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Take-All-Comers rule
[1] TTC Insurance Company Limited seeks judicial review of an appeal decision of a Director’s Delegate of the Financial Services Commission of Ontario (“FSCO”) dated February 8, 2019. The Director’s Delegate’s decision upheld a March 9, 2018 arbitration decision awarding non-earner benefits to the Respondent, Shoba Kolapully, pursuant to the Statutory Accident Benefits Schedule, O.Reg. 34/10 (the “SABS”). We dismissed the application after oral argument, with these reasons to follow.
[2] On March 6, 2012, Ms. Kolapully was struck by a TTC bus while crossing a pedestrian crossway. Ms. Kolapully suffered significant injuries, including breaking both her legs and suffering a traumatic brain injury. The aspect of her claims at issue on this application is her entitlement to a “non-earner benefit” under the SABS.
[3] Pursuant to s. 12(1) of the SABS, to qualify for a non-earner benefit, the person involved in the accident must show that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. “Complete inability to carry on a normal life” is defined in s. 3(7)(a) of the SABS as where “the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
[11] The Applicant raised additional arguments in its factum which were not emphasized in oral argument because of the focus placed on its primary argument. In short, the Applicant argued that (a) the Arbitrator made a palpable and overriding error in her credibility assessment of Ms. Kolapully, given her obvious unreliability; and (b) the Arbitrator’s finding that the degree of impairment met the test for a non-earner benefit was not supported by the record. There is little merit to these submissions. As found by the Director’s Delegate, the Arbitrator made her credibility findings after considering all the points raised by the Applicant, and she was entitled to come to the finding that she did. The Director’s Delegate concluded that the Arbitrator did compare the claimant’s life before and after the injuries, as she was required to do by Heath, and that her conclusions were grounded in the factual record before her. These findings – which concern questions of fact and findings of credibility – were open to the Director’s Delegate and are reasonable.
12] The application is dismissed, with costs from the Applicant to Ms. Kolapully of $25,000, inclusive, as agreed between the parties. There shall be no costs for or against FSCO.