Court of Appeal for Ontario

Citation: Stancu v. The E.C.E. Group Ltd. et al., 2007 ONCA 393 Date: 2007-05-25 Docket: C44420

Between: Eugenia Stancu, Plaintiff (Appellant) And The E.C.E. Group Ltd. and RBC Insurance Company (formerly known as Provident Life and Accident Insurance Company carrying on business as Unum Provident Canada), Defendant (Respondent)

Before: Simmons, Cronk and Blair JJ.A.

Counsel: Eugenia Stancu appearing in person David Delagran for the respondent The E.C.E. Group Ltd. Luke C. Mullin for the respondent RBC Insurance Company

Heard: May 16, 2007

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice dated October 7, 2005.

Endorsement

[1] The appellant appeals from the judgment of Belobaba J. dismissing her claims against her employer, The E.C.E. Group Ltd., for wrongful dismissal, discrimination, and negligent administration of her long term disability policy, and dismissing her claim against her disability insurer, Unum Provident Canada, for wrongful denial of long-term disability benefits.

[2] Concerning the appellant’s claims against her employer, the trial judge found that E.C.E terminated the appellant's employment and that of the other employees in her department because it had decided to outsource their work to a third party. He also found that the four months of working notice given to the appellant was reasonable having regard to her three years and three months of employment.

[3] In addition, based on a letter written to E.C.E. by the appellant in February 2001, the trial judge found that it was the appellant who asked to change her employment from full-time to part-time. Further, because the appellant made that request, the trial judge concluded that E.C.E. was under no obligation to reinstate her to full-time employment upon her request.

[4] The trial judge also found that it was the employees who voted to change LTD carriers and that, in any event, there was insufficient evidence at trial to establish that the disability coverage provided by the previous carrier was superior to that of Unum.

[5] Concerning the appellant’s claim against her disability insurer, the trial judge concluded that the appellant had not completed the 120 day elimination period required to qualify for long-term disability benefits at the time of her initial claim. Further, based on the medical evidence, he found no wrongful conduct in Unum's decision to pay her claim for the period from January 19, 2002 through to April 4, 2002, to stop payments as of April 5, 2002 and to decline to reinstate payments on August 14, 2002.

[6] On appeal, the appellant alleges numerous errors in the trial judge's findings and in his interpretation of the LTD policy. We do not accept the appellant's submissions.

[7] The trial judge's findings concerning the terms of the appellant's employment, the termination of her employment and the change in LTD carriers are supported by the evidence and are entitled to deference in this court. The appellant's February 2001 letter to E.C.E. made it clear that she wished to work part-time and understood the consequences of so doing. Moreover, we see no error in the trial judge’s finding that E.C.E. had no obligation to reinstate the appellant to full-time employment following her request to work part-time or in his conclusion that the notice of termination afforded to her was reasonable in the circumstances.

[8] Further, even assuming that the appellant could advance a claim for discrimination, we are not persuaded that there was a viable basis on the evidence for doing so. E.C.E. did not promote anyone from within the appellant’s department after June 2000 and the entire department was declared redundant in August 2001. The appellant did not reveal her disability to E.C.E. until October 2000.

[9] In addition, we see no error in the trial judge's interpretation of the LTD policy. In accordance with the terms of the policy, it was necessary that the appellant be “unable to perform any of the material and substantial duties of [her] regular occupation” throughout the elimination period. The only qualification on this requirement was that Unum had to treat the disability as continuous if the appellant's disability ceased for 30 days or less during the elimination period. Put another way, the policy required that the appellant be completely disabled from working throughout the elimination period. In the face of this requirement, the appellant was not entitled to disability benefits based on a claim that she was partially disabled prior to completing the elimination period.

[10] On our review of the record, the appellant continued working, albeit on a part-time basis and with some interruptions, until mid September 2001. In these circumstances, we see no error in the trial judge’s conclusions that the appellant did not satisfy the elimination period requirement until January 19, 2002 and that, thereafter, Unum properly paid the appellant long term disability benefits until April 4, 2002.

[11] Finally, based on the medical evidence that was available at trial from the appellant's own physicians, it was open to the trial judge to find that Unum was entitled to stop making disability payments on April 5, 2002.

[12] The appeal is accordingly dismissed with costs of the appeal to the respondent E.C.E., if demanded, fixed in the amount of $2,500.00 inclusive of disbursements and applicable G.S.T. Given our view that Unum’s LTD policy was worded in a way that laypersons might reasonably find confusing, we decline to award any costs of this appeal in its favour.

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”