2017 ONSC 3609, 2017 ONSC 3609

CITATION : Wilken v. Sun Life Assurance Company, 2017 ONSC 3609 COURT FILE NO.: 205-2015 DATE: 2017/06/12 SUPERIOR COURT OF JUSTICE – ONTARIO RE: ROBERT WILKEN (Plaintiff) And: SUN LIFE ASSURANCE COMPANY (Defendant) BEFORE: Justice I. F. Leach 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] [ 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 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. [ 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 166372).

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. • 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, 2012 . 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, 2015. • 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 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 2014 . • 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 voicemail 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 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 non-compliance 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, 2014. In particular, the decision he would be making on September 12, 2014, would be retroactive to September 5, 2014.

• 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 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, 2014. • 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, 2015 .

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 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 $57,962.10 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: 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, 2015. • 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 $57,962.10 directly from any income replacement benefits payable to the plaintiff between the date of the accident and September 3, 2014. 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 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, 2015.

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. • 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 decliningwhat otherwise would have been his WSIB benefit entitlement in favour of exercising his right to instead pursue a tort action againstthird 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 thoseavailable benefits”; o the insurer indicated that its case manager had erred in treating the plaintiff’s “self-imposed ineligibility for WSIB benefits” in amanner similar to a determination by the Workers Safety & Insurance Board, after due assessment, that the plaintiff was not eligible foror entitled to benefits; o the insurer emphasized that its case manager instead should have applied the aforesaid deemed offset provisions in the calculation ofLTD benefits payable to the plaintiff, (i.e., considering and deducting the WSIB benefits available to the plaintiff but for his voluntaryre-election)[6], and opined that the resulting calculation in this case was relatively straightforward insofar as the insurer had theadvantage of knowing and using the plaintiff’s demonstrated and therefore precise WSIB benefit entitlement, instead of having to use anestimated WSIB benefit; o based on that approach, the insurer felt that the plaintiff’s WSIB entitlement effectively reduced his LTD benefit payment entitlementto “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 policydefinitions. • 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, 2016. [12] With the above facts and circumstances in mind, I now turn to more detailed consideration of the defendant’s motion forsummary judgment.

Analysis [13] I begin with consideration of the law relating to whether this matter is amenable to adjudication by way of

summaryjudgment, 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 ofclaim. [15] Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers thecourt has in that regard.

They include the following: • 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 herpleadings, 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 notpermitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trumpor risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the partieswould present at trial”.

See, for example: Pizza Pizza Ltd v. Gillespie (1990), (ON SC), 75 O.R. (2d) 225(Gen.Div.); 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), (ON CA), 21 O.R. (3d) 547 (C.A.); TransamericaLife Insurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Gen.Div.); andToronto-Dominion Bank v. Hylton, 2012 ONCA 614 , [2012] O.J. No. 4309 (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 atrial 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), mayweigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in theinterest of justice for such powers to be exercise only at trial”.

In the exercise of those powers, the court also has the ability, pursuant toRule 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), toorder a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where thecourt 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 Rules20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trialexpeditiously, and make numerous further orders and directions that may be just in the circumstances. [16] In Hyrniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, the Supreme Court of Canada encouraged the use ofOntario’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 27of the Hyrniak decision): Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive andprotracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford togo to trial. … Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable accessto the civil justice system.

This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trialin favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by ourjustice 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 byextensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.

A properbalance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models ofadjudication are no less legitimate than the conventional trial. [18] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Applianceand Furniture, Inc. v. Hyrniak, 2014 SCC 7 , [2014] 1 S.C.R. 87, (a companion action to Hyrniak v.

Mauldin, supra), thatsummary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when theprocess: i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and iii. 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, basedonly 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 byusing 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 usedat 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 particularcontext are amenable to resolution by

summary 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, 2015. [22] While

summary judgment is not possible in relation to the plaintiff’s claim for LTD benefits in relation to the period afterJune 1, 2015, I think the remaining aspects of the parties’ dispute may benefit from at least some further judicial direction, pursuant toRule 20.05. 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 insurancegoverning 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 areto 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-livingincreases 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 canestimate those benefits and payments and use them when we calculate your Long-Term Disability payments. [Emphasis added.] [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 saysthat, in the calculation of any LTD benefits to which the plaintiff otherwise may be entitled, a deduction or “deemed offset” accordinglyshould 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 histort claim. [26] In Richer, the plaintiff insured was injured in the course of his employment, and was covered by a disability insurance policythrough 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 forthat 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 beeligible under any Workers’ Compensation Act or comparable legislative or insurance provision … and until the amount of thosepayments has been established the Administrator reserves the right to make the reductions described above on the basis of the estimatedamount of those payments.… When the amount of such disability benefits has been established, the Administrator will adjust thereductions 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 thatAct to proceed with a civil action against the party allegedly responsible for his injuries. His claim for LTD benefits was denied by thedisability insurer, which relied upon the above provisions. In an action claiming entitlement to LTD benefits under the policy, the courtwas obliged to determine, inter alia, whether Mr.

Richer’s LTD benefits were subject to an “offset” of the amount of WSIB benefits thathe 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 andlogical”, thereby making it unnecessary to resort to other principles of insurance policy

interpretation such as the contra proferentumdoctrine, the doctrine of reasonable expectations, or the principle that coverage provisions should be construed broadly and exclusionclauses narrowly. [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 HaveReceived 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 paymentto which the disabled Employee is entitled for that month.” (Underlining added). As the motions judge noted, in Madill v. Chu, … (SCC), [1977] 2 S.C.R. 400, … the Supreme Court of Canadadetermined that the phrase “entitled to receive benefits” means that an insurer is entitled to reduce benefits on satisfactory proof that theinsured 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 beenmade 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 WSIBbenefits which the appellant is “entitled to receive” is not the amount of WSIB benefits that the appellant receives but the amount of suchbenefits that the appellant could have received had he exercised his entitlement for them.

In this case, the amount by which the monthlybenefit payable to the employee is reduced “by any payment to which the disabled Employee is entitled for that month” refers to theamount of WSIB benefits to which the appellant would have been entitled had he not elected to proceed with his civil action. Thisinterpretation 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 policyshould 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 tothe appellant under the policy by the amount of WSIB benefits to which he would have been entitled had he not elected to proceed withan action. [31] In the case before me, the plaintiff argues that the situation and outcome in Richer should be distinguished, and confined tothe 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 havebeen “eligible”; • the plaintiff suggests that the relevant policy provisions in the case before me focus on eligibility rather than entitlement; and • the plaintiff argues that he is not “eligible” for WSIB because he has elected to pursue a tort action, and there is no possibility ofhis becoming “eligible” for WSIB benefits again unless and until, pursuant the plaintiff obtains a judgment in the legal action and isawarded less than what he may have received through a claim for WSIB benefits, or the Board approves a settlement of the legal actionbefore it is made.[7] [32] In my view, there are no meaningful or relevant distinctions between the Richer case and the situation before me, as far as the

insurer’s ability to apply an offset for WSIB benefits is concerned. Without limiting the generality of the foregoing: • I think the relevant provisions of the insurance policy in this case, outlining the method of calculating any LTD benefits to which the plaintiff might otherwise be entitled, are “clear and logical”, (to use the description employed in the Richer case). In my view, the plaintiff in the case before me did not identify or establish any meaningful ambiguity in those provisions. Like Justice Jurianz in the Richer case, I find it unnecessary to employ other principles of insurance

interpretation, beyond giving the relevant words of the policy their ordinary meaning. • I note that, as emphasized above, the relevant policy provisions being considered in the Richer case, permitting the insurer to make an offset deduction for WSIB benefits, used both entitlement and eligibility wording. • In my view, making a distinction between “entitlement” and “eligibility” in the manner suggested by the plaintiff would elevate form over substance, and effectively ignore the more fundamental principle underlying the Supreme Court of Canada’s approach in Madill v.

Chu , supra , and our Court of Appeal’s similar approach in Richer v. Manulife Financial , supra . Again, both decisions emphasize that an insurer’s obligation under a policy of disability insurance should not be “varied adversely to its interest after the happening of the event insured against by the independent act of the insured”. Adopting the distinctions and approach advocated by the plaintiff in this case would run counter to that principle.

In particular, the plaintiff’s voluntary decision to make a retroactive election, foregoing WSIB benefits to pursue a tort action, effectively would deny the insurer its contemplated and permitted offset, thereby elevating the insurer’s relevant coverage obligation to a “first payor” status that obviously was not intended. [ 33 ] I therefore find that, in the calculation of any LTD benefits to which the plaintiff in this case 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. [ 34 ] The defendant insurer says that, when that mandated and permissible calculation is performed, it inevitably will result in a “nil” monthly payment of LTD benefits to the plaintiff, even if he otherwise satisfies the eligibility requirements of the relevant insurance policy, including satisfaction of whatever definition of total disability may apply to a relevant time period. [ 35 ] In other words, the moving defendant argues that a combination of the aforesaid “offset” provisions and simple mathematics renders any remaining aspects of the plaintiff’s claim moot, thereby entitling the defendant to

summary judgment dismissing the plaintiff’s claim in its entirety. [ 36 ] For the reasons outlined below, I think that is true in relation to certain time periods covered by the plaintiff’s claim for LTD benefits. [ 37 ] In my view, however, not all aspects of the plaintiff’s claim for LTD benefits are amenable to such a

summary judgment determination. [ 38 ] In that regard, and as noted above, I think the plaintiff’s claim and the defendant’s motion for

summary judgment merit differential treatment in relation to three specific time periods. CLAIM FOR LTD BENEFITS: NOVEMBER 26, 2012 – AUGUST 23, 2014 [ 39 ] In relation to the first period, (from the plaintiff’s accident on November 26, 2012, to the plaintiff’s WSIB benefits being reduced from “full loss of earnings” as of August 23, 2014), I believe the parties’ dispute “can be resolved in a fair and just manner” by

summary judgment, based on the criteria outlined by the Supreme Court of Canada, without resorting to the additional powers set forth in Rule 20.04(2.1) .

In particular: • The undisputed evidence before me indicates that, during that period, and throughout the shorter time therein during which the plaintiff may have been eligible for LTD benefits pursuant to the relevant policy of insurance issued by the defendant, the plaintiff clearly was entitled to receive, but for his voluntary retroactive election, (and actually did receive, prior to that election), WSIB benefits in excess of his possible entitlement to LTD benefits pursuant to the defendant’s policy.

In particular, the plaintiff was entitled to receive, (and initially did receive), WSIB benefits at a full loss of earnings (FLOE) level, inherently exceeding the plaintiff’s potential entitlement to only 66.67% of his basic monthly salary, pursuant to the stipulated formula for LTD benefit calculation set forth in the defendant’s policy of insurance. • Even without resort to the court’s powers under Rule 20.04(2.1) , no trial is required to address and resolve any relevant factual issues in that regard. Again, the relevant facts are not in dispute.

Indeed, it is not even disputed that, during the relevant time period, the plaintiff satisfied the relevant “own occupation” definition of total disability, (which applied to the period of LTD eligibility from March 13, 2013, through to March 13, 2015, and therefore to the period of March 13, 2013, through to August 23, 2014). • The only real dispute between the parties, in relation to the plaintiff’s claim for LTD benefits during the period between November 26, 2012, and August 23, 2014, turned on the question of law addressed above.

In particular, the parties required a legal determination as to whether the provisions of the defendant’s policy permit, in the calculation of LTD benefits payable to the plaintiff, an offset deduction for the WSIB benefits he might have received and retained but for his voluntary retroactive election to pursue a tort claim instead. • For the reasons I have outlined, in my view the law clearly permits such an offset deduction, effectively reducing the plaintiff’s entitlement to LTD benefits to zero for the period between November 26, 2012, and August 23, 2014.

In particular: o As outlined in the factual chronology set out above, the plaintiff had no possible entitlement whatsoever to LTD benefits, pursuant to the defendant’s policy of insurance, prior to expiry of the mandated “elimination period” on March 12, 2013.

o For the period of March 13, 2013, to August 23, 2014, assuming notional entitlement to LTD benefits under the policy, (e.g., through satisfaction of the applicable “any occupation” definition of total disability), calculation of the precise LTD benefits owed to the plaintiff would be determined by the “What we will pay” provisions of the policy, noted above. o Pursuant to “Step 1” of those provisions, the starting point was 66.67% of the plaintiff’s monthly basic earnings up to a maximum of $7,500.

In this case, at the time of his accident, the plaintiff was earning a basic monthly salary of $3,523.33, and 66.67% of that amount is $2,349.00. o Pursuant to “Step 2” of the stipulated calculation, the insurer is then permitted to subtract any benefits provided to the plaintiff for the same disability under any Workers Compensation Act or similar law, and “still consider” such benefits in its calculations, (estimating them if necessary), even if the plaintiff did not apply for them. In this case, no estimation is required.

Pursuant to the decisions made by the WSIB case manager, the plaintiff actually received, retroactive to the date of his accident and up until August 23, 2014, WSIB benefits at the “full loss of earnings” (FLOE) level.

In my view, there is nothing in the undisputed evidence to suggest any reason why the plaintiff would not have been permitted to receive and retain such WSIB benefits, apart from his “independent act” in making a voluntary retroactive election to pursue a tort claim instead. o When full loss of earning WSIB benefits are subtracted from the partial (66.67%) loss of earning LTD benefits, for the period from November 26, 2012, to August 23, 2014, the amount of LTD benefits the plaintiff would “normally receive”, even assuming satisfaction of all other prerequisites including total disability, accordingly would be reduced to “nil”. [8] • There accordingly is no genuine issue requiring trial, as far as the plaintiff’s claim against the defendant for LTD benefits in relation to the period between November 26, 2012, and August 23, 2014, is concerned.

At the least, the defendant is entitled to

summary judgment in part, dismissing the plaintiff’s claim in that regard. CLAIM FOR LTD BENEFITS: AUGUST 23, 2014 – JUNE 1, 2015 [ 40 ] In relation to the second period, (from the plaintiff’s WSIB benefits being reduced from “full loss of earnings” as of August 23, 2014, until the date of the plaintiff’s contemplated return to work on June 1, 2015, pursuant to the WT plan designed and put in place by the WT specialist retained by the Workers Safety & Insurance Board), I similarly believe the parties’ dispute “can be resolved in a fair and just manner” by

summary judgment, based on the criteria outlined by the Supreme Court of Canada. [ 41 ] However, my approach in that regard is somewhat different, insofar as I believe

summary judgment requires at least some resort to the court’s discretionary power to draw certain reasonable inferences from the evidence, pursuant to Rule 20.04(2.2) 3, in circumstances where the interest of justice do not, in my view, require such inferences to be drawn only at a trial. [ 42 ] My reasons in that regard include the following: • The undisputed evidence indicates that the plaintiff was receiving WSIB benefits at a “full loss of earnings” (FLOE) level, prior to August 23, 2014, because he was being fully compliant with the WT plan established by the WT specialist assigned to his case; a plan which contemplated further ongoing training to provide the plaintiff with new skills prior to his contemplated return to work on June 1, 2015. • The undisputed evidence further indicates that the level of WSIB benefits received by the plaintiff was then reduced to 50% of full loss of earnings, (for the period between August 23 and September 4, 2014), before being reduced still further to a level of WSIB benefits based on a vocational wage of $13.00 per hour over a 44 hour work week, (for a period that was to run from September 5, 2014, to November 26, 2018), owing to the plaintiff’s non-compliance with his stipulated WT plan. • On their face, such reductions reduced the plaintiff’s WSIB benefits to levels of income replacement below the 66.67% level of LTD benefits the plaintiff might have been entitled to receive, pursuant to the stipulated formula for LTD benefit calculation set forth in the defendant’s policy of insurance. • Again, none of the above evidence is in dispute, and a trial is not required to establish such facts. • The undisputed evidence submitted by the parties does not expressly indicate that the plaintiff, but for his non-compliance with his WT plan and voluntary retroactive election, would have continued to receive WSIB benefits at the “full loss of earnings” (FLOE) level from August 23, 2014, to June 1, 2015.

In other words, the submitted evidence alone does not indicate and confirm that the plaintiff otherwise would have received WSIB benefits inherently exceeding his potential LTD benefits, during that period. However, I think that is a reasonable inference to be drawn from the evidence, using my discretionary powers pursuant to Rule 20.04(2.1) 3, and that the interests of justice do not compel drawing such an inference only at trial.

In particular: o As noted above, payment of WSIB benefits to the plaintiff at the “full loss of earnings” level resulted from his full compliance with the WT plan developed by the WT specialist assigned to the plaintiff’s case. o Nothing in the evidence suggests any material change, unrelated to plaintiff compliance with his WT plan, that would have altered his continued receipt of WSIB benefits at the “full loss of earnings” level prior to June 1, 2015; o Nothing in the evidence suggests any contemplated deviation from that WT plan, and the continued payment of WSIB benefits at the “full loss of earnings” (FLOE) level, had the plaintiff remained fully compliant with that WT plan.

To the contrary, in my view the communications and developments outlined in the chronology set out above make it abundantly clear, (e.g., through successive warnings and admonitions from the plaintiff’s WSIB case manager, and the progressive disciplinary benefit reductions implemented by the plaintiff’s WSIB case manager, reluctantly but in accordance with the mandatory policies of the Workers Safety & Insurance Board), that every effort was being made to encourage resumed plaintiff compliance with the established WT plan, so that payment of WSIB benefits to the plaintiff could continue at the “full loss of earnings” (FLOE) level.

In the circumstances, I think it reasonable to infer that payment of WSIB benefits would have continued at the “full loss of earnings” level, as contemplated by the WT plan and WSIB case

manager, had the plaintiff not failed to comply with that WT plan. o Moreover, as the plaintiff was receiving WSIB benefits at the “full loss of earnings” level during his retraining efforts pursuant to the WT plan, and that WT plan contemplated a “return to work” date of June 1, 2015, I also think it reasonable to infer that the payment of WSIB benefits to the plaintiff would have continued at the “full loss of earnings” level until then, had the plaintiff remained fully compliant. o In my view, the interest of justice does not require the making of such reasonable inferences, from the evidence, only at trial.

The documentary evidence filed by the parties provides a contemporaneous and fulsome record of what decisions were being made by the WSIB case manager, and why, during the relevant period. That evidence was not disputed or questioned. Nor was it suggested that any information in that regard raised any credibility concerns, or needed to be supplemented in any relevant or material way.

In the circumstances, I think a trial would add little or nothing relevant to the making of such inferences. • I think those inferences, combined with the other undisputed evidence and application of the legally permissible offset deduction for WSIB benefits, effectively and inevitably reduce the plaintiff’s entitlement to LTD benefits to zero for the period between August 23, 2014, and June 1, 2015.

In particular: o For the entirety of that period, assuming notional entitlement to LTD benefits under the policy, (e.g., through satisfaction of the applicable “any occupation” definition of total disability from August 23, 2014, to March 13, and satisfaction of the applicable “any occupation” definition of total disability from March 13, 2015, through to June 1, 2015), calculation of the precise LTD benefits owed to the plaintiff once again would be determined by the “What we will pay” provisions of the policy, noted above. o Pursuant to “Step 1” of those provisions, the starting point once again would be 66.67% of the plaintiff’s monthly basic earnings at the time of his accident; i.e., $2,349.00. o Pursuant to “Step 2” of the stipulated calculation, the insurer is then once again permitted to subtract any benefits provided to the plaintiff for the same disability under any Workers Compensation Act or similar law, and “still consider” such benefits in its calculations, (estimating them if necessary), even if the plaintiff did not apply for them.

In this case, I find that a degree of appropriate estimation and/or inference is required, for the reasons noted above.

In particular, while the plaintiff actually received WSIB benefits below the “full loss of earnings” level, (and therefore possibly at a level below his potential entitlement to LTD benefits for the same period), in my view, there is nothing in the undisputed evidence to suggest any reason why the plaintiff would not have been permitted to receive and retain WSIB benefits, at the “full loss of earnings” level, throughout the period from August 23, 2014, to June 1, 2015, apart from his “independent act” in making a voluntary retroactive election to pursue a tort claim instead, and his corresponding voluntary decision to forego further compliance with his WT plan, (despite repeated warnings from his WSIB case manager outlining the detrimental impact that would have on the level of WSIB benefits the plaintiff would receive).

Pursuant to the fundamental principle emphasized in the Madill and Richer decisions, the defendant insurer’s obligation under the relevant disability policy should not be varied adversely by such independent acts of the plaintiff, after his accident.

In my view, the insurer accordingly should be permitted to consider and deduct notional WSIB benefits at the “full loss of earnings” level for the period from August 23, 2014, to June 1, 2015. o When full loss of earning WSIB benefits are subtracted from the partial (66.67%) loss of earning LTD benefits, for that period, the amount of LTD benefits the plaintiff would “normally receive”, even assuming satisfaction of all other prerequisites including total disability, accordingly would be reduced to “nil”. • In my view, there accordingly is no genuine issue requiring trial, as far as the plaintiff’s claim against the defendant for LTD benefits in relation to the period between August 23, 2014, and June 1, 2015, is concerned.

The defendant is entitled to further

summary judgment in part, dismissing the plaintiff’s claim in that regard. CLAIM FOR LTD BENEFITS: THE PERIOD AFTER JUNE 1, 2015 [ 43 ] I nevertheless find that the parties’ dispute is not amenable to

summary judgment in relation to the period after June 1, 2015.

In my view: • the evidence before me is not sufficient to establish that the plaintiff’s entitlement to WSIB benefits has exceeded and will exceed the plaintiff’s potential entitlement to LTD benefits during that further period; • the uncertainties in that regard are incapable of being resolved by the further discretionary powers available to the court pursuant to Rule 20.04(2.1); and • there are genuine issues requiring a trial relating to the plaintiff’s claim for LTD benefits from the defendant for the period after June 1, 2015. [ 44 ] Without limiting the generality of the foregoing, it seems to me that the evidence filed by the parties on this motion does not permit resolution of issues, “in a fair and just manner”, concerning the amount of WSIB benefits the plaintiff could have received after June 1, 2015, (but for his election to pursue a tort claim). [ 45 ] Moreover, that in turn does not permit and “fair and just” determination as to whether the LTD benefit calculation mandated by the defendant’s insurance policy once again would result in a “nil” balance for any or all aspects of the period after June 1, 2015, regardless of whether all other requirements of the policy were satisfied, (including demonstration of total disability pursuant to the “any occupation” provisions applicable to the plaintiff after March 13, 2015). [ 46 ] Based on the evidence before me, in my view the trail of reasonable certainty, concerning the quantum of WSIB benefits the plaintiff could have received but for his independent acts, largely vanishes after June 1, 2015. [ 47 ] In particular, although it seems very unlikely that the plaintiff would have continued to receive WSIB benefits at the “full loss

of earnings” level after June 1, 2015, (the date of the plaintiff’s contemplated return to work pursuant to the WT plan, and the plaintiff’s corresponding earning of some level of income), it seems to me that there also is little evidence before me to indicate what the plaintiff’s potential WSIB benefits would have been thereafter, (but for his election to pursue a tort claim instead), and where that level of potential WSIB benefits may have stood in relation to the plaintiff’s potential LTD benefits under the defendant’s policy of insurance. [ 48 ] As noted above, there is evidence outlining the progressively reduced levels of WSIB benefits actually imposed by the plaintiff’s WSIB case manager after August 23, 2014, in response to the plaintiff’s non-compliance with his WT plan.

That evidence indicates, or at least strongly suggests, what the plaintiff actually would have received in the way of WSIB benefits from June 1, 2015, through to November 26, 2018, (but for his retroactive election to pursue his tort claim), in the wake of determined non-compliance with his WT plan, despite repeated warnings from his WSIB case manager. [ 49 ] Taken at face value, it seems to me those reduced WSIB benefits would not have exceeded the plaintiff’s potential LTD benefits for the same period, thereby effectively reducing the defendant’s required LTD benefit payments to nil in any event, through operation of the WSIB offset provisions of the policy.

In particular, if the plaintiff’s benefits were reduced by his WSIB case manager to 50% of his previous “full loss of income” WSIB benefits, and then reduced still further, it is difficult to see how they inherently could have exceeded LTD benefits for the same period quantified at 66.67% of the plaintiff’s basic wage. [9] [ 50 ] Such evidence falls short, in any event, of indicating what would happen to the plaintiff’s actual receipt of WSIB benefits after November 26, 2018, (assuming no election to pursue a tort claim), following the Board’s contemplated further review to determine “final loss of earnings and lock in”. [ 51 ] More importantly, however, for the reasons noted above, the level of WSIB benefits to be considered, in relation to the defendant’s permissible offset deduction for WSIB benefits, is not determined by what the plaintiff actually did receive or will receive, in the way of WSIB benefits.

The focus instead is on what the plaintiff could have received or still could receive, in the way of WSIB benefits, during the period after June 1, 2015, but for independent acts on his part resulting in a denial of such benefits. [ 52 ] Again, the evidence filed by the parties in relation to this motion does not permit any “fair and just” determinations and resolution in that regard. [ 53 ] Nor do I think such problems can be overcome by resorting to the court’s discretionary powers under Rule 20.04(2.1) or Rule 20.04(2.2) . [ 54 ] In that regard, at least for the period after June 1, 2015, I agree with the plaintiff’s submission that determining the quantum of WSIB benefits available to the plaintiff, but for his election and pursuit of a tort claim, is by no means a straightforward proposition. [ 55 ] To the contrary, as emphasized by the plaintiff, WSIB benefits are variable and may depend on a myriad of factors and possibilities, such as: • the general discretion of the Workers Safety & Insurance Board, within the first 72 months following a worker’s injury, to review, vary or discontinue WSIB benefit payments each year or if a material change of circumstances occurs; [10] • the Board’s discretion, more than 72 months following a worker’s injury, to review WSIB benefit payments in further specified circumstances, (including a worker’s failure to provide notice of a material change in circumstances, a worker engaging in fraud or misrepresentation, a worker’s failure to complete a labour market re-entry plan, and/or a significant deterioration in the worker’s condition); [11] • the Board’s ability to calculate loss of earnings on the basis of a specified differential between a worker’s net average earnings before and after injury, if the worker returns to work or continues to engage in work reintegration activities; [12] and • the Board’s ability to determine post-injury earnings using a suitable occupation identified for the worker, current wage and labour market information, and a specified differential between net average earnings before injury and the determined or deemed net average earnings after injury. [13] [ 56 ] Without evidence providing reasonable and reliable indications of what the Workers Safety & Injuries Board did or would have done in relation to the plaintiff’s WSIB Benefits, during a particular period, it accordingly is difficult to perform the mandated calculation, (including the insurer’s permitted offset relating to WSIB benefits), required to quantify the plaintiff’s potential LTD benefit payments. [ 57 ] Again, I have found that the evidence submitted by the parties, supplemented to some extent by reasonable inferences, provides such indications for the period between the plaintiff’s accident and June 1, 2015, thereby permitting

summary judgment in relation to the plaintiff’s corresponding claims for LTD benefits during that period. [ 58 ] The same cannot be said of the period from June 1, 2015, onwards. [ 59 ] While there is evidence indicating that the plaintiff may very well have been entitled to some measure of WSIB benefits after June 1, 2015, but for his election to pursue a tort claim, there is insufficient evidence before me at this point, in my view, to determine whether or not such benefits would have exceeded his potential entitlement to LTD benefits, reducing any possible entitlement to nil in any event. [14] Genuine issues requiring a trial accordingly remain in that regard as well. [ 60 ] Insofar as it relates to the plaintiff’s claim for LTD benefits for the period after June 1, 2015, the defendant’s motion accordingly is dismissed.

RULE 20.05

[ 61 ] As noted above, the court is granted various additional powers pursuant to Rule 20.05, “where

summary judgment is refused or is granted only in part”. For the reasons I have outlined, the latter is the situation here. [ 62 ] At the very least, I think it would be appropriate and helpful to the trial judge to make an order specifying that the material facts set forth in paragraph 11 of these reasons are not in dispute.

Substantial effort has gone into organizing and putting those undisputed facts before the court, and neither the parties nor the court should be required to explore or establish them anew at trial. [ 63 ] The material facts set forth in paragraph 11 of these reasons accordingly shall be deemed to be established pursuant to Rule 20.05(3), unless the trial judge orders otherwise to prevent injustice. [ 64 ] Beyond that, despite having considered the possibilities, I have decided not to attempt definition of all the remaining issues to be tried, (as the focus of the

summary judgment before me was deliberately confined), or order that the action proceed to trial expeditiously, (as this is a matter where the passage of time inherently may provide further insights into the status of the plaintiff’s alleged disability and/or the quantum of WSIB benefits the plaintiff could have received but for his election to pursue a tort claim [15] , suggesting that the parties should have continued input into whether or not the action is ready for trial). CONCLUSION [ 65 ] In the result, having regard to the considerations set forth in Hyrniak v. Mauldin , supra , for the reasons outlined above, an order shall go: • granting the defendant

summary judgment in part, dismissing the plaintiff’s claim for LTD benefits in relation to the period from November 26, 2012, to August 23, 2014; • granting the defendant

summary judgment in part, dismissing the plaintiff’s claim for LTD benefits in relation to the period from August 23, 2014, to June 1, 2015; • dismissing the defendant’s motion for

summary judgment in relation to the plaintiff’s claim for LTD benefits for the period after June 1, 2015; and • specifying that the material facts set forth in paragraph 11 of these reasons are not in dispute, unless the trial judge orders otherwise to prevent injustice, pursuant to Rule 20.05(3) of the Rules of Civil Procedure . Costs [ 66 ] Because my decision was reserved, the parties were unable to make any submissions regarding costs, having regard to the actual outcome of the motion.

In particular: • at the hearing of the motion, counsel for the moving defendant submitted a costs outline seeking partial indemnity costs totaling $6,391.00, premised on the motion being entirely successful; i.e., with the granting of

summary judgment dismissing the plaintiff’s action in its entirety; • at the hearing of the motion, counsel for the responding plaintiff submitted a costs outline seeking substantial indemnity costs totaling $23,191.56, or partial indemnity costs totaling $17,437.03, premised on the motion being entirely unsuccessful; i.e., with the plaintiff having secured a complete dismissal of the defendant’s motion without the granting of any relief in the defendant’s favour; and • neither side had any opportunity to address what an appropriate cost disposition might be if success on the motion was substantially divided. [ 67 ] My preliminary view is that success on the motion was substantially and significantly divided, strongly suggesting that there be no order as to costs. [ 68 ] In particular, while the defendant succeeded in confirming its important right to apply a WSIB offset deduction in the manner suggested, and obtained partial

summary judgment in relation to relatively early periods of the plaintiff’s potential disability, the plaintiff obviously prevailed in terms of preserving his claim for LTD benefits in relation to what may be a far more extended and important period of disability, depending on the severity of his injuries and his ability to secure recovery in the tort action. [ 69 ] If the parties take a different view, and are unable to reach an agreement on costs: a. the defendant may serve and file further written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision; b. the plaintiff then may serve and file further responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the defendant’s written cost submissions; and c. the defendant then may serve and file, within one week of receiving any responding cost submissions from the plaintiff, reply cost submissions not exceeding two pages in length. [ 70 ] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

“Justice I. F. Leach” Justice I. F. Leach Date: June 12, 2017