Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706

Full Decision

This action was commenced by the Plaintiff against her accident benefits insurer as a result of an accident that occurred in June, 2013. The Plaintiff sought a declaration of catastrophic impairment and continued entitlement to Income Replacement Benefits after the Post 104 week mark of the accident. The Defendant paid the non-catastrophic limits but denied that the Plaintiff had suffered a catastrophic impairment under the SABS. The Defendant did not initially contest causation as they had paid the non-catastrophic limits under the policy but challenged causation for the first time when the Plaintiff submitted her application for Catastrophic Impairment. The Defendant’s experts admitted that the Plaintiff suffered a marked impairment in all four domains of functioning but stated that it was not as a result of the accident.

In issue at trial was whether the Plaintiff was catastrophically impaired as a direct result of the accident, and whether the Defendant unreasonably denied or withheld the benefits. The Plaintiff and Defendant agreed at the beginning of trial that if the Plaintiff was catastrophically impaired then it was admitted that the Plaintiff meets the test for Post 104 IRB. The trial was heard over two-weeks in Thunder Bay.

The Plaintiff was entirely successful at trial. The trial judge, the Honourable Justice Pierce, held that 1) the Plaintiff is catastrophically impaired; 2) the Plaintiff was entitled to income replacement benefit as a result of the CAT finding; 3) she is entitled to housekeeping and home maintenance benefits; and 4) she is entitled to attendant care at $6,000 month.

Justice Pierce also found that the defendant unreasonably withheld/denied benefits. Interestingly, Her Honour stated that the 9 months the Defendant took to deliver its CAT reports was excessive. The trial judge ultimately found that it is unreasonable to take 9 months to deliver CAT reports and to expect the Plaintiff to fund her own care in the meantime was unjust in this case. With respect to her rejection of the definition of incurred and the unreasonable withholding of benefits, Justice Pierce stated at para 108 of her decision “… such an interpretation would encourage insurers to delay payments to insured in order to make the argument that expenses covered by a policy had not actually been incurred. Justice Pierce exercised her discretion under subsection (3)(8) of the SABS, as they then were, and held that the Defendant had unreasonably denied the Plaintiff’s benefits and deemed all outstanding expenses to have been incurred, even though it was agreed that the Plaintiff had not actually incurred all of the expenses claimed.

The Plaintiff also submitted that the Defendant’s argument on causation should be Estopped by conduct, and that the Defendant had waived it’s right to dispute causation. However, because Her Honour found that the Plaintiff met the “but for” test, it was unnecessary to consider the arguments of Estoppel and Waiver.

The Defendant has appealed the “unreasonable delay” provision.

Tim Gindi
Written by

Timothy was called to the bar in 2014. He graduated from the University of Windsor and University of Detroit Mercy with a J.D. from Canada and a J.D. from the United States. While in Law School, Timothy received the book award for Medical Malpractice and was the recipient of the Best Trial Notebook award for the Ernie Goodman Moot.