REVISED

CITATION: Dube v. Manulife Financial, 2012 ONSC 1392

COURT FILE NO.: DC-873-11

DATE: 20120306

SUPERIOR COURT OF JUSTICE – ONTARIO

(Divisional Court)

RE: Noel Dube, Plaintiff (Respondent)

AND:

Manulife Financial, Defendant (Appellant)

BEFORE: Smith, C.J.S.C.O., Gauthier, R.S.J., Matlow, J.

COUNSEL: M. Blair Anderson, for the Defendant/Appellant

Joelle Malette, for the Plaintiff/Respondent

HEARD: February 27, 2012 at Sudbury, Ontario

ENDORSEMENT

[1] This appeal is allowed, the order in appeal is set aside and summary judgment is to issue dismissing this action.

[2] All of the underlying facts and the applicable provisions of the subject disability policy are set out in the motion judge’s Decision and are not in dispute.

[3] Following the accident on May 7, 2006, in which the plaintiff was injured, he applied for and received total disability benefits pursuant to the policy until June 28, 2006.

[4] On June 10, 2006, he returned to work full-time but with some modifications, and continued to work until April 21, 2007, when he was laid off because of shortage of work.

[5] On April 28, 2007, after reviewing the results of an MRI of the plaintiff performed in February, 2007, the plaintiff’s physician ordered the plaintiff to go off work indefinitely.

[6] On June 6, 2007, the plaintiff made a claim for the resumption of payment of benefits which had stopped when he returned to work on June 29, 2007,

[7] On November 6, 2008, relying on section 13 of the policy, headed “Recurrent Disability”, the defendant denied the plaintiff’s further claim on the basis that, having worked full-time for more than six months, he ceased to be qualified under the policy as someone “totally disabled” as a result of the subject accident.

[8] On December 6, 2010, the plaintiff’s physician, in a report to the plaintiff’s lawyers, wrote that, if he had received the MRI report earlier, “I would have put the patient off work”.

[9] The motion judge, in deciding not to grant summary judgment on motion by the defendant, stated the following in paragraph 30 of her Decision.

The possibility that diagnostic confirmation of a totally disabling condition could be a triggering event for the operation of the coverage provisions is a genuine issue raised on this motion requires a trial. The dispute between the parties cannot be reduced to a simple question of law. The record on this motion is not sufficient to determine all of the facts necessary to assess the question. More evidence with respect to the significance of the MRI and how it is to be interpreted by the insurer is necessary to the determination of this claim.

[10] She then went on, at paragraph 31, to add the following.

It is in the interests of justice that the issues arising from the facts of this case be considered at a full trial on all of the evidence.

[11] In our view, the applicable provisions of the policy are set out in clear and unambiguous language and no extrinsic evidence would be helpful or, indeed, even admissible, to interpret them correctly. We are also satisfied that the wording of the policy can readily be interpreted in accordance with the language used and that no further evidence relating to the MRI contemplated by the motion judge could properly lead to any other result. In other words, the action is inevitably bound to fail.

[12] We further conclude that the motion judge exercised her discretion by dismissing the motion before her on the basis of a clearly erroneous application of the law and that we are now required to intervene.

[13] It follows that this action should not be allowed to proceed to trial but should be terminated now.

[14] Counsel may make written submissions regarding costs by exchanging them and by depositing them, in triplicate, with the office of this court at Sudbury on or before April 1, 2012, failing which there will be no order as to costs.

Smith, C.J.S.C.O.

Gauthier, R.S.J.

Matlow, J.

RELEASED: March 6, 2012