2017 ONSC 261, 2017 ONSC 261

CITATION : Volpe v. Co-operators General Insurance Company, 2017 ONSC 261 COURT FILE NO.: 13-42024 DATE: 2017-01-13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Vicky Volpe ) ) ) A. Rudder, for the Plaintiff/Respondent ) Plaintiff/Respondent ) ) - and - ) ) ) Co-operators General Insurance Company ) ) ) T. Elliot, for the Defendant/Applicant ) Defendant/Applicant ) ) ) ) HEARD: at Hamilton November 26, 2016 REASONS FOR JUDGMENT The Honourable Mr. Justice T.R. Lofchik [ 1 ] This is a motion brought by the defendant insurer for

summary judgment dismissing the action of the plaintiff. [ 2 ] At all material times, the Co-operators General Insurance Company (hereinafter “the Co-operators”), was the insurer of Mrs. Vicky Volpe (hereinafter the “plaintiff”). [ 3 ] The issues are as follows: a. Whether there is a genuine issue requiring a trial with respect to the plaintiff’s claim for non-earner benefits; b.

Whether there is a genuine issue requiring a trial with respect to the plaintiff’s claim for extra contractual damages, including her claims for “wrongful infliction of mental distress”, “bad faith”, and “aggravated, punitive and exemplary damages”. [ 4 ] The plaintiff was involved in a motor vehicle accident giving rise to the subject claim on May 20, 2010. [ 5 ] The plaintiff submitted to the Co-operators an Application for Accident Benefits (OCF-1) dated July 21, 2010.

[ 6 ] At part five of the Application for Accident Benefits, the plaintiff indicated that she was “employed and working” and was also a caregiver at the date of loss. [ 7 ] By way of letter, an Explanation of Benefits to the plaintiff dated July 27, 2010, the Co-operators denied income replacement and caregiver benefits as the plaintiff indicated she was continuing with her work and the majority of her caregiver activities.

The plaintiff does not dispute the termination of her income replacement or caregiver benefits and did not request a DAC. [ 8 ] Plaintiff’s counsel forwarded a letter dated April 9, 2012 to the Co-operators stating that the plaintiff was now applying for non-earner benefits. [ 9 ] The plaintiff served an Application for Mediation dated May 28, 2012 on June 1, 2012, claiming non-earner benefits. [ 10 ] The Co-operators forwarded a letter to plaintiff’s counsel dated September 27, 2012, indicating that it required the plaintiff to submit a completed OCF-3 Disability Certificate supporting her entitlement to non-earner benefits and enclosing the OCF-3 form. [ 11 ] The Co-operators forwarded a letter to the plaintiff dated October 26, 2012, indicating that it had yet to receive the completed disability certificate and that the Co-operators required the applicant to be examined under

section 44 of the SABS to assess the plaintiff’s eligibility for non-earner benefits. [ 12 ] The Co-operators forwarded an Explanation of Benefits dated October 26, 2012, denying the plaintiff’s claim for non-earner benefits pending the outcome of the

section 44 assessment. [ 13 ] The Co-operators forwarded a letter and Notice of Examination dated November 16, 2012, notifying the plaintiff that a

section 44 assessment had been scheduled from December 6, 2012, with Dr. Zeeshan Waseem, Physiatrist, to assess the plaintiff’s eligibility for non-earner benefits. [ 14 ] Upon the plaintiff’s request, the Co-operators rescheduled the date of the assessment. The Co-operators forwarded a letter and Notice of Examination dated November 27, 2012, notifying the plaintiff that the

section 44 assessment had been rescheduled from December 6, 2012 to January 26, 2013, with Dr.

Zeeshan Waseem, Physiatrist, to assess the plaintiff’s eligibility for non-earner benefits. [ 15 ] Plaintiff’s counsel forwarded a letter to the Co-operators dated December 12, 2012, stating the plaintiff would not be attending the insurer’s assessment, and without providing any particulars, stated that proper notice was not given, there are no reasonable grounds for the assessment, the data being sought can be obtained by the family doctor, the assessor does not possess the necessary scope of practice, and the assessor is a captive of the insurer. [ 16 ] The plaintiff attempted mediation on February 26, 2013, resulting in a report of the mediator dated February 26, 2013.

At the time, the Co-operators raised sections 55 and 32 of the SABS as preliminary issues. [ 17 ] The plaintiff issued a statement of claim on June 28, 2013, claiming non-earner benefits. [ 18 ] The Co-operators forwarded another letter and Notice of Examination dated November 20, 2013, notifying the plaintiff that a

section 44 assessment had been scheduled for January 2, 2014, with Dr. Zeeshan Waseem, Physiatrist, to assess the plaintiff’s eligibility for non-earner benefits. [ 19 ] Plaintiff’s counsel forwarded a letter to the Co-operators dated December 10, 2013, stating the plaintiff would not be attending the insurer’s assessment on January 2, 2014, because litigation had commenced and a defence medical would be more appropriate. [ 20 ] By way of letter and Explanation of Benefits to the plaintiff dated December 23, 2013, the Co-operators denied non-earner benefits based on the plaintiff’s failure to attend the insurer’s assessment or cooperate with

section 44 of the SABS . [ 21 ] The examination for discovery of the plaintiff and defendant were completed on January 31, 2014, and November 14, 2014, respectively. [ 22 ] In December of 2014, the plaintiff provided her first completed OCF-3 Disability Certificate prepared by Dr. Castelluzzo, dated October 8, 2014. The OCF-3 indicates that the plaintiff does not meet the statutory requirements for entitlement for non-earner benefits. Position of the Moving Party Defendant [ 23 ] It is the position of The Co-operators that the plaintiff’s claim for non-earner benefits should be dismissed and

summary judgment entered in favour of the defendant for the following reasons: (

a) the plaintiff is statutorily barred from receiving payment for Non-Earner Benefits because she failed to submit a completed Disability Certificate as required by

section 35 of the Statutory Accident Benefits

Schedule - Accidents on or after November 1, 1996, 0 Reg 403/96 and

section 36 of the Statutory Accident Benefits

Schedule - Effective September 1, 2010. 0. Reg. 34/10 and, as such, Non​- Earner Benefits are not payable; (

b) the plaintiff is statutorily barred from mediating and therefore litigating this claim in accordance with sections 55(1) of the SABS and 281(2) of the Insurance Act , because she failed to notify the Co-operators of the circumstances giving rise to a claim for non-earner benefits, pursuant to

section 12 of the SABS or submit an application for the benefit within the time prescribed by the SABS; (

c) the plaintiff is statutorily barred from mediating and therefore litigating this claim in accordance with section 55(2) of the SABS and 281(2) of the Insurance Act , because the Co-operators provided the insured person with notice in accordance with the SABS that it required an examination under

section 44 but the plaintiff has not complied with that section.

[ 24 ] It is the position of The Co-operators that the plaintiff’s claims for extra-contractual damages should be dismissed and

summary judgment entered in favour of the defendant because she has failed to provide any evidence to support these claims. Position of the Respondent Plaintiff [ 25 ] The position of the plaintiff is: a. There is a genuine issue requiring a trial with respect to the plaintiff’s entitlement to damages for bad faith for unreasonable conduct in the claims process; b. An OCF-3 Disability Certificate is not a part of the Application for Benefits; c. An OCF-3 Disability Certificate is not the sole factor to consider when determining whether a claimant meets the disability test for entitlement to non-earner benefits; d. A requested

section 44 Insurance Examination Assessment under the Ontario Regulations 34/10 Statutory Accident Benefits

Schedule is not an automatic right of the insurer as there must be a determination whether the request is reasonable and necessary; e. The request was not reasonable and necessary because it intruded on the plaintiff’s privacy in light of the existing medical evidence from the family physician; and f. The defendant failed to comply with the Notice of Examination requirements set out in section 44(5) of the Ontario Regulations 34/10 Statutory Accident Benefits

Schedule that must be strictly construed and therefore the defendant cannot rely on a

section 55 defence. g. There is significant medical evidence supporting the plaintiff’s claim for non-earner benefits. [ 26 ] Section 35(2) of the Ontario Regulation 403/96 Statutory Accident Benefits sets out the requirement that an insured applying for a specified benefit shall “submit with the application a disability certificate”. [ 27 ] Vicky Volpe complied with that requirement by submitting an OCF-3 Disability Certificate to Co-operators which was completed by Dr. Castelluzzo, a family physician, on or about October 8, 2014. [ 28 ] Requested

Section 42 Assessments under the 1996

Schedule and requested

Section 44 Assessments under the 2010

Schedule are not an automatic right of the insurer.

Section 44 of the Ontario Regulation 34/10 Statutory Accidents Benefits

Schedule reads as follows: 44.

(1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this

section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. The wording under

section 42 of the Ontario Regulation 403/96 Statutory Accident Benefits

Schedule reads as follows: 42.

(1) For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this

section by one or more persons chosen by the insurer who are members of a health profession or are social workers or who have expertise in vocational rehabilitation. [ 29 ] Requests for assessments under both

section 44 of Ontario Regulation 34/10 Statutory Accident Benefits

Schedule and

section 42 of Ontario Regulation 403/96 Statutory Accident Benefits

Schedule do not constitute an automatic right of the insurer. [ 30 ] The process of determining whether an insurance examination is reasonable and necessary is fact specific, and necessitates a thorough analysis which must balance the interests of all parties. [ 31 ] The defendant did not give proper notice of the insurance examination. Section 44(5) of the Ontario Regulation 34/10 Statutory Accident Benefits

Schedule reads as follows:

(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out, (

a) the medical and any other reasons for the examination; (

b) whether the attendance of the insured person is required at the examination; (

c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and (

d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days. Section 42(4) of the Ontario Regulation 403/96 Statutory Accident Benefits

Schedule reads as follows:

(4) Whenever the insurer requires an insured person to be examined under this section, the insurer shall arrange for the examination at its

expense and shall give the insured person a notice setting out, (

a) the reasons for the examination; (

b) the type of examination that will be conducted and whether the attendance of the insured person is required during the examination; (

c) the name of the person or persons who will conduct the examination, the regulated health professions to which they belong and their titles and designations indicating their specialization, if any, in their professions; and (

d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days. [ 32 ] The minor difference between the 1996

Schedule and 2010

Schedule is that in the latter, there is a requirement that the insurer provide the “medical and other reasons” that the assessment is being requested whereas in the former there is a requirement that the insurer provide the “reasons for the assessment”. [ 33 ] Noting “income replacement benefits” on the heading of “types of examination” on the notice is not sufficient to comply with the regulation because an “income replacement benefit” is not a benefit and not a type of examination to be conducted. [ 34 ] It was not enough for the insurer to list the practitioner as a physiatrist, but they must state that the type of examination is a physiatrist assessment.

If the notice was deficient, then the insurer cannot be entitled to an order that the proposed insurer examination was reasonable and necessary. [ 35 ] Section 50(1) of Ontario Regulation 403/96 Statutory Accident Benefits

Schedule sets out the following: 50.

(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist: 1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or submitted an application for the benefit within the times prescribed by this Regulation. 2. If the insured person was required to undergo a designated assessment under

section 43, the insured person has not undergone the designated assessment or has not complied with that section. [ 36 ] The Ontario Regulation 403/96 Statutory Accident Benefits

Schedule would not prevent an insured person such as Vicky Volpe, from proceeding to mediation/arbitration on the basis of non-compliance with

section 42. Law [ 37 ] Under the new Rule 20 of the Rules of Civil Procedure , the test for success on a motion for

summary judgment has become: 20.04

(2) The court shall grant

summary judgment if, (

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

(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, but where the motion is made to a master, it shall be adjourned to be heard by a judge. [ 38 ] Whereas, based on the cases decided under the previous Rule 20, the Court was discouraged, if not precluded from assessing credibility, weighing conflicting evidence and resolving factual issues, increased powers have been given under the new Rule 20. Under the new Rule 20.04(2.1), in determining whether there is a genuine issue requiring a trial, the Court may: 1.

Weigh the evidence. 2. Evaluate the credibility of a deponent. 3. Draw any reasonable inference from the evidence. [ 39 ] In response to affidavit material or other evidence supporting a motion for

summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. RULES OF CIVIL PROCEDURE , R. 20.02(2); 1061590 Ontario Ltd. v. Ontario Jockey Club , 1995 Carswell ONT. 63; [ 40 ] Rule 20 permits a motion judge to decide the action where he or she is satisfied that by exercising the powers that are now available on a motion for

summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution. Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 .

[41] The purpose of Rule 20 is to eliminate unnecessary trials. Combined Air Mechanical Services Inc. v. Flesch, Supra. [42] The Ontario Court of Appeal has stated that there are three types of cases that are amenable to

summary judgment: a. Where the parties agree that it is appropriate to determine an action by way of a motion for

summary judgment; b. Claims that are shown to be without merit; and c. Claims where a trial process is not required in the interest of justice. Combined Air Mechanical Services Inc. v. Flesch, Supra. [43] The elimination of cases without merit from the civil justice system is a long​standing purpose well served by the

summaryjudgment rule. As stated by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14 , [2008] 1S.C.R. 372, at para. 10: The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have nochance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties tothe litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties thatclaims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing realissues that may be successful proceed to trial. Combined Air Mechanical Services Inc. v. Flesch, Supra. [44] In deciding if a motion for

summary judgment should succeed, the motion judge must ask the following question: Can the fullappreciation of the evidence and issues that is requited to make dispositive findings be achieved by way of

summary judgment, or canthis full appreciation only be achieved by way of a trial? Combined Air Mechanical Services Inc. v. Flesch, Supra. [45] The full appreciation test may be met in cases with limited contentious factual issues or in document-driven cases with limitedtestimonial evidence. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree atthe motion judge's direction by hearing oral evidence on discrete issues. Combined Air Mechanical Services Inc. v.

Flesch, Supra. [46] Each side must put its best foot forward with respect to the existence or non​existence of material issues to be tried. Aparty is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. Combined Air Mechanical Services Inc. v. Flesch, Supra. [47] Pursuant to section 12(1) of the SABS, "The insurer shall pay an insured person who sustains an impairment as a result of anaccident a non-earner benefit if the insured person meets any of the following qualifications: 1.

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accidentand does not qualify for an income replacement benefit. 2. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident,received a caregiver benefit as a result of the accident and there is no longer a person in need of care. Statutory Accident Benefits

Schedule – Accidents on or after November 1, 1996. O. REG. 462/96 s. 12. [48] Pursuant to

section 35 of the SABS: (1) specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping orhome maintenance services under

section 22.

(2) An insured person who applies for a specified benefit shall submit with the application a disability certificate completed no earlierthan 10 business days before the date the application is submitted. Statutory Accident Benefits

Schedule – Accidents on or after November 1, 1996. O.REG. 462/96 s. 35 (13) If an insured person fails to submit a completed disability certificate with his or her application for a specified benefit, no specifiedbenefits are payable for the period after the day the insurer receives the application and before the day the insurer receives the completeddisability certificate. [49] The new SABS,

section 36 states: (1) “specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping orhome maintenance services under

section 23.

(2) An applicant for a specified benefit shall submit a completed disability certificate with his or her application under

section 32.

(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before thecompleted disability certificate is submitted. Statutory Accident Benefits

Schedule – Effective September 1, 2010. O.REG. 34/101 s. 36. [50] Pursuant to

section 55 of the new SABS: An insured person shall not commence a mediation proceeding under

section 280 of the Act if any of the following circumstances exist: 1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted anapplication for the benefit within the times prescribed by this Regulation. 2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination undersection 44, but the insured person has not complied with that section. Statutory Accident Benefits

Schedule – Effective September 1, 2010. O.REG. 34/101, s. 55. [51] Section 281(2) of the Insurance Act states: No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under

section 282 or agree to submit an issuefor arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in disputewere referred for an evaluation under

section 280.1, the report of the person who performed the evaluation has been given to the parties. INSURANCE ACT, R.S.O. 1990 c.I.8, s. 281(2). [52] In Straus et al. v. Aviva et al., Justice Braid granted

summary judgment in favour of the defendant where the plaintiffs failed tosubmit a Disability Certificate from a health practitioner stating that they have met the statutory requirements for Non-Earner Benefits.Stating that the "Disability Certificate is a basic prerequisite for a claim for Non-Earner Benefits", Justice Braid refused to grant theplaintiffs' request for relief from forfeiture. Straus et al. v. Aviva et al., 2015 ONSC 4589 , 2015 O.N.S.C 4589, para 91 [53] In Steele v. Intact Insurance Company, Justice Ramsay, citing the Court of Appeal's decision in Sagan, held that the defendantinsurer was "entitled to

summary judgment on the ground that the plaintiff has never filed a disability certificate that certifies that shemeets the criterion for non-earner benefits." Steele v. Intact Insurance Company, 2014 ONSC 6999 para 9 Analysis [54] S. 35(2) of the Statutory Accident Benefits

Schedule reads as follows: “

(2) An insured person who applies for a specified benefitshall submit with the application a disability certificate completed no earlier than 10 business days before the date the application issubmitted. O. Reg. 462/96, s. 35”. The term “specified benefit” includes an income replacement benefit. [55] I find that the plaintiff is statutorily barred from receiving of non-earner benefits because she failed to submit a completeddisability certificate as required by s. 35 of the Statutory Accident Benefits

Schedule - Accidents on or After November 1, 1996, O. Reg.403/96 (hereinafter referred to as the “SABS”) and s. 36 of the Statutory Accident Benefits

Schedule - Effective September 1, 2010, O.Reg. 34/10 (hereinafter referred to as the “new SABS”), and as such, non-earner benefits are not payable. [56] The plaintiff is statutorily barred from mediating and therefore litigating this claim in accordance with sections 55(1) of theSABS and 281(2) of the Insurance Act, because she failed to notify the Co-operators of the circumstances giving rise to a claim for non-earner benefits pursuant to s. 12 of the SABS or submit an application for the benefit within the times prescribed by the SABS. Sagan, supra. See Steele v.

Intact Insurance Company, 2014 ONSC 6999 at para. 9 (citing Sagan v.

Dominion of Canada General Insurance Co.supra). [57] Plaintiff’s counsel forwarded a letter to the Co-operators dated December 10, 2013 stating the plaintiff would not be attendingthe insurer's assessment on January 2, 2014 because litigation had commenced and a Defence Medical would be more appropriate. [58] Section 55(1) of the SABS and 281(2) of the Insurance Act apply procedurally here because the plaintiff failed to notify the Co-operators of the circumstances giving rise to a claim for non-earner benefits within 104 weeks of the accident pursuant to

section 12 ofthe SABS. [59] The only medical evidence addressing non-earner benefits filed by the plaintiff indicates that the plaintiff does not meet thestatutory criteria to be eligible for the benefit and no other medical evidence has been provided addressing the benefit. Further, theplaintiff has refused to allow the insurer to assess her for entitlement to non-earner benefits.

As such, the plaintiff is statutorily barredfrom mediating this benefit pursuant section 55(1) of the SABS and therefore litigating this benefit pursuant to section 281(2) of theInsurance Act. [60] Pursuant to section 55(1) of the SABS, the plaintiff "shall not" commence a mediation proceeding should she fail to provideevidence of the circumstances giving rise to a claim for a benefit or apply for the benefit. As the mediation was invalid and void, theplaintiff is not permitted to "bring an action in any court" pursuant to section 281 (2) of the Insurance Act and this action should thereforebe dismissed.

[ 61 ] Relying on the Court of Appeal in Sagan , Justice Braid and Justice Ramsay both held that an insurer is entitled to

summary judgment dismissing the plaintiff’s action where the plaintiff has never filed a disability certificate certifying that she meets the criterion for non-earner benefits pursuant to

section 35 of the SABS . Non-earner benefits are not payable prior to the plaintiff submitting a completed Disability Certificate indicating she meets the statutory requirements for the benefit. As the plaintiff in this matter has never submitted a Disability Certificate stating that she meets the statutory criteria for non-earner benefits, the benefit is not payable. Straus et al. v. Aviva et al. , 2015 ONSC 4589 , para. 91 ; Steele v. Intact Insurance , 2014 ONSC 6999 . [ 62 ] The plaintiff argues that the Notice for s. 44 Examination under the SABS is invalid because of lack of specificity.

The Notice for Examination was accompanied by a covering letter, dated October 26, 2012, which refers to the application for non-earner benefits and explains that the examination is to further explore and understand the plaintiff’s medical impairments as they relate to her eligibility to receive non-earner benefits. [ 63 ] The form itself refers to “non-earner benefits” under the heading “Type of Examination” and indicates it is by a physiatrist. [ 64 ] There is reference on the form to the letter of October 26 outlining the medical and other reasons for requiring the assessment. [ 65 ] I am of the view that the information provided was sufficient to allow the plaintiff to make an informed decision as to whether or not to attend at the examination, particularly in light of the fact that she was represented by a lawyer at the time. [ 66 ] Upon receipt of the October 26 letter, counsel for the applicant asked for an adjournment of the examination and the insurer agreed to such an adjournment.

It was only subsequently that counsel wrote to the insurer advising that the form was deficient without specifying why and stating that the applicant would not attend the examination without giving the insurer any opportunity to remedy any faulty notice, if same existed. [ 67 ] “The concept of ambush is antithetical to the openness and straight dealing that underpins the governing philosophy of the SABS .” See Jun Zhang & Yi Wen and Security National Insurance Co./Monnex Insurance Mgmt.

Inc., FSCO A13-003889 & A13-003890 [ 68 ] So far as the reasonableness of the request for the examination is concerned, at the time the request for the s. 44 examination was made, the insurer had no medical information with respect to the plaintiff’s injuries and I find that it was reasonable to request the plaintiff to attend at an examination. [ 69 ] Since the plaintiff has failed to comply with s. 44 of the SABS she is statutorily barred from mediating the benefit by s. 55(2) of the SABS and therefore litigating this benefit pursuant to s. 281(2) of the Insurance Act . [ 70 ] There was no valid claim outstanding made to the insurer so that there can be no claim for bad faith damages with respect to the insurer’s action. [ 71 ] As the plaintiff is not entitled to receive payment for benefits claimed, she is barred from bringing the within litigation and has failed to produce any evidence to support her claims for non-earner benefits or her claims for extra-contractual damages, there are no genuine issues requiring a trial and therefore judgment to issue dismissing the plaintiff’s action. [ 72 ] The defendant is entitled to its costs of this action.

The parties may address the quantum of costs in written submissions of no more than five typed pages in the font used for court documents under the Rules . The defendant shall have 10 days from the date hereof to deliver its costs submissions. The plaintiff shall have 10 days from receipt of the defendant’s costs submissions or expiry of the date for delivering the defendant’s costs submissions to deliver her response. The defendant may deliver its reply to the plaintiff’s submissions, if any, within five days of receiving the plaintiff’s submissions. ___________________________ LOFCHIK J.

Released: January 13, 2017 CITATION : Volpe v. Co-operators General Insurance Company, 2017 ONSC 261 COURT FILE NO.: 13-42024 DATE: 2017-01-13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Vicky Volpe Plaintiff/Respondent - and - Co-operators General Insurance Company Defendant/Applicant REASONS FOR JUDGMENT TRL:co Released: January 13, 2017