completed a claim form, (a Plan Member s Statement and Claim for Long-Term Disability Benefits ), and submitted it to the defendant. (In completing the form, the plaintiff indicated, inter alia, that he was not eligible to receive any other disability benefit, including WCB and WSIB benefits.) The form, requesting payment of LTD benefits, was received by the defendant on January 26, Insofar as the plaintiff was claiming in relation to alleged loss dating back to the date of his motor vehicle accident on November 26, 2012, the plaintiff had not submitted his claim to the defendant within one year after his loss, as required by the provisions of the policy. The defendant nevertheless agreed to waive the late filing of the plaintiff s claim, having regard to the fact, (which the defendant somehow had learned), that the plaintiff was receiving WSIB benefits. It assigned the plaintiff s claim to a case manager employed by the defendant. That case manager determined, (in accordance with the policy s stipulated formula for LTD benefit calculation), that 5 The WT plan proposal developed for the plaintiff, on or about July 29, 2014, contemplated an eventual return to work at a rate of $13.00 at 44 hours per week. This made some allowance for the fact that the plaintiff had been working approximately 49 hours per week prior to his motor vehicle accident.

10 10 the plaintiff s potential monthly benefit would be $2,349.00, (i.e., 66.67% of the plaintiff s basic monthly salary of $3,523.33), before subtracting any additional sources of benefits or payments. On February 9, 2015, (according to a call record made by the defendant s case manager), the case manager spoke by telephone to the plaintiff, (referred to in the record as the PM, which apparently stands for Policy Member ). The record notes that the case manager informed the plaintiff of the defendant s decision to pend [the defendant s] file & request documentation from WSIB in order to accurately assess [the plaintiff s] claim. In response, the plaintiff indicated that he had closed his WSIB file so that he could pursue [a] different avenue of income replacement. On February 10, 2015, the defendant s case manager wrote to the Workplace Safety and Insurance Board, requesting access to the plaintiff s WSIB case file, and providing a formal authorization to release information. The correspondence included a request for a breakdown of loss of earnings (LOE) benefits awarded to the plaintiff from November 27, 2012, to the present. On February 27, 2015, the Workplace Safety and Insurance Board sent a letter responding to the defendant s case manager s request and inquiry. The letter indicated that a hard copy of the plaintiff s case file was being prepared for release to the defendant, and that the plaintiff had been paid a total of $57, in WSIB benefits between November 27, 2012, and the present, (i.e., the date of the Board s letter). However, the letter also noted that the plaintiff had advised the Board of his intention to reimburse the Board in full for those expenses, in furtherance of the plaintiff s stated intention to close and withdraw his WSIB claim. On or about March 18, 2015, the defendant received the plaintiff s full WSIB file, which included various documents dealing with the plaintiff s withdrawal of his claim for WSIB benefits, and the position of the Workers Safety and Insurance Board regarding the plaintiff s ongoing entitlement to WSIB benefits. On March 12, 2015, the relevant 24 month own occupation disability period applicable to the plaintiff, pursuant to the provisions of the defendant s insurance policy, came to an end. Thereafter, in accordance with the policy s provisions, the definition of totally disabled to be met by the plaintiff, before any payment of LTD benefits, changed so as to require the plaintiff s continuous inability to do any occupation for which he was or may become reasonably qualified by education, training or experience. On April 8, 2015, a case manager employed by the defendant wrote to the plaintiff. Amongst other things, the letter indicated and/or noted:

11 11 o that the defendant had completed its assessment of the plaintiff s claim and had approved the plaintiff s claim for LTD benefits up to March 11, 2015, (in accordance with the own occupation definition of total disability), with a calculated monthly benefit of $2,349.00, (determined in accordance with the policy s stipulated formula of 66.67% of the plaintiff s basic monthly salary of $3,523.33); o that, pursuant to the applicable group LTD policy, the plaintiff s disability benefits nevertheless might be reduced by consideration of payments from other sources for the same or subsequent disability, such as Canada Pension Plan/Quebec Pension Plan, Workers Compensation, work for remuneration or Pension plan payments ; o that the defendant understood the plaintiff had received WSIB benefits, but was currently looking to reimburse them in order to close his WSIB file and pursue litigation; o that the plaintiff had provided the defendant with his WSIB claim file to assist in the defendant s management of his disability claim; o that the defendant would not release any payment to the plaintiff pending receipt of documentation confirming that the plaintiff had provided WSIB reimbursement in the amount of $57,962.10; o that the defendant intended to follow up on the status of the closure of [the plaintiff s] WSIB file and litigation proceedings ; and o that the defendant also still needed to assess whether the plaintiff could be considered totally disabled in accordance with the any occupation provisions of the policy applicable after March 11, On May 20, 2105, plaintiff counsel wrote to the defendant s case manager, indicating that the plaintiff was unable to make direct repayment of any amount to the Workplace Safety and Insurance Board. Plaintiff counsel noted that the Board had requested a signed authorization, directing the plaintiff s statutory accident benefits insurer to repay the Board $57, directly from any income replacement benefits payable to the plaintiff between the date of the accident and September 3, Plaintiff counsel suggested a similar arrangement, whereby the defendant would pay the plaintiff s LTD benefits for the same period directly to the Board, paying any other LTD benefits directly to the plaintiff. Plaintiff counsel supplied the defendant with an authorization for that proposed purpose. On June 5, 2015, the defendant s claim manager wrote again to the plaintiff. The letter highlighted the different any occupation definition of total disability the plaintiff needed to satisfy for continued LTD benefit eligibility after March 11, 2015, and indicated the defendant s view that the plaintiff did not meet that

12 12 definition; i.e., that the plaintiff could not be considered totally disabled from performing any occupation. In that regard, it was noted: o that the work transition specialist appointed by the Workplace Safety and Insurance Board had identified a suitable alternate occupation, (Retail Trade Manager), that would have been consistent with the plaintiff s functional abilities, and paid a commensurate wage; o that the plaintiff would have possessed the skills necessary to return to the workforce, had he participated in the work transition plan; o that the plaintiff nevertheless had declined to participate in the plan, choosing instead to pursue legal action in relation to the accident; o that the defendant accordingly would not be paying any benefits for the period past March 11, 2015; and o that the plaintiff s claim for benefits thereafter from the defendant would be closed. Following receipt of the defendant s letter of June 5, 2015, the plaintiff indicated his intention to appeal the defendant s decision. On August 12, 2015, another case manager responded to the letter sent to the defendant by plaintiff counsel on May 20, The response indicated that the defendant was unable to make payments directly to the Workplace Safety and Insurance Board, as the financial arrangement created by the relevant insurance policy was between the defendant and the plaintiff, (rather than the Board). The letter went on to indicate that the defendant required confirmation from the Board that the plaintiff was not eligible to receive WSIB benefits. The letter suggested the defendant then would pay LTD benefits directly to the plaintiff, who then would be responsible for repaying WSIB benefits to the Board. On August 26, 2015, a representative of the Workplace Safety and Insurance Board then wrote directly to the defendant. The letter noted that the Board, pursuant to its discretion, had allowed Mr. Wilken to withdraw his WSIB [claim] in order to pursue a tort action against third parties that (sic) caused his injuries. It also noted that, as a result of the WSIB claim being withdrawn, the WSIB claim [had] been closed and Mr. Wilkens [was] no longer entitled to received (sic) WSIB benefits. On September 29, 2015, plaintiff counsel sent the defendant a letter before action, indicating an intention to commence an action against the defendant with respect to disability benefits for the plaintiff.

13 13 On October 20, 2015, the defendant responded to plaintiff counsel, indicating why the defendant felt no LTD benefits were payable to the plaintiff in any event. In that regard, the defendant focused on the estimated or deemed offset provisions of the relevant policy, permitting the insurer to consider and subtract, from any gross amount otherwise payable to the plaintiff, certain benefits or payments available to the plaintiff under any Workers Compensation Act or similar law, in relation to the same disability, even if the plaintiff did not apply for them. In particular: o emphasis was placed on the policy being designed to provide only second payor coverage, (i.e., coverage standing in line behind various other disability income sources, including WSIB benefits, as reflected), and the corresponding reality that the relevant insurance premiums charged to the employer, (and therefore the plaintiff s personal contribution to those premiums), necessarily would have been higher but for the insurer s ability to apply such offsets for other disability income; o a distinction was drawn between approval of the plaintiff s claim, in relation to the own occupation period of possible LTD benefit coverage ending March 11, 2015, and calculation of the net monthly LTD benefit payable during that period; o reference was made to provisions of the relevant policy governing calculation of LTD benefits, which expressly permitted the insurer to subtract any benefits or payments provided for the same or subsequent disability under any Workers Compensation Act or similar law, excluding cost-of-living increases that occur after benefits begin ; o reference also was made to deemed offset provisions of the policy expressly permitting the insurer to still consider, estimate and use any such benefits and payments in the calculation of LTD disability payments, if an insured was eligible for any such benefits or payments but did not apply for them; o the insurer noted that the plaintiff had filed a re-election with the Workers Safety & Insurance Board for the purpose of declining what otherwise would have been his WSIB benefit entitlement in favour of exercising his right to instead pursue a tort action against third parties responsible for his injuries ; o the insurer emphasized its view that the plaintiff s WSIB re-election amounted to a clear decision on his part not to apply for those available benefits ; o the insurer indicated that its case manager had erred in treating the plaintiff s self-imposed ineligibility for WSIB benefits in a manner

14 14 similar to a determination by the Workers Safety & Insurance Board, after due assessment, that the plaintiff was not eligible for or entitled to benefits; o the insurer emphasized that its case manager instead should have applied the aforesaid deemed offset provisions in the calculation of LTD benefits payable to the plaintiff, (i.e., considering and deducting the WSIB benefits available to the plaintiff but for his voluntary re-election) 6, and opined that the resulting calculation in this case was relatively straightforward insofar as the insurer had the advantage of knowing and using the plaintiff s demonstrated and therefore precise WSIB benefit entitlement, instead of having to use an estimated WSIB benefit; o based on that approach, the insurer felt that the plaintiff s WSIB entitlement effectively reduced his LTD benefit payment entitlement to nil, during the own occupation qualification period; and o the insurer reiterated its determination that the plaintiff was not totally disabled thereafter, according to the relevant policy definitions. On November 27, 2015, the plaintiff commenced this action against the defendant by issuing his statement of claim. The defendant delivered its statement of defence herein on March 7, [12] With the above facts and circumstances in mind, I now turn to more detailed consideration of the defendant s motion for summary judgment. Analysis [13] I begin with consideration of the law relating to whether this matter is amenable to adjudication by way of summary judgment, as suggested by the defendant. SUMMARY JUDGMENT [14] Pursuant to Rule 20.01(3) of Ontario s Rules of Civil Procedure, a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in a statement of claim. [15] Numerous additional sub-rules outline the manner in which the court must approach such a motion, and the powers the court has in that regard. They include the following: 6 In taking that position, the insurer noted its understanding that use of such an estimated or deemed offset provision in a situation such as this had been endorsed by the Ontario Court of Appeal in Richer v. Manulife Financial (2007), 85 O.R. (3d) 598 (C.A.).

15 15 Pursuant to Rule 20.02(2), a plaintiff responding to such a motion may not rest solely on the allegations or denials in his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that a respondent to a such a motion is not permitted to sit back and rely on the possibility that more favourable facts may develop at trial, and is instead required to lead trump or risk losing and put its best foot forward, as the court is entitled to assume that the record contains all the evidence the parties would present at trial. See, for example: Pizza Pizza Ltd v. Gillespie (1990), 75 O.R. (2d) 225 (Gen.Div.); Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen.Div.); and Toronto-Dominion Bank v. Hylton, [2012] O.J. No (C.A.). Pursuant to Rule 20.04(2), the court is obliged to grant summary judgment if it satisfied that there is no genuine issue requiring a trial with respect to a claim. In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercise only at trial. In the exercise of those powers, the court also has the ability, pursuant to Rule 20.04(2.2), to order presentation of oral evidence by one or more of the parties; i.e., to direct a mini-trial. Where the only genuine issue is the amount of the plaintiff s entitlement, the court has the ability, pursuant to Rule 20.04(3), to order a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly. Where summary judgment is refused or granted only in part, the court nevertheless has additional powers, pursuant to Rules 20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances. [16] In Hyrniak v. Mauldin, [2014] 1 S.C.R. 87, the Supreme Court of Canada encouraged the use of Ontario s summary judgment rule to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication. [17] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27 of the Hyrniak decision):

16 16 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pretrial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. [18] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter can be resolved in a fair and just manner, which will be the case when the process: i. allows the judge to make the necessary findings of fact; ii. iii. allows the judge to apply the law to the facts; and is a proportionate, more expeditious and less expensive means to achieve a just result. [19] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge s discretion, provided that their use is not against the interest of justice. OVERVIEW OF CONCLUSIONS [20] For reasons outlined in more detail below, in my view not all of the issues raised and addressed by the parties in this particular context are amenable to resolution by summary

17 17 judgment, and the defendant insurer accordingly is not entitled to its requested relief, dismissing the plaintiff s action in its entirety. [21] Having said that, I do think the dispute is amenable to partial summary judgment, (albeit in a slightly different manner), dismissing the plaintiff s claims for LTD benefits in relation to two specific time periods: i. November 26, 2012, to August 23, 2014; and ii. August 23, 2014, to June 1, [22] While summary judgment is not possible in relation to the plaintiff s claim for LTD benefits in relation to the period after June 1, 2015, I think the remaining aspects of the parties dispute may benefit from at least some further judicial direction, pursuant to Rule IMPACT OF WSIB BENEFITS ON LTD BENEFITS [23] At the heart of the defendant s current motion is reliance on certain provisions of the underlying policy of insurance governing the calculation of LTD benefits. The relevant provisions read in part as follows: What we will pay Here is how we calculate your Long-Term Disability payments. All references to benefits and payments in this disability provision are to the gross amounts before any deductions. Step 1: We take 66.67% of your monthly basic earnings up to a maximum of $7,500. Step 2: We subtract any benefits or payments provided to you: for the same or a subsequent disability under any Workers Compensation Act or similar law, excluding automatic cost-of-living increases that occur after benefits begin. The result from Step 2 is the amount you will normally receive. If you are eligible for any of the benefits or payments described above and do not apply for them, we will still consider them. We can estimate those benefits and payments and use them when we calculate your Long-Term Disability payments. [Emphasis added.]

18 18 [24] The defendant insurer submits that the language of the above provisions is clear and unambiguous. [25] Relying principally on our Court of Appeal s decision in Richer v. Manulife Financial, supra, the defendant insurer also says that, in the calculation of any LTD benefits to which the plaintiff 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. [26] In Richer, the plaintiff insured was injured in the course of his employment, and was covered by a disability insurance policy through his employer. Relevant provisions of the policy, (found in Article 4 therein), included the following: The amount of Monthly Benefit payable to the Employee shall be reduced by any payment to which the disabled Employee is entitled for that month for loss of time under any Workers Compensation Act or under a comparable legislative or insurance provision. A disabled Employee, in order to receive benefits under this Plan must make application for any disability payments for which he may be eligible under any Workers Compensation Act or comparable legislative or insurance provision and until the amount of those payments has been established the Administrator reserves the right to make the reductions described above on the basis of the estimated amount of those payments. When the amount of such disability benefits has been established, the Administrator will adjust the reductions previously made to correct the amount. [Emphasis added.] [27] Mr. Richer applied for benefits under the Workplace Safety and Insurance Act, 1977, and then elected under section 30 of that Act to proceed with a civil action against the party allegedly responsible for his injuries. His claim for LTD benefits was denied by the disability insurer, which relied upon the above provisions. In an action claiming entitlement to LTD benefits under the policy, the court was obliged to determine, inter alia, whether Mr. Richer s LTD benefits were subject to an offset of the amount of WSIB benefits that he would have received, had he not elected to proceed with a civil action. [28] Our Court of Appeal held that they were, pursuant to the provisions set out above. [29] In that regard, Justice Jurianz spoke for the court and found the ordinary meaning of the policy s language to be clear and logical, thereby making it unnecessary to resort to other principles of insurance policy interpretation such as the contra proferentum doctrine, the doctrine of reasonable expectations, or the principle that coverage provisions should be construed broadly and exclusion clauses narrowly.

19 19 [30] Justice Jurianz went on to reason as follows: Question Two: Are the Appellant s LTD Benefits Subject to an Offset of the Amount of the WSIB Benefits that He Would Have Received Had He Not Elected to Proceed With a Civil Action? Article 4 of the LTD plan provides that the amount of the monthly benefit payable to the appellant shall be reduced by any payment to which the disabled Employee is entitled for that month. (Underlining added). As the motions judge noted, in Madill v. Chu, [1977] 2 S.C.R. 400, the Supreme Court of Canada determined that the phrase entitled to receive benefits means that an insurer is entitled to reduce benefits on satisfactory proof that the insured could have successfully claimed the benefit whether or not such [a] claim was actually made. Ritchie J. held, at p. 409 S.C.R., that a worker s entitlement to receive payments is not dependent upon a formal application for workmen s compensation having been made and approved. (Emphasis in original.) Madill v. Chu, supra, as I understand it, stands for the proposition that the amount of reduction of payments under the plan for WSIB benefits which the appellant is entitled to receive is not the amount of WSIB benefits that the appellant receives but the amount of such benefits that the appellant could have received had he exercised his entitlement for them. In this case, the amount by which the monthly benefit payable to the employee is reduced by any payment to which the disabled Employee is entitled for that month refers to the amount of WSIB benefits to which the appellant would have been entitled had he not elected to proceed with his civil action. This interpretation 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. I would answer the second question in the affirmative by concluding that [the insurer] is entitled to reduce the monthly benefit payable to the appellant under the policy by the amount of WSIB benefits to which he would have been entitled had he not elected to proceed with an action. [31] In the case before me, the plaintiff argues that the situation and outcome in Richer should be distinguished, and confined to the particular facts and policy wording in that case. In particular: the plaintiff highlights specific wording of the relevant policy provisions in the Richer case, and the reasons of Justice Jurianz, focusing on WSIB benefits to which the insured may have been entitled, rather than WSIB benefits for which the insured may have been eligible ;