Toresho v. Primmum Insurance Company, 

2015 ONSC 516

Released January 28, 2015

Primmum Insurance brought a summary judgment motion to dismiss the plaintiff's action for non-earner benefits. The plaintiff had initially elected to receive IRBs, and had received IRBs until Primmum terminated those benefits. She commenced an action claiming further IRBs. Close to three years after Primmum terminated IRBs, the plaintiff wrote to Primmum indicating that she might qualify for NEBs. Primmum rejected this proposition and the plaintiff commenced a further action for NEBs.

Primmum's motion was based on the premise that an insured person may not make a re-election to NEBs after initially electing to receive IRBs. The plaintiff argued that she was entitled to make the re-election. Both parties relied on the decision of the Ontario Court of Appeal in Galdamez v. Allstate Insurance.

Mr. Justice Glithero concluded that Galdamez permitted contemporaneous actions for both IRBs and NEBs. However, he also concluded that only one of the benefits could be payable in respect of a given period of time. Accordingly, he granted partial summary judgment, dismissing the claim for NEBs with respect to the period of time during which Primmum had already paid IRBs, and dismissed the motion with respect to the remaining period of time.

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Lloyd v. Napanee (Town), 

2015 ONSC 841

Released February 5, 2015

This was a threshold motion, following a seven day trial.  The plaintiff alleged that he suffered a chronic pain disorder and relied on the evidence of their expert physician, who acknowledged (a) that chronic pain disorder is a diagnosis based substantially on subjective information, and (b) that inconsistencies in the plaintiff's history caused serious concerns with respect to the plaintiff's believability and, therefore, his opinion. The defence medical expert concluded that the plaintiff's symptoms were unrelated to the collision.

Mr. Justice LeMay found the plaintiff not to be a credible witness. As a result, he preferred the opinion of Dr. Tepperman. He concluded that that plaintiff had not suffered a permanent impairment of a physical, mental, or psychological function. Justice LeMay did note, however, that had he found the plaintiff to be credible, he would have found both that any impaired function to was important and that the impairment was serious.

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Charlebois v. SSQ Life Insurance Company Inc. 

2015 ONSC 304

Released January 21, 2015

The defendant in this LTD action brought a motion to remove counsel for the plaintiff.  SSQ had previously hired Dr. Jeffrey Phillips, a psychologist, and Sylvie Hilborn, an occupational therapist, to provide rehabilitation services in accordance with the rehabilitation provisions of the LTD policy.  Upon being retained, counsel for the plaintiff requested medical-legal reports from both Dr. Phillips and Ms. Hilborn.  SSQ argued that Dr. Phillips and Ms. Hilborn were SSQ's experts and possessed privileged information, including information subject to solicitor-client privilege.  The plaintiff noted that Dr. Phillips and Ms. Hilborn had been retained on a referral by Salus Cura, a disability management consultant, for the purpose of providing treatment, not expert opinion. 

Read the full decision on the OTLA Document Bank