Court File and Parties

Court File No.: CV-10-0847-00
Date: 20120402
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Davinder Bains, Plaintiff

AND:
Sun Life Assurance Company of Canada, Defendant

BEFORE: Ricchetti, J.

COUNSEL:
S. Grillone for the Plaintiff
D. McDuff for the Defendant

HEARD: March 28, 2012

ENDORSEMENT

[ 1 ] Ms. Bains moves for summary judgment seeking a declaration she is entitled to receive long term disability benefits from Sun Life Assurance Company of Canada (“Sun Life”).

The Facts

[ 2 ] Ms. Bains has been at all material times an employee of Canada Post.

[ 3 ] Sun Life provided a group policy insurance to Canada Post’s employees (“Policy”). The Policy includes providing long term disability (LTD) benefits to Canada Post’s employees when qualified under the terms of the Policy.

[ 4 ] In September, 2000 Ms. Bains made an LTD disability benefits claim to Sun Life under the Policy. Ms. Bains was off work until April 22, 2001. The significant reason for the claim was based on Ms. Bains’ inability to perform her work due to “depression” and related issues, a condition for which she had sought and received medical attention from a psychologist and psychiatrist.

[ 5 ] In May 2005, Ms. Bains made a further LTD disability benefits claim to Sun Life under the Policy. Ms. Bains was off from work from May 2005 to March 2006. The significant reason for the claim was based on Ms. Bains’ inability to perform her work due to “depression” and related issues.

[ 6 ] In July 2006 Ms. Bains was in a motor vehicle accident. In September 2007, Ms. Bains brought an action against Sun Life claiming LTD disability benefits. Sun Life denied Ms. Bains was entitled to LTD disability benefits. Ms. Bains claimed in her action that her damages included “mental and psychological functions.... accompanies by headaches, dizziness, shock, anxiety, depression, emotional trauma, chronic pain...” Ms. Bains claimed that, as a result, she was not able to perform “each and every duty of her regular occupation” and, therefore, was entitled to LTD disability benefits from Sun Life.

[ 7 ] On March 4, 2008, Ms. Bains and Sun Life settled the action. Sun Life paid to Ms. Bains the sum of $48,560. Ms. Bain agreed, in the Minutes of Settlement, to provide a release covering:

...all claims in the Action, all claims or potential claims under the group policy 50800 (the “Policy”) to date, and all future claims for a period of 3 years, under the Policy or any other Sun Life policy, arising directly or indirectly out of the condition or conditions giving rise to the present claim and Action.

[ 8 ] On March 10, 2008 Ms. Bains executed a release in favour of Sun Life (“Release”) which provided a release of any and all claims:

Which I may have now, arising in any way out of Sun Life’s group insurance policy no. 50800 (the “Policy”_ or arising out of the subject matter of a certain action commenced in the Superior Court of Justice at Brampton, Ontario as Action No. CV-07-2855 wherein Davinder Bains is a plaintiff and Sun Life Assurance Company of Canada is a defendant (the “Action”), and I further fully and finally release and forever discharge the Releasees from all future claims, demands, grievances, actions and causes of action for a period of three years, from the date hereof, arising under the Policy or any other Sun Life policy, arising directly or indirectly out of the condition or conditions giving rise to the present claim or Action. (emphasis added).

[ 9 ] Ms. Bains was represented by counsel when she executed the Minutes of Settlement and the Release.

[ 10 ] On August 6, 2009 Ms. Bain made a further claim for LTD disability benefits from Sun Life. Ms. Bains claimed that she had become totally disabled since April 24, 2009.

[ 11 ] Ms. Bains submitted an Employee’s Medical Information and Attending Physician’s Statement as to her medical condition.

[ 12 ] She described her illness as:

High blood Pressure, Allergies and depression. (emphasis added)

[ 13 ] In response to the question “Have you ever had the same or similar illness or injury?”, Ms. Bains responded:

High blood pressure and allergies first time. Depression before also . Two years ago. (emphasis added)

[ 14 ] Ms. Bains’ doctor, Dr. Sandhu, in response to the question “Has the patient ever had a similar or related condition?, Dr. Sandhu responded:

yes ; Depression Dr. K A Sayesh (emphasis added)

[ 15 ] On March 3, 2010 Ms. Bains commenced an action against Sun Life seeking a declaration that she is “totally disabled” and therefore, under the policy, entitled to LTD disability benefits.

[ 16 ] The Plaintiff now seeks summary judgment for a declaration that Ms. Bains is totally disabled under the Policy.

The Summary Judgment Motion

[ 17 ] The proper approach in summary judgment motions was recently canvassed by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 . The Court of Appeal described the “full appreciation” test to be used on Rule 20 summary judgment motions as follows:

[55]Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.

[56] By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman , at para. 11, where the court cited Sharpe J.’s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. , (1996), 1996 7979 (ON SC) , 28 O.R. (3d) 423 (Gen. Div.) , at p. 434, in support of the proposition that“[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried.” This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not “entitled to sit back and rely on the possibility that more favourable facts may develop at trial”: Transamerica , at p. 434.

[ 18 ] Ms. Bains’ counsel submits the summary judgment motion should be granted because:

a) The symptoms, which are the conditions suffered, are different than the symptoms in the prior claim in which Ms. Bains released Sun Life; and

b) The Psychological Assessment at this time is different than the Psychological Assessment done in 2006.

[ 19 ] As a result, Defence counsel submits there is no issue requiring trial.

[ 20 ] Sun Life’s counsel submits the motions should be dismissed because:

a) There is a live issue as to whether the “condition(s)” Ms. Bains presently suffers is the same condition(s) which was the subject of the release. This requires a determination on viva voce evidence from the medical experts rather than the court trying to draw medical conclusions from symptoms and various medical doctor’s statements; and

b) There is an issue as to whether Ms. Bains is “totally disabled” and entitled to LTD disability benefits under the policy.

The Release

[ 21 ] While this court may draw conclusions from evidence before it, where the evidence is clearly within the realm of expert evidence, the court should be extremely cautious before drawing any such conclusions, particularly as here, where the conclusions go the very core of the claim.

[ 22 ] In this case the Plaintiff’s claim has several insurmountable issues for determination on a summary judgment motion. They require a trial for the proper assessment and determination.

[ 23 ] First, there is no doubt there is a similarity between the prior condition suffered by Ms. Bains and for which she released Sun Life for a period of three years. She suffered depression in 2008 and suffered depression in 2009. This present claim is within the 3 year period. The wording of the release was very specific that it also released Sun Life from any claims for the “condition or conditions” giving rise to the action – which against Sun Life included Ms. Bains’ depression.

[ 24 ] Is it the same condition, substantially the same condition or a different condition is an issue. This issue cannot be determined on the written record and certainly cannot be determined with the certainty required for success on a summary judgment motion. This issue, at the core of the case, cannot be fully appreciated, assessed or determined without evidence on:

a) what Ms. Bains condition(s) were in the last action,

b) what condition(s) were released by the March 10, 2008 Release,

c) what are Ms. Bains condition(s) in 2009, and

d) Ms. Bains ability or inability to perform her work or any work.

[ 25 ] Secondly, the Plaintiff includes in its own evidence, the difference in the symptoms in 2008 and 2009. Ms. Bain relies on, amongst other evidence, Dr. Kakar’s report to support her position that the “symptoms” she now suffers are different from the conditions she suffered in 2008. Whether the words “condition or conditions” in the Release are synonymous with “symptom or symptoms” is a live issue. It is not certain that just because the symptoms may be different that it is a different condition. It may be that some of the “different” symptoms nevertheless stem from the same “condition(s)”.

[ 26 ] Thirdly, Dr. Kakar report, while describing the symptoms nevertheless draws a direct connection with Ms. Bains condition in 2008. Dr. Kakar made the following statements:

She has seen a psychiatrist for four to five months. She has had these problems off and on 2-3 times in the last few years.

Mrs. Bains appears to be experiencing severe and progressive depressive symptoms... She is currently suffering from severe major depression psychotic with pseudo dementia.

[ 27 ] Clearly, there is a significant amount of medical evidence which suggests the condition Ms. Bains presently suffers is the same condition she suffered in 2008. There is a significant amount of medical evidence which suggests the symptoms may be different, perhaps in intensity, symptomology and so on. A trial is necessary to determine the importance of this to the Release given.

[ 28 ] I am satisfied, a trial is necessary to fully appreciate the facts and properly and fairly decide the issues in this case.

Eligibility under the Policy

[ 29 ] In light of my decision above, I need not decide this issue. However, let me made a few observations.

[ 30 ] The policy provides that for the two years following disability, the employee must be unable to perform “each and every duty of his/her regular occupation”. After the two year period, the employee must be unable to any occupation “for which she is or becomes reasonable qualified by education, training or experience”.

[ 31 ] There is nothing in the evidence that deals with Ms. Bains inability to work at “any occupation” after the two year period. This would require further evidence from her and the medical experts that Ms. Bains could not, despite her condition, be retrained and become reasonable qualified to perform some other employment.

Damages

[ 32 ] One other significant factor needs mentioning. I agree with Sun Life’s counsel that a calculation of the benefits under the Policy would nevertheless require a trial even if summary judgment motion had been granted. However, this fact alone would not have prevented the summary judgment motion being granted if the above issues could have been determined. It might have limited the issues for trial and hopefully reduced the time and expense of the trial for all.

Conclusion

[ 33 ] The Plaintiffs motion for summary judgment is dismissed.

Costs

[ 34 ] Sun Life will provide written submissions within 3 weeks from the release of this decision. The submissions are limited to 3 written pages plus a bill of costs plus any authorities.

[ 35 ] Responding submissions shall be provided to me within 2 weeks thereafter. The submissions are subject to the same limits on length.

[ 36 ] There shall be no reply submissions without leave.

Ricchetti, J.

Date: April 2, 2012

COURT FILE NO.: CV-10-0847-00
DATE: 20120402

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Davinder Bains, Plaintiff AND: Sun Life Assurance Company of Canada, Defendant BEFORE: Ricchetti, J. COUNSEL: S. Grillone for the Plaintiff D. McDuff for the Defendant ENDORSEMENT Ricchetti J.

DATE: April 2, 2012