Traynor v. Unum Life Insurance Co. of America

Court File and Parties

Traynor v. Unum Life Insurance Company of America carrying on business as Unum Provident Canada [Indexed as: Traynor v. Unum Life Insurance Co. of America]

65 O.R. (3d) 7

[2003] O.J. No. 2252

Court File No. 558/02

Ontario Superior Court of Justice

Divisional Court

Cunningham A.C.J., Kurisko and Matlow JJ.

June 4, 2003

Insurance -- Disability insurance -- Insurer rejecting insured's claim that he suffered from chronic fatigue syndrome -- Insured bringing action claiming long-term disability benefits and moving for mandatory interlocutory injunction requiring insurer to pay periodic disability benefits until trial and arrears for previous payments not made -- Motions judge erring in granting interlocutory injunction -- Insured not likely to suffer irreparable harm if injunction not granted.

The plaintiff was insured under a group long-term disability policy issued by the defendant to his employer. He claimed to be suffering from chronic fatigue syndrome and to be unable to work. The defendant concluded that the plaintiff's condition did not fit the criteria for chronic fatigue syndrome. Rather than pursuing the defendant's internal appeal process, the plaintiff asserted his claim for long-term disability benefits by commencing an action. He brought a motion for a mandatory interlocutory injunction requiring the defendant to pay periodic disability benefits until trial and to pay arrears for previous payments not made. The motion was granted. The defendant appealed.

Held, the appeal should be allowed.

Per Cunningham A.C.J. and Matlow J.: The granting of a mandatory interlocutory injunction is exceptional relief to be granted only in exceptional circumstances. [page8] Injunctive relief is not an appropriate remedy if an award of damages can afford adequate relief. Irreparable harm cannot be established by mere speculation but must be proven by the person seeking relief. The evidence clearly showed that no irreparable harm to the plaintiff had already occurred as at the time the order was made. Nor did it show that there was a substantial likelihood that the defendant's failure to pay those benefits would result in any future irreparable harm. Without such proof of irreparable harm, there was no sufficient reason for the court to intervene by ordering the payment of benefits. Moreover, the motions judge failed to recognize that the policy did not provide for the payment of ongoing benefits that would extend into the future under any circumstances. Rather, it provided only that the defendant was required to make payments from time to time in arrears for past disability after the provision of sufficient proof of continuing disability. Accordingly, at the time the order was made, the plaintiff could not conceivably have been entitled to the payment of benefits for any period in the future beyond the day when the order was made and the defendant could not reasonably have been required to confer a benefit on the plaintiff that was not provided for in the policy.

Per Kurisko J. (dissenting): The motions judge did not make any legal or palpable error leading to the wrong result in his findings of fact, including the inference of irreparable harm. Moreover, the defendant breached the duty of good faith of an insurer by rejecting the plaintiff's claim for long-term disability benefits on the ground that he failed to conclusively satisfy the defendant that he was disabled.

APPEAL by an insurer from a judgment of Keenan J. (2002), 2002 8677 (ON SC), 61 O.R. (3d) 191, [2002] I.L.R. Â1-4126 (S.C.J.) granting a mandatory interlocutory injunction requiring it to pay periodic disability benefits until trial.

Cases referred to

702535 Ontario Inc. v. Lloyd's London, Non-Marine Underwriters (2000), 2000 5684 (ON CA), 184 D.L.R. (4th) 687, [2000] I.L.R. Â1-3826 (Ont. C.A.), affg [1999] I.L.R. Â1-3672 (Ont. Gen. Div.) (sub nom. 702535 Ontario Inc. v. Lloyd's London Non- Marine Underwriters); Bater v. Bater, [1950] 2 All E.R. 458, 114 J.P. 416, [1951] P. 35, 66 (pt. 2) T.L.R. 589, 94 Sol. Jo. 533, 48 L.G.R. 466 (C.A.); Broomer v. Ontario (Attorney General), [2002] O.J. No. 2196 (QL) (S.C.J.); Centre Ice Ltd. v. National Hockey League (1994), 75 F.T.R. 240n, 1994 19510 (FCA), 166 N.R. 44, 53 C.P.R. (3d) 34, [1994] F.C.J./A.C.F. No. 68 (QL) (C.A.), revg (1993), 71 F.T.R. 5, 53 C.P.R. (3d) 34; Ciba-Geigy Canada Ltd. v. Novopharm Ltd. (1994), 1994 19563 (FC), 83 F.T.R. 161, 56 C.P.R. (3d) 289, [1994] F.C.J. No. 1120 (QL) (T.D.), supp. reasons (1994), 1994 19659 (FC), 83 F.T.R. 233, 56 C.P.R. (3d) 344; Cooper v. Farmers' Mutual Insurance Co. (2002), 2002 44938 (ON CA), 59 O.R. (3d) 417, [2002] I.L.R. Â1-4120, 20 C.P.C. (5th) 58, [2002] O.J. No. 2546 (QL) (C.A.), affg [2001] I.L.R. Â1-4002 (Ont. S.C.J.); Country Pork Ltd. v. Ashfield (Township) (2002), 2002 41578 (ON CA), 60 O.R. (3d) 529, 31 M.P.L.R. (3d) 1 (C.A.), affg (2001), 18 M.P.L.R. (3d) 1 (Ont. S.C.J.); El- Timani v. Canada Life Assurance Co., 2001 62768 (ON SC), [2001] I.L.R. Â1-3970, 28 C.C.L.I. (3d) 195, [2001] O.J. No. 2648 (QL) (S.C.J.); Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 2002 45070 (ON CA), 61 O.R. (3d) 481, 217 D.L.R. (4th) 34, [2003] I.L.R. Â1-4149, 24 C.P.C. (5th) 216 (C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 10 C.C.L.T. (3d) 157; Maslen v. Rubenstein (1993), 1993 2465 (BC CA), 83 B.C.L.R. (2d) 131, [1994] 1 W.W.R. 53 (C.A.); Palmer v. Royal Insurance Co. of Canada (1995), 1995 19519 (ON CJ), 27 C.C.L.I. (2d) 249, [1995] O.J. No. 82 (QL) (Gen. Div.); Parker v. Canadian Tire Corp., [1998] O.J. No. 1720 (QL), 67 O.T.C. 196 (Gen. Div.); Price v. Kostryba and B. & B. Trucking Ltd. (1982), 1982 36 (BC SC), 70 B.C.L.R. 397 (S.C.); R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114; [page9] Rogers v. Sudbury (Administrator of Ontario Water Works) (2001), 2001 28086 (ON SC), 57 O.R. (3d) 460 (S.C.J.), supp. reasons (2001), 2001 28087 (ON SC), 57 O.R. (3d) 467 (S.C.J.); Stein v. The Ship "Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1, 6 N.R. 359; Toronto (City) v. Polai, 1972 22 (SCC), [1973] S.C.R. 38, (1972), 28 D.L.R. (3d) 638, affg 1969 339 (ON CA), [1970] 1 O.R. 483, (1969), 8 D.L.R. (3d) 689 (C.A.); Wynn v. Belair Direct, 2002 79683 (ON SC), [2002] O.J. No. 4180 (QL), 47 C.C.L.I. (3d) 134 (S.C.J.)

Authorities referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 40.03

Sharpe, R., Injunctions and Specific Performance, looseleaf (Aurora, Ont.: Canada Law Book, 2002) Sopinka, J., and S.N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974)

James L. Vigmond, Brian Cameron and Mark Tobernowski, for plaintiff/respondent. Mark E.P. Cavanaugh, for defendant/appellant. Earl A. Cherniak, Q.C., Kirk F. Stevens and Christine Snow, counsel to Lang Michener.

Reasons for Decision

[1] CUNNINGHAM A.C.J., MATLOW J.: -- The appeal is allowed and the order of the motions judge is set aside. Counsel may make submissions in writing regarding costs.

[2] This is an appeal, brought with leave, by the defendant, Unum Life Insurance Company of [America], carrying on business as Unum Provident Canada ("Unum"), from an order granting a mandatory interlocutory injunction requiring it to pay periodic disability benefits to the plaintiff pursuant to the provisions of a group disability policy. The order requires Unum to pay arrears for previous payments not made as well as periodic benefits going forward to trial, all subject to the security of a mortgage on the plaintiff's home.

[3] This appeal is of significance not only to the parties but to claimants and those engaged in the administration of disability insurance. The central issue for determination on this appeal is whether the injunction ought to have been granted in the context of the evidence presented.

[4] The plaintiff, who is now 44 years of age, was formerly employed as a driver and repairman. At the time of the motion for interim relief, he had been absent from his work since May 2001, claiming to be suffering from chronic fatigue syndrome. [page10]

[5] The plaintiff was covered at the material time by a group long-term disability policy issued by the defendant to his employer. "Disability" was defined in the policy as follows:

You are disabled when Unum determines that you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury: and . . . After 24 months of payments, you are disabled when Unum determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.

[6] In October 2001, the plaintiff submitted a claim for benefits under the policy. In response, the defendant requested that he submit medical evidence of his disability from his treating physician.

[7] In December 2001, after assessing the plaintiff's claim on the basis of existing medical information, the defendant advised the plaintiff that his condition did not fit the criteria for chronic fatigue syndrome. The defendant also advised the plaintiff that he could appeal this decision and that it might reconsider its position upon receipt of further medical information. The plaintiff then submitted an additional report from his family physician which referred to a recent consultation with a rheumatologist. The defendant then sought to review a report of this consultation and any test results. As well, it requested that the plaintiff submit the results of a stress test he had undergone. However, rather than pursue this internal appeal process further, the plaintiff commenced this action and caused a statement of claim to be served on the defendant.

[8] Therefore, at the time the order in appeal was made, the alleged disability of the plaintiff, the insured event and his entitlement to any benefits remained in issue.

[9] The evidence before the motions judge relating to the plaintiff's financial circumstances disclosed the following:

(a) the total household income of the plaintiff and his family was approximately $25,000 per year;

(b) the plaintiff and his wife owned the house where they both resided. Its value was approximately $160,000-$165,000 and their equity was between $50,000-$55,000;

(c) the first mortgagee had agreed to allow the plaintiff to keep his home and the second mortgagee had made no threat to evict him;

(d) although the plaintiff had received UIC sick benefits for 15 weeks after he left his employment, he had not attempted to obtain Canada Pension Plan disability benefits; [page11]

(e) the plaintiff had not sought other work, even on a part- time basis;

(f) the plaintiff owned a recreational trailer that he and his family used on a regular basis. He was required to pay $1,200 annually for maintenance of the trailer site but he was in arrears.

[10] Before granting the order in appeal, the motions judge considered the tests for injunctive relief set out in RJR- MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. He stated that where a mandatory interlocutory order is sought, a plaintiff must meet a higher test than the "serious issue to be tried" test, namely, he must demonstrate that it is more probable than not that he will achieve success at trial, and he held that the plaintiff had satisfied this test. He also stated that he was satisfied that the plaintiff would suffer irreparable harm if the order sought were not granted and that the balance of convenience favoured the plaintiff.

[11] This appeal raises the issues of whether the motions judge was correct in his conclusion regarding proof of irreparable harm and, by implication, in his conclusion regarding the extent of the defendant's obligations under the policy. We have concluded, with respect, that he was not and that his reasons reflect palpable error which now requires us to interfere with the order made.

[12] We observe at the outset that the granting of a mandatory interlocutory injunction is exceptional relief to be granted only in exceptional circumstances. It is also trite law that injunctive relief is not an appropriate remedy if an award of damages can afford adequate relief.

[13] As well, we note that irreparable harm cannot be established by mere speculation but must be proven by the person seeking relief.

[14] In coming to his conclusion on the issue of irreparable harm, the motions judge stated as follows:

On the question of whether the plaintiff will suffer irreparable harm if the payments are not made, I accept that the social stigma and loss of dignity associated with the inability to meet one's obligations, the harm from living with substantially reduced income with a potential for the loss of one's residence are matters which cannot be compensated in damages.

[15] One of the intended results of the order made was to require the defendant to pay to the plaintiff the total amount of the benefits payable under the policy for the period up to the time of the making of the order. However, notwithstanding the [page12] motions judge's above-quoted conclusion to which further reference is made below, the evidence clearly showed that no irreparable harm to the plaintiff had already occurred as at the time of the order was made. Nor did it show that there was a substantial likelihood that the defendant's failure to pay those benefits would result in any future irreparable harm. Accordingly, without such proof of irreparable harm, there was no sufficient reason for the court to intervene by ordering the payment of those benefits.

[16] The second of the intended results of the order made was to require the defendant to continue paying the benefits payable under the policy for the period extending into the future up to the time of trial. To that extent the order on its face reveals that the motions court judge failed to recognize that the policy did not provide for the payment of ongoing benefits that would extend into the future under any circumstances. Rather, it provided only that the defendant was required to make payments from time to time in arrears for past disability after the provision of sufficient proof of continuing disability. Accordingly, at the time the order was made, the plaintiff could not conceivably have been entitled to the payment of benefits for any period in the future beyond the day when the order was made and the defendant could not reasonably have been required to confer a benefit on the plaintiff that was not provided for in the policy. Therefore, with respect to this part of the order, we conclude that the motions judge could not reasonably have found that there was any possible failure of the defendant to comply with the provisions of the policy that could have resulted in any future irreparable harm.

[17] In addition to the above reasons for interfering with the order made, we observe that the motions judge did not explicitly find that the plaintiff would suffer the "social stigma and loss of dignity" or the "harm" referred to in para. 11 above. However, even if his statement was intended to reflect a finding that the plaintiff would likely suffer the "social stigma and loss of dignity", it is our respectful view that such an occurrence could not reasonably constitute irreparable harm in the context of this case. If it could, similar results might be held to constitute irreparable harm in a broad variety of breach of contract cases even outside the scope of insurance policies, a result which is not supportable by the present state of the law.

[18] Nor did the motions judge explicitly find that the plaintiff's substantially reduced income created any potential that he would consequently lose his residence. However, if his statement was intended to reflect a finding that there would be a realistic [page13] potential that the plaintiff could actually lose his residence, it is our respectful view that such a finding would be contrary to the evidence and clearly wrong.

PART I

[1] KURISKO J. (dissenting): -- I have concluded that the appeal should be dismissed on two grounds.

[2] First: the motions judge did not make any legal or palpable error leading to a wrong result in his findings of fact, including the inference of irreparable harm. Appellate courts may not interfere with findings of fact, inferences of fact or conclusions of mixed fact and law, and these may not be reversed in the absence of a legal or palpable and overriding error. In substituting its views for the views of the motions judge, the majority has exceeded this standard of review. This ground is discussed in PART I of these reasons.

[3] Second: the defendant ("Unum") breached the duty of good faith of an insurer by rejecting the claim of the plaintiff/ respondent ("plaintiff") for long-term disability on the ground that he failed to conclusively satisfy Unum he was disabled. This ground is explained in PART II.

[4] "Irreparable harm has not been given a definition of universal meaning: its meaning takes shape in the context of each particular case." [See Note 1 at end of document] It is therefore essential to detail the facts.

The Evidence Before the Motions Judge [See Note 2 at end of document]

[5] The plaintiff, Andrew Traynor, is 44 years of age. He now lives at home with his wife, a daughter, a grandson and, occasionally, two other sons. He worked for the same employer for 14 years as a repairman and driver. His duties included some intricate work involving dismantling of tools, diagnosing problems, replacing machine parts and occasionally delivering parts as required. His claim states that some of the functions of his work involved performing complex or varied tasks requiring a "higher [page14] level of reasoning, language and/ or math". He claims that some of the tasks assigned to him involved the use of many tiny and intricate parts. In addition, he claims that he was required to operate machinery with moving parts, including bandsaw blades and cut saws, work which can be very difficult and which is potentially dangerous.

[6] Early in 2001, Traynor began complaining of profound fatigue, muscular pain, neck stiffness, profound weakness, poor energy, nausea, ongoing headaches, irritability, hypersomnia, chest pains, difficulty with concentration and moodiness. As a result of these symptoms, the plaintiff says he finds it dangerous to himself and others to use machinery at work. At times he has become temporarily blind [and] unable to function. There were days when he had to lift boxes routinely involving 30 to 50 pounds for an entire shift but was unable to do so because of fatigue.

[7] With the onset of those symptoms, he consulted Dr. Charles Vanderwater, who has been his family physician for over 17 years. Dr. Vanderwater ultimately diagnosed the plaintiff's condition as chronic fatigue syndrome. The plaintiff left work on short-term disability in May 2001. Dr. Vanderwater originally thought the plaintiff's primary diagnosis was depression, and he felt that he might return to work in eight to ten weeks. Dr. Vanderwater ordered a series of tests, including blood work, urinalysis, chest x-rays and a CT scan of the plaintiff's chest. He also referred him to Dr. Chris Tebbutt, a respirologist, because of the plaintiff's shortness- of-breath problems.

[8] Dr. Vanderwater prescribed various medications, and eventually referred the plaintiff to an internist, Dr. Tim McKenzie, and a psychiatrist, Dr. Hakim. Dr. McKenzie, in turn, referred him to a rheumatologist, Dr. Yuen. All these attending physicians agreed with the opinion, formed individually, that the plaintiff suffers from chronic fatigue syndrome.

[9] Dr. McKenzie's report and the other medical evidence [were] reviewed internally by Unum in December 2001 by a registered nurse and by Dr. Koblents. They concluded that the plaintiff's condition did not fit the criteria for chronic fatigue syndrome. There had been no stress test, which is usually required to assess diminished work capacity. Unum assessed the claim and concluded that the plaintiff had not met the diagnostic criteria for chronic fatigue syndrome.

[10] Unum sent the plaintiff a letter dated December 12, 2002 advising him that his claim for long-term disability had been denied. Unum invited the plaintiff to submit additional specific physical and medical background and information for further consideration. [page15]

[11] The plaintiff did not respond to the Unum request, but referred the matter to his legal counsel. Following a brief exchange of correspondence, an action was commenced and a statement of claim was served on Unum on March 21, 2002. That was followed on May 8, 2002, by a notice of motion for an interlocutory mandatory injunction to require Unum to pay monthly disability benefits pending trial.

[12] Unum then arranged for surveillance of the plaintiff over several days in May 2002 and retained two independent medical specialists. The surveillance report disclosed a high level of activity, most of which was driving, but included carrying heavy materials and engaging in what appear to be fairly energetic work activities. That report appears to have fortified Unum's doubt that the plaintiff was suffering from chronic fatigue syndrome.

[13] The two independent specialists were Dr. Mark Greenwald, a rheumatologist, and Dr. Ignatius Fong, a specialist in infectious disease. They reviewed the medical materials and the surveillance videos. Dr. Greenwald concluded that there was no evidence to support a diagnosis of chronic fatigue syndrome or a finding of disability. Dr. Fong concluded that the plaintiff was not disabled and that there was a possibility of malingering.

[14] The reasons of Keenan J. and the motions judge do not set out the evidence relating to the financial circumstances of the plaintiff. I summarize this evidence as follows.

[15] In his affidavit sworn on May 7, 2002, the plaintiff said that after his monthly earnings of $2,186 per month were terminated, the total monthly family income dropped to approximately $2,000 consisting of Canada Pension Plan and Workers Safety Insurance Board benefits totalling $1,576.45, both payable to his wife, plus temporary payments of $400 from his daughter. Monthly debts of $2,204 consisted of the following:

T-D Canada Trust $808.00 Arrears of T-D Canada Trust $400.00 Household Finance $340.00 Phone bill $ 70.00 Van lease $389.00 Hydro $197.00

The Hydro payments include payments against arrears of $400. It is to be noted there is no provision for insurance, gasoline for the van, medications, groceries or any other standard day- to-day living expenses.

[16] The plaintiff and his wife own their home subject to a first mortgage with a balance of approximately $90,000. He and his [page16] brother put much work into renovating the home over the last few years. He borrowed the money from Household Finance Corporation to purchase the materials. This was secured by a second mortgage for $19,000. A real estate agent told the plaintiff he would list the home owned by the plaintiff and his wife for $160,000.

[17] The plaintiff owed $3,708 arrears to TD Canada Trust in respect of the first mortgage against the home. Although an agreement regarding the arrears had been put in place in February 2002, the plaintiff defaulted on some of the payments by May 2002. In effect the plaintiff was in arrears in respect of the payment of arrears.

[18] As of May 2002, the plaintiff owed approximately $29,635 to creditors, including $4,000 to Visa and $19,000 to Household Finance Corporation, which had recently threatened to commence power of sale proceedings in respect of the second mortgage securing this debt.

[19] The plaintiff owns a trailer that was purchased between 14 and 15 years ago. The trailer has no value. The cost of keeping the trailer in the trailer park is $1,200 per season. The plaintiff has been unable to pay these charges for the past two years.

[20] The plaintiff says that before his disability he lived frugally and managed to get by. Without the disability payments, he will lose his possessions and his home that took years to renovate, and will live in poverty.

[21] The dire financial circumstances of the plaintiff are supported by information obtained by Unum shortly after the claim was filed on October 2, 2001. On November 8, 2001, a representative of Unum made an unannounced visit to the plaintiff's home. He subsequently reported his observations and findings, including the following:

When asked if he had any comments to make regarding his personal financial affairs, he reports that "it sucks". Both he and his wife commented that their present financial situation is very precarious and is a major source of anxiety to them. They report that mortgage payments are in arrears and that the telephone and cable [had] been disconnected for non-payment. They were relieved that these were reinstated thanks to their daughter's intervention and financial support.

Standard of Review on Appeal

[22] In Housen v. Nikolaisen, [See Note 3 at end of document] Iacobucci J. made the instructive statements that I have set out under the following headings: [page17] (i) Role of an appellate court; (ii) Meaning of palpable error; (iii) Standard of review for findings of fact; and (iv) Standard of review for inferences of fact:

(i) Role of an appellate court

[3] The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd. (1987), 1987 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:

The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

[4] While the theory has acceptance, consistency in its application is missing. The foundation of the principle is as sound today as 100 years ago. It is premised on the notion that finality is an important aim of litigation. There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.

(ii) Meaning of palpable error

[5] What is palpable error? The New Oxford Dictionary of English (1998) defines "palpable" as "clear to the mind or plain to see" (p. 1337). The Cambridge International Dictionary of English (1996) describes it as "so obvious that it can easily be seen or known" (p. 1020). Random House Dictionary of the English Language (2nd ed. 1987) defines it as "readily or plainly seen" (p. 1399).

[6] The common element in each of these definitions is that palpable is plainly seen. Applying that to this appeal, in order for the Saskatchewan Court of Appeal to reverse the trial judge the "palpable and overriding" error of fact found by Cameron J.A. must be plainly seen. . . .

(iii) Standard of review for findings of fact

[10] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error": Stein v. The Ship "Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802 at p. 808.

(iv) Standard of review for inferences of fact

[19] We find it necessary to address the appropriate standard of review for factual inferences because the reasons of our colleague suggest that a lower standard of review may be applied to the inferences of fact drawn by a trial judge. With respect, it is our view, that to apply a lower standard of review to inferences of fact would be to depart from established jurisprudence of this Court, and would be contrary to the principles supporting a deferential stance to matters of fact.

[23] We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no [page18] palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. . . .

[23] In Stein v. The Ship "Kathy K", [See Note 4 at end of document] Ritchie J. said:

. . . the accepted approach of a court of appeal is to test the findings [of fact] made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court's view of the balance of probability. [See Note 5 at end of document]

[24] In Country Pork Ltd. v. Ashfield (Township), [See Note 6 at end of document] Borins J.A. said:

The standard of review on appeal, even in cases where, as here, the entire record consists of documentary or written evidence, is one of deference: Equity Waste Management (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 at pp. 333, 336 O.R. Appellate courts may not interfere with findings of fact, inferences of fact or conclusions of mixed fact and law, which may not be reversed in the absence of a legal or palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577. [See Note 7 at end of document]

Reasons and Findings of the Motions Judge

[25] The motions judge addressed the three-stage test articulated in RJR-MacDonald Inc. v. Canada (Attorney General) [See Note 8 at end of document] in the following words: [See Note 9 at end of document]

(1) There exists a serious issue to be tried. There are no specific indicators or requirements that must be met to determine if there is a serious issue to be tried. The threshold is a low one. A lengthy examination of the merits is not necessary. The plaintiff need only satisfy the Court that the claim is not frivolous or vexatious.

(2) Has the moving party shown he will suffer irreparable harm if the injunction is not granted? "Irreparable" relates to the nature of the harm and means the harm cannot be compensated in damages.

(3) Does the balance of convenience favour granting the injunctive relief? This requires an assessment as to which of the parties would suffer greater harm from the granting or refusal of the injunction. [page19]

[26] As to the burden on the moving party where a mandatory order is sought, the motions judge adopted the statement by Sharpe J. (as he then was) in Parker v. Canadian Tire Corp. [See Note 10 at end of document] that "[i]t is well established that there is a higher standard to be met where interlocutory mandatory relief is sought and in particular, that the plaintiff must make out a greater likelihood of success." [See Note 11 at end of document]

[27] After referring to the surveillance and medical evidence outlined above, the motions judge came to the following conclusions:

Serious issue and burden of proof

The evidence before me satisfies me that there exists a serious issue to be tried, namely, whether or not the plaintiff is disabled as defined by the insurance policy. I also conclude, on the evidence presented at this motion, that the plaintiff has made a greater likelihood of success at trial. The evidence of the plaintiff and of his treating physician is, at this stage and in the form presented, more persuasive. The first test, namely, the existence of a serious issue to be tried, and the higher threshold for interlocutory mandatory injunctions have both been satisfied. [See Note 12 at end of document]

Balance of convenience

The balance of convenience does favour granting the injunctive relief. There will be much greater harm to the plaintiff if the benefits are not paid then [sic] to the defendant, if required to pay until trial. The evidence discloses that the plaintiff does have some equity in his residence which will permit the defendant to recover money paid to the plaintiff if he was not entitled to the funds. [See Note 13 at end of document]

Irreparable harm

On the question of whether the plaintiff will suffer irreparable harm if the payments are not made, I accept that the social stigma and loss of dignity associated with the inability to meet one's obligations, [and] the harm from living with substantially reduced income with a potential for the loss of one's residence are matters which cannot be compensated in damages. [See Note 14 at end of document]

[28] In the result, the motions judge ordered that Unum pay the plaintiff $1,457.70 per month. He ordered that the payments commence August 1, 2001 even though the order was made on June 21, 2002. He ordered that the plaintiff give to Unum a mortgage against his property rather than an undertaking to abide by an order respecting damages under rule 40.03 of the Rules of Civil Procedure. [See Note 15 at end of document] [page20]

Submissions by Counsel for Unum

[29] Counsel for Unum says the decision of the motions judge is contrary to the basic principle that a plaintiff cannot obtain an injunction where damages are the proper remedy. If it is ultimately determined at trial that disability benefits were wrongfully withheld, any harm suffered is entirely compensable by a monetary judgment, which may include compensation for payments not made and, potentially, aggravated and punitive damages if warranted. Moreover, an award of damages also bears pre- and post-judgment interest which compensates the plaintiff for the time s/he has been deprived of any funds to which s/he is entitled.

[30] Counsel says the order amounts to temporary specific performance until trial. In their submission, such a prospective order exceeds the jurisdiction of the trial judge, who can only order payment of benefits as long as the plaintiff is disabled. This runs roughshod over the contractual right of the insurer to dispute the happening of the event that imposes liability on Unum.

[31] Further, counsel submits that if the "social stigma and loss of dignity" associated with the inability to meet one's own contractual obligations were in all cases a matter of irreparable harm, interlocutory injunctions would be granted routinely. If the definition of irreparable harm made by the motions judge is accepted, injunctions to restrain breach of contract would cease to be extraordinary.

[32] While acknowledging there have been recent decisions finding that cessation of income may result in irreparable harm (Rogers v. Sudbury (Administrator of Ontario Works), [See Note 16 at end of document] Wynn v. Belair Direct, [See Note 17 at end of document] Broomer v. Ontario (Attorney General) [See Note 18 at end of document]), counsel says the exceptional circumstances in these cases involved a risk to the physical well-being of the applicants. Counsel submits that the exceptional circumstances and exceedingly high threshold for irreparable harm in these cases has not been remotely met in the present case.

[33] With an equity in his home of $50,000 to $55,000 and household income of approximately $25,000 per year, counsel for Unum suggests that the plaintiff had sufficient assets and income to support his basic needs pending trial notwithstanding his disability, albeit with some hardship. The law, however, does not consider such temporary hardship to be irreparable harm. [page21]

[34] In El-Timani v. Canada Life Assurance Co., [See Note 19 at end of document] the plaintiff, his wife and their three-year-old daughter were wholly dependent upon family allowance payments and the charity of a relative. In these circumstances, Molloy J. ordered that the plaintiff be paid monthly benefits subject to the plaintiff providing a written undertaking as to damages. However, Molloy J. specifically stated that if the plaintiff had "other assets he could turn to in order to provide a reasonable standard of living for his family" until trial, she would not have ordered the insurer to make interlocutory payments. [See Note 20 at end of document] She also noted that payment of benefits on an ongoing basis until trial is extraordinary relief.

[35] Finally, counsel says the motions judge's interpretation of irreparable harm destabilizes the jurisprudence governing actions for breach of contract and particularly in the area of disability insurance claims. If orders granting interim disability payments to applicants pending trial become common, the business costs of disability insurers are certain to increase dramatically. This will translate into premiums for the public.

Legal Considerations

Irreparable harm

[36] As a prelude to the discussion of this subject it is helpful to review certain basic principles relating to irreparable harm set out in Injunctions and Specific Performance. [See Note 21 at end of document] After stating that "it is difficult to define exactly what is meant by irreparable harm", [See Note 22 at end of document] the author goes on to make the following statements:

Typical cases in which irreparable harm is likely to be found are those where the act complained of . . . would put the party out of business, prevent the gaining of livelihood or cause irrevocable damage to reputation or professional standing. [See Note 23 at end of document]

In the context of preliminary relief, the test is a relative and flexible one which, it is submitted, necessarily involves an evaluation of the other factors. Indeed, it has been held that an interlocutory injunction may be granted even where "irreparable" harm has not been demonstrated. Similarly, attempts to make irreparable harm a condition precedent, and hence a [page22] threshold test, have been rejected. These cases suggest that the "irreparable harm" requirement can only be defined in the context of the risk-balancing exercise. If the plaintiff's case looks very strong, harm may appear to be more "irreparable" than where the plaintiff has only an even chance of success. While judges seldom explicitly acknowledge that there is an "overflow" effect produced by strength or weakness of other factors, it cannot be doubted that, as a practical matter, it exists. The important point is that irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case. [See Note 24 at end of document]

The terms "irreparable harm", "status quo" and "balance of convenience" do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case. More importantly, they ought not to be seen as separate, water-tight categories. These factors relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness on another. [See Note 25 at end of document]

The checklist of factors which the courts have developed -- relative strength of the case, irreparable harm and balance of convenience -- should not be employed as a series of independent hurdles. They should be seen in the nature of evidence relevant to the central issue of assessing the relative risks of harm to the parties from granting or withholding interlocutory relief. [See Note 26 at end of document]

Drawing inferences

[37] The Federal Court of Appeal has said that proof of irreparable harm cannot be inferred [See Note 27 at end of document] and that the "evidence of irreparable harm must be clear and not speculative". [See Note 28 at end of document] However, in Ciba-Geigy Canada Ltd. v. Novopharm Ltd., [See Note 29 at end of document] Rothstein J. held that a motions judge may make inferences that reasonably flow from the evidence. He said at para. 119:

Indeed, the drawing of inferences is virtually always necessary because, in civil actions, evidence is not so detailed as to expressly deal with each minute aspect of a party's story. In Parfitt v. Lawless (1872), L.R. 2 P. & D. 462, Lord Penzance states at page 472:

It is not intended to be said that he upon whom the burden of proving an issue lies is bound to prove every fact or conclusion of fact upon [page23] which the issue depends. From every fact that is proved legitimate and reasonable inferences may, of course, be drawn, and all that is fairly deducible from the evidence is as much proved for the purpose of a prima facie case as if it had been proved directly.

[38] The foregoing statement can be summarized by saying that a trial judge can apply common sense in drawing reasonable inferences from proven facts. This instruction is given to juries in criminal cases.

[39] Housen v. Nikolaisen, supra, provides an example of the latitude permitted in drawing inferences of fact. In finding negligence, the trial judge imputed knowledge to a municipality of a road condition sufficiently hazardous to require erection of a warning sign. The Supreme Court of Canada restored this inferential finding of fact that had been reversed by the Saskatchewan Court of Appeal.

Discussion

[40] The motions judge held that there is a serious issue to be tried. On the evidence before him he was satisfied that the higher standard required for a mandatory interlocutory order (a greater likelihood of success at trial) was met. Neither of these findings is open to serious question.

[41] The pivotal issue on this appeal is not whether the motions judge was wrong in making the finding of irreparable harm. The pivotal issue is whether the motions judge committed a palpable and overriding error that can be plainly seen in coming to this conclusion. Without retrying the case and second-guessing the weight to be assigned to the various items of evidence before the motions judge, in order to overrule the motions judge this court must be able to say the motions judge committed such error.

[42] A finding of irreparable harm is not a stand-alone threshold for granting the remedy. As Justice Sharpe stated in Injunctions and Specific Performance, irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case. [See Note 30 at end of document] The right of the plaintiff not to be exposed to irreparable harm conflicts with the right of Unum not to pay damages until after the plaintiff has proved the case at trial. The irreparable harm requirement can only be defined in the context of a risk-balancing exercise which includes the relative strength of the case. Undoubtedly, the strength of the motion judge's finding that the plaintiff has made out the higher standard of a greater likelihood of success at trial is a weighty consideration to the central issue of the relative risks to [page24] the parties from granting or withholding interlocutory relief. Having decided the proper remedy is to grant relief to the plaintiff, Unum's submissions about contractual rights take a back seat.

[43] The following comments by Molloy J. in El-Timani v. Canada Life Assurance Co. are relevant to the submissions of counsel for Unum regarding payment of aggravated damages, the adequacy of compensatory damages to compensate loss of enjoyment of life resulting from a subsistence level of existence pending trial, and irreparable harm:

I do not accept that the harm caused by living in poverty for the months or years it will take to get this action to trial is something that can be measured merely in dollars and cents. I believe that anybody who has been poor would readily understand this concept. The defendant points to the fact that aggravated and exemplary damages are also available if there are extenuating circumstances and/or the insurer has been found to have acted in bad faith. It is certainly the case that there is a body of case law in which simple compensatory damages have been found to be inadequate to redress the harm occasioned by an insurer's wrongful refusal to pay insurance benefits. This reinforces my view that the harm caused by the denial of benefits in this case will not be adequately compensated by a payment of the full amount of those benefits a number of years later. The plaintiff has a wife and young daughter. The loss of enjoyment of life resulting from a subsistence level existence pending trial is not calculable in money. In RJR MacDonald the Court referred to some examples of situation [sic] which would meet the irreparable harm test, such as loss of a business or loss of market share or loss of business reputation. It is certainly true that proving the quantum of such losses is difficult. The fact remains though that such losses are purely monetary in their essence. In my opinion, the harm from living in poverty with your young child for a number of years is at the very least as irreparable as losing your business. [See Note 31 at end of document]

[44] Counsel for Unum submitted that El Timani falls into a category of cases where an interlocutory injunction should "never" be ordered. Additionally, he says the decision is plainly distinguishable from the facts of the case at bar because the applicant's only source of income was disability payments. Molloy J. said that "[I]f the plaintiff had other assets he could turn to in order to provide a reasonable standard of living for his family until this case is heard, that would be a different matter." [See Note 32 at end of document]

[45] The answer to this last submission is that after considering the assets, income, needs and liabilities of the plaintiff the motions judge concluded that the plaintiff would suffer irreparable harm without the disability income.

[46] In ordering the continuation of the disability payments pending this appeal, Justice Keenan came to the same conclusion [page25] as the motions judge concerning the effect of withholding the payment of disability benefits. He said:

I have concluded, however, that it would be manifestly unfair to Mr. Traynor to permit Unum to withhold payments under the insurance policy pending the outcome of this matter. At this point, there appears to be responsible medical evidence that he suffers from chronic fatigue syndrome . . . . Without the payments under the policy, Mr. Traynor would be reduced to a level below the level of poverty. His circumstances would be such that he would not even be able to afford food for himself and his family because of all the other obligations that he confronts each month. [See Note 33 at end of document]

Decision

[47] The evidence upon which Unum relies concerning the financial circumstances of the plaintiff (including the submissions about his income and equity in the home) was only part of the evidence before the motions judge. He chose not to place the interpretation on this evidence advanced by counsel for Unum. It cannot be said the motions judge was wrong (let alone clearly wrong) in coming to the conclusion the plaintiff would be unable to meet his financial obligations. There is more than enough evidence to support this finding. Furthermore, the motions judge was entitled to draw the common sense inference that there would be social stigma and loss of dignity associated with inability to meet financial obligations and that living with a substantially reduced income would be harmful and could result in the plaintiff losing his home. There being no palpable and overriding error that can be plainly seen with respect to the foregoing findings, it cannot be said the motions judge was clearly wrong in drawing the inference of irreparable harm.

PART II

[48] Unum required the plaintiff to provide "conclusive evidence" of a diagnosis of chronic fatigue syndrome before it would consider making long-term disability payments. Imposing this almost impossibly high standard of proof was a serious breach of the duty of good faith owing by Unum to its insured. Although the reasons in PART I provide the basis for dismissing the appeal, in the circumstances of this case, the tainted conduct of Unum justifies refusing relief from the equitable mandatory order herein and provides a supplementary reason for dismissing the appeal. [page26]

Facts

[49] The Unum letter dated December 12, 2001 denying the plaintiff's claim for long-term disability benefits reads in part as follows:

Your claim has been thoroughly reviewed in conjunction with our Medical Consultant. Based on this review, we find that the medical support on file is insufficient to indicate a medical disorder of such severity that it precludes you from returning to your regular occupation. As such, we are unable to consider your claim for long term disability benefits.

[50] This letter was written by Antonette Micelli ("Micelli"), a Customer Care Specialist with Unum who personally handled the plaintiff's claim for disability benefits. She swore an affidavit on May 28, 2002, filed on the motion, in which she stated at para. 41:

Based on the reviews of Registered Nurse, Darlene Bossy-Yorke and Dr. Klara Koblentz I believe that we did not have conclusive evidence of a diagnosis of Chronic Fatigue Syndrome. I discussed Mr. Traynor's claim with Customer Care Consultant, Abby Kurysh, whose review of the file was necessary if the claim was to be approved or declined. Ms. Kurysh reviewed the file material and agreed that it did not confirm a conclusive diagnosis of Chronic Fatigue Syndrome and that, if it did, it did not confirm the extent of Mr. Traynor's impairments. It was agreed that Mr. Traynor's claim should be declined based on the assessment of the information received to date.

(My emphasis)

[51] The transcript of the cross examination of Micelli on her affidavit reads as follows:

429 Question: In paragraph 41 you go on to note that you believe you did not have conclusive evidence of a diagnosis of Chronic Fatigue Syndrome.

Answer: Correct.

430 Question: Is it your belief that you need to have conclusive evidence of diagnosis of Chronic Fatigue Syndrome in order to have an obligation to pay disability benefits?

Answer: I do, yes.

[53] These answers explain why Unum said the evidence provided by the plaintiff was "insufficient". The answers also underlie the onerous medical information required by Unum in order to reconsider the claim. In the December 12, 2001 letter, Micelli said:

Should you choose to appeal our decision, we would be willing to reconsider our position upon receipt of additional medical documentation. This submission should include the following information: physician's office notes; specialists' consultation reports or detailed narratives; signs and symptoms of disease; treatment plan (including medication and dosages); results of any investigative procedures substantiating the restrictions and limitations placed on your activities and verifying your level of disability under the [page27] policy wording including a copy of the stress test results. A prognosis would also be required.

Legal considerations

Insurer's duty of utmost good faith

[54] In Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co., [See Note 34 at end of document] Charron J.A. spoke of the obligation of an insurer to act in utmost good faith. She noted that contracts of insurance have long been considered contracts uberrima fides contracts in which the utmost good faith is required of the parties. She continued:

The implied obligation to act in good faith has been extended beyond mutual disclosure requirements in relation to the nature of the risk being undertaken. In particular, the courts have recognized that that the insured, having suffered a loss, will frequently be in a vulnerable position and largely dependent upon the insurer to provide relief against financial pressure occasioned by the loss underlying the claim. Hence, the obligation to act in the utmost good faith requires an insurer to act promptly and fairly at every step of the claims process. [See Note 35 at end of document]

[55] In 702535 Ontario Inc. v. Lloyd's London, Non-Marine Underswriters, [See Note 36 at end of document] O'Connor J.A. (as he then was) amplified the explanation of good faith:

In making a decision whether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of the insured's economic vulnerability or to gain bargaining leverage in negotiating a settlement. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy. This duty of fairness, however, does not require that an insurer necessarily be correct in making a decision to dispute its obligation to pay a claim. [See Note 37 at end of document]

(My emphasis)

Standard of proof

[56] Within the civil standard of proof there exist degrees of probability which may vary according to the subject-matter. This was confirmed by the Supreme Court of Canada in R. v. Oakes [See Note 38 at end of document] in which Dickson C.J.C. refers to (but does not quote from) [page28] Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974). In that text, in discussing the varying degrees of probability, the authors stated at pp. 384-85:

This does not alter the basic standard of proof but casts upon the party having the burden of proof the obligation of adducing more evidence, or evidence of greater cogency, and on the part of the trier of fact, the obligation of subjecting the evidence to closer scrutiny.

Further on in his reasons for judgment, Dickson C.J.C. cited Lord Denning in Bater v. Bater [See Note 39 at end of document] as follows:

The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. [See Note 40 at end of document]

Discussion

[57] In considering proof of chronic pain syndrome it has been held that courts should be "exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery". [See Note 41 at end of document] In these circumstances evidence of a "convincing" nature may be required to overcome the improbability that pain will continue, in the absence of objective symptoms well beyond the normal recovery period. This standard of civil proof would be at the uppermost end of the balance of probability.

[58] Unum would be entitled to adopt the above approach in assessing the chronic fatigue syndrome claim of the plaintiff. The fact that this was "peace of mind" insurance does not lessen the degree of scrutiny to which the claim can be subjected.

[59] The duty of fairness does not require that an insurer necessarily be correct in making a decision to dispute its obligation to pay a claim. [See Note 42 at end of document] Mere denial of a claim that ultimately succeeds [page29] is not, in itself, an act of bad faith. [See Note 43 at end of document] However, such denial presupposes that the insurer is guided by a reasonable interpretation of its obligation under the policy.

[60] According to its interpretation of the policy the standard of proof for satisfying Unum that the plaintiff was totally disabled far exceeds the highest possible civil standard. Indeed, the standard went beyond proof beyond a reasonable doubt mandated for a criminal conviction. Unum required that proof of chronic fatigue syndrome be "conclusive".

[61] It is to be noted that Roget's Super Thesaurus (2nd ed., 1998) defines the synonyms for "conclusive" as follows:

decisive, final, settled, determining, convincing, definitive, incontestable, clinching, unmistakable, undeniable, absolute, resolving, irrefutable.

[62] Unum's decision to refuse the claim was based on an unreasonable and unbalanced interpretation of its obligation under the policy. Imposing the almost impossibly high standard of conclusive proof before it would consider making long-term disability payments was a serious breach of the duty of good faith owing by Unum to its insured. This was an act of bad faith.

[63] Unum says that under the insurance contract it is entitled to require the plaintiff to prove his claim at trial before making disability payments. Although such proof must be on a balance of probability to a degree that satisfies the trial judge, Unum asks the court to overlook its bad faith conduct requiring conclusive proof of the claim before the action was commenced.

[64] The tainted conduct of Unum brings the equitable maxim of "clean hands" into play. The most frequently cited statement on "clean hands" by the Ontario Court of Appeal is from Toronto (City) v. Polai. [See Note 44 at end of document] Schroeder J.A. described the maxim as follows:

The maxim "he who comes into equity must come with clean hands" . . . requires a plaintiff seeking equitable relief to show that his past record in the transaction is clean: Overton v. Banister, (1844), 3 Hare 503, 67 E.R. 479; Nail v. Punter (1832), 5 Sim. 555, 58 E.R. 447; Re Lush's Trusts (1869), L.R. 4 Ch. App. 591. These cases present instances of the Court's refusal to grant relief to the plaintiff because of his wrongful conduct in the very matter which was the subject of the suit in equity. [See Note 45 at end of document] [page30]

Decision

[65] The plaintiff has satisfied the court that there is a serious issue to be tried and that the balance of convenience favours granting mandatory injunctive relief. Without the monthly disability payments the plaintiff would be exposed to very serious financial hardship. The issue raised by Unum is whether this amounts to irreparable harm. Having ensured the scenario for financial hardship by its tainted conduct Unum does not come to court with clean hands.

[66] In these circumstances, the wrongful conduct of Unum justifies denying Unum relief from the equitable mandatory order herein and provides a supplementary reason for dismissing the appeal.

Appeal allowed.

Notes

Note 1: The Honourable Mr. Justice R. Sharpe, Injunctions and Specific Performance (looseleaf ed.) (Aurora, Ont.: Canada Law Book Inc., 2002) at para. 2.450.

Note 2: Facts pertaining to the nature of the plaintiff's occupation, the history of his disability, the medical evidence proffered to Unum in support of his claim for long term disability and Unum's response in denying the long term disability claim are succinctly set out in the reasons of Keenan J. granting leave to appeal herein ((2002), 2002 8677 (ON SC), 61 O.R. (3d) 191 [2002] I.L.R. para. 1-4126 (S.C.J.) at pp. 195-96 O.R.). In preparing this summary I have borrowed from those reasons.

Note 3: [2002] 2 S.C.R. 235, 2002 SCC 33, 211 D.L.R. (4th) 577.

Note 4: 1975 146 (SCC), [1976] 2 S.C.R. 802, 62 D.L.R. (3d) 1.

Note 5: Ibid, at p. 806 S.C.R.

Note 6: (2002), 2002 41578 (ON CA), 60 O.R. (3d) 529, 31 M.P.L.R. (3d) 1 (C.A.).

Note 7: Ibid, at p. 546 O.R.

Note 8: 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.

Note 9: [2002] O.J. No. 2546 (QL), [2002] I.L.R. para.1-4120 at para 3.

Note 10: (1998), 67 O.T.C. 196, [1998] O.J. No. 1720 (QL) (Gen Div.).

Note 11: Ibid, at para. 3.

Note 12: Supra, note 9 at para. 17.

Note 13: Ibid, at para. 19.

Note 14: Ibid, at para. 18.

Note 15: R.R.O. 1990, Reg. 194 (as. am.).

Note 16: (2002), 2001 28086 (ON SC), 57 O.R. (3d) 460 (S.C.J.).

Note 17: 2002 79683 (ON SC), [2002] O.J. No. 4180 (QL), 47 C.C.L.I. (3d) 134 (S.C.J.).

Note 18: [2002] O.J. No. 2196 (QL) (S.C.J.).

Note 19: 2001 62768 (ON SC), [2001] O.J. No. 2648 (QL), [2001] I.L.R. para. 1-3970 (S.C.J.).

Note 20: Ibid, at para. 9.

Note 21: Supra, note 1.

Note 22: Ibid, para. 2.390.

Note 23: Ibid, para. 2.410.

Note 24: Ibid, para. 2.450.

Note 25: Ibid, para. 2.600.

Note 26: Ibid, para. 2.630.

Note 27: Center Ice Ltd. v. National Hockey League, [1994] F.C.J./A.C.F. No. 68 (QL), 1994 19510 (FCA), 166 N.R. 44 (C.A.) at para. 7.

Note 28: See footnote 1 at para. 2.410, footnote 85b.

Note 29: (1994), 1994 19563 (FC), 83 F.T.R. 161 (F.C.T.D.), [1994] F.C.J. No. 1120 (QL) (T.D.)

Note 30: Supra, note 1.

Note 31: Supra, note 19 at para. 9.

Note 32: Ibid.

Note 33: Supra, note 2 at 202 O.R.

Note 34: (2003), 2002 45070 (ON CA), 61 O.R. (3d) 481, 217 D.L.R. (4th) 34 (C.A.).

Note 35: Ibid, at 503-4 O.R.

Note 36: (2000) 2000 5684 (ON CA), 184 D.L.R. (4th) 687, [2000] I.L.R. para. 1- 3826 (Ont. C.A.).

Note 37: Ibid, at paras. 29-30.

Note 38: 1986 46 (SCC), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.

Note 39: [1950] 2 All E.R. 458, 114 J.P. 416 (C.A.) at p. 459 All E.R.

Note 40: Oakes, supra, note 38 at p. 137 S.C.R.

Note 41: Maslen v. Rubenstein (1993), 1993 2465 (BC CA), 83 B.C.L.R. (2d) 131, [1994] 1 W.W.R. 53 (C.A.) per Taylor J.A. at p. 136 B.C.L.R. approving this comment by McEachern C.J.S.C. in Price v. Kostryba and B & B Trucking Ltd. (1982), 1982 36 (BC SC), 70 B.C.L.R. 397 (S.C.).

Note 42: See my earlier discussion of 702535 Ontario Inc., supra, note 36.

Note 43: Palmer v. Royal Insurance Co. of Canada (1995), 1995 19519 (ON CJ), 27 C.C.L.I. (2d) 249, [1995] O.J. No. 82 (QL) (Gen. Div.).

Note 44: 1969 339 (ON CA), [1970] 1 O.R. 483, (1969) 8 D.L.R. (3d) 689 (C.A.), aff'd 1972 22 (SCC), [1973] S.C.R. 38, (1972) 28 D.L.R. (3d) 638.

Note 45: Ibid, at 493 O.R., p. 699 (D.L.R.).