Paul Temple Plaintiff And: Aviva Insurance Company of Canada Defendant, 2019 NLSC 80

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Temple v. Aviva Insurance Company of Canada , 2019 NLS C 80 Date : April 5, 2019 Docket : 201301G4537 Between: Paul Temple Plaintiff And: Aviva Insurance Company of Canada Defendant Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: February 11, 2019

Summary: The Court found that the Plaintiff did not qualify for loss of income payments under

Section B of a standard automobile insurance policy as he was not employed at the date of the accident. Appearances:

John C. Crosbie Appearing on behalf of the Plaintiff Jorge P. Segovia Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Gaudet v. Co-operators Insurance Co. of Canada (1993), (PE SCTD), 111 Nfld. &P.E.I.R. 1, 42 A.C.W.S. (3d) 503 (P.E.I. S.C. (T.D.)); Fougère v. Wawanesa Insurance Co., 2002 NBQB 364; Doiron v. Cameron, 2003NBQB 281; Logan v. Pafco Insurance Co., 2000 NSCA 58; Sansone v. State Farm Mutual Automobile Insurance Co. (ON CA), 1979, 2 A.C.W.S. 17, 100 D.L.R. (3d) 518 (Ont. C.A.) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Defendant, Aviva Insurance Company of Canada (“Aviva”) has applied under Rule 17A of the Rules of the SupremeCourt, 1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”) for a declaration with respect to the Plaintiff’s qualification to seek loss of incomepayments under

Section B of an automobile insurance policy. I agreed with counsel that an appropriate evidentiary basis had beenpresented and it was otherwise appropriate to determine this issue in a

summary manner. The threshold test to proceed with a hearingunder Rule 17A had been met. The matter therefore proceeded with the evidence consisting of an Agreed Statement of Facts, discoveryevidence and an Affidavit of the Plaintiff, on which he was cross-examined. background [2] The Plaintiff, Paul Temple, was a passenger in a motor vehicle that was involved in an accident on April 22, 2012. Thevehicle in which he was a passenger was insured by Aviva under a S.P.F.

No. 1 Standard Automobile Policy (Owner’s Form) (the“Policy”), being the standard form policy approved by the Superintendent of Insurance for the Province of Newfoundland and Labrador. There is no dispute that Mr. Temple was an insured person within the meaning of that policy. [3] Mr. Temple alleges that he suffered personal injuries as a result of the motor vehicle accident. He commenced a claimagainst the driver of the other automobile involved in the accident. He also commenced this proceeding against Aviva for coverageunder

Section B of the Policy.

Section B obligates an insurer to pay an insured person who sustains bodily injury or death arising out ofa motor vehicle accident benefits comprised of

(1) Subsection 1 - medical, rehabilitation and funeral expenses; and

(2) Subsection 2 -death benefits and loss of income payments. [4] Mr. Temple sought and received

Section B benefits from Aviva under Subsection 1 but was denied loss of income benefitsunder

Part II, Subsection 2. Aviva asserts that Mr. Temple did not meet the conditions to qualify for benefits under that Part as he wasnot employed at the date of the accident within the meaning of the Policy. [5] Mr. Temple asserts that he does meet the definition of a person employed at the date of the accident within the meaning ofthe Policy. He says while he was not actively working on the date of the accident, he had been working on vessels involved in theseasonal fishery for several years prior. He says that this seasonal employment entitles him to claim loss of income benefits. [6] The wording of the Policy setting out the relevant eligibility criteria is reproduced below:

Part II – Loss of Income Subject to the provisions of this Part, the weekly payment for the loss of income from employment for the period during which theinsured person suffers substantial inability to perform the essential duties of his or her occupation or employment, provided,

a) such person was employed at the date of the accident; … For the purposes of this Part, … (3) a person shall be deemed to be employed ,

a) if actively engaged in an occupation or employment for wages or profit at the date of the accident; or

b) so engaged for any 6 months out of the preceding 12 months and in these circumstances shall be deemed to have suffered loss of income at a rate equal to that of his or her most recent employment earnings; … (Emphasis added) [ 7 ] At his discovery examination and on cross-examination, Mr. Temple confirmed that he was looking for work at the date of the accident and had not yet committed to any particular employment or employer. As such, he was not actively engaged in an occupation or employment for wages or profit at the date of the accident. [ 8 ] Mr.

Temple also concedes that he was not actively engaged in an occupation or employment for wages or profit for any six months out of the preceding twelve months. While his record of employment indicates that he had employment income as a self- employed fisher from April 30, 2011 to September 24, 2011, this employment was for less than a six-month period. Further, he had no other employment in the twelve months preceding the accident. As such, he does not meet either of the two criteria in Subsection (3) referred to above that would deem him to be employed within the meaning of the Policy. [ 9 ] However, Mr.

Temple notes that the fishery had not yet commenced for the season at the date of the accident. As a self- employed seasonal fisher, he says he meets the condition of someone who was employed at the date of the accident without relying on the deeming provision set out above. [ 10 ] Both parties agree that if I find in favour of the Plaintiff on the issue of whether Mr. Temple meets the employment qualification for loss of income payments under the Policy, the issue of whether Mr.

Temple was disabled from his occupation or employment in accordance with the terms of the Policy would be left for determination at a later date. issue [ 11 ] Is the Defendant entitled to a declaration that Mr. Temple does not meet the condition of being employed at the date of the accident within the meaning of

Section B, Subsection 2,

Part II of the Policy? law and analysis [ 12 ] The fundamental disagreement between the parties lies in the

interpretation of the qualifying condition that an insured person be employed at the date of the accident. Both counsel filed cases from other jurisdictions in which courts have interpreted identical or substantially similar provisions in automobile insurance policies, with courts deciding both in favour of and against the insured person. [ 13 ] Counsel for Aviva asserts that a seasonal worker not actively engaged in employment on the date of the accident must, at a minimum, have an existing or continuing arrangement with an employer to be considered employed at the date of the accident. As Mr.

Temple had no such relationship or arrangement at the date of the accident, the wording of the Policy cannot be so broadly interpreted or stretched to make him qualify. [ 14 ] On the other hand, counsel for Mr. Temple says that the Policy should be interpreted to provide coverage for seasonal workers who demonstrate that, at the date of the accident, there was every likelihood that they would have again worked in the seasonal work in which they have been employed in the past. Counsel for Mr.

Temple asks this Court to interpret the Policy generously in favour of the insured. [ 15 ] Counsel for Aviva acknowledges there have been cases in which Canadian courts have held that a seasonal worker, while not actively employed on the date of the accident, met the condition of being employed at the date of the accident within the meaning of the standard form automobile policy. However, he states that the factual circumstances in those cases were significantly different from those of Mr. Temple. A brief overview of the evidence regarding Mr. Temple’s employment status is therefore relevant to the analysis.

[16] Mr. Temple provided Affidavit evidence that he fished professionally from the Spring/Summer of 2000 until being involved inthe motor vehicle accident of April 22, 2012. His work in the seasonal fishery usually took place between May and September each year. [17] Mr. Temple said that for the twelve years that he had been working in the fishing industry, he had worked eight or nine of thosewith his uncle, Albert Newhook. However, he had not worked for Mr. Newhook in 2011. [18] Mr. Temple had upgraded his ticket shortly before the accident so that he could work as a captain on a fishing vessel.

Hehoped that he would be able to make more money with this upgraded ticket. As a result, he sought to contract himself out, placing an adon the community channel for work for the upcoming fishing season rather than seeking employment on a vessel on which he hadpreviously fished. He said he had a number of conversations with vessel owners about taking a berth but the only offer he received priorto the motor vehicle accident required him to fish too far from home. [19] Mr. Temple explained he did not seek employment with his uncle prior to the accident as his uncle already had employees withtheir captain’s ticket.

However, he said that if he could not obtain employment at a higher income using his captain’s ticket, he wouldhave gone to fish with his uncle. Mr. Temple acknowledged that his uncle would have already been seeking to fill positions on hisvessel prior to the accident, but said he was sure his uncle would have contacted him first before filling all positions. As such, he saysthat he had every likelihood of securing employment as a fisherperson for the 2012 season. [20] Against this factual background, I must consider whether Mr. Temple met the condition of being employed at the date of theaccident.

In doing so, I will consider the case law presented by counsel dealing with somewhat similar factual circumstances. [21] Counsel for Mr. Temple referred me to three cases in which courts have accepted that seasonal employment can result in anindividual being considered employed during the off-season. [22] In the Prince Edward Island Supreme Court Trial Division case of Gaudet v. Co-operators Insurance Co. of Canada (1993), (PE SCTD), 111 Nfld. & P.E.I.R. 1, 42 A.C.W.S. (3d) 503 (P.E.I.

S.C. (T.D.)), DesRoches, J. considered whether aseasonal fisher was “employed at the date of the accident” within the meaning of the Standard Automobile Policy of Insurance for PrinceEdward Island. In that case, the plaintiff had worked in the fishery with his brother but was temporarily laid off only 19 days before theaccident. [23] The court held that the absence of a written contract confirming an ongoing employment relationship was not determinative ofwhether an employment relationship existed.

At paragraph 19, DesRoches, J. commented as follows: 19 One would be hard pressed to find a written formal employment contract between a fisherman's helper and the master of a fishingvessel in this Province. Should the defendant's contention prevail, it is unlikely that any fisherman's helper in this Province would beentitled to

Part II benefits under the Standard Automobile Policy of Insurance unless the accident occurred during the fishing season. Inmy view, that would be too restrictive an

interpretation of legislation that is meant to be construed broadly so as to ensure that benefitsare payable in accordance with the intention of the legislature. [24] At paragraph 22, the court found the evidence was clear that, but for the accident, the plaintiff would have resumed activeengagement in the fishing industry with his brother either in the Spring of the following year or certainly in the Fall.

As such, he foundthat the plaintiff had entered into a course of employment with his brother, thereby meeting the policy eligibility criteria. [25] Counsel for the Plaintiff also refers to the New Brunswick Court of Queen’s Bench decision in Fougère v. Wawanesa InsuranceCo., 2002 NBQB 364, again dealing with a seasonal worker who was not working at the time of the accident. Counsel for the Plaintiffasks that I adopt the following statement of Rideout, J., at paragraph 20, when dealing with a claim by a seasonally employed person: 20 I am, therefore, satisfied that for purposes of interpreting

Part II of the Standard Automobile Policy, a seasonally employed personwho has every likelihood of being seasonally employed in the future, is an employed person within the definition provided for in thepolicy of Wawanesa. This is particularly so when the person is normally seasonally employed for six months a year. [26] The final case referred to by counsel for the Plaintiff is a decision of the New Brunswick Court of Queen’s Bench in Doiron v.Cameron, 2003 NBQB 281. While that case did not deal with a

Section B claim but rather a claim for an advanced payment of specialdamages, counsel made reference to the following statement at paragraph 21: 21 While it is acknowledged that Mr. Doiron was not working at the time of the accident, it is not contested that he was a seasonalworker who normally did not work at that time.

It is now settled law that being on employment insurance benefits does not automaticallydisqualify a person from receiving an advance payment for loss of income or being considered employed in certain circumstances. [27] On the other hand, counsel for the Defendant refers to two appellate decisions in which courts had occasion to considerwhether a person who was not actively engaged in employment at the date of the accident was nevertheless considered to be employed.

While neither of these cases involved seasonal workers, they do assist in determining how a court should interpret and apply thecondition of employment-related eligibility for loss of income under

Section B of a standard automobile insurance policy. [28] In the Nova Scotia Court of Appeal decision in Logan v. Pafco Insurance Co., 2000 NSCA 58, the plaintiff was a plumber’sapprentice and a member of his local Union. His work had consisted of employment with two different employers but he wasunemployed for a period of close to two months prior to the date of the accident. He had been alternately employed and in receipt ofemployment insurance benefits for various periods in the twelve months prior to the accident.

The combined periods of his employmenton jobs during the twelve months prior to the accident did not add up to six calendar months if the periods of unemployment betweenprojects were excluded. The case therefore turned on how the periods between jobs was characterized.

[29] The Nova Scotia Court of Appeal found that the evidence did not support the trial judge’s finding that the plaintiff, during theperiods of unemployment, was on “temporary lay-off” and therefore “actively engaged in an occupation or employment for wages orprofit”. [30] At paragraph 12, Bateman, J.A., looked at the evidence with regard to the plaintiff’s last period of employment and found thathis work had finished almost two months prior to the accident with no possibility of further work or recall to work.

At paragraph 22, thecourt differentiated the plaintiff’s situation from a worker who, although not actually working at the date of the accident either remained“on call” or who had definite employment arrangements for the future. In the case of Mr. Logan, the employer had an option to recallhim for work but Mr. Logan had no right to be recalled.

As such, there was no ongoing employment relationship at the date of theaccident. [31] Further, the court found that the plaintiff did not show that he had been employed for a full six calendar months in the twelvemonths prior to the accident, as the periods of unemployment with no right of recall or definite future employment did not qualify. Hecould therefore also not rely on the deeming provision. [32] Counsel for the Defendant also referred to the Ontario Court of Appeal decision in Sansone v. State Farm Mutual AutomobileInsurance Co. (ON CA), 1979, 2 A.C.W.S. 17, 100 D.L.R. (3d) 518 (Ont. C.A.).

In that appeal, the court hadoccasion to interpret the same employment condition in a

Section B automobile insurance policy. Lacourciere, J.A. found that the policycondition requiring that an insured be employed at the date of the accident should not be interpreted restrictively so as to mean that theinsured person had to be working at the precise moment of time of the accident, as the trial judge had concluded. However, the Policycondition must be interpreted such that there is an existing contract of employment or actual employment. [33] Counsel for the Defendant cites the two above cases as supporting his position that a proper

interpretation of the policy ofinsurance requires evidence that the insured had an existing employment relationship or contract at the date of the accident. To negatethis requirement would be rewriting the mandated policy language to provide that all seasonal workers are deemed to be employed year-round. [34] Counsel for the Defendant submits that Gaudet and Fougère do not stand for the broad proposition that the policy applies to allseasonal workers year-round.

In particular, in Gaudet, the plaintiff was a fisherperson who had seasonally worked with his brother in theprior year as well as during the fishing season in the year of the accident. The season had ended immediately prior to the date of theaccident. [35] DesRoches, J. reviewed the history of the plaintiff’s employment and the nature of the relationship between he and his brother. In that case, the plaintiff’s brother had registered his second fishing boat and license in the name of the plaintiff. These licensesremained in the plaintiff’s name for a full year after the accident.

The discovery evidence of the plaintiff’s brother also clearlyestablished that the plaintiff would have worked for him during the Fall lobster season the next year. [36] At paragraph 22, the court held the evidence was clear that, but for the accident, the plaintiff would have resumed activeengagement in the fishing industry with his brother.

Therefore, “[o]n the facts of this case…”, he was satisfied that the plaintiff hadentered into a continuing course of employment with his brother, and was only temporarily laid off some nineteen days before theaccident. [37] Further, in Fougère, the plaintiff fish plant worker had been employed as a seasonal worker in the same fish plant for four yearsprior to the accident. Once again, the court made a factual determination with respect to whether the plaintiff was employed at the dateof the accident.

At paragraph 18, Rideout, J. stated as follows: 18 I am of the opinion that whether a person, who is seasonally employed, will meet the requirements of

Part II (

b) of the Policy willdepend on the facts of each case. … [38] In Fougère, the court noted that the plaintiff was regularly employed in a seasonal industry with the same employer. Consequently, there were periods of lay-off or unemployment.

The court referred with approval to the decision in Gaudet, noting that itdepends on the circumstances and the relationship that exists between the person and the employer to determine whether a person is onlay-off from employment. [39] Finally, with respect to Doiron, counsel for the Defendant notes that case involved an application brought by a plaintiff for anadvanced payment of damages based on loss of income.

In that application, it was incumbent upon the plaintiff to establish a loss ofincome claim, i.e. the plaintiff has to establish on a balance of probabilities that he would have earned income after the accident but forthe injuries suffered in the accident. It was not a case in which the plaintiff had to establish that he was employed at the date of theaccident. [40] As noted at paragraph 13 of Logan, a determination that a plaintiff was not employed at the date of the accident for thepurposes of

Section B of a policy does not mean that a plaintiff may not successfully assert a claim for loss of income as against atortfeasor, as was the case in Doiron. The plaintiff in Doiron had been employed in the forestry industry with the same employer for thelast ten years.

In the context of a tort claim, such circumstances could be taken into account in determining whether the plaintiff had methis onus of establishing a claim for loss of income on a balance of probabilities. [41] Overall, having considered the submissions of the parties and the case law presented, I agree with the statement of Lacourciere,J.A. that the Policy condition requiring that an insured be employed at the date of the accident must be interpreted such that there mustbe an existing contract of employment or actual employment at the date of the accident.

It is not necessary that such a contract ofemployment be in writing but the evidence must establish that the plaintiff had an ongoing employment relationship with an employersuch that he or she was either actively employed, on call, or on temporary lay-off with a right of recall or with a definite commitment forfuture work. As such, in certain circumstances, seasonal workers not actively working at the date of the accident may be consideredemployed at the date of the accident. However, in other circumstances, seasonal workers may not qualify.

[ 42 ] On the evidence before me, I find that the Plaintiff has not established that he had an ongoing employment relationship at the date of the accident. He acknowledged that he was actively seeking employment at the date of the accident with no definite future employment arrangement. While he may have had an expectation that he could obtain work with his uncle if his efforts at finding higher paying work were not fruitful, he had no commitment from or right to work with his uncle.

Further, he had not even worked with his uncle the prior fishing season so he could not successfully advance an argument that he was on temporary lay-off or on call. [ 43 ] As such, I find that the Plaintiff does not meet the condition of being employed at the date of the accident. Having already conceded he does not fall within either of the deeming provisions in the Policy, he is not entitled to claim loss of income benefits under

Section B, Subsection 2,

Part II of the Policy. conclusion [ 44 ] I hereby order and declare that, with regards to “Part II – Loss of Income” of “Subsection 2 – Death Benefits and Loss of Income Payments” of “Section B – Accidental Benefits” of automobile insurance Policy No. 6541167308 issued by the Defendant:

a) The Plaintiff was not employed on April 22, 2012, the date of the accident;

b) The Plaintiff is not deemed to be employed on April 22, 2012, the date of the accident and, in particular: i. The Plaintiff was not actively engaged in an occupation or employment for wages or profit on April 22, 2012, the date of the accident; and ii. The Plaintiff was not actively engaged in an occupation for wages or profit for any six months out of the twelve months preceding the date of the accident, being April 22, 2012. [ 45 ] As the successful party, the Defendant is entitled to its costs of the application.

The parties have leave to make submissions before me on the manner of assessing costs and the timing of payment in accordance with Rule 17A.05(2). _____________________________ Rosalie McGrath Justice