COURT FILE NO.: 07-32623
DATE: 2012-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rosa Sorbara
Mr. N. E. Sacks and Ms. M. Miller, Counsel for the Plaintiff
Plaintiff
- and -
Desjardins Financial Security
Mr. E. J. Schjerning, Counsel for the Defendant
Defendant
HEARD: October 9, 10, 11, 12, 16, 18, 22, 23 and 24, 2012 (some part days)
REASONS FOR JUDGMENT
Crane, J.
[1] The plaintiff brings this action as an employee under a contract evidenced by a policy of group life and disability insurance made between the defendant Desjardins as the insurer and the Chamber Insurance Corporation of Canada (Ontario) as policy holder on behalf of covered firms who elected to participate in the plans.
[2] The plaintiff became an insured under the group policy on the purchase of coverage by the plaintiff’s employer, commencing 1 April 2002. She became a beneficiary under the long term disability provisions of the insurance commencing after the 4 months elimination period, following her motor vehicle accident of 16 January 2003. She received monthly benefits, continuing until 22 October 2004. At this latter date the defendant terminated benefits upon its determination that the plaintiff no longer was fully disabled as defined within the subject policy of insurance upon her employer’s return of her to her full time employment and salary.
[3] The plaintiff brings this action for a declaration of entitlement to the long term disability benefit and indemnity for unpaid monthly benefits of $2,750 (non-taxable) to the date of trial. The plaintiff also claims aggravated and punitive damages.
[4] The decision in this case is facts specific to the contract of insurance. This action was ordered to be tried in conjunction with an action for personal injuries and economic loss in consequence of a motor vehicle accident of 16 May 2003. There was considerable overlap of the medical and healthcare information between the two actions. Indeed, the plaintiff brought a third action against her motor vehicle accident insurer, Wawanesa Insurance Company. These latter two actions were settled before the commencement of trial in this action, the personal injury action on the eve of the commencement of trial herein.
The Pre-Accident Employment
[5] The plaintiff, Rosa Sorbara, was born in 1962. She was married in 1986 and has two daughters, aged 19 and 22.
[6] The plaintiff’s parents, following their immigration to Canada in approximately 1967, operated what the plaintiff described as an Italian grocery store. The plaintiff worked at that store for approximately six years while a girl living at home. Business changes occurred, she states in her evidence, as the small stores were pushed out of business by chain grocery stores. Her father then converted to a meat store. This was successful, but too much so, and it was subsequently sold. At this time the plaintiff then attended night classes at Mohawk College in Hamilton, studying bookkeeping and accounting and perhaps other business related courses. In April of 1988 the plaintiff was hired by Executive Office Services (EOS) as a bookkeeper on a full-time basis, five days per week from 8:30 a.m. to 5:00 p.m. The plaintiff states that following the birth of her first child she took time off and then returned on a contract basis, working part-time of approximately half days for EOS. In or about 1993, the plaintiff’s husband Jerry Sorbara was disabled with an anxiety syndrome and as a consequence commenced a home office business of buying and selling automobile parts.
[7] In or about 1995 the plaintiff changed her employment status with the EOS to four days per week, 8:30 a.m. to 5:00 p.m. plus, she states, considerable overtime. On Mondays of each week the plaintiff assisted her husband in his business, essentially providing his bookkeeping services. The plaintiff states that some years prior to the subject motor vehicle accident of 2003 she assumed the ‘de facto’ role of office manager of EOS and was subsequently appointed office manager. She worked from the EOS office in Burlington with some work from her home.
The Claim
[8] The plaintiff was injured in a motor vehicle accident on 16 January 2003. The application of the plaintiff for long term disability benefits under the policy was made on 4 January 2004. The contractual elimination period was 4 months from the motor vehicle accident of 16 January 2003. On satisfying the insured of her eligibility, benefits commenced effective 16 May 2003.
[9] In April of 2004 the plaintiff’s claim file at the defendant was referred to its rehabilitation and vocational department for services. An assessment was made by the defendant’s work rehabilitation case manager, Ms. Stephanie Rummel, who in turn, after assessment, retained Ms. Pat Black of Workplace Health Solutions, a private work related rehabilitation company, (exhibit 31).
[10] The evidence is that Ms. Black consulted with the plaintiff, her employer Dr. Taylor, and her family physician Dr. Leda Lagrotteria. Exhibit 1 is a memorandum dated 30 August 2004, which is styled Rosa Sorbara: “Ease Back Return to Work Plan.” This program commenced with home office work for the plaintiff and then gradually increasing hours at the employee’s workplace at EOS in Burlington. It is the evidence of Ms. Leese, Ms. Rummel’s replacement, that Ms. Black made four reports to Ms. Rummel; that these reports are missing from the defendant’s file and are not available, nor is Ms. Rummel, who is retired.
[11] The exhibit 1 memorandum sets out the contemplated last four phases of the plan, five through eight, culminating on 22 October in an expected return to work full-time (32 hours per week) and to full responsibilities as of Monday, 25 October 2004.
[12] On 28 October 2004, Mr. Byron Hestick of the defendant’s disability claims department wrote a letter to the plaintiff under reference to the subject insurance policy. This letter (exhibit 32) is important to the assessment of this action and is accordingly set out in full.
“We have completed a review of your claim for disability benefits. We paid disability benefits from May 16, 2003 to July 4, 2004.
You returned to work on a graduated return to work basis. You increased your hours and days worked. You were scheduled to return to work full-time October 25, 2004.
We received a note dated October 21, 2004 from Dr. L. La Grotteria indicating to you continue to work 6 hours per day and you will be reassessed in 3 weeks.
Your doctor’s note does not tell what restrictions and limitations are preventing you from returning to work full-time as a Property Manager.
We have decided to terminate you (sic) rehabilitation/part-time benefits as of October 24, 2004. Please send your payroll information from October 9 to 24, 2004 so we can issue final payments.
If you disagree with our decision, you may appeal. This appeal must be written and support (sic) by a medical report with the following information.
• Current diagnosis.
• Current treatment programme and your response to it.
• What restrictions and limitations are preventing you from working full-time as a Property Manager.
• Copies of any current consultation reports, tests/investigation.
• Any other pertinent information that will support your appeal.”
This letter also contains the address, telephone and fax numbers and the email address of the defendant.
[13] The next information in the defendant’s file pursuant to its’ affidavit of production and the evidence at trial of Mr. Shamil Batsh, the present disability claim’s officer, is a letter, now exhibit 33, from Mr. Barrafato on behalf of the plaintiff addressed to the defendant, Attention Mr. Hestick, dated July 7, 2006, and which is stamped received by the defendant July 18, 2006. This letters reads as follows:
“Please find enclosed herewith a Disability Certificate (OCF-3) dated June 1, 2006 regarding Rosa Sorbara for your review.”
[14] The letter does enclose a Disability Certificate prepared and signed by the plaintiff’s family physician, Dr. Lagrotteria bearing date 1 June 2006. Following the letter of July 7, 2006, exhibit 33, the defendant through Mr. Hestick requested other forms to complete the application. An exchange of letters followed between the plaintiff’s lawyers and Mr. Hestick, with Mr. Hestick seeking to clarify the presenting situation. Further medical information was provided by letter of September 12, 2006. Following which the defendant wrote to the plaintiff’s solicitor Mr. Barrafato on 26 September 2006, as follows: (exhibit 35)
“We received your letter dated September 12, 2006 with enclosures.
Please refer to our letters dated July 28 and September 13, 2006. Ms. Sorbara returned to work on October 24, 2004. If you are submitting a claim on her behalf, this claim cannot be considered as a recurrent disability as it is more than six months since she returned to work.
You have to submit a new claim which requires the completion of an Employer’s and Employee’s Statements and Disability Questionnaire we sent to you on July 28, 2006.”
[15] The completed forms were sent by Mr. Barrafato to the defendant by facsimile dated January 26, 2007, signed by the plaintiff on that date, (exhibit 37). This was followed by exhibit 38, a letter of Mr. Hestick to Mr. Barrafato requesting a statement as to the last day Ms. Sorbara worked and the number of hours worked on that date, together with the completion of an enclosed Attending Physician’s Statement. The Attending Physician’s Statement was completed by Dr. Lagrotteria on 27 February 2007 and sent by facsimile from Mr. Barrafato’s office to the defendant on 6 April 2007, exhibit 39. The position taken by the defendant was that the Attending Physician’s Statement was incomplete. There was no commencement date for an application for benefits. I am concerned that there is in the certificate an ambiguity. At page 3 of 5 of the form, Dr. Lagroteria answered ‘no’ to the question is the applicant substantially unable to perform the essential tasks of the employment. When this answer was put to her specifically at trial, she did not resile or state it was an error. This evidence is clearly at variance to the opinion expressed at trial.
[16] On the insistence by Mr. Hestick by subsequent correspondence for a response to his request that he required the date of the last day worked to make an assessment of the plaintiff’s claim, Mr. Barrafato ultimately responded with a statement of claim commencing this action, issued 20 July 2007.
[17] It would appear that the difficulty in communication was that the defendant’s claim department required a date that Ms. Sorbara last worked in order to establish a commencement date for Recurrent Total Disability, page 64 of the policy (exhibit 13). While the plaintiff and her solicitor did not have a date of last work, as the plaintiff had worked continuously from 25 October 2004. This, then, joins the issue between the parties, namely whether the plaintiff has proven that she met the qualifications for Long Term Disability (LTD) benefits of the contract of insurance.
Analysis of the Claim
[18] On the issue of onus, counsel for the defendant submits the statement of this Court in Walls v. Constellation Assurance Co. (1986), CarswellOnt. 725 at paragraph 58:
“It is my view that when an insured person claims under a policy of insurance in an action, the onus is upon him to establish by a preponderance of evidence the facts which would entitle him to enforce the policy.”
[19] The parties have joined issue in this action on the question of whether or not the plaintiff meets the contractual requirements of a total disability. This requirement is defined under the Employee Long Term Disability Benefit at page 60 of the Contract of Insurance, exhibit 13. The definition reads as follows:
“Total Disability or Totally Disabled means
a) during the Elimination Period, and the ensuing 24 months, the inability of an Employee, as a result of sickness or injury, to perform substantially the whole of the duties of his regular occupation and
b) thereafter, the inability of an Employee, as a result of sickness or injury, to engage in any gainful occupation for which he is qualified or may reasonably become qualified by reason of his training, education or experience.”
It is to be noted that the date the definition changed from a) to b) for the plaintiff
is May 16, 2005.
[20] The plaintiff has called at trial five medical experts and filed the reports of two more, exhibits 26 and 28. The majority of this opinion was formed following examinations of the plaintiff in the period of 2010 through June of 2012. With the exception of some involvement of Dr. Rathbone of an initial assessment in April of 2004 and the referral of Mrs. Sorbara for SPECT scans in 2004 and the follow-up scan in August of 2005, the only ongoing medical clinician has been Dr. Leda Lagrotteria, Mrs. Sorbara’s family doctor.
[21] Counsel for the defendant does not contest the plaintiff’s total disability as of February 2011 when Canada Pension Plan (C.P.P.) disability benefits were awarded. The defendant seeks proof from the defendant as to the date she could be considered totally disabled and whether she had coverage under the Policy as at that date.
[22] The source of the plaintiff’s LTD claim initiated with injuries to the plaintiff in a motor vehicle accident that occurred on 16 January 2003. Mrs. Sorbara was absent from her employment and established entitlement to the satisfaction of the insurer under the subject Policy and monthly benefits were paid to her in the sum provided in that Policy.
[23] The evidence of Mrs. Sorbara at trial was that she never achieved more than approximately 1 ½ to 2 hours of real work concentration in a day during the course of the 16 week back to work rehabilitation program in 2004. This evidence is supported by Mrs. Sorbara’s husband, and coworkers and friends of the plaintiff. On the other hand, it was the information provided to the defendant by their consultant Pat Black that Mrs. Sorbara was able to resume her full employment as of Monday 28 October 2004. I conclude on consideration of all of the evidence that Mrs. Sorbara’s self deprecating rating of performance is the product of her subjective perfectionism.
[24] Dr. Lagrotteria in the course of her evidence produced two pages of her clinical notes (exhibit 20) recording her communication and visits with her patient Mrs. Sorbara; namely, 18 May 2004 and the next assessment and communication on 21 October 2004, which is recorded just prior to completion of the scheduled back to work plan.
[25] Dr. Lagrotteria has produced two contemporary documents in evidence, namely the clinical note of 21 October 2004 in which it is written “[patient] doing well back to work.” Then, on the next line a 6 and a 4 are written one over the other “hours per day” and on the third line “some days work @ home.” There is then at the same entry date, notes of 4 hours about to be increased to 5 hours as the schedule in the plan for that date was 6 hours about to be increased to 8 hours, (exhibit 20). The second document is a note that Dr. Lagrotteria gave Mrs. Sorbara in the course of the 21 October 2004 visit, a copy of which, from the defendant’s file, has been made exhibit 3. This note says:
“Rosa Sorbara, Date October 21, 2004:
Strongly recommend to maintain work hrs @ 6 hrs / day reassess in 3 wks.”
The note is signed by Dr. Lagrotteria. Dr. Lagrotteria’s evidence was that there was no objection made by Mrs. Sorbara to the note. The plaintiff’s evidence is that it was forwarded by Jerry Sorbara, her husband, on her behalf to Stephanie Rummel of the defendant with a copy to the plaintiff’s lawyer, Paul Barrafato. Dr. Lagrotteria’s evidence at trial was that back in 2004 she meant to write 4 hours, not 6.
[26] I have come to the view after assessment of all of the evidence in this case, that it is the actions of Dr. William Taylor that are determinative, indeed, dispositive. Dr. Taylor indicated in his evidence that he practiced medicine with a specialty in surgery in the period 1960 to 1989, at which latter time he retired as a surgeon. Since that time he has practiced as a general practitioner and psychotherapist continuing to date. He stated that from the 1980s until 2008 he was the owner (with his family) and the operator of three commercial buildings in the City of Burlington. One of those buildings provided leased premises to small businesses together with general secretarial and office administrative services purchased by the tenants as respectively needed. This service and business was called Executive Office Services, generally referred to in these proceedings as EOS. In addition, Dr. Taylor owned a condominium corporation and retained EOS to do its books. In addition, Dr. Taylor’s corporation Dalindou Limited owned approximately 40 condominium units.
[27] Dr. Taylor affirmed the evidence of all witnesses, that prior to the motor vehicle accident, Mrs. Sorbara was (as has been variously described) a star employee with a very strong work ethic and sense of high achievement. Mrs. Sorbara, prior to the accident, sought out and obtained persons with small businesses, she negotiated leases with them and drafted those leases. She had signing authority for EOS and she with others kept the books and records of EOS, and for the condominium tenants. She had totally won the trust of Dr. Taylor; he stated he relied upon her.
[28] Dr. Taylor was consulted by the rehabilitation consultant Pat Black. He expressed his concerns for Mrs. Sorbara as to psychological issues, pain and memory difficulty. The defendant had a chair purchased for Mrs. Sorbara during the return to work plan and Dr. Taylor put a couch in a spare office for her. Dr. Taylor noted that Mrs. Sorbara increased her hours during the plan. He stated that Mrs. Sorbara never got up to her original abilities. She could generally do the work, but was no longer what she had been. Before the termination of LTD in October, 2004, Dr. Taylor stated that Mrs. Sorbara got to 4-5 hours in the office with some hours from home, but not on all days.
[29] Plaintiff’s tax return for the taxation year 2002 indicates T4 earnings of $59,498, (exhibit 2). In the year of the motor vehicle accident of 2003, there is no return filed in evidence. In the taxation year 2004, the T4 assessment of employment earnings is $17,210. In the taxation year of 2005, the T4 employment income was $62,246. In the taxation year 2006, the T4 employment income was in the sum of $46,229.
[30] It is the evidence of Dr. Taylor that at the termination of the LTD benefits from the defendant in October 2004, the plaintiff was put on a full employment income and remained at that income until EOS was sold, closing on 1 April 2006. Dr. Taylor never made a claim for indemnity under the policy, nor did he state that the monies paid to Mrs. Sorbara were other than employment earnings. He did describe himself as a compassionate employer.
[31] Dr. Taylor states that the EOS computers, files and business undertaking were moved to an office established by Mrs. Sorbara for EOS at her home. Thereafter Mrs. Sorbara was employed by Dr. Taylor on a contractual basis. The arrangement was through a billing by invoices sent by Jerry Sorbara’s corporation at an hourly rate for management fees of $35 per hour, plus office rental at $200 per month, plus G.S.T. This employment continued until 2008 when Dr. Taylor sold his remaining condominiums and moved his business office to Toronto where he resides.
[32] Significantly Dr. Taylor, when asked to rate Mrs. Sorbara in terms of the quality of her performance in a range from the best to the worst, settled on the suggestion of counsel of “so-so employee”. It is his evidence that Mrs. Sorbara was a so-so employee from her return to work in 2004 until the termination of their relationship in 2008.
Expert Evidence
[33] A further piece of the circumstance of this case opens for determination the resolution of conflicts in the expert opinion evidence as there is some divergence, principally between the opinion of Dr. Rathbone, neurologist, and that of the psychiatrists and neuro-psychologists. The relevance, I suspect, goes to the timing of potential claims under the terms of the contract.
[34] Of all of the experts at trial, I found Dr. Velikonja impressive as to her qualifications, presentment and the content of her evidence. Her Curriculum Vitae is exhibit #23.
[35] Dr. Velikonja first saw Mrs. Sorbara in June of 2010 for examination and assessment. She was provided with reports of prior treatments, observations through the clinical notes of her family doctor, the physiotherapy and the reports of Dr. Rathbone and of Dr. Tuff. Dr. Velikonja did cognitive functioning testing and had the raw test data from prior neuro-psychological scores. She stated that she had the motor vehicle anxiety rehabilitation notes, the notes of Dr. Ghouse and of Dr. Koch, a chiropractor. She took a history from Mrs. Sorbara, being that her motor vehicle was hit at the rear, with injury to her left shoulder, of loss of consciousness, dazed, confusion and shaken. These she says are symptoms of concussion. Dr. Velikonja diagnosed a concussion from the trauma of the motor vehicle accident.
[36] Mrs. Sorbara gave a history of being overwhelmed, difficulty with a sequence of processes, memory, feeling of confusion with time pressures, vocabulary issues, difficulties in multi-tasking and mood fluctuations and emotional frustrations. Dr. Velikonja tested the plaintiff with time and task demands and measured mental stamina over six to eight hour periods. Dr. Velikonja reported scores under two headings. Firstly, under General Cognitive Function she observed that Mrs. Sorbara has retained her acquired skills and knowledge. Secondly, under Performance she found that Mrs. Sorbara when put in time and pressure situations, did have good capacity and speed, but that she couldn’t sustain due to a loss of mental stamina and attention. Dr. Velikonja found that memory issues were related to the loss of attention, that there were memory gaps as she couldn’t stay focused. On measuring Cognitive issues, acquired skills, flexibility and creativity in problem solving, it was concluded that Mrs. Sorbara retained her basic skills, but lacked stamina, that she would start with good performance and then slip.
[37] On the Personality and Emotional function examinations, the plaintiff was found to have difficulty coping with her physical pain; that she was not able to manage her pain symptoms due to her emotional responses.
[38] Dr. Velikonja made a DSM-IV diagnosis of pain disorder. Dr. Velikonja opined that Mrs. Sorbara had occupational disability from the motor vehicle accident that probably increased over time. She stated that chronic pain that lasts 18 months post-injury leads to poor long term prognosis. Dr. Velikonja expressed her opinion that it was the wrong process to commence the plaintiff’s occupational rehabilitation with a program of returning to her own work. At least looking at it in hindsight, it would seem that Dr. Velikonja concluded that the appropriate approach would have been to start Mrs. Sorbara in a volunteer job, one that did not have the pressures of performance or time; and that the return to work that was undertaken had a built in likelihood to fail due to Mrs. Sorbara’s perfectionist nature and high competence standard.
[39] On the brain injury inquiry, Dr. Velikonja found that there was a high variability in performance by Mrs. Sorbara and concluded that this was due to pain and emotional distress, and not consistent to brain injury as such.
[40] Dr. Rathbone has opined on an acquired brain injury. I do not find this to be the cause of the plaintiff’s employment functional limitations as it is contrary to the neuro-psychological testing, particularly that the plaintiff does well on the tests initially, then her performance falls off as she experiences pain.
[41] Dr. Velikonja was given a hypothetical situation of the plaintiff working for 17 months as a property manager, putting in on most days four to five hours plus work at home on the computer, and further that her employer, Dr. Taylor, categorized her in the 2004-2008 post-accident employment period as a so-so employee doing an okay job. Dr. Velikonja responded that that situation was not consistent with the data as she found it (in June 2010). She opined that the occupation of property management had too much variability for Mrs. Sorbara to be an adequate employee. It is noted that Mrs. Sorbara was qualified for CPP Disability in 2011. This brings the analysis to the contract upon which the plaintiff brings this action.
Insurance Policy
[42] The definition of LTD under the insurance policy is cited in paragraph 18 of these reasons. In my view the plaintiff’s case was presented somewhat at variance to the cause of action. The insurable interest in the contract is that through the inability to do one’s job, the employee loses her job and her salary. The indemnity is for an economic loss. Put another way, the indemnity is not for pain, for memory lapse, for trouble sleeping, for loss of self esteem. It is not health insurance. I infer that these losses suffered by Mrs. Sorbara are compensated in the settlement of her motor vehicle accident action. Similarly, for the second definition of LTD of the inability to perform any employment suitable to the insured. The benefit provided in the contract is to compensate for the inability to earn income through employment that meets definition b). For an example, see Keddy v. Blue Cross Life Insurance Co. of Canada, 2012 NSCA 103; affm. 2012 NSSC 1; Wilson v. Great West Life Assurance Co., 2008 Carswell NB 402 (NBCA).
[43] The contract does not indemnify for a loss of Mrs. Sorbara’s star status and the loss of her consequent job satisfaction. Rather the contract is for the loss of the pre-morbid job and the resultant loss of employment income. There’s no evidence at this trial of how much time during employment a level of high concentration is required. Such a consideration seems irrelevant should the employee maintain her employment. One might speculate that some jobs only require physical presence from the employee; others high concentration. One may reasonably imply many gradients. Here, the employer determined that the plaintiff returned to her former employment with enough attributes to meet his needs. He valued, for example, as he stated, Mrs. Sorbara’s knowledge and understanding of the needs of his tenants, perhaps one would think a core attribute for a commercial landlord.
Conclusion, Part 1
[44] I conclude that Mrs. Sorbara has not met the definition of entitlement to benefits under definition a). Mrs. Sorbara’s employer maintained her job position and her rate of pay. I conclude that Dr. Taylor, though acknowledging diminution of performance and ability in Mrs. Sorbara, was sufficiently satisfied to maintain her in her regular employment through to, and past, the LTD coverage period.
[45] I find that the plaintiff has failed to meet the definition in the first 24 months and has no claim in this action for benefits or, as requested, a declaration of entitlement.
Conclusion Part 2
[46] The 24 month period under definition a) of LTD expired on 16 May 2005. At that time Mrs. Sorbara was engaged in her usual occupation as noted and continued in that employment until the business of EOS was sold in 2006. Accordingly, I do find that the plaintiff has failed to meet the definition of LTD under condition b) as of 16 May 2005, given that her regular employment would certainly meet the lesser definition of an inability “...to engage in any gainful occupation for which [s]he is qualified or may reasonably become qualified...”
[47] The evidence is that prior to the actual closing of the sale of EOS as of 1 April 2006, Dr. Taylor and the plaintiff entered into a new employment contract under which Dr. Taylor moved his computers, files and business undertaking to the plaintiff’s home and established his office alongside the office of Mr. Sorbara. The evidence is that this employment proceeded continued until such time that Dr. Taylor, as he stated, went into at least semi-retirement at age 75, moving his business interests to Toronto where he resides. The nature of the work and the employment income met the definition of any gainful occupation of LTD b). The plaintiff did not have the daily commute, she was available daily to her husband and his business and she had less job duties, with 2006 T4 earnings of 75 percent of her prior employment.
[48] Upon the evidence at trial, I conclude there is a strong case that Mrs. Sorbara would at a time subsequent to the loss of this second employment in 2008 be able to satisfy the LTD definition b) upon the medical evidence introduced at trial. However, there is another contractual issue. Mrs. Sorbara had not sought nor held any employment other than assisting her husband since 2008. On my view of the evidence, her functional abilities have diminished.
Termination of the Insurance
[49] The subject group policy of insurance was purchased in 2002 by Dr. Taylor for employees of EOS. Mrs. Sorbara was appointed the representative with the insurer and the administrator of the policy for the employee group. She was also, as an employee, a member of that group. The evidence is that Mrs. Sorbara made and signed the premium cheques. I conclude on all of the evidence that Mrs. Sorbara knew that the group policy was to be cancelled as of the closing of the EOS sale of 1 April 2006. There’s no evidence that she made any attempt to establish a claim in the period from the sale in January 2006 to closing in April 2006. The last dealing as to her claim between Mrs. Sorbara and the insurer was the aforesaid termination of benefits letter in October of 2004.
[50] I conclude that Mrs. Sorbara had worked the six months prior to the termination of the insurance as of 1 April 2006, (exhibit 3A). Accordingly, under the contract, she was required to seek indemnity benefits under the policy through a new application and claim, albeit for the same motor vehicle injury cause. However, in 2008 when Mrs. Sorbara might well have made a new application under LTD definition b), she was not an insured in a subsisting policy of insurance.
[51] For the reasons discussed, I dismiss the plaintiff’s claim for benefits pursuant to LTD definition b).
Good Faith
[52] On the important consideration of fair dealing, uberrima fides. The evidence, as noted, was that Mrs. Sorbara was the contact person as between the insurer and insured. She had the insured’s copy of the policy in her desk. She was the administratrix for claims, including her own, and as stated she wrote the premium cheques. I find that she had to have known of the intention of the insured to terminate the policy on non-payment of premiums. She also had available to her a firm of lawyers representing her legal action for damages occasioned by the 2003 motor vehicle accident and an action against the motor vehicle accident insurer, Wawanesa, for payment of first party benefits (SABs).
[53] On the other side, the insurer had closed its rehabilitation and claims files in 2004, and received a cancellation of the policy by the insured in 2006 without receiving, in the interim, any communication by or on behalf of the plaintiff as a claimant. It’s claims specialist, Byron Hestick, who was on Mrs. Sorbara’s claim had retired prior to trial, as has the insured’s rehabilitation officer Louise Rummel, the rehabilitation specialist for the insured on Mrs. Sorbara’s claim. This action was commenced in July 2007 upon a disability claim of January 2003.
[54] It follows that there is no basis to award aggravated and punitive damages. These claims are dismissed.
Costs
[55] It may well be that the defendant will not seek costs in the present circumstances. Should, however, a demand be made for costs, counsel will exchange written submissions and provide them to me by the first week of January.
Crane J.
Released: November 23, 2012
COURT FILE NO.: 07-32623
DATE: 2012-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rosa Sorbara
Plaintiff
- and –
Desjardins Financial Security
Defendant
REASONS FOR JUDGMENT
Crane J.
DSC // dm
Released: November 23, 2012