2013 ONSC 818, 2013 ONSC 818

CITATION : Carroccetto v. State Farm Mutual Automobile Insurance Company, 2013 ONSC 818 MILTON COURT FILE NO.: 4091/07 DATE: 20130311 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Anthony Carroccetto and Darlene Carroccetto ) ) ) G. Cadogan, for the Plaintiffs ) Plaintiffs ) ) - and - ) ) ) State Farm Mutual Automobile Insurance Company ) ) ) M. W. Smith, for the Defendant ) Defendant ) ) ) ) ) ) HEARD: January 29, 30, 2013 in Brampton, and followed by written submissions. REASONS FOR JUDGMENT Daley J.

Introduction [ 1 ] In this action, the plaintiffs seek damages for breach of contract, a declaratory judgment that the plaintiff Anthony Carroccetto (“Anthony”) has suffered a serious and permanent disability, as well as damages for bad faith conduct on the part of the defendant insurer.

[2] Anthony was involved in a motor vehicle accident in September of 1999, as a result of which he sustained certain personalinjuries. He is married to the co-plaintiff, Darlene Carroccetto ("Darlene"). [3] At the time of the accident, Anthony was insured by the defendant under the terms of a standard automobile policy of insurance.The policy included coverage for accident benefits payable to him, if qualified, under the terms and conditions of the Statutory AccidentBenefits Schedule, O. Reg. 403/96 (the "Bill 59 SABS"). [4] The plaintiffs were the only witnesses called to testify during the trial.

Non-Suit Motion [5] At the close of the plaintiffs' case, counsel for the defendant moved for a non-suit and dismissal of the plaintiffs' action. Asrequired, the defendant was put to an election as to whether evidence would be adduced on its behalf. [6] The defendant elected not to call any evidence. Ordinarily, the court would then hear submissions on the non-suit motion, andrule on that motion.

As this trial took only two days, counsel both agreed that they would incorporate their full submissions on whetherthe plaintiffs had made out their case on a balance of probabilities into their submissions on the defendant's non-suit motion. [7] At the outset of the plaintiffs' case, both counsel filed sets of document briefs containing various letters, claim forms, insurancerecords, clinical notes, records and letters from physicians. The document books were marked as lettered exhibits for the purpose ofidentification only.

Only those documents referred to by a witness in the course of the presentation of the plaintiffs' case were treated asexhibits that formed part of the evidentiary record in this trial. [8] Many of the documents in the document briefs were not referred to by the witnesses, and thus they do not form part of theevidence at this trial.

These documents were therefore not examined or considered by me. [9] Included in the documents that were referred to by the witness Anthony, thus forming part of the evidentiary record, were severalletters, reports and claim forms authored by physicians. [10] Both counsel agreed that these documents were to be admitted in evidence on consent without formal proof, on the basis thatthey formed part of the narrative and history of the plaintiffs' accident benefit claim against the defendant insurer. [11] It was further agreed by counsel that none of the physicians’ letters, reports, or claim forms included in these records were to beconsidered by me as constituting expert reports within the meaning of s. 52 of the Evidence Act, R.S.O. 1990, c.

E.23 or Rule 53 of theRules of Civil Procedure, R.R.O. 1990, O.

Reg. 194. [12] No expert medical opinion evidence was adduced on behalf of the plaintiffs as to the nature and extent of the Anthony's injuries,disability, or limitations. [13] The plaintiffs asserted specific breaches of contract, and of the provisions of the Bill 59 SABS on the part of the defendantincluding: the defendant's wrongful denial of assessments sought by Anthony, and denials for payment with respect to vocationaltraining, rehabilitation, and surgical treatment. [14] In addition, they also claim damages for alleged bad faith conduct on the part of the defendant. [15] Although there is no specific request in the statement of claim for punitive damages, the plaintiffs seek damages for breach ofcontract and make specific allegations within the body of the statement of claim as to conduct amounting to bad faith. [16] At the close of the plaintiffs' case, and upon the defendant's non-suit motion, the court referred counsel to the decision inPrudential Securities Credit Corp.

LLC et al. v. Cobrand Foods Ltd., 2007 ONCA 425 , [2007] 85 O.R. (3d) 561 at paras 35and 36 where Laskin J. A. for the court stated: 35 On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First,if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether aplaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “the most favourable meaning”to evidence capable of giving rise to competing inferences.

This court discussed this latter principle in Hall v. Pemberton (1974), (ON CA), 5 O.R. (2d) 438 at pp. 438-9 O.R., quoting Parfitt v. Lawless (1872), 41 L.J. P. and M. 68 at pp. 71-72: I conceive, therefore, that in judging whether there is in any case evidence for a jury the Judge must weigh the evidence given, mustassign what he conceives to be the most favourable meaning which can reasonably be attributed to any ambiguous statements, anddetermine on the whole what tendency the evidence has to establish the issue. ...

From every fact that is proved, legitimate and reasonable inferences may of course be drawn, and all that is fairly deducible from theevidence is as much proved, for the purpose of a prima facie case, as if it had been proved directly. I conceive, therefore, that indiscussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidenceto be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would bewarranted in drawing from it, there is sufficient to support the issue.

36 In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff’s prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion. See John Sopinka, Sidney N. Lederman and Alan W.

Bryant, The Law of Evidence in Canada , 2d ed. (Toronto: Buttterworths Canada, 1999) at 139. [ 17 ] Applying these principles, and having conducted the limited inquiry required on a non-suit motion, I find that the plaintiffs have put forward some evidence on all of the elements of the claims made by them. [ 18 ] Further, while this was a very close call, I have also concluded that after assigning the most favourable meaning to the evidence offered by both plaintiffs, and as contained in the documentary evidentiary record, the plaintiffs have just barely put forward a prima facie case.

As a result, the defendants’ non-suit motion is dismissed. [ 19 ] In reaching this conclusion, I have assumed all of the viva voce and documentary evidence offered on behalf of the plaintiffs is true, and I have not considered whether the competing inferences available to the defendant should be weighed against the evidence adduced on behalf of the plaintiffs in determining whether the plaintiffs have put forward a prima facie case. [ 20 ] Below I will evaluate both the non-suit motion, pursuant to the analytical framework above, and review the evidence as a whole to determine whether the plaintiffs have made out their case on a balance of probabilities. [ 21 ] Having dismissed the defendant’s non-suit motion, the burden remains on the plaintiffs to establish their case against the defendant, even though the defendant has elected to adduce no evidence.

Evidence

Summary [ 22 ] The plaintiffs’ claims arise from a motor vehicle accident that occurred on September 3, 1999. Anthony was operating a motor vehicle when he was struck by another vehicle. As a result, Anthony suffered injuries to his left leg, arm and neck. He received treatment at the emergency department of Joseph Brant Hospital and was thereafter referred to his family physician Dr. W. Proctor. [ 23 ] His symptoms worsened following the accident, and in April 2000, Dr. Proctor referred him to a neurologist, Dr.

Ganesan, for neurological testing with respect to his left arm. [ 24 ] No medical evidence or documentation was adduced with respect to Dr. Ganesan's assessment of the plaintiff. However, the plaintiff testified that the doctor advised him that he may have carpal tunnel syndrome. [ 25 ] Dr. Proctor then referred the plaintiff to Dr. David Harvey, a physical medicine and rehabilitation specialist whose clinical notes and records were filed in evidence. [ 26 ] In his letter of October 19, 2000 Dr. Harvey wrote to Dr. Proctor and indicated in the conclusion of that letter: "In

summary, I think that this gentleman has some muscular or mechanical neck pain without any evident neurological deficit. I think that he has got a carpal tunnel syndrome and I think he may have a component of a dynamic thoracic outlet." The doctor made some recommendations with respect to further investigations in this letter. [ 27 ] Anthony was also referred to Burlington Rehab by Dr. Harvey. A Treatment Plan was prepared by physiotherapist Dorothy Borovich on April 18, 2001. The plan recommended that the plaintiff undergo a six to eight week treatment program at a cost of $2,300.

This Treatment Plan was submitted to the defendant insurer as a statutory accident benefit claim. [ 28 ] It was Anthony’s evidence that the Treatment Plan proposed by Burlington Rehab was declined by the insurer based on the independent medical assessment report of Dr. G. M. Sawa dated December 6, 2000. In that report, Dr.

Sawa, having examined the plaintiff, concluded by stating: "I do not recommend any test or referrals at this time." [ 29 ] Anthony did undertake treatment at the Burlington Rehab and he subsequently proceeded to a Designated Assessment in accordance with the Bill 59 SABS relating to the Burlington Rehab proposed Treatment Plan. He was assessed by Dr. Kenneth Bowler on March 27, 2002 who approved of the Treatment Plan that had been proposed by Burlington Rehab. [ 30 ] Upon receipt of the Designated Assessment report of Dr.

Bowler, the defendant insurer paid Anthony the cost of the treatment he had incurred with Burlington Rehab. [ 31 ] Anthony had also submitted an Application for Approval of an Assessment by Dr. Larry Khan which was denied by the defendant based on the report of Dr. Sawa of December 6, 2000 and based on a Medical/Rehabilitation DAC of March 27, 2002. This denial was set out in a letter from the defendant dated April 7, 2004. [ 32 ] In his report to the defendant of July 20, 2004, Dr.

Khan made certain recommendations for Anthony’s further treatment, however, no further Treatment Plan was submitted at that time. [ 33 ] Anthony had a further attendance with Dr. Khan in November 2006, following which an Application for Approval of an Assessment or Examination dated November 20, 2006, was completed and submitted by Dr. Khan to the defendant. [ 34 ] In this Application, Dr. Khan submitted a statement of the costs of the proposed goods and services in the sum of $1,627. Included in the proposed assessment was quantitative somatosensory testing. [ 35 ] The plaintiff's Application as completed by Dr.

Khan was also submitted to Dr. H. Platnick for review, in accordance with s. 42

of the Bill 59 SABS. [ 36 ] Dr. Platnick conducted a paper review of the medical records and issued a report to the defendant dated December 4, 2006 wherein he stated in conclusion: Based on review of the documentation, Mr. Carroccetto sustained soft tissue injuries to his neck and back as a result of the motor vehicle accident on September 3, 1999. He has numerous investigations including EMG, MRI, ultrasound and bone scan failing to identify significant pathology as a result of the accident. Dr. Sawa assessed him and noted a normal neurological examination.

Based on review of the documentation, I conclude that the requested assessment with Dr. Khan is not reasonably required. Based on review of the documentation, I conclude the OCF-22 form dated November 20, 2006 from Dr. Khan is not reasonably required. [ 37 ] Based on this report, the defendant denied the Assessment proposed by Dr. Khan. [ 38 ] As to Anthony’s prescription claims, he had submitted to the defendant a request for payment of certain prescriptions in the total cost of $120, which claim was initially denied by the defendant.

The parties proceeded to a required mediation of these claims in February of 2001, at which time the plaintiffs’ claims were resolved on the basis of a payment to the plaintiff of $75. [ 39 ] The defendant insurer requested that the plaintiff Anthony execute a release in respect of the resolution of this claim at mediation. [ 40 ] The plaintiff did not sign the release document which was described as a "full and final release".

He was of the view that the insurer was requiring him to execute a full and final release with respect to all claims he had against the insurer. [ 41 ] The release specifically stated: I/we hereby release and forever discharge State Farm Insurance from any and all actions, Mediations, Arbitrations, claims and demands for Prescriptions incurred between July 13, 2000 and December 6, 2000 under the Statutory Accident Benefits

schedule under Policy Number 1588 -- 365 -- 60L, arising out of a motor vehicle accident which occurred on or about September 3, 1999 and from all claims which were the subject of Mediation and Arbitration under Financial Service Commission File Number # M00-010171. [ 42 ] At no time did the plaintiff execute a release in favour of the insurer in respect of any prescription claim. [ 43 ] The defendant insurer continued to pay for prescriptions over a period of approximately ten years following the plaintiff's motor vehicle accident. [ 44 ] At the time of the motor vehicle accident, Anthony was employed as a general warehouse worker and was involved in lifting stock, and loading and unloading trucks.

Following the motor vehicle accident he returned to work and resumed his regular duties with assistance. The record is unclear as to exactly when he returned to work following this accident. His job in this position ended in 2004. Thereafter he has worked in office products sales and purchasing and in light warehouse duty positions.

As of the date of the accident he was earning between $45,000 and $47,000 per year. [ 45 ] He is currently employed in the parts department at a General Motors dealership. [ 46 ] The plaintiff testified that following the accident, he considered undertaking vocational retraining and assessments. [ 47 ] On October 31, 2007, the plaintiff submitted to the defendant an Application for Approval of Assessment or Examination along with a receipt for $530 from the Center for Skills.

The defendant insurer declined this claim because s. 24(1.1) of the Bill 59 SABS requires that an Application for Approval of an Assessment or Examination be submitted to the insurer for review and response prior to the assessment taking place, and the Application required that the proposed assessment be approved by a regulated health professional. [ 48 ] Subsequently, on December 6, 2006, the plaintiff wrote to the defendant requesting that he be assessed for employment counselling and academic or vocational training. [ 49 ] In response to that request, the insurer wrote to him on December 27, 2006 and advised that he was required to submit an Application for Approval of an Assessment.

The required forms were provided to him with that letter. [ 50 ] Subsequently, the plaintiff submitted an Application for Approval of an Assessment or Examination with respect to certain educational upgrading courses at Sheridan College at a total cost of $5,044.20. This claim was signed by the plaintiff on February 18, 2008. [ 51 ] The defendant declined this claim with respect to the proposed educational program at Sheridan College on the basis that the claim form documentation submitted by the plaintiff was not signed by a regulated health professional as required. The plaintiff agreed that Dr.

Proctor, his family physician, did not sign the portion of the claim form required to be completed by a regulated health professional in respect to either of the vocational and educational proposals put forward by the plaintiff for Sheridan College and the Center for Skills. [ 52 ] He agreed that Dr. Proctor advised him he was not qualified to complete these forms. [ 53 ] As required, the plaintiff and the defendant participated in a mediation before the Financial Services Commission of Ontario in respect of the plaintiff's claims.

The mediation proceeded on March 7 and May 13, 2008, in respect of three issues: first, the plaintiff's claim with respect to the proposed treatment by Dr. Khan from 2004 at a cost of $1,627; second, the plaintiff's claim for reimbursement

of the sum of $530 for a vocational assessment at the Center for Skills; and finally, his claim for interest on alleged overdue payments. The mediation failed to resolve any of the three issues. [ 54 ] The plaintiff agreed that he did not mediate his claim with respect to vocational upgrading courses he sought to take at Sheridan College. [ 55 ] With respect to other treatment options for his condition, the plaintiff asserts that the defendant is liable for the payment of costs associated with the implantation of a spinal cord stimulator. In his report July 20, 2004, Dr.

Khan referred to this as a possible medical treatment. [ 56 ] The plaintiff testified that the cost of such a surgical implant was in the order of $45,000 and that it required the replacement of implanted batteries every four years at a cost in the order of $5-$6,000. No evidence was offered as to whether this treatment was medically necessary or reasonable and no evidence was offered as to the cost of this implant apart from the plaintiff's own information on this. [ 57 ] The plaintiff acknowledged that he had not submitted a claim to the defendant with respect to this proposed treatment at any time.

He further acknowledged that he is currently on a surgical waiting list for the implantation surgery, which treatment and expense has now been approved by the Ontario Health Insurance Plan (OHIP). [ 58 ] As to his current health, the plaintiff testified that he continues to have pain in his left arm and neck. [ 59 ] In the course of the plaintiff's evidence, a letter from Dr. Geoffrey R.

French, orthopaedic surgeon dated March 27, 2001, was introduced in evidence. [ 60 ] It was the plaintiff's evidence that this letter, which was prepared at the request of another insurer involved in the tort action instituted by the plaintiff following an examination of him, was provided to the defendant. [ 61 ] There is no evidence as to when the letter from Dr. French was delivered to the defendant insurer. Further, as noted above, counsel for the parties agreed that the medical letters and documentation as contained in the exhibits entered into evidence did not constitute medical legal expert reports.

Analysis [ 62 ] During submissions on both the defendant's non-suit motion and on the evidence as a whole, counsel for the plaintiff outlined the aspects of the plaintiffs' claims in distinct items of damage which he asserted the defendant is liable for. [ 63 ] The claims as put forward by counsel at the close of the evidence are as follows: 1) damages with respect to the denial of Dr.

Khan's assessment in 2006 in the sum of $1,627; 2) the costs of vocational assessment and educational upgrading with respect to the Center for Skills and Sheridan College in the sums of $530 and $5,044.20, respectively; 3) the cost of the implantation of a spinal cord stimulator; and 4) damages for breach of contract and bad faith conduct on the part of the insurer. [ 64 ] As to the assessment proposed by Dr. Khan and denied by the insurer in 2006, the evidence is that this denial was based on the opinion of Dr.

Platnick following his review of the medical records available to him and the proposed assessment as outlined by Dr. Khan. [ 65 ] The plaintiff claims that he was entitled to this assessment, however, on this record I cannot determine, on the balance of probabilities, that the plaintiff was entitled to this assessment within the terms of the contract of motor vehicle insurance or within the terms of the Bill 59 SABS. [ 66 ] No expert medical evidence is available in support of the plaintiff's position that Dr. Khan's proposed assessment was reasonably required.

Absent any medical evidence on this question, and even considering the medical reporting from Drs. Sawa and Platnick on the one hand, and Dr. Khan on the other, I cannot conclude that the assessment proposed by Dr. Khan was reasonably required. There is simply no medical opinion evidence available that supports the plaintiffs’ position, and in any event there is conflict in the views of the doctors as set out in their letters. [ 67 ] As such, I conclude that Anthony has failed to establish an entitlement to the cost of Dr.

Khan's proposed assessment. [ 68 ] As to the costs of the vocational assessment at the Centre for Skills and the tuition costs of the educational upgrading proposal for Sheridan College, in both instances, Anthony failed to submit claims to the defendant insurer that were supported by approval of a regulated health care professional as required by the Bill 59 SABS.

[69] Further, I find that these claims are premature in that they were not formally denied but rather were declined by the insurer basedon the incomplete and inadequate claim submitted.

Further, as I find that the claim in respect of the costs at Sheridan College was notmediated, the plaintiff does not have a viable claim for this. [70] As to the claim with respect to the cost of the implantation of the spinal cord stimulator, as this claim was never presented to thedefendant in accordance with the requirements of the Bill 59 SABS, it is not open to the plaintiff to make this claim in this action. [71] Further, the plaintiff acknowledged that he is on a surgical waiting list for this treatment and is eligible to receive the treatmentpaid for by OHIP. [72] Therefore, I conclude that Anthony’s claim for the cost of this treatment fails. [73] As to Darlene's claims, she acknowledged in her evidence that she did not submit any claim to the defendant under the Bill 59SABS, and she offered no evidence with respect to any claim she may have had for attendant care, housekeeping and home maintenancebenefits, that might otherwise have been advanced against the defendant under the policy of automobile insurance or the Bill 59 SABS. [74] As such, I conclude that Darlene has no maintainable cause of action against the defendant. [75] Although I have concluded that the plaintiffs have failed to establish, on a balance of probabilities, that the defendant breachedeither the terms of the policy of automobile insurance or the provisions of the Bill 59 SABS, I will nevertheless consider the evidencewith respect to the insurer's conduct and the manner in which it adjudicated the plaintiffs' claims. [76] As was noted in the Supreme Court of Canada’s decisions in Whiten v.

Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595and Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 20, [2006] 2 S.C.R. 3, there must be conduct constituting a marked departurefrom ordinary standards of decency and an independent actionable wrong in order for an insured to be entitled to damages for bad faithconduct by an insurer. Where the breach in question is a denial of insurance benefits, a breach by the insurer of the contractual duty toact in good faith will meet this requirement.

The threshold issue that arises, therefore, is whether the insurer breached not only itscontractual obligation to pay benefits but also breached the independent contractual obligation to deal with the insured's claim in goodfaith. [77] The court in Fidler cited with approval O'Connor J. A.’s decision in 702535 Ontario Inc. v. Non-Marine Underwriters Membersof Lloyd's London, (ON CA), 184 D.L.R. (4th) 687 where he stated at paras. 29 and 30: The duty of good faith also requires an insurer to deal with its insured’s claim fairly.

The duty to act fairly applies both to themanner in which the insurer investigates and assesses the claim and to the decision whether or not to pay the claim. In making a decisionwhether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonablemanner. It must not deny coverage or delay payment in order to take advantage of the insured’s economic vulnerability or to gainbargaining leverage in negotiating a settlement. A decision by an insurer to refuse payment should be based on a reasonableinterpretation of its obligations under the policy.

This duty of fairness, however, does not require that an insurer necessarily be correct in making a decision to dispute its obligation to paya claim. Mere denial of a claim that ultimately succeeds is not, in itself,

an act of bad faith. (Citations omitted.) [78] In his submissions on behalf of the plaintiffs, counsel acknowledged that there was no evidence of any conduct on the part of thedefendant insurer in denying or delaying a payment to the plaintiffs for the purpose of taking advantage of the insured's economicvulnerability or to gain bargaining leverage in negotiating a settlement. [79] The essence of the plaintiffs' position in respect of the claim of bad faith is that overall, on the whole of the evidence as to thehistory of the relationship between these parties, the defendant insurer acted unfairly.

There is, however, no evidence in support of this. [80] Anthony testified that he felt under attack by the insurer. He did not offer any particulars in his evidence as to the defendant'sconduct giving rise to this perception. [81] Anthony acknowledged that the insurer's representatives provided him with all of the necessary forms to submit his statutoryaccident benefit claims. He further agreed that they provided him with documentation regarding his rights to sue, and how to proceedwith mediation.

He agreed that they explained to him that he was required to have his evaluation at a designated assessment center. [82] While the Anthony’s own conduct is not determinative of whether the insurer acted in breach of its contractual duty of goodfaith, Anthony readily acknowledged that he was "not an angel" and that at times he was abusive and uncooperative with the defendant'srepresentatives. [83] He further acknowledged that he refused to consent to the release of clinical notes and records of Dr.

Harvey when they werewithin his lawyer's possession. [84] Anthony also agreed that the Treatment Plan from Burlington Rehab was submitted by him 18 months after the accident date,and that for approximately eight months he refused to give his consent to arrange the assessment with Dr. Bowler. [85] Anthony further agreed that the defendant has paid for all of his prescription medication over a period of ten years, and that theypaid for all proposed Treatment Plans submitted by him. [86] He further agreed that, apart from the 2006 assessment proposal put forward by Dr. Khan, no other assessments were denied by

the defendant insurer. [ 87 ] Further, he acknowledged that over the ten years following his accident, the insurer paid $30,000 in medical and rehabilitation benefits, and he agreed that he is still insured with the defendant. [ 88 ] The plaintiff asserted that the insurer wrongly denied payment of the services recommended in the Burlington Rehab treatment plan, and only paid for those services following the assessment conducted by Dr.

Bowler. [ 89 ] In support of the plaintiffs’ submission that the defendant acted in bad faith, counsel relies upon s. 38(16) of the Bill 59 SABS for the position that the insurer was statutorily obligated to pay for the costs of physiotherapy treatments at Burlington Rehab even though the plaintiff had not yet been assessed at a designated assessment centre. [ 90 ] Section 38 (16) reads as follows: Subject to subsection (14), if the treatment plan contemplates goods or services provided by chiropractor or physiotherapist, the insurer shall, despite requiring the insured person to be assessed by a designated assessment centre under subsection (12) in respect of those goods or services, pay for all expenses incurred, after submission of the treatment plan, in respect of those goods and services, up to the lesser of the following amounts: 1.

The total expenses incurred on behalf of the insured person in respect of the first 15 treatment sessions with a chiropractor or physiotherapist after the accident. 2. The total expenses incurred on behalf of the insured person in respect of all treatment sessions with a chiropractor or physiotherapist within six weeks after the accident. [ 91 ] I do not accept the plaintiff's position with respect to this. This

section provides that the insurer shall pay for all expenses incurred after the insured has submitted a treatment plan up to the lesser of the amounts referred to. [ 92 ] The plaintiff's claim for treatment at Burlington Rehab was submitted approximately 18 months post accident.

The plaintiff had not incurred expenses for physiotherapy within six weeks of the accident date and therefore the plaintiff had no immediate entitlement to benefits in respect of physiotherapy prior to being assessed at a designated assessment centre. [ 93 ] As such, I conclude that there was no breach by the insurer of its obligation to pay for the Burlington Rehab treatment plan upon the initial submission by the plaintiff. [ 94 ] Further, it is clear that the full and final release presented to the plaintiff upon resolution of his prescription claim in the 2001 mediation only constituted a release of the insurer for prescription expenses incurred between July 13, 2000 and December 6, 2000.

In other words, the release only applied to the claims that were the subject of the mediation before the Financial Service Commission. [ 95 ] Ultimately, the defendant insurer continued to pay for prescriptions after the resolution of the disputed claims in 2001, in spite of the fact that Anthony refused to execute the release. [ 96 ] It is apparent from Anthony’s evidence that, at times, there was conflict between him and the defendant's representatives.

However, on the whole of the evidence, I cannot conclude that the insurer acted in a high-handed manner such that its conduct constituted a marked departure from ordinary standards of decency. [ 97 ] The plaintiffs have failed to demonstrate, on the balance of probabilities, and in contract, that the defendant insurer breached any provision of the automobile insurance policy, or any provision of the Bill 59 SABS, or that the defendant breached its contractual duty to act in good faith. [ 98 ] For the reasons set out above, the plaintiffs' action is dismissed. [ 99 ] Counsel for the defendant shall deliver submissions on costs within 20 days, followed by submissions on behalf of the plaintiffs within 20 days thereafter.

The submissions are to be limited to three pages plus a costs outline. No reply submissions are to be filed without leave. ___________________________ Daley J.

Released: March 11, 2013 CITATION : Carroccetto v. State Farm Mutual Automobile Insurance Company, 2013 ONSC 818 MILTON COURT FILE NO.: 4091/07 DATE: 20130311 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Anthony Carroccetto and Darlene Carroccetto Plaintiffs - and – State Farm Mutual Automobile Insurance Company Defendant REASONS FOR JUDGMENT Daley J. Released: March 11, 2013