Daley v. Economical Mutual Insurance Co., (2005) 206 O.A.C. 33 (CA)

• Judge: Doherty, Cronk and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 15, 2005
• Jurisdiction: Ontario
• Citations: (2005), 206 O.A.C. 33 (CA)

Daley v. Economical Mutual (2005), 206 O.A.C. 33 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JA.006

Salisha Daley (plaintiff/respondent) v. The Economical Mutual Insurance Company (defendant/appellant)

(C42931)

Indexed As: Daley v. Economical Mutual Insurance Co.

Ontario Court of Appeal

Doherty, Cronk and MacFarland, JJ.A.

December 14, 2005.

Summary:

Section 4(1) of Part II of the Statutory Accident Benefits Schedule provided for no fault income replacement benefits for three categories of persons, being those who, at the time of the accident, were: (1) employed, (2) unemployed, but had worked at least 26 of the previous 52 weeks or (3) unemployed, but entitled to start work under a legitimate written employment contract within one year. Section 8(1) provided that where the insured was employed at the time of the accident, she could designate either four weeks or 52 weeks before the accident as the time period on which her benefits would be calculated. Section 8(3) provided for the calculation of benefits based on the claimant's gross employment income in the four weeks preceding the accident, multiplied by 13, or the 52 weeks before the accident, depending on which time period had been chosen under s. 8(1). Daley designated the four week period under s. 8(1). However, although having worked the four weeks preceding her accident, for some unexplained reason, Daley had earned only two weeks' salary. Daley sued her insurer, claiming that her gross annual income should be based on her annual salary as fixed by her employment contract. The insurer claimed that as she had chosen the four week period under s. 8(1), her gross annual income had to be determined by multiplying her gross income for the four weeks before the accident by 13. Daley and her insurer submitted a special case under rule 22 for the determination.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 1179, accepted Daley's interpretation. The insurer appealed.

The Ontario Court of Appeal allowed the appeal.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - Section 4(1) of Part II of the Statutory Accident Benefits Schedule provided for no fault income replacement benefits for three categories of persons, being those who, at the time of the accident, were: (1) employed, (2) unemployed, but had worked at least 26 of the previous 52 weeks or (3) unemployed, but entitled to start work under a legitimate written employment contract within one year - Section 8(1) provided that where the insured was employed at the time of the accident, she could designate either four weeks or 52 weeks before the accident as the time period on which her benefits would be calculated - Section 8(3) provided for the calculation of benefits based on the claimant's gross employment income in the four weeks preceding the accident, multiplied by 13, or the 52 weeks before the accident, depending on the time period chosen under s. 8(1) - Daley designated the four week period under s. 8(1) - However, although having worked the four weeks preceding her accident, for some unexplained reason, Daley had earned only two weeks' salary - Daley sued her insurer, claiming that her gross annual income should be based on her annual salary as fixed by her employment contract - The insurer claimed that as she had chosen the four week period under s. 8(1), her gross annual income had to be determined by multiplying her gross income for the four weeks before the accident by 13 - The Ontario Court of Appeal rejected Daley's interpretation, accepted the insurer's interpretation and held that the latter interpretation did not violate s. 15 of the Charter - The alleged distinction, between insured who were employed under an employment contract and had commenced that employment when the accident occurred, but had worked fewer than four weeks, and other insured who had not commenced employment, but were entitled to commence employment under the same contract of employment within 12 months, was not based on any enumerated or analogous ground.

Insurance - Topic 5068

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Income replacement (incl. temporary disability benefits) - [See Civil Rights - Topic 8668 ].

Cases Noticed:

Mazur et al. v. Elias Estate et al. (2005), 196 O.A.C. 316; 75 O.R.(3d) 299 (C.A.), refd to. [para. 16].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 212 D.L.R.(4th) 1; 2002 SCC 42, refd to. [para. 17].

Hope v. Canadian General Insurance et al. (2002), 158 O.A.C. 311; 212 D.L.R.(4th) 247 (C.A.), refd to. [para. 18].)

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 231 D.L.R.(4th) 385; 2003 SCC 54, refd to. [para. 44].

Statutes Noticed:

Insurance Act Regulations (Ont.), Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Reg. 403/96, sect. 8(1) [para. 12]; sect. 8(3) [para. 13].

Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - see Insurance Act Regulations (Ont.).

Counsel:

Eric K. Grossman, for the defendant/appellant;

R.J. Reynolds, for the plaintiff/respondent.

This appeal was heard on November 15, 2005, by Doherty, Cronk and MacFarland, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on December 14, 2005.