SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-463958

DATE: 20130820

RE: FRANCO PROVENZANO, Applicant

AND:

THE GREAT-WEST LIFE ASSURANCE COMPANY, Respondent

BEFORE: CHIAPPETTA J.

COUNSEL:
Emily Stock, for the Applicant

Scott D. McTaggart and Christopher J. Ramsay, for the Respondent

HEARD: August 6, 2013

ENDORSEMENT

[1] Franco Provenzano makes this application under 14.05(3)(d) and 14.05 (3)(h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), for various relief including a declaration that he is entitled to critical illness benefits due to Life-Threatening Cancer, under Oasis Policy No. 40595962 (the “Policy”). The issue in the application is whether an exception clause in the Policy should apply to deny coverage. In my view, the wording of the exception clause is not ambiguous. Rather, Mr. Provenzano’s claim falls squarely within the plain language of the exception. The application is therefore dismissed.

[2] These are my reasons.

Background

[3] The facts are not controversial.

[4] Mr. Provenzano was born on July 6, 1962. He is a high school graduate and has worked in the construction business since 1982. His companies are in the excavating and demolition business.

[5] In February 2011, Mr. Provenzano applied for the Policy. He explained that the reason he was applying for insurance was because he had a family history of heart disease. His father had a heart attack at the age of 42, and died of a heart attack at the age of 48. His paternal grandfather died of a stroke at the age of 42. Two paternal uncles died of heart attacks. He disclosed in his application for insurance that he had been diagnosed, in 2001, with testicular cancer.

[6] On June 10, 2011, the Policy was issued (the “Benefit Effective Date”). The Policy provides for a Benefit for Critical Condition of $1,000,000. The Benefit for Critical Condition is paid as a one-time lump sum and only for one Critical Condition, upon Diagnosis of a Critical Condition supported by objective medical evidence satisfactory to the respondent. Critical Condition is defined as follows:

DEFINITIONS OF CRITICAL CONDITIONS

Heart Attack means the death of heart muscle due to obstruction of blood flow, that results in the rise and fall of biochemical cardiac markers to levels considered diagnostic of myocardial infarction, with at least 1 of the following:

• heart attack symptoms:

• new electrocardiogram (ECG) changes consistent with a heart attack; or

• development of new Q waves during or immediately following an intra-arterial cardiac procedure including, but not limited to, coronary angiography and coronary angioplasty.

Exception: No benefit will be payable under this Critical Condition for elevated biochemical cardiac markers after an intra- arterial cardiac procedure including, but not limited to, coronary angiography and coronary angioplasty, in the absence of new Q waves.

For greater certainty, ECG changes suggesting a prior myocardial infarction does not satisfy the above definition of Heart Attack

DEFINITIONS OF CRITICAL CONDITIONS (cont.)

Life-Threatening Cancer means a tumour characterized by the uncontrolled growth and spread of malignant cells and the invasion of tissue.

Exception: No benefit will be payable under this Critical Condition for the following forms of cancer:

• carcinoma in situ;

• stage 1A malignant melanoma (melanoma less than or equal to 1.0mm in thickness, not ulcerated and without Clark level IV or level V invasion);

• any non-melanoma skin cancer that has not metastasized; or

• Stage A (T1a or T1b) prostate cancer.

Benefits for Life-Threatening Cancer are subject to the Exception for Certain Critical Conditions provision in Section 5 of this policy

Stroke means an acute cerebrovascular event caused by intra-cranial thrombosis or haemorrhage, or embolism from an extra-cranial source, with;

• acute onset of new neurological symptoms, and

• new objective neurological deficits on clinical examination,

Persisting for more than 30 days following the Date of the Critical Condition. These new symptoms and deficits must be corroborated by diagnostic imaging testing.

Exception: No benefit will be payable under this Critical Condition for;

• transient ischaemic attacks; or

• intracerebral vascular events due to trauma.

For greater certainty, lacunar infarcts which do not have the neurological symptoms and deficits set out above, persisting for more than 30 days, do not satisfy the definition of Stroke.

[7] The Policy includes General Exceptions and an Exception for Certain Critical Conditions under Section 5 exceptions (the “Exception”) which states:

GENERAL EXCEPTIONS

Benefits are not payable under this policy where a Critical Condition is contributed to or caused by:

• intentionally self-inflicted injury;

• attempt at suicide, while the Insured is sane or insane;

• committing or attempting to commit an assault, battery or criminal offence, whether or not the Insured has been charged with a criminal offence;

• operating a motorized vehicle while the concentration of alcohol in 100 milliliters of blood exceeds 80 milligrams;

• the use of any drug, poisonous substance, intoxicant or narcotic, unless prescribed for the Insured by a licensed physician and taken by the Insured in accordance with directions given by the licensed physician; or

• War and any hazard arising from War.

EXCEPTION FOR CERTAIN CRITICAL CONDITIONS

No benefit will be payable under Life-Threatening Cancer or any forms of cancer set out in the Supplementary Benefit provision if, within the first 90 days following the later of:

• the Benefit Effective Date; or

• the last date of reinstatement of this policy,

the Insured has any of the following:

• signs, symptoms or investigations that lead to a Diagnosis of cancer (covered or excluded under this policy), regardless of when the Diagnosis is made; or

• a Diagnosis of cancer (covered or excluded under this policy).

The medical information as described above must be reported to Great-West within 6 months of the date of Diagnosis. If this information is not provided, Great-West has the right to deny any claim for cancer or, any Critical Condition caused by any cancer or its treatment.

Upon receipt, Great-West will provide confirmation to the Owner that the Exception for Certain Critical Conditions provision applies. The Owner may by Written Request, elect to maintain this policy in force provided the Written Request is received by Great-West within 30 days of the date of the confirmation to the Owner. Otherwise, this policy will terminate and any premium paid from the Benefit Effective Date or the last date of reinstatement of this policy will be refunded.

If the Owner elects to maintain this policy in force, benefits are not payable under this policy for Life-Threatening Cancer or any forms of cancer set out in the Supplementary Benefit provision, or any other Critical Condition which is contributed to or caused by any type of cancer.

In all other respects, the rights of the Owner and Great-West will remain the same under this policy.

[8] The premium is $19,006.00 annually. The coverage period is to age 65.

[9] On August 9, 2011, Mr Provenzano attended at the office of his primary care provider, Dr. Singh, who practices internal medicine at the Toronto Clinic. As part of the routine yearly blood work for his physical examination, Mr. Provenzano had a thyroid function study. The results of the test were normal.

[10] On August 18, 2011, Mr. Provenzano attended at the office of Dr. Singh for a carotid ultrasound of his neck veins, also known as a Cartoid Doppler testing. This type of test is used as a screening test for cardiovascular disease which specifically looks for cerebrovascular disease. This test was conducted to assess his risk of a stroke because of Mr. Provenzano’s family history of heart disease. Bilateral thyroid nodules were observed. The thyroid nodules were found “incidentally.”

[11] Both Dr. Singh and the respondent’s medical affiant agree that the bilateral thyroid nodules found on the Cartoid Doppler may be a sign of cancer. As a result of the incidental finding, Dr. Singh, recommended an examination of the nodule by way of a dedicated thyroid ultrasound which would look specifically at the thyroid gland. Dr. Singh’s affidavit evidence is that the dedicated ultrasound focuses on the thyroid gland and is done to help determine whether there may be cancer. On cross –examination she explained that although she was not concerned about malignancy at that point, for due diligence she wanted to have a better look at the nodules. The respondent’s medical affiant, Dr. Empringham, states that the bilateral thyroid nodules discovered were a sign of disease. His affidavit evidence is that thyroid nodules have a significant risk of being cancerous. He therefore believes it was appropriate and prudent to conduct further investigations to determine the nature of the disease.

[12] On September 8, 2011, a dedicated thyroid ultrasound was performed at the office of Dr. Singh by Ishaq Bukhari, an ultrasound technician. The ultrasound was read by Dr. Duggal, a radiologist, which showed bilateral hypoechoic nodules, with the largest measuring 1.0cm by 0.9cm with internal calcification.

[13] Also on September 8, 2011, the 90 day period relevant to the Exception expired. Mr. Provenzano submits that the 90 period expired on September 7, 2011. He submits that the use of the word “within” in the Exception mandates the inclusion of the Benefit Effective Date in the counting of the 90 days. I disagree. This interpretation ignores the clear language of the exception in that the 90 day period begins following the Benefit Effective Date. The Benefit Effective Date is therefore not counted in the 90 days. In my view, however, nothing turns on this conclusion. As will be discussed in more detail below, the date of significance on this application is within both interpretations of the 90 day period; August 18th, 2011, the date the thyroid nodules were discovered following a Cartoid Doppler.

[14] On November 2, 2011, due to the borderline size and radiographic abnormalities of internal calcification of the nodules found on the dedicated thyroid ultrasound, Dr. Singh referred Mr. Provenzano to Dr. Arab-O’Brien, an endocrinologist, who repeated the thyroid ultrasound and thyroid function studies. Based on the repeat ultrasound, Dr. Arab-O’Brien booked a Fine Needle Aspiration Biposy.

[15] On January 25, 2012, the biopsy was conducted.

[16] On February 10, 2012, Mr. Provenzano was diagnosed with papillary thyroid cancer.

[17] On February 23, 2012, Mr. Provenzano submitted a claim for the Critical Illness Benefit pursuant to the Policy. The respondent acknowledged that Mr. Provenzano’s papillary thyroid cancer falls within the definition of a Life-Threatening Cancer found in section 4 of the Policy. It denied the claim relying on the Exception stating that within the first 90 days following the Benefit Effective Date Mr. Provenzano had signs, symptoms or investigations that lead to a diagnosis of cancer. The Respondent thereafter refunded the entire premium paid since the inception of the Policy in accordance with the provisions of the Exception therein.

[18] On April 25, 2012, Mr. Provenzano had surgery to remove the cancerous thyroid. The surgery was successful. There is no remaining cancer and no spread of cancer from the area where the thyroid was removed. His prognosis is excellent.

Analysis

[19] The issue in this application involves the interpretation of the Exception; more specifically whether or not the bilateral thyroid nodules found as a result of a Cartoid Doppler within the 90 days following the Benefit Effective Date were a sign, symptom or investigation that led to a diagnosis of cancer, regardless of when the diagnosis was made.

[20] In Brissette Estate v. Westbury Life Insurance Co., 1992 32 (SCC), [1992] 3 S.C.R. 87 (S.C.C.) at para 55, Supreme Court of Canada established the following rules of construction for interpreting insurance contracts:

i) The court must search for an interpretation from the whole of the contract which promotes the true intent of the parties at the time of entry into the contract;

(ii) Where words are capable of two or more meanings, the meaning that is more reasonable in promoting the intention of the parties will be selected;

(iii) Ambiguities will be construed against the insurer; and

(iv) An interpretation which will result in either a windfall to the insurer or an unanticipated recovery to the insured is to be avoided.

[21] Brissette, supra, elaborated on previous guidance from the Supreme Court on interpreting contracts as set out in Consolidated Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888 (C.A.S.C.C.) at 901:

Even apart from the doctrine of contra proferentem as it may be applied in the construction of contracts, the normal rules of construction lead a court to search for the interpretation which, from the whole of the contract, would appear to provide or advance the true intent of the parties at the time of entry into the contract. Consequently, liberal meanings should not be applied, where to do so would bring about an unrealistic result, or a result which would not be contemplated in the commercial atmosphere in which insurance was contracted. Where two words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties.

[22] Mr. Provenzano submits that the Exception does not apply where, as in his case, the “signs, symptoms or investigations” are not linked to cancer within the 90 days. Investigations for a purpose other than screening for cancer do not trigger the exclusion and nor do symptoms that are not linked to cancer.

[23] In the alternative, he submits that the Exception does not apply where the “signs, symptoms or investigations” led to further investigations and did not lead directly to a diagnosis of cancer.

[24] In my view to accept either interpretation of the Exception as advanced by Mr. Provenzano would deny the clear language of the Exception and import therein a false ambiguity for the sole purpose of construing it against the insurer and denying the true intent of the parties at the time of entering the contract.

[25] The language of the Exception clearly reads that it is triggered if within the 90 days the insured has a sign, or a symptom or an investigation that leads “to a Diagnosis of cancer….regardless of when the Diagnosis is made.” To accept the interpretations as submitted by Mr. Provenzano would be to deny the concluding words of the Exception; “regardless of when the Diagnosis is made.”

[26] It matters not, in my view, that a sign that may be cancer was discovered during an investigation that was not primarily looking for signs of cancer or that further investigations were required to confirm the sign was indeed cancer. What matters, for the purposes of the Exception, is that a sign that both parties agree may be a sign of cancer was discovered within the 90 days and that sign led to the diagnosis of cancer. Working backwards from the diagnosis, none of the intermediate investigations would have been taken had it not been for the discovery of the sign, the thyroid nodules, on August 18, 2011. The thyroid nodules were confirmed to be malignant. There is no denying that it was the sign that lead to the diagnosis.

[27] Mr. Provenzano submits that the word “leads” is ambiguous; does it mean directly leads to the diagnosis of cancer, or does it mean indirectly leads or eventually leads? In my view the use of the word leads in the Exception is not ambiguous when read in context. I agree with Mr. Provenzano that an ordinary reading of the Policy and the common usage of the word “leads” is that it connotes a directness to the diagnosis; but it is a directness to the diagnosis independent of when the diagnosis is made.

[28] The medical affiants agree that not all thyroid nodules lead to a diagnosis of cancer. They further agree that all thyroid nodules may be a sign of cancer. Further medical investigations to determine the diagnosis of the sign is a practical medical reality. The phrase “regardless of when the Diagnosis is made” reflects that reality such that the diagnosis of the sign may be delayed beyond 90 days following the Benefit Effective Date.

[29] On the facts of this case, the thyroid nodules were a sign that directly led to the diagnosis of cancer 6 months later. It was as a result of finding the nodules that further investigations were performed and the cancer diagnosis confirmed. The practical reality of the intervening investigations to confirm the sign as cancerous does not negate the critical discovery of the sign within the 90 days; a sign we now know was cancerous at the time of discovery.

[30] In my view, this interpretation is consistent with the whole of the contract and promotes the true intent of the parties at the time of entry into the contract; bringing about a result which would have realistically been contemplated in the commercial atmosphere in which the insurance was contracted.

[31] The Exception was made a standard feature of Critical Illness policies to address the high incidence of cancer claims experienced shortly after the delivery of such policies. The premium charged reflects the protection afforded to the insurer by the Exception. The refund of premium provision which forms part of the Exception avoids a situation whereby the insurer collects a premium without risk. To rely on the Exception, there is a narrow window (90 days) after the Benefit Effective Date wherein the insurer must point to the signs symptoms or investigations that lead to the diagnosis of cancer. The Policy clearly sets out that the premium will be returned should the Exception apply or kept in force without the cancer coverage to protect Mr. Provenzano’s other risks, for example cardiac risk, at his option. This interpretation provides neither a windfall to the insurer or an unanticipated recovery to the insured.

Conclusion

[32] The parties agree that the respondent has the onus of showing that the exclusion clause apples to the circumstances and, as a general rule, exclusion clauses should be narrowly construed. In my view, for reasons noted above, the respondent has satisfied its onus of showing that the Exception applies. The Exception is not ambiguous. Construed narrowly, the Exception applies to exclude Mr. Provenzano’s benefit as there is no denying that the discovery of the sign in the form of thyroid nodules on August 18th, 2011 was the sole reason for the diagnosis of cancer 6 months later; one lead to the other.

[33] The Application is therefore dismissed.

Costs

[34] The parties have agreed that costs should be payable to the successful party on the Application fixed in the amount of $15,000, inclusive of HST and disbursements. Costs are therefore awarded in favour of the Respondent fixed at $15,000 inclusive.

CHIAPPETTA J.

Date: August 20, 2013