DATE: 20010126

DOCKET: C32205

COURT OF APPEAL FOR ONTARIO

RE: SYLVIA LAWRENCE (Plaintiff/Respondent)

AND RE: SUNLIFE ASSURANCE COMPANY OF CANADA (Defendant/Appellant)

BEFORE: MORDEN, MOLDAVER and MACPHERSON JJ.A.

COUNSEL: Rudy Buller, for the appellant Andreas Solomos, for the respondent

HEARD: January 24, 2001

RELEASED ORALLY: January 24, 2001

On appeal from the judgment of Justice Jean MacFarland, dated April 28, 1999.

E N D O R S E M E N T

[1] There was substantial medical evidence called at the trial on the nature of the respondent’s disability in so far as it related to her qualification for entitlement to payments under the policy. The trial judge referred to much of it and it may be reasonably assumed that she was alive to the conflicts in this evidence. We think that the trial judge’s ultimate conclusion is reasonably based on a combination of the evidence of Dr. Barmania, Dr. Feldman, and, particularly, that of the plaintiff.

[2] Assuming that mitigation could be an issue, we do not think, on the evidence, that the trial judge erred in refusing to take it into account.

[3] The appeal is dismissed with costs. The cross-appeal is allowed, without costs, and the judgment is varied to provide for pre-judgment interest commencing on October 22, 1992.

[4] In light of our disposition of the appeal and cross-appeal, counsel are agreed that we need not decide the issues raised in the two motions before us.

“J.W. Morden J.A.”

“M.J. Moldaver”

“J.C. MacPherson”