ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 61554/09
DATE: 20120120

BETWEEN:

REBECCA MACINTOSH Plaintiff – and – MANULIFE FINANCIAL, THE MANUFACTURERS LIFE INSURANCE COMPANY Defendant

Todd J. McCarthy, for the Plaintiff

Gordon Jermane and Veronica Mohan, for the Defendant

HEARD: December 14-15, 2011

reasons for judgment

boswell j.

Overview:

1As is so often the case, the events that bring these parties to Court are arrestingly tragic. Michael MacIntosh was 20 years old on November 15, 2007. At about 11:30 that night he was driving alone in a 1998 Chevy S10 pickup truck on Highway 404. He entered a tunnel which leads to an onramp to Highway 401. Police accident reconstruction officers estimate his speed was 148 km/hr. The posted safe speed in the tunnel was 40 km/hr. Michael lost control of his vehicle. He struck the interior wall of the tunnel. It is unnecessary to recount the balance of the details of the accident. Michael, the Plaintiff’s older brother, perished instantly.

2At the time of his death, Michael was employed as a drywaller and was a member of The Drywall Acoustic Lathing and Insulation Local 675 Union. As such, he was insured by a group policy of life insurance underwritten by the defendant, Manulife Financial. The group policy provided for basic life insurance of $100,000. An additional $100,000 was payable in the event that death occurred as the result of an accident.

3Michael named the Plaintiff as his beneficiary. Manulife paid her the basic life insurance, but refused to pay the accidental death benefit, asserting that an exclusion clause in the policy applies in the circumstances of this case.

The Exclusion Asserted:

4The exclusion clause in issue provides, in part, as follows:

This policy does not cover any loss, fatal or non-fatal, caused or contributed to by:

6. an accident which occurs while the insured individual is operating a motor vehicle or any other form of motorized transportation and the blood contains more than 80 milligrams of alcohol in 100 millilitres of blood (.08%).

(I will refer to this as the “Over 80 Exclusion”)

5A post-mortem examination was conducted by the Coroner’s office and blood and urine samples were forwarded to the Centre of Forensic Sciences (“CFS”) for testing purposes. A toxicology report was prepared by the CFS dated March 11, 2008. It indicated that Michael had a concentration of alcohol in a femoral blood sample of 211 milligrams of alcohol per 100 millilitres of blood and a concentration of alcohol in a urine sample of 265 milligrams of alcohol per 100 millilitres of urine.

The Issues:

6The trial addressed the following issues:

(i) The burden of proof. More specifically, accepting that Manulife has the burden to prove the exclusion applies, what degree of proof is required?

(ii) The matter of blood alcohol content. In particular, has Manulife satisfied its burden to prove that Michael’s blood alcohol content was in excess of 80 milligrams per 100 millilitres of blood at the time of the accident that claimed his life?

(iii) Causation. Has Manulife satisfied its burden to prove that Michael’s death was caused or contributed to by an accident that occurred while he was operating a motor vehicle and while his blood alcohol content was more than 80 milligrams of alcohol in 100 millilitres of blood?

7I will review each of the issues in turn. I pause to note that there were two issues raised in the pleadings that were resolved during the course of the trial. The Plaintiff sought punitive damages, in addition to the $100,000 accidental death benefit. She abandoned that claim at the close of her case. In return, the Defendant agreed to abandon its assertion that more than one exclusion applies and restrict its argument to the Over 80 Exclusion.

Analysis:

(i) The Burden of Proof

8As a general proposition, the initial burden of proof in this case rests with the Plaintiff. She must establish that there was a loss covered by the insurance policy in question. There is no dispute in this case that she has done so. Accordingly, the burden shifts to the Defendant to establish otherwise - that the loss is not covered by the policy - in this case because of the operation of a contractual exclusion: Lombard Canada Ltd. v. Zurich Insurance Co. 2010 ONCA 292 at para. 34.

9In his opening statement, the Plaintiff’s counsel submitted that the Over 80 Exclusion implies that Michael was committing a crime at the time of the accident that claimed his life. It was asserted that, where criminal conduct is alleged, the degree of proof required to establish that a crime was committed is something higher than proof on a mere balance of probabilities. In closing argument, counsel submitted that the Court is justified in cases where criminal acts are alleged, in scrutinizing the evidence more carefully. He argued that, ultimately, it is a question of what evidence, with what weight, will move the court to conclude that a balance of probability has been established.

10In my view, the Plaintiff’s argument inferentially suggests that something of a sliding scale exists within the standard of proof “on a balance of probabilities”. In other words that the degree of proof is indeed somewhat higher depending on the gravity of the subject matter of the lawsuit.

11By way of authority, the Plaintiff relies on the decisions of the Supreme Court in Hanes v. Wawanesa Mutual Insurance Co., 1963 SCC 1, [1963] S.C.R. 154 and Continental Insurance Co. v. Dalton Cartage Co., 1982 SCC 13, [1982] 1 S.C.R. 164. Each of those cases is consistent in confirming that there is only one standard of proof for civil cases – namely the balance of probabilities. The Plaintiff’s counsel builds his argument, however, on the following comment of Laskin C.J.C., at para. 12 of the decision in Continental Insurance:

There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial Judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered.

12More recently, in F. H. v. McDougall, 2008 SCC 53, the Supreme Court took the opportunity to revisit the issue of the degree of proof required in civil cases and to comment upon the decision in Hanes and those that followed. The Court confirmed that “ in civil cases there is only one standard of proof and that is proof on a balance of probabilities”: para. 49. There is no intermediate standard of proof between balance of probabilities and the higher standard of proof beyond a reasonable doubt applicable in criminal cases. The Court disagreed with the assertion that a greater degree of scrutiny must be applied by a trial judge to evidence in more serious cases. Justice Rothstein remarked, at para. 45:

To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

13I conclude that it is the Defendant’s burden to prove that an exclusionary provision applies in the circumstances of this case. The standard of proof required is on a balance of probabilities. As in any other civil case, the Court must scrutinize the relevant evidence with care to determine whether it is more likely than not that the Defendant’s case has been made out.

(ii) Blood Alcohol Content

14Central to the outcome of this case is the Court’s factual finding in terms of Michael’s blood alcohol content (“BAC”) at the time of the accident. Two witnesses provided evidence to the court on the issue. The Defendant relies on the evidence of Teri Martin, a forensic toxicologist from the CFS. Toxicology tests were performed by technicians at the CFS, under her direction, on Michael’s blood and urine, in an effort to determine his BAC at the time of his death. It is generally accepted that he died upon impact and it follows, therefore, that his body would not have eliminated any alcohol following the accident.

15Teri Martin was qualified as an expert in forensic toxicology. She gave evidence about the tests performed on the relevant samples, though she did not perform the tests herself. It is conceded by the Plaintiff that the test done on the femoral blood sample found a concentration of 211 milligrams of alcohol in 100 millilitres of blood. It is further conceded that the urine sample yielded a concentration of alcohol of 265 milligrams per 100 millilitres.

16The Plaintiff takes issue with the reliability of the results of the tests performed by the CFS. The Plaintiff produced an expert forensic toxicologist, Dr. Michael Corbett. Dr. Corbett reviewed and critiqued the test results of the CFS, though he conducted no tests of his own. He authored a report dated January 24, 2011. He concluded, in part, as follows:

The original ethanol measurement provides some evidence that the blood alcohol concentration of Michael MacIntosh was in excess of the s. 253(b) CC concentration at the time of the incident, however the lack of further measurements for ethanol (and other volatiles) in the three post-mortem exhibits collected from him [1] seriously undermines an objective confidence in the reliability of those results in this case that involves sample putrefaction (decomposition).

17Dr. Corbett amplified on his findings in his testimony at trial. He testified that his concerns about the reliability of the CFS tests were based on factors that included:

(i) The testing and reporting in this instance were not done in accordance with the standards that would be applied in a criminal case. Instead, this file was opened as a Coroner’s case. If this had been treated as a criminal case, Teri Martin would have taken the samples herself, made notes about the samples and been focussed on continuity of the sample. He did not have any concerns about continuity, but as to reliability, he said that it would be increased if this had been treated as a criminal case because the actual forensic toxicologist would have done the testing herself;

(ii) There is an absence of information concerning Michael’s activities or whereabouts in the relevant period prior to the accident, particularly in relation to any alcohol consumption. In other words, there was nothing to work with to get the “big picture”, which he said is important to the analysis of the samples. Corroborating evidence of alcohol consumption would assist in correlating the sample results to the other evidence. In the absence of such information, more emphasis is placed on the analytical results in isolation;

(iii) The urine sample test results indicate the presence of n-propanol in the sample, which suggests that putrefaction (i.e. decomposition) was occurring. The sample was brown in colour, which is also consistent, though not exclusively so, with putrefaction. As part of putrefaction, the formation of alcohol may be occurring, which would result in a higher concentration at the time of testing as compared to the time of death; and,

(iv) One way to check on the impact of putrefaction is to do a subsequent analysis of the samples to determine if higher concentrations of alcohol are measured over time. Second analyses enhance the reliability, not only of the numerical measurement, but of the whole process. Second analyses were not done in this case, notwithstanding Dr. Corbett’s request that additional testing on both the urine and blood samples be conducted and notwithstanding the absence of other evidence confirming the consumption of alcohol in the period prior to the accident.

18Significantly, Dr. Corbett made a number of concessions, which included the following:

(i) As a matter of routine practice, it would not be necessary to repeat the testing of samples for blood alcohol content. Even in a criminal investigation, a second analysis would not normally be done unless a special request was made for it; and,

(ii) He agreed that there were no signs of putrefaction in the femoral blood sample.

19Teri Martin described the process used by the CFS to test for the concentration of alcohol in a sample of blood or urine. She said a standard procedure is followed in every case. A sample of blood or urine is placed in a vial and heated. The heating process causes alcohol molecules to move into the head space in the vial above the sample. A gas chromatograph is used to measure how much alcohol moves into the head space.

20The CFS employs certain quality assurance measures. First, they run quality control samples as part of their analysis. Specifically, non-biological solutions that contain known amounts of alcohol are tested to ensure the testing equipment is operating properly and that their results are valid. Second, each analysis is performed twice. The duplicate analyses serve to corroborate the results.

21As I have indicated, the analysis conducted by the CFS detected ethanol in both the blood and urine samples delivered to it. Ethanol is commonly referred to as alcohol. The concentration of ethanol in the urine sample was higher than that detected in the femoral blood sample. Ms. Martin testified that it is expected that a different concentration of alcohol will be found in a blood sample as compared to a urine sample. The simple explanation she offered was that alcohol moves through a system according to its water content. Urine has a higher water content than water, so alcohol moves more freely in it. It is not unexpected, therefore, that a higher concentration of alcohol would be detected in a sample of urine as compared to a sample of blood from the same individual.

22In addition, the presence of n-propanol was detected in the analysis of the urine sample. N-propanol is another type of alcohol, associated with the process of putrefaction. Its presence suggests that the sample is decomposing and, in the result, a higher alcohol content is detected. Its presence calls into question the reliability of the urine analysis as evidence of Michael’s BAC at the time of the accident.

23By contrast, the analysis of the femoral blood sample did not detect the presence of n-propanol. Ms. Martin testified that the absence of n-propanol is suggestive that putrefactive alcohol was not formed in that sample.

24I am satisfied that, in the absence of n-propanol, the alcohol detected in the femoral blood sample was not the result of putrefaction. The question remains, however, whether the femoral blood analysis is sufficiently reliable that I might conclude that, at the time of the accident, Michael’s BAC was 211 mg/100 ml, notwithstanding that a follow up analysis was not completed, as requested by Dr. Corbett. In my view, it is.

25I accept Dr. Corbett’s opinion that a subsequent analysis would enhance reliability, but that is not the equivalent of saying that the results are unreliable because further analysis was not completed. In other words I do not accept that the failure to repeat the analysis “seriously undermines an objective confidence in the results”, as Dr. Corbett put it.

26No issue was raised in terms of the reliability of the testing equipment. Gas chromatograph analysis is a standard, accepted method of detecting alcohol in a sample. There is no question as to the expertise of the CFS to conduct the testing. They are not a stakeholder in these proceedings in any way. Their standard protocol utilizes a test to ensure that their equipment is functioning properly. They duplicate their test results.

27I appreciate that Dr. Corbett was earnest in his efforts to have the CFS conduct further testing, or alternatively, to find another party to conduct further tests. He appears to have been denied that opportunity for policy reasons. While it may be unfortunate that further testing was not done, I remain satisfied, for the reasons I have stated, with the reliability of the analysis of the femoral blood sample.

28In the result, I find that Michael’s BAC at the time of the accident on November 15, 2007, was 211 milligrams of alcohol per 100 millilitres of blood.

(iii) Causation

29The Plaintiff argues that it is not enough for the Defendant to satisfy the Court that Michael’s BAC exceeded 80 mg/100 ml. It remains necessary, she submits, for the Defendant to establish a causal link between that BAC and the accident. Her counsel submits that the causal link has not been proven. The accident reconstruction report refers to speed and a failure to use the available seatbelt assembly, as causes of the accident and the fatal injuries resulting from it. It does not point to alcohol being a contributing factor.

30In my view, a careful reading of the Over 80 Exclusion clause reveals that the Defendant does not need to establish that the consumption of alcohol caused or contributed to the accident.

31A well-established principle relating to the interpretation of insurance contracts is that coverage provisions should be interpreted broadly and exclusionary provisions narrowly: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 70. But even reading the Over 80 Exclusion narrowly, I am unable to conclude that a causal connection is required between alcohol consumption and the accident.

32The Over 80 Exclusion provides only that the loss be caused by an accident that occurred while the insured’s BAC was over 80 mg/100 ml. There is no question that the loss in this case was caused by an accident. I have found that at the time of the accident Michael’s BAC was 211 mg/100 ml. I find, in the result, that the terms of the Over 80 Exclusion have been met.

33Having said that, even if I read the Over 80 Exclusion as narrowly as the Plaintiff urges me to, I would find that the concentration of alcohol in Michael’s blood was a contributing factor in the accident that caused his death. Two principal factors lead me to that conclusion. First, Dr. Corbett testified that one would expect a person with a BAC of .211 to have impairment of psychomotor skills involved in driving, such as eye movement, visual processes and reflexes. Second, Michael was driving at a speed of 148 km/hr in a tunnel where the posted safe speed was 40 km/hr. These two factors, individually and cumulatively, more than adequately support a common sense inference that the concentration of alcohol in Michael’s blood contributed to the accident.

Conclusion:

34In the result, I am compelled, on the evidentiary record, to dismiss the Plaintiff’s claim. If costs are in issue, the parties may address them by way of written submissions. The Defendant’s submissions are to be delivered by February 3, 2012. The Plaintiff’s by February 17, 2012. Submissions are not to exceed three pages in length, not included any costs outlines, and may be filed through the judicial secretaries’ office in Newmarket.

Boswell J.

Footnotes

1. 1Dr. Corbett references three samples. In addition to a femoral blood sample and a urine sample, the CFS was also sent a sample of blood from Mr. MacIntosh’s heart. The CFS did not analyze the heart blood for alcohol. There is a consensus in the evidence of both Dr. Corbett and Teri Martin that femoral blood samples are preferred for post-mortem testing because they are less affected by changes that occur after the time of death. This is particularly so where there has been some trauma to the heart. In this instance the aorta was transected, which heightens the risk of contamination.