What is the test for entitlement to a non-earner benefit?

The Ontario Court of Appeal, in the 2009 decision of Heath v. Economical Mutual Insurance Company[2], outlined several principles to be considered when determining an insured person’s entitlement to a non-earner benefit. I have utilized these principles to guide my analysis regarding the applicant’s entitlement to a non-earner benefit. These principles include: (i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those activities following the accident. (ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case. (iii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on the activities which were of greater importance to the applicant’s pre-accident life. (iv) The applicant must prove that his/her accident related injuries continuously prevented him/her from engaging is substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted. (v) Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. Therefore, “engaging” should be interpreted from a qualitative perspective. (vi) If pain is the primary reason which is preventing an applicant from engaging in their former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.