Michelle Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165

COURT OF APPEAL FOR ONTARIO

2015 ONCA 165

DATE: 20150313

DOCKET: C57821

Weiler, Epstein and Brown JJ.A.

BETWEEN

Michelle Blake

Appellant

and

Dominion of Canada General Insurance Company

Respondent

Robert Zigler, for the appellant

Lisa C. Pool, for the respondent

Heard: February 9, 2015

On appeal from the judgment of Justice Alan C. R. Whitten of the Superior Court of Justice, dated September 30, 2013, with reasons reported at 2013 ONSC 6069.

Brown J.A.:

OVERVIEW

1Michelle Blake, the appellant, was injured in a motor vehicle accident on November 18, 2002. At the time she was insured under a motor vehicle liability policy with the respondent, Dominion of Canada General Insurance Company. Ms. Blake sued Dominion to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996¹ (the “Schedule”).

2Following a 10-day trial, the trial judge dismissed Ms. Blake’s claim. He held that her claim was statute-barred, but went on to conclude that Ms. Blake had not established her entitlement to caregiver benefits beyond the initial 104-week eligibility period. In addition, the trial judge dismissed Ms. Blake’s claims for damages for breach of the contractual duty of good faith, aggravated damages, and mental distress.

3Ms. Blake appeals, seeking to set aside the judgment and requesting this court to award her damages or, alternatively, to direct a new trial. For the reasons set out below, I would dismiss the appeal. I see no error in the trial judge’s finding that Ms. Blake’s action was statute-barred, or in his alternative findings that she had not established her claims to caregiver benefits and damages for breach of the contractual duty of good faith.

ISSUES ON APPEAL

4Ms. Blake raises four main grounds of appeal. She submits that the trial judge erred by:

(i) finding that her claim was statute-barred;

(ii) refusing to read all the evidence she proffered at trial;

(iii) holding that she had failed to meet her evidentiary burden in relation to entitlement to the caregiver benefit and by applying the wrong legal causation test; and,

(iv) dismissing her claims for extra-contractual damages.

I shall review the applicable evidence in the context of dealing with each ground of appeal raised by Ms. Blake.

FIRST ISSUE: DID THE TRIAL JUDGE ERR IN FINDING THAT MS. BLAKE’S CLAIM WAS STATUTE-BARRED?

5Section 281.1(1) of the Insurance Act²and s. 51(1) of the Schedule require a claimant to commence a court proceeding within two years after the insurer’s refusal to pay the benefit or amount claimed. It is the insurer’s refusal that triggers the limitation period.³

6The trial judge held that on January 14, 2004, Dominion had informed Ms. Blake it would not pay her caregiver benefits, thereby triggering the running of the limitation period. Because Ms. Blake did not commence her action until over two years later, on May 30, 2007, it was statute-barred.

7Ms. Blake submits that the trial judge erred in reaching that conclusion because the parties had proceeded to a mediation of caregiver benefit claims in March, 2005, and thereafter “the Caregiver Benefit was paid in an ongoing manner”. Ms. Blake submits Dominion did not make a clear and unequivocal refusal to pay caregiver benefits until August, 2006, with the result that she had commenced this action within the two year limitation period.

Chronology of Events

8At the time of the accident, Ms. Blake was caring for three young children, ranging from seven to ten years of age. On December 30, 2002, Ms. Blake filed an application for accident benefits (OCF-1/59) seeking caregiver benefits. On her application she explained: “I need a lot of assistance to complete my duties as a mother.”

9In his reasons, the trial judge described the caregiver benefits available under the Schedule:

6The caregiver benefit provides reimbursement to insured persons “for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care” (Schedule, s. 13(2)). The criteria for entitlement to and quantum of the caregiver benefit are stipulated under Section 13 of the Schedule:

13. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

14. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

7Section 13(3) of the Schedule provides that the amount of the caregiver benefit shall not exceed $250.00 per week for the first person in need of care, plus $50 per week for each additional person in need of care.

8A definition for a person in need of care can be found under Section 2(1) of the Schedule. It means, in respect of an insured person, another person who is less than 16 years of age or who requires care because of physical or mental incapacity.

9The test for entitlement with respect to the caregiver benefit becomes more stringent after 104 weeks of accident-related disability. In this regard, Section 13(4) of the Schedule provides the following:

The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.

10In accordance with Section 2(4) of the Schedule, the test for entitlement post-104 weeks is met “if, and only if, as a result of the accident, 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.”

10By Explanation of Benefits Payable by Insurance Company (hereafter an “OCF-9”) dated January 9, 2003, Dominion informed Ms. Blake that she was eligible “for reimbursement of reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care. The maximum incurred expenses shall not exceed $350.00 per week ($250/wk for the first + $50/wk for each additional person in need of care.) This benefit is payable only during the period of time that you cannot provide care, for as long as the person remains dependent and is payable for no more than 104 weeks unless you meet a more stringent disability test.”

11By election dated April 9, 2003, Ms. Blake informed Dominion that she chose to receive the caregiver benefit.

12Over the course of 2003, Ms. Blake underwent a number of medical examinations, including ones conducted by Drs. Meloff, Klienman, and Goodfield. As a result, on January 14, 2004, Dominion sent Ms. Blake an OCF-9 in which it advised:

As per the reports Dr Meloff, Dr Klienman and Dr. Goodfield you do not qualify for future caregiving benefit effective Jan 31 2004.

13On the same date Dominion sent Ms. Blake a Notice of Stoppage of Weekly Benefits and Request for Assessment in which it advised that it would be stopping her caregiver benefits because:

As per Dr Meloff, Dr Klienman and Dr Goodfields’ report it was determined that you do not suffer a substantial inability to complete your caregiving duties.

14On February 11, 2005, Ms. Blake signed back the notice disagreeing with the stoppage of benefits, but she did not seek to go to mediation at that time.

15In late 2004 and early 2005, Ms. Blake filed with Dominion three further applications for caregiver benefits:

(i) a November 11, 2004 application which sought payment of caregiver benefits in the amount of $350 per week for the period November 18, 2002 until November 11, 2004;

(ii) a December 13, 2004 application for payment of $130 in babysitting expenses for the period November 12, 2004 until December 11, 2004; and,

(iii) a January 11, 2005 application for caregiving expenses in the amount of $200 to cover babysitting costs incurred between December 11, 2004 in January 11, 2005.

16On November 26, 2004, Dominion denied Ms. Blake’s November, 2004, application for caregiver expenses. That led Ms. Blake, through her counsel, to file an application for mediation dated December 23, 2004, with the Financial Services Commission of Ontario (“FSCO”).

17Dominion issued a further OCF-9 on January 16, 2005 addressing Ms. Blake’s claim for caregiver benefits for the period November 12, 2004 until January 11, 2005, which stated:

Please be advised effective Jan 31 2004, your caregiving benefit was reduced to $0.00. Our decision was based on the medical report from Dr Meloff, Dr Goodfield and Dr Klienman. These reports stated that you did not suffer a substantial inability to complete the tasks of your caregiving duties. We have enclosed a blank OCF 17 and OCF 3 for your review. If you wish to dispute the denial of your benefits please complete the enclosed OCF 17 and OCF 3 and return it to our offices…

18The mediation requested by Ms. Blake was held on March 10, 2005. The parties settled part of the dispute concerning Ms. Blake’s applications for caregiver benefits. By an OCF-9 dated April 22, 2005, Dominion advised it would pay Ms. Blake her caregiver expenses in the amount of $5,200 for the period from January, 2003, until January, 2004. As to Ms. Blake’s claim for caregiver expenses incurred after January, 2004, Dominion’s position was explained in its March 12, 2005 OCF-9 as follows:

As per the mediation which occurred on March 10, 2005, the Dominion of Canada General Insurance Company has agreed to pay the following expenses:

4. caregiving expenses: $398.88 (inclusive of interest)**

**Please be advised, we acknowledge an error in our judgement in approving your caregiving expenses for the period of November 12 2004 to January 11 2005. In good faith we will pay for your expenses as agreed upon during the mediation of March 10 2005. However we must note that during this period you were not entitled to a caregiving benefit.

In relation to the supporting medical information on file, we will honor your reasonable caregiving expenses for the period of November 18 2002 to January 31 2004. [Emphasis added.]

19There matters stood for over a year until July 4, 2006, when Ms. Blake’s counsel wrote to Dominion concerning her entitlement to further caregiver benefits:

We act for Michelle Blake and she advised me that in fact you told her not to submit any more caregiver benefit expenses because they “had expired”. She then told me that she was told by you that there was only 2 years worth of benefits payable and that you had paid all that she was entitled to have.

That, of course, is not correct. She still has children under the age of 16 and she is entitled to continuing caregiver benefits in our view.

I have asked her to submit those benefits retroactively, and asking you now, in the form of application for benefit, to pay those benefits as she submits them and to pay those benefits she submits in arrears plus interest.

20That letter elicited the following response from Dominion on August 1, 2006:

Please be advised we have not received any further Caregiver Benefit expenses from Ms. Blake and we are therefore unable to respond to such benefits.

You stated in your letter of July 4, 2006 that the writer advised Ms. Blake that there were only two years of benefits payable and that we had paid all that she was entitled to have. The writer does not remember any such conversation with Ms. Blake.

We issued stoppage of the Caregiver Benefit on Jan 14, 2004 based on Independent Medical reports, via an Ocf 9 (Explanation of Benefits Payable Form). We again issued stoppage on Jan 16, 2005 and provided the Ocf 17 and Ocf 3 in the event that the claimant wished to dispute our decision…

We have already been to mediation on the issue of Caregiver Benefit-initial entitlement and ongoing. After the mediation, we issued payment for Caregiver Expenses that were submitted up to that point in time which was for the period November 12 2004 to Jan 11 2005, plus interest. Subsequent to this we received further Caregiver Expenses for the period January 2003 to January 2004 in the amount of $5200.00. This was paid also. No further Caregiver Expenses have been received. The claimant does not qualify for Caregiver Benefits beyond January 16, 2005, based on the Independent Medical Examinations. [Emphasis added.]

21Ms. Blake then proceeded to submit to Dominion a set of August 1, 2006 applications for caregiver benefits seeking payment of babysitting expenses for the period January, 2005 through to July, 2006. Dominion received those applications on August 10, 2006, and the company denied them by an OCF-9 dated August 21, 2006, which stated:

Caregiver Benefit – We have received Caregiver expenses in the amount of $6190.00 for the period from January 2005 to July 2006. Please be advised that you do not qualify for this benefit based on the Independent Medicals we received in our office. We have previously forwarded an Ocf 9 – Explanation of Benefits payable form on January 16, 2005 and advised you of our position with regard to this matter at that time…[Emphasis added.]

22On August 24, 2006, Ms. Blake’s counsel filed an application for mediation in respect of her claim for caregiver benefits arising after November 1, 2004. The parties did not resolve their dispute at a January 11, 2007 mediation. Ms. Blake issued her statement of claim on May 30, 2007.

Analysis

23In Smith v. Co-operators General Insurance Company,⁴ the Supreme Court of Canada held that the limitation period under the Insurance Act in respect of statutory accident benefits only begins to run upon the insurer’s giving a proper refusal of the benefits claimed. Citing Smith, FSCO arbitral decisions under the Schedule have held that a proper termination of benefits requires an insurer to issue “a clear and unequivocal refusal of benefits,” “in a simple straightforward fashion.”⁵

24The trial judge held that January 31, 2004, was the date of Dominion’s refusal to pay caregiver benefits, based upon the insurer’s advice in its January 14, 2004 letter to Ms. Blake that her caregiver benefits would stop at the end of that month. In its OCF-9s dated January 14, 2004, and January 16, 2005, Dominion had taken the position that Ms. Blake’s eligibility for caregiver benefits terminated on January 31, 2004.

25Notwithstanding that position, at the March 2005 mediation, Dominion agreed to pay Ms. Blake $398.00 in caregiver benefits claimed for the period after January, 2004. Ms. Blake submits that by agreeing at that mediation to pay her some post-January, 2004 caregiver benefits, Dominion negated its January, 2004 refusal to pay benefits, with the result that the limitation period did not start to run until its August, 2006 denial of her application.

26The trial judge treated Dominion’s decision to pay $398.00 in caregiver benefits at the March, 2005 mediation as an error:

179At mediation, Dominion also agreed to pay Ms. Blake $398.00 (inclusive of interest) for caregiving expenses incurred between November 12, 2004 and January 11, 2005. In correspondence to Ms. Blake dated March 12, 2005, Dominion acknowledged they had approved these expenses in error. The period for which caregiver benefits were claimed was after the benefit denial date of January 31, 2004 (Exhibit 22). Mr. Mascarenhas testified that Dominion nevertheless agreed to cover the amount promised at mediation in good faith.

27The evidence at trial provided the trial judge with a basis upon which to make such a finding. Mr. Mascarenhas, Dominion’s accident benefits adjuster assigned to Ms. Blake’s file, had testified that at the mediation the insurer had agreed to pay Ms. Blake caregiver benefits up until January 11, 2005, even though she was not entitled to receive them. Mr. Mascarenhas stated it was a mistake to agree to pay those amounts because they were past the period for which Dominion already had denied the benefit: “we realized that we just approved something that we shouldn’t have been paying.” That led Dominion to issue to Ms. Blake its March 12, 2005 OCF-9 acknowledging “an error in our judgement in approving to pay your caregiving expenses for the period of November 12 2004 to January 11 2005,” noting that “during this period you were not entitled to a caregiving benefit,” and concluding by stating Dominion would “honor your reasonable caregiving expenses for the period of November 18 2002 to January 31 2004.”

28FSCO decisions have held that the resumption of payment of benefits by an insurer after an initial denial of benefits negates the denial previously issued.⁶ Here, even if Dominion’s mistaken agreement at the March 10, 2005 mediation to pay Ms. Blake $398.00 in caregiver benefits for a period of time following the January, 2004 stoppage of benefits re-set the limitation clock, that agreement was followed immediately by a clear and equivocal repetition by Dominion, in its March 12, 2005 OCF-9, of its original position that caregiver benefits had ended on January 31, 2004. In the event, Ms. Blake issued her statement of claim more than two years after Dominion’s March 12, 2005, communication of its refusal to pay benefits. As a result, her action would remain statute-barred.

29In para. 35 of her factum, Ms. Blake submits that Dominion paid her caregiver benefits “in an on-going manner” following the March, 2005 mediation. There is no evidence to support that submission. Dominion made only one caregiver benefit payment for a period of time after January 31, 2004 – its mistaken March, 2005 payment of $398.00 for the period November 12, 2004, until January 11, 2005. There was no evidence of any on-going caregiver benefit payments for the period after January 31, 2004.

30Ms. Blake also submits that the limitation period did not start to run until Dominion’s August, 2006 denial of caregiver benefits. I do not accept that argument. First, the submission of new applications for benefits by the claimant following a clear refusal by the insurer to pay benefits does not re-start the limitation clock. Where an insurer has denied statutory accident benefits, the claimant’s remedy is to seek recourse for the termination of benefits within the limitation period, not to submit further applications for benefits.⁷ Second, although an inconsistency regarding the termination date for Ms. Blake’s caregiver benefit eligibility appeared in Dominion’s August, 2006, communications to her – January 16, 2005 in the August 1, 2006 letter and January 31, 2004 in the August 21, 2006 OCF-9 – it is evident that the reference to January 16, 2005 in the August 1, 2006 letter was to the OCF-9 of that date which, in turn, repeated the January 31, 2004 termination date. Finally, Dominion did not alter its position on the issue in August, 2006 – it continued to maintain that Ms. Blake had not qualified for further caregiver benefits at least from January 1, 2005, more than two years before she commenced her action.

31In sum, I see no error in the trial judge’s conclusion that Ms. Blake’s action was statute-barred.

32Although that conclusion is sufficient to deal with this appeal, Ms. Blake has advanced several other grounds of appeal concerning findings made by the trial judge about the merits of her claim. For completeness, I will proceed to consider those other grounds of appeal.

SECOND ISSUE: DID THE TRIAL JUDGE ERR IN FAILING TO READ ALL OF THE EVIDENCE PROFERRED BY MS. BLAKE?

Positions of the parties

33The trial judge made several rulings about the use to which the parties could put documents contained in a large, two-volume brief of documents filed by Ms. Blake at the start of the trial and marked as exhibit 1. In her factum Ms. Blake framed this issue in the following terms:

At the outset of the Trial, the Trial Judge refused to consider the entirety of a 246 tabbed brief of evidence. Only documents referred to by a witness… were allowed to be part of the medical record were admitted for the truth of their contents…

Unfortunately, we do not know what evidence the Trial Judge in this case “skipped”. We can be fairly certain he skipped his review of at least some of the medical evidence as he was clear he would not read the entire medical file.

Some of the evidence the Trial Judge may not have read, that formed a necessary part of the Appellant’s claim was that of Dr. Garner, Dr. Ghouse, Maureen Ward, and Dr. Meloff.

34In her Amended Notice of Appeal Ms. Blake stated that the trial judge had erred “in rendering many documents made in the usual and ordinary course of any business and submitted by the Appellant as inadmissible evidence at trial.”

35Ms. Blake contends the trial judge improperly refused to consider the following medical reports: (i) Designated Assessment Centre reports prepared by Dr. Scott Garner, a physiatrist dated August 14, 2003 and June 1, 2005; (ii) an independent physiatry assessment report dated October 2, 2006, prepared by Dr. A. Ghouse; (iii) an April 4, 2003 report prepared by Dr. Keith Meloff, a neurologist; and, (iv) three reports prepared in 2003 by Maureen Ward, an occupational therapist.

36Dominion submits there was no misunderstanding during the trial about the use parties could make of the documents in exhibit 1. Further, Dominion argues that Ms. Blake controlled the witnesses whom she could call in support of her case and, in the result, failed to call Drs. Garner, Ghouse and Meloff, even though it was open to her to do so.

Chronology of events

37This 10-day trial was conducted in three tranches in May, June and December of 2012. On the second day of trial, Ms. Blake’s counsel, Mr. Ferro, tendered as an exhibit a two-volume Accident Benefits Brief that was marked as exhibit 1. At para. 184 of his reasons the trial judge recounted the directions he had given about exhibit 1:

184At the outset of the trial, counsel for the Plaintiff filed two volumes of documents with 120 tabbed items in Volume 1, and 126 tabbed items in Volume 2. Collectively the items were made Exhibit 1, with a proviso by the court that these 246 items would not necessarily become items of proof in the trial (i.e. evidence). In other words, the items in tabbed volumes would not become traditional exhibits, unless the item was specifically referred to by a witness.

38By the fifth day of the trial, June 21, 2012, an issue had arisen about the use which could be made of the numerous documents contained in exhibit 1. Ms. Blake’s counsel sought leave to file three further binders containing extracts of the exhibit 1 documents. That request prompted the trial judge to state: “I’m assuming at some point you’re going to tell me what item is relevant or pertinent in this case and we’re… going to tear out the rest”. The following exchange then ensued:

The Court: Look, the problem that I have is that I’ve got two big briefs here, and I have no intention of reading these entire briefs unless they – well, I want to know what’s relevant and you see, if you come along with a different set of briefs which have a different numbering system, you’re really, you’re adding to the confusion…

Mr. Ferro: Can we call this Exhibit 2 or Exhibit 2/3?

The Court: Not if it’s duplicating what’s in there.

Mr. Ferro: Well, then I have a significant problem. Like I’m not going to- I’m not going to mislead the court, I cannot go ahead unless I can make reference to the documents that I used to prepare…

The Court: Well nobody’s denying you the opportunity to make reference to them… Okay Ms. Pool, what do you say?

Ms. Pool: I was - right at the outset of trial and you had ruled on the matter and said that if he wants to make a separate brief he can but to please – if my friend wanted to make a separate brief that was available to him but to please use the same numbering system so at the end the day we would be left with one exhibit.

39Shortly thereafter, the trial judge stated:

I’ll tell you all right now, I am really concerned about reading 200 batches of 120 documents because I can’t imagine that they are spot on as far as the issues that I’ve got to deal with in this case and, you know, it’s just, it’s unworkable, it’s not efficient. So if I can get a – if Mr. Ferro puts pen to paper and ends up with something that somehow organizes it or says, this is what I want you to look at… You guys see that, then fine, it sounds like were making a little bit of progress.

40At that point Dominion’s counsel advised she was preparing a table of all of the documents to which witnesses had referred in their evidence and that any document in exhibit 1 that had not been commented on by a witness could be pulled out of the exhibit 1 brief. To that suggestion the trial judge stated:

The Court: I think that’s excellent, having canvassed this with some of the jurists, that’s basically what they say is they have the counsel pull out everything out of these briefs that hasn’t been referred to.

In the result, counsel prepared a list of all documents contained in exhibit 1 to which witnesses had referred in their testimony, and the list was marked as exhibit 1A.

41The issue arose again on the sixth day of trial, June 22, 2012. Dominion’s counsel informed the court that she did not intend to call as witnesses Drs. Garner and Ghouse who had performed two independent physiatric examinations of Ms. Blake at Designated Assessment Centres, or to file their assessment reports as expert reports. Those reports were reproduced in exhibit 1. Ms. Blake’s counsel took the position that Dominion’s decision not to call either physician reduced their independent medical examiner reports “to mere business records and I just wanted to be on the record.” The trial judge disagreed with that position, stating:

I don’t think so. I think that’s more sort of, it’s an alternative means of proving – I mean you can correct me if I’m wrong, Mr. Ferro, but in a civil suit you can either prove an expert’s opinion by filing their report… or calling the individuals.

42Ms. Blake’s counsel contended that even if the medical practitioners were not called to testify about their reports, the reports could be admitted and treated as business records. The following exchange then occurred:

Mr. Ferro: Well, if they’re business records, Your Honour, then they’re not being offered for the truth of their contents. So….

The Court: It is just for the fact that they saw the person and they diagnosed him or they…

Mr. Ferro: No.

The Court: … made any observations?

Mr. Ferro: No. I don’t believe they can go even that far. All it is, is these records are not disputed as to authenticity or authorship, that’s all. The contents, the contents are not being provided as truth of or proof of what they say. In other words, the facts contained or the information contained in those reports are not offered as evidence, they are only offered as a business record. [Emphasis added.]

43When the trial judge asked counsel for some assistance and education on the point, Ms. Blake’s counsel stated: “We can do that at some other time, Your Honour.” There the matter was left. At the end of the sixth day of trial, the plaintiff rested its case.

44The trial resumed on December 13, 2012. On the eighth day of the trial, December 14, 2012, the trial judge returned to the issue of the use that could be made of exhibit 1:

As you know, Exhibit 1 and 2 in these proceedings is – are these two huge volumes and I believe I asked you to – at the beginning, what was the arrangement in so far as all those medical documents are concerned and I think I gave you warning that I wasn’t going to read every last one of them unless they became formally exhibits during the course of these proceedings or it was agreed upon between counsel… I am not taking into account as evidence all of those documents in Exhibits 1 and 2.

45Ms. Blake’s counsel objected that such an approach by the trial judge would compromise his client’s claim, and the following exchange took place:

Mr. Ferro: My understanding of the agreement that my friend and I have is that they are in as exhibits and they are evidence, they are business records primarily and they are in as exhibits and I, I had no idea that we had to prove the documents or make them an, an additional exhibit. I’m not sure why that would be. That compromises my entire case, Your Honour.

The Court: Oh, okay. Well, then maybe this is the time to address it then, so, so your position is that all of, all of the documents in Exhibits 1 and 2 are in?

Mr. Ferro: Yes, Your Honour, they are exhibits, yes.

46Dominion’s counsel, Ms. Pool, stated that she was operating on the basis that the medical reports in Volumes 1 and 2 of exhibit 1 had not been entered for the truth of their contents. To that, Ms. Blake’s counsel stated:

Mr. Ferro: Your Honour, I have to disagree with my friend. Had I known that she would be taking that position I would have called the DAC doctors and all the doctors that I intend to refer Your Honour to. I – that fully compromises my claim completely… I’m afraid I’m going to have to advise the court that I cannot proceed on that basis. If I’d have known that this is what my friend wanted, I would have called those doctors… My impression was that we didn’t have to go through that formal process of actually having the physician or the… author of the document in the box…

The Court: Your characterizing this as the position of your friend. I think I put it squarely on the table at the outset that I would only consider those documents which – I mean this was a… useful tool to have everything in two volumes, because we knew that we were going to be going through a lot of material, but it didn’t necessarily mean that each and every one of them would become exhibits.…

47Ms. Blake’s counsel then indicated that his only concern was with respect to the evidentiary treatment of the Designated Assessment Centre reports prepared by Drs. Garner and Ghouse. He asked the trial judge to treat the medical records as proof that the treatment discussed in them was reasonable or necessary. The trial judge responded that in the absence of case law to that effect, he would not. Ms. Blake’s counsel was not able to provide any case law on the point.

48Ms. Blake’s counsel then began his closing submissions. On the ninth day of trial, before finishing his closing submissions, plaintiff’s counsel moved before the trial judge for leave to call as witnesses Drs. Garner, Ghouse and Meloff, as well as Maureen Ward, an occupational therapist, on the ground that if the trial judge was not prepared to read their reports contained in exhibit 1, it would be unfair to Ms. Blake to proceed without allowing her to adduce that evidence through those witnesses. Ms. Blake’s counsel conceded that any confusion surrounding the use of the documents in exhibit 1 had resulted from poor communication on his part:

Mr. Ferro: And I – and, and for the for the record I’m not, I’m not suggesting that anyone had any intent here. I, I misunderstood my friend’s intentions and perhaps my fault for not clarifying… In this case, I don’t think I communicated effectively, and I take responsibility for that.

49The trial judge then ruled on the use that could be made of any DAC reports in exhibit 1 that had not been referred to by a witness. Drawing on the decision of this court in O’Brien v. Shantz⁸, which dealt with the use of a claimant’s Workers’ Compensation Board file as a business record, the trial judge stated:

In other words, proffering records whether they be WCB or DAC does not make such records “evidence”. There has to be an intermediary step between these documents having been generally admissible according to the statute and their being or constituting evidence before the court. Failing agreement or admission through a witness, such documents are not evidence before a court.

For all of the above reasons the court will only consider as evidence those documents in Exhibit 1 which are referred in the table made Exhibit 1A.

50The trial judge then proceeded to reject the request by Ms. Blake’s counsel for an adjournment in order to re-open her case and call the physicians and occupational therapist:

For reasons touched upon in the ruling as to what constitutes evidence in this matter, as opposed to admissible documents, an evidentiary distinction which should have been known by experienced counsel after that and for the fact that we are now in the place of closing arguments, the request for an adjournment to address the deficiencies in the plaintiff’s case caused by misunderstanding (sic) of counsel is denied.

51Ms. Blake did not include as a ground of appeal the trial judge’s refusal to grant her an adjournment.

52In his reasons, at paras. 190 and 191, the trial judge re-iterated the rulings he had made at trial:

190The vast majority of the 246 documents were not introduced through witnesses. Counsel blithely assumed that they could be “dumped”, deposited at the foot of the bench and all would be considered in their entirety.

191The initial proviso that the court had raised at the outset of the trial, was again raised by the court at the conclusion of the evidence. Granted some of the documentation had been referred to by the various witnesses during the course of the trial, and would be admissible pursuant to Section 35 of the Evidence Act. Fortunately for counsel for the Plaintiff, by virtue of an agreement between counsel, Exhibit 1A was generated. This exhibit is essentially a list of those documents out of the 246 that were referred to by witnesses, or were agreed to be part of the record. Medical reports on this list were not admissible for the “truth of their contents”, but were received to explain why certain actors had acted the way they did. Naturally, if a witness was an author of a document, he or she could adopt the report as part of their “truth”.

Analysis

53Parties frequently use comprehensive document briefs in civil trials. As this court stated in Iannarella v. Corbett:⁹

It is commonplace in civil actions for counsel to prepare a trial document brief containing documents that are admitted as authentic and admissible. See John Sopinka, The Trial of an Action, 2nd ed. (Markham: LexisNexis, 1998) at pp. 41-42. Counsel typically agree on a list of documents and one party attends to the brief’s preparation.

54When a document brief is tendered at trial, the record should reflect clearly the use the parties may make of it. Such use may range from the binder’s acting merely as a convenient repository of documents, each of which must be proved in the ordinary way, through an agreement about the authenticity of the documents, all the way to an agreement that the documents can be taken as proof of the truth of their contents. Absent an agreement by the parties on the permitted use of a document brief, the trial judge should make an early ruling about its use.

55In his case, the trial judge clearly indicated at the commencement of the trial that that he would not treat a document contained in exhibit 1 as admitted evidence for his consideration unless a witness had referred to it or the document was admitted on consent. In my view, that was adequate notice to counsel that absent an agreement about a document, it would have to be proved in the ordinary course through a witness.

56Although the import of that ruling initially seemed unclear to Ms. Blake’s counsel, the events of the sixth day of trial should have resolved any uncertainty. On that day Dominion advised that it did not intend to file the reports prepared by Drs. Garner and Ghouse or to call those physicians to testify. Against that background, the trial judge advised that the admission of an expert opinion required the filing of the expert report, the calling of the expert or the agreement of counsel. Ms. Blake’s counsel acknowledged that even if a report by a physician was treated as a business record, “the facts contained or the information contained in those reports are not offered as evidence” and the admission of the report would only establish their authenticity and authorship.

57Those directions by the trial judge gave counsel fair notice that if they intended to rely on the opinions expressed by any medical practitioner, they would have to meet the ordinary rules governing the admission of such expert reports.

58I see no error in the ruling made by the trial judge on the penultimate day of the trial that he would consider as evidence only those documents to which a witness had referred. That ruling was consistent with the directions he had given at the start of the trial and caused no unfairness to the parties.

59The trial judge’s refusal to treat the Designated Assessment Centre medical assessments prepared by Drs. Garner, Ghouse, and Meloff as business records under s. 35 of the Evidence Act followed the long-established principle stated by the High Court of Justice in Adderly v. Bremner¹⁰ that a professional medical opinion, including a diagnosis, is not an “act, transaction, occurrence or event” within the meaning of s. 35(2) of the Evidence Act.

60Moreover, in his ruling the trial judge followed this court’s decision in O’Brien,which held that merely filing a large volume of records – in that case, the contents of a party’s Workers’ Compensation Board file – pursuant to notice given under s. 35 of the Evidence Act, without more, was insufficient to establish the truth of the contents of each document in the voluminous file. Absent express agreement by opposing counsel to the use of large sets of documents for the truth of their contents, the tendering party would have to lead evidence about the nature of the records or the circumstances in which they were created.¹¹

61In her factum Ms. Blake submitted that the trial judge had erred by excluding from consideration the reports of the occupational therapist, Maureen Ward. There is no basis in the record for that submission. On the third day of trial, Ms. Blake had intended to call Ms. Ward as a witness. Dominion’s counsel advised that she did not need to cross-examine Ms. Ward and, as a result, Ms. Ward’s September 25, 2003 report was marked as an exhibit. Her report therefore did not fall within the scope of the trial judge’s ruling about the admissibility of documents found in exhibit 1.

62For these reasons, I would not give effect to this ground of appeal.

THIRD ISSUE: DID THE TRIAL JUDGE ERR IN FINDING THAT MS. BLAKE FAILED TO MEET HER EVIDENTIARY BURDEN REGARDING ENTITLEMENT TO CAREGIVER BENEFITS AND DID HE APPLY THE WRONG CAUSATION TEST?

63At trial Ms. Blake sought damages for caregiver benefits in the amount of $112,875, calculated from August 16, 2006, until the date of trial. Section 13(4) of the Schedule provides that an insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability “unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.” The trial judge dismissed Ms. Blake’s claim due to the absence of medical evidence regarding her complete inability to carry on a normal life, questions as to causality between her symptoms and the accident, and a concern with respect to the reliability of Ms. Blake’s evidence as to her health status pre and post-accident.

64In her written and oral submissions, Ms. Blake argues that the trial judge committed three main errors in reaching that conclusion:

(i) Although the trial judge articulated the correct legal test, he did not properly apply it to the facts of the case;

(ii) The trial judge failed to read all the evidence in order to appreciate the full nature of Ms. Blake’s pre-and post-accident activities; and,

(iii) The trial judge erred by applying the more restrictive “but-for” causation test rather than the more inclusive “material contribution” test.

Did the trial judge fail to apply properly the correct legal test?

65In para. 203 of his reasons, the trial judge accurately noted that in order to establish her entitlement to caregiver benefits beyond the initial 104-week period, s. 13(4) of the Schedule required Ms. Blake to establish that, as result of the accident, she was suffering a complete inability to carry on a normal life. The trial judge then described the approach set down by this court in Heath v. Economical Insurance Company¹² to assess claims advanced under s. 13 of the Schedule.

66Ms. Blake submits that the trial judge failed to apply the Heath approach properly to the facts of this case because he failed to conduct a holistic comparison of her pre-accident life activities with those after the accident. I see no merit in that submission.

67The trial judge’s reasons must be read as a whole. In his lengthy reasons the trial judge canvassed the evidence concerning Ms. Blake’s pre- and post-accident activities given by Ms. Blake and her sons, as well as that described in numerous medical reports. He found, at para. 209, that Ms. Blake had experienced some significant health issues before the 2002 accident that would impact upon her purported pre-accident level of vitality. He expressed concerns about the reliability of Ms. Blake’s evidence dealing with her health status pre and post-accident. The trial judge reviewed in detail the evidence from the physicians who had treated Ms. Blake following the accident. He also conducted a thorough analysis of the reports and evidence from the two medical experts called by the parties at trial; Dr. Rathbone, who was called by the plaintiff, and Dr. Dost, whom Dominion called. The trial judge explained why he preferred the evidence of Dr. Dost over that given by Dr. Rathbone.

68Ms. Blake does not point to any evidence the trial judge may have misapprehended. Nor does she identify any palpable or overriding errors of fact made by him. Her submission, in effect, asks this court to re-weigh the evidence. That is not an appropriate basis for appellate intervention.

Did the trial judge fail to read all the evidence in order to appreciate the full nature of Ms. Blake’s pre-and post-accident activities?

69Ms. Blake repeats her earlier submission that the trial judge erred in ruling that he would not read some of the medical reports contained in exhibit 1. For the reasons given earlier, I give no effect to this submission.

Did the trial judge err by applying the “but-for” test rather than the “material contribution” test?

70Ms. Blake submits that the trial judge erred in failing to apply the material contribution test to the issue of the causation of her post-accident symptoms. I do not accept her submission.

71The primary reason for not accepting Ms. Blake’s submission is that she is raising the issue for the first time on this appeal. At trial she did not make submissions on which causation test should be applied. That distinguishes this case from the circumstances in Monks v. ING Insurance Company of Canada,¹³ in which this court held that having advocated at trial for the adoption of the material contribution test in a statutory accident benefits case, the insurer could not fault the trial judge for applying the test.

72Here, Ms. Blake did not ask the trial judge to depart from the general “but for” test of causation as described by the Supreme Court of Canada in Clements v. Clements, at para. 46¹⁴. Under those circumstances, I see no error in the trial judge’s having applied the “but for” causation test to the facts of this case.

73I also observe that, when read as a whole, the trial judge’s reasons disclose he was not satisfied Ms. Blake had established she was suffering from the degree of injury needed to qualify for caregiver benefits after 104 weeks under s. 13(4) of the Schedule – i.e. that she was suffering from a complete inability to carry on a normal life. Unlike in Monks where it was conceded that the plaintiff was catastrophically impaired – and the issue was whether a third automobile accident had contributed to the impairment – here, the trial judge was unable to conclude on the evidence that Ms. Blake was suffering from a complete inability to carry on a normal life.

74Specifically, the trial judge noted the paucity of post-accident medical evidence on the issue of Ms. Blake’s ability to carry on a normal life:

216There’s no “snapshot” post-accident except perhaps through Dr. Rathbone’s evidence offered retrospectively nine years after the evidence. It is extremely difficult, if not impossible, to obtain that holistic impression.

75He observed that some of the medical evidence commented favourably on the progress Ms. Blake was making after the 2002 accident:

217If anything, there is indication in the evidence of Dr. Parkinson (see Exhibits 10- 13), a rehabilitation psychologist, suggesting that with exercise Ms. Blake’s condition improved during a treatment regime of approximately three months. In fact, according to the test data of Dr. Parkinson, the pedometer reported better than average output. During that period, Ms. Blake also started working out on an elliptical machine. As noted by Dr. Parkinson, Ms. Blake was “progressing nicely”.

76Finally, the trial judge preferred the opinion expressed by Dr. Dost over that of Dr. Rathbone, an opinion which he summarized in para. 135 of his reasons:

135Dr. Dost concluded, realizing his opinion was retrospective and that he did not access Ms. Blake within 104 weeks of the accident, from a neurological point of view there was no impairment or disability arising as a result of the accident within the first 104 weeks. The caveat was with regards to Ms. Blake’s headaches. There was no indication of a complete inability to carry on a normal life from a neurological point of view.

77In sum, I do not accept Ms. Blake’s submission that the trial judge erred in applying the “but for” causation test in the circumstances of this case.

FOURTH ISSUE: DID THE TRIAL JUDGE ERR IN DISMISSING MS. BLAKE’S CLAIMS FOR EXTRA-CONTRACTUAL DAMAGES?

Claim for damages for mental distress

78Damages for mental distress arising from a breach of contract may be awarded where an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties.¹⁵ In the present case, the trial judge dismissed Ms. Blake’s claim for damages for mental distress. Ms. Blake submits that he erred by holding that a claimant for damages for mental distress must file medical evidence in support of her claim, which Ms. Blake did not do.

79I do not accept that submission, for two reasons. First, the trial judge concluded that Dominion had not breached its statutory accident benefits contract with Ms. Blake. As a result, the recovery of damages for mental distress for breach of contract was not available.

80Second, Ms. Blake’s submission does not afford a fair reading to the reasons of the trial judge. At paras. 246 and 247 the trial judge stated:

246The only evidence of mental distress comes from Ms. Blake and her sons. The latter recalled their mother crying, possibly when she had received correspondence from the insurance company. Their evidence is not of a caliber that one can safely say this distress should be compensable.

247There is absolutely no medical evidence of this form of distress. There are no notations of any complaints by Ms. Blake to her treating physicians of such distress. It would be hard to say that Ms. Blake experienced anything more than frustration, which as we all know is inevitable in life.

In those passages the trial judge did not hold that a claim for damages for mental distress required the filing of medical evidence. He simply noted the absence of such evidence and concluded that the remaining evidence was “not of a caliber that one can safely say this distress should be compensable.” In so finding, the trial judge directly addressed the second element for establishing a claim for mental distress upon the breach of a contract – i.e. that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.¹⁶

Breach of duty of good faith and aggravated damages

81The trial judge dismissed Ms. Blake’s claim for damages for breach by Dominion of its contractual duty of good faith. Ms. Blake submits that the trial judge applied the wrong legal consideration when determining whether Dominion had acted in bad faith.

82I do not accept that submission. The trial judge identified and applied the principles set out in Whiten v. Pilot Insurance Company.¹⁷ In his reasons, the trial judge reviewed at length Dominion’s conduct in handling Ms. Blake’s statutory accident benefits file. He examined the errors Dominion had made in respect of certain claims made by Ms. Blake, but he put those errors in context:

239The processing of Ms. Blake’s claim was not straightforward. There were pre-accident medical issues and events. There was the suggestion from time to time by certain treatment providers that there were likely psychological issues involved. It would be inevitable that the company would engage in further investigation, or request independent assessments as part of its due diligence.

240The treatment of Ms. Blake does not in any way approach the severity of the treatment of Daphne Whiten in Whiten v. Pilot, which demonstrates the “hardball” approach on the part of the insurer. Overall, this is not a picture of bad faith treatment of Ms. Blake.

83I see no error in the trial judge’s application of the Whiten principles to the evidence which would justify appellate intervention.

84At the hearing of the appeal, Ms. Blake’s counsel asserted that the trial judge had unduly interfered with the cross-examination of Dominion’s adjuster, Mr. Mascarenhas, thereby preventing Ms. Blake from establishing her bad faith claim. Counsel did not provide particulars to support this assertion. The claim of undue interference was not advanced by Ms. Blake in her factum. Her Amended Notice of Appeal had alleged that the trial judge “displayed attitudinal bias against the Plaintiff which rises to the level of error of law,” but no details were offered.

85An appellant cannot reasonably expect that an allegation of misconduct by the trial judge, unsupported by any particulars, will carry any weight on an appeal. In any event, a review of the transcript of the cross-examination of Mr. Mascarenhas does not disclose any undue interference by the trial judge. The interventions made by the trial judge were designed to seek clarification of the evidence, to ensure the witness was permitted to complete his answers, to prevent undue repetition of questions, to deal with the consequences of his ruling on the use of exhibit 1, and to keep counsel focused on matters of fact relevant to the pleaded claim and within the knowledge of the witness.

86Turning finally to Ms. Blake’s claim for aggravated damages, as her counsel explained on the first day of trial, Ms. Blake’s claim for aggravated damages related to her claim that Dominion had unreasonably denied her claim for benefits. Ms. Blake submits that the trial judge erred in dismissing her claim for aggravated damages because he wrongfully equated aggravated damages with damages for mental distress arising in the context of a peace of mind contract and, by so doing, failed to consider any bad faith conduct as giving rise to aggravated damages.

87I accept Ms. Blake’s submission that the trial judge erred in treating her claim for aggravated damages as synonymous with her claim for mental distress damages for breach of contract. However, given my conclusion that the trial judge did not err in dismissing Ms. Blake’s claim for damages for breach of the duty of good faith, it follows that he did not err in dismissing her related claim for aggravated damages, which required a finding of breach of that duty.

DISPOSITION

88For the reasons set out above, I would dismiss Ms. Blake’s appeal.

89At the hearing the parties agreed that costs of $7,500, together with the costs of transcripts and filing fees, would be paid to the successful party. I would order Ms. Blake to pay Dominion costs in that amount.

Released: March 13, 2015 (G.E.) “David Brown J.A.”

“I agree K.M. Weiler J.A.”

“I agree Gloria Epstein J.A.”

Footnotes

1. 1O. Reg. 462/96, s. 2.
2. 2R.S.O. 1990, c. I.8.
3. 3Haldenby v. Dominion of Canada General Insurance Co. (2001), 2001 CanLII 16603 (ON CA), 55 O.R. (3d) 470 (C.A.), at para. 23.
4. 42002 SCC 30, [2002] 2 S.C.R. 129, at para. 15.
5. 5See, T.N. v. Personal Insurance Company of Canada, FSCO A06-000399 dated July 26, 2012 at p. 5, and the decisions cited therein at footnote 3; as well, Ross v. TTC Insurance Company Limited, FSCO A01-000064 dated April 5, 2002, at p. 7.
6. 6T.N. v. Personal Insurance Company of Canada, at p. 8.
7. 7Haldenby, at para. 30.
8. 8[1998] O.J. No. 4072 (C.A.)
9. 92015 ONCA 110, at para. 127.
10. 101967 CanLII 308 (ON SC), [1968] 1 O.R. 621 (H.C.J.), at pp. 622-623.
11. 11O’Brien, at para. 11.
12. 12(2009), 2009 ONCA 391, 95 O.R. (3d) 785 (Ont. C.A.).
13. 132008 ONCA 269, para. 90.
14. 14[2012] 2 S.C.R. 181, 2012 SCC 32.
15. 15Fidler v. Sun Life Assurance Company of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, at para. 47.
16. 16Fidler, at para. 47.
17. 172002 SCC 18, [2002] 1 S.C.R. 595.