Cruise v. Wal-Mart Canada Corp. et al.

[Indexed as: Cruise v. Wal-Mart Canada Corp.]

Ontario Reports

Ontario Superior Court of Justice,

DiTomaso J.

September 5, 2013

117 O.R. (3d) 304 | 2013 ONSC 5630

Case Summary

Insurance — Disability insurance — Plaintiff insured under employer's long-term disability policy — Plaintiff claiming that she suffered anxiety and depression as result of stalking and harassment by co-worker and that she was unable to work as result — Plaintiff suing insurer for long-term disability benefits and also seeking punitive damages and damages for mental distress — Insurer's motion for summary judgment dismissed — Genuine issues for trial existing with respect to whether plaintiff met test for total disability and whether there was reasonable cause of action for mental distress and punitive damages.

The plaintiff alleged that she was subjected to stalking, threats and intimidation by a co-worker, that her employer did nothing to remedy the situation, and that she suffered depression and anxiety as a result of which she was unable to work. She was insured under her employer's long-term disability policy at the time. She sued her employer for damages for wrongful dismissal, and sued the defendant insurer for long-term disability benefits, punitive damages and damages for mental distress. The defendant brought a motion for summary judgment dismissing the claim against it. It argued that the plaintiff was off work not because of any medical disability, but because of a work-related issue that had nothing to do with the defendant. It pointed to the fact that the plaintiff had asserted on numerous occasions that she was not disabled. It submitted that the plaintiff had no cause of action against it for punitive damages as it never had an opportunity to adjudicate the claim, given that it never received a completed application from the plaintiff before the commencement of the litigation.

Held, the motion should be dismissed.

A genuine issue requiring a trial existed with respect to whether the plaintiff met the test for total disability. While she had stated in the past that she was not disabled, she explained that she was able to work while her harasser was not around, but not while he was present, and that the employer had never provided her with any offer of modified work or any guarantee that there would be no contact between her and her harasser in the workplace. It was simplistic to characterize the plaintiff's problems as employment-related rather than disability-related. The issues were more complex and multi-faceted. A genuine issue requiring a trial also existed with respect to whether there was a reasonable cause of action for mental distress and punitive damages.

Cases referred to

Combined Air Mechanical Services Inc. v. Flesh (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th) 242, 13 R.P.R. (5th) 167, 93 B.L.R. (4th) 1, 10 C.L.R. (4th) 17, 211 A.C.W.S. (3d) 845; Fernandes v. Penncorp. Life Insurance Co., [2013] O.J. No. 1304, 2013 ONSC 1637, [2013] I.L.R. I-5415, 20 C.C.L.I. (5th) 129, 2013 CarswellOnt 3163, 228 A.C.W.S. (3d) 536 (S.C.J.); Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, [1999] S.C.J. No. 60, 178 D.L.R. (4th) 1, 247 N.R. 97, 126 O.A.C. 1, 49 B.L.R. (2d) 68, 15 C.C.L.I. (3d) 1, 39 C.P.C. (4th) 100, [2000] I.L.R. I-3741, 91 A.C.W.S. (3d) 796; Hino Motors Canada Ltd. v. Kell, [2010] O.J. No. 1105, 2010 ONSC 1329 (S.C.J.) [page305]

Statutes referred to

Human Rights Code, R.S.O. 1990, c. H.19 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.01(3), 20.04(2), (2.1)

MOTION for summary judgment dismissing the action against the moving party.

A.R. Kerr, for plaintiff.

B. Terzian, for defendant the Manufacturers Life Insurance Company, a.k.a. Manulife Financial.

No one appearing on behalf of Wal-Mart Canada Corp.

DITOMASO J.: —

The Motion

[1] The defendant the Manufacturers Life Insurance Company, a.k.a. Manulife Financial ("Manulife"), seeks an order dismissing the action with costs payable to Manulife on a substantial indemnity basis. The plaintiff, Vickie-Anne Marie Cruise ("Ms. Cruise"), opposes and states that the motion should be dismissed with costs.

Overview

[2] Ms. Cruise's action, in part, is for benefits under the long-term disability policy issued by Manulife. She was employed at Wal-Mart in Midland, Ontario from the year 2002 until the summer of 2008. Manulife issued a group policy of insurance to the defendant Wal-Mart Canada Corp. ("Wal-Mart"), who was Ms. Cruise's employer. The policy provided, among other things, for loss of income due to disability. At all material times, Ms. Cruise was an insured under this policy.

[3] Ms. Cruise issued a statement of claim on May 25, 2010 naming Wal-Mart and Manulife as defendants. She alleged in her statement of claim that from approximately June of 2007 until July of 2008, she was subjected to stalking, threats and intimidation by G.C., her co-worker (and former fiancé) at Wal-Mart. It is alleged that these events caused Ms. Cruise significant mental anguish and triggered chronic depression and anxiety. She went off work on doctor's orders on February 6, 2008.

[4] She approached Wal-Mart on several occasions and asked her employer to remedy her situation. She alleges that she was not provided with the necessary assistance. Her anxiety and depression continued to exacerbate until she reached a point [page306] which she could no longer adequately function. On July 15, 2008, she advised her employer that she would no longer be working at Wal-Mart.

[5] It is alleged that she requires ongoing psychiatric treatment and remains off work to this day.

[6] Ms. Cruise claims entitlement to long-term disability benefits from February 6, 2008 onward. She also claims damages for mental distress, bad faith and punitive damages as against Manulife. There is a claim for breach under the Human Rights Code, R.S.O. 1990, c. H.19, and a claim for wrongful dismissal as against Wal-Mart. Wal-Mart is not a party to this motion.

[7] Manulife defended the statement of claim on February 27, 2012. Examinations for discovery were completed in October of 2012. The bulk of medical evidence was provided to the defendants prior to the examination for discovery.

[8] Manulife has brought this summary judgment motion. At the heart of this summary judgment motion is Ms. Cruise's initial entitlement to long-term disability benefits.

[9] Manulife contends that Ms. Cruise was off work not because of any medical disability but because of a harassment -- work-related issue which has nothing to do with Manulife.

[10] Ms. Cruise submits that this case cannot be disposed of by summary judgment as it calls for multiple findings of fact on the basis of conflicting evidence. This case cannot be disposed of on a question of law alone. There are a number of witnesses and a voluminous evidentiary record. A full appreciation cannot be met and the interest of justice requires a trial. She further submits that there is ample evidence to support her claim for total disability and claim for punitive and aggravated damages. She submits that she could not work at Wal-Mart because the harassment by G.C. caused her psychiatric and psychological problems which ultimately forced her to quit.

The Issue

[11] The issue to be determined is whether there is a genuine issue requiring a trial.

Position of the Parties

Position of the plaintiff Cruise

[12] Ms. Cruise takes the position that she is entitled to long-term disability benefits from Manulife. She could not do her job because of psychiatric and psychological problems caused by G.C. working at the Midland Wal-Mart store. When he was not there, she could do her job. When he was there, she could not. [page307] She claims that she meets the test for total disability per the Manulife policy. In addition, she claims damages for mental distress and punitive damages.

[13] Ms. Cruise submits that there are genuine issues requiring a trial and that upon the application of the full appreciation test, Manulife is not entitled to summary judgment on this motion, which ought to be dismissed with costs.

Position of the defendant Manulife

[14] Manulife's position is that the plaintiff fails to meet the test for total disability at all material times. Ms. Cruise was not totally disabled from her own occupation but simply was unable to work when G.C. was around. Being unable to work around G.C. was not an injury, sickness or medical diagnosis. Rather, his presence was why she went off work in the first place, remained off work and eventually quit her job. Had Wal-Mart adequately addressed the issues between Ms. Cruise and G.C., she would have certainly returned to work.

[15] Ultimately, Manulife submits that but for the presence of G.C., Ms. Cruise was able to and would have been able to continue to perform the essential and material duties of her regular occupation as manager of the jewellery department at Wal-Mart.

[16] Further, it is submitted that Ms. Cruise has no cause of action against Manulife for punitive and/or aggravated damages. Manulife never had an opportunity to adjudicate the claim given that it never received a completed application from Ms. Cruise right up until the commencement of litigation.

[17] Manulife submits there is no genuine issue requiring a trial in this case and, as such, a trial involving Manulife is not required in the "interest of justice". Manulife seeks an order dismissing Ms. Cruise's action as against it with costs.

Analysis

The law

[18] Counsel do not disagree in respect of the applicable law on a motion for summary judgment. A concise summary of the legal principles can be found in Manulife's factum commencing at paras. 44 through to 53, inclusive. Such a consideration of the applicable principles relate to rules 20.01(3) and 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Also cited were the following authorities: Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, [1999] S.C.J. No. 60, at para. 27, for the proposition that once the moving party has established that summary judgment is a proper question for [page308] consideration by the court, the respondent must then "establish his claim as being one with a real chance of success".

[19] Manulife Financial also relies upon Hino Motors Canada Ltd. v. Kell, [2010] O.J. No. 1105, 2010 ONSC 1329 (S.C.J.), at para. 7, which speaks to the new power set out in Rule 20 broadening the judge's tools in respect of assessing credibility, weighing evidence and drawing factual inferences. The judge must take "a hard look" at the evidence to determine whether it raises a genuine issue requiring a trial.

[20] Further, Manulife cites the Ontario Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesh (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, which further expanded upon the interpretation of Rule 20, including the nature of the test for determining whether summary judgment should be granted, the scope and purpose of the new powers that have been given to judges hearing motions for summary judgment and the types of cases that are amenable to summary judgment. Those principles were reviewed in the Combined Air case, at paras. 40-44 and para. 50.

[21] At para. 50, in Combined Air, the Ontario Court of Appeal stated that in deciding whether a motion judge should exercise the new powers under rule 20.04(2.1) to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence:

. . . to weed out a claim as having no chance of success or . . . to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

[22] Ultimately, as the motion judge, I must be satisfied that this is a case where on a full appreciation of the evidence and issues I am able to make dispositive findings without the need for a trial.

Reasons

[23] For reasons to follow, I find that I am not in a position as the motion judge on application of the full appreciation test to make dispositive findings that on all the evidence before me there are no genuine issues requiring a trial. Rather, I have come to exactly the opposite conclusion. On the evidentiary record before me on this motion, there are genuine issues requiring a trial and Manulife's motion for summary judgment is dismissed.

[24] During the course of Manulife's argument, submissions were made that Ms. Cruise was off work not because of any medical disability but because of a harassment issue at work. I was taken to references in her examination for discovery and in [page309] the various materials filed by Ms. Cruise where she admitted that she was not disabled. At issue is whether or not she met the test of total disability as set out in the policy. Manulife submitted that by her own admission, Ms. Cruise did not meet the test. Manulife submitted that the issue was a simple one. Repeatedly and consistently, Ms. Cruise stated that she did not suffer from disability. She did not file a complete application with the result that in October of 2008, Manulife closed its file.

[25] Manulife asserts that if there are issues arising in this case, they do not involve Manulife and that Ms. Cruise's claims against Manulife, including claims for damages, punitive or otherwise, ought to be summarily dismissed.

[26] Manulife submits it is plain and obvious that Ms. Cruise's claim against Manulife for long-term disability benefits does not constitute a valid claim. It is without merit and has no real chance of success. The evidence clearly shows that she failed to meet the definition of total disability at any relevant point in time.

[27] The position taken by Ms. Cruise is entirely the opposite. She asserts that while she did on numerous occasions advise Manulife and her employer, Wal-Mart, that she was not disabled, she explained her reason for doing so.

[28] In her affidavit found at Tab 1 in her responding motion record, she explains, at paras. 12 and 13, why she continued to tell Wal-Mart and Manulife that she was not disabled. She wanted her employer to resolve the problem between herself and G.C. So long as he was present in the workplace, she could not perform her job. She suffered from various psychiatric and psychological problems when he was there. When he was not there, she could perform her work.

[29] She went on to explain that she was never provided with any formal offer of modified work from Wal-Mart. Further, she was never provided with any guarantee that there would be no contact between herself and G.C. in the workplace.

[30] While I fully understand and appreciate why Manulife would bring this motion and reasonably take the position that it has regarding Ms. Cruise not meeting the test for total disability, I am not satisfied that even in the face of all of Ms. Cruise's admissions, there is no genuine issue requiring a trial.

[31] The determination of this motion on an application of the full appreciation test does not lead me to the simple conclusion urged upon me by Manulife.

[32] Rather, whether Ms. Cruise satisfies the long-term disability test set out in the policy at all material times is very much an issue requiring a trial. Dispositive findings cannot be made at this juncture in Manulife's favour. To the contrary, the [page310] approach taken by Manulife is simplistic in characterizing Ms. Cruise's problems as employment related as opposed to disability related. I am of the view that the issues are more complex and multi-faceted.

[33] I find an application of the full appreciation test compels me to consider the entire context in which Ms. Cruise's claims arise which not only include her problems in the workplace arising from the presence of G.C. but also the causal connection between that workplace relationship and the cause of her psychiatric and psychological conditions. There is a nexus between the two and very much in issue is the nature and extent to which her dysfunctional workplace relationship with G.C. has caused her disability to perform her job, compelling her to leave the workplace and then, finally, resigning from her job.

[34] This connection between her workplace harassment by G.C. and her alleged disability must be placed in context when the history of her relationship with G.C. going back to 2006 is reviewed. As a result of his actions, she experienced extreme anxiety, including numerous panic attacks. As a result of her psychological condition, she could not go to work and went off on sick leave. She was off until July 2007, when she felt well enough to return to work. However, G.C.'s harassment continued. Her anxiety, stress and depression worsened. She experienced more panic attacks as well as headaches and neck pain. Again, she went off work in February of 2008. (See affidavit of Vickie-Anne Marie Cruise responding record Tab 1, paras. 4-7.)

[35] She complained to Wal-Mart hoping for some resolution to the workplace harassment. However, the matter was never resolved.

[36] There is medical support for Ms. Cruise's disability found in the letters from her physician Dr. Archer.

[37] In his letter of February 14, 2008, Dr. Archer writes:

Vickie Cruise has been unable to return to work since February 6, 2008 due to a harassment by an employee of Wal-Mart. This has had medical consequences and she is no longer fit to return to work under these conditions. I have recommended that she take a medical leave of absence until the problem is resolved.[^1]

[38] On April 4, 2008, Dr. Archer wrote: "For medical reasons as her work situation has not changed [she] will be off work indefinitely. Further to her Dr. note of February 14, 2008."[^2] [page311]

[39] She wrote to Wal-Mart's store manager to advise him of her mental problems arising out of G.C.'s harassment. Her letter can be found in her affidavit at Exhibit C.

[40] On September 13, 2010, Dr. Archer wrote another report which can be found in her affidavit at Exhibit D.

[41] Dr. Archer relates the problems arising out of the harassment at the hands of G.C. commencing in February of 2007.

[42] He wrote"she became subject to frequent episodes of anxiety and periodic panic attacks due to the continuing unwanted attention she was receiving from this man".

[43] As a result, she began taking medication and was referred to counselling. The harassment continued. She was off work in February of 2008, and her employment with Wal-Mart was terminated on July 15, 2008.

[44] Although she had applied to W.S.I.B., her claim was rejected. She was informed that she did not qualify for W.S.I.B. as a result of a threat of violence at her workplace.

[45] Dr. Archer concluded:

Ms. Cruise has been emotionally and verbally threatened by her ex-fiancé an [sic] Wal-Mart employee since about January 2007. During this time, she has been unable to obtain help from Wal-Mart and in fact lost her job at Wal-Mart because of the situation. She has been fearful, anxious and depressed. She has required counselling as well as treatment with anxiolytic and antidepressant medications.

[46] Dr. Archer goes on to state:

The inaction of Wal-Mart and inappropriate dismissal of Ms. Cruise was responsible for causing her significant personal hardship, emotionally and financially.

[47] Ms. Cruise has also seen Dr. William Gnam, psychiatrist. She saw him on May 10, 2013 and he provided a report dated August 1, 2013 which appears at Exhibit E of her affidavit. Dr. Gnam has also commented upon her psychiatric problems and how they relate to her dealings with G.C. She was diagnosed with depression, panic disorder and anxiety disorder. She also suffered from other psychological problems. Dr. Gnam offered opinions in respect of how her psychological condition prevented her from working at present as it had prevented her from working in the past since February of 2008 at Wal-Mart. It was his opinion that she had been disabled from working continuously since February 2008, and that return to work since February 2008 would almost have caused a further exacerbation of psychological and emotional problems, thereby thwarting any attempt to resume continuous competitive employment. He also offered his opinion as to how he considered Ms. Cruise's [page312] statements about not being disabled when objective evidence about mental disability suggested otherwise.

[48] In addition, Ms. Cruise filed a member statement in accordance with the application process with Manulife. Her member statement can be found at Volume I, Tab 2B, at p. 131. In that document, Ms. Cruise describes the depression, anxiety and stress that she has suffered due to another employee's harassment to the point of going on sick leave. Her statement is consistent with the evidence of Dr. Archer. At p. 135, she indicates in the member statement that she is not able to maintain attention and concentration for extended periods when G.C. is in the store. This statement is also consistent with issues involving G.C. and her subsequent documented medical problems.

[49] I am also not satisfied that there are completely independent issues that exist in this case as between Wal-Mart and Manulife. Notwithstanding Manulife's assertion that there is a very clear and separate distinction that can be made regarding the claims against Wal-Mart and Manulife, Ms. Cruise's harassment in the workplace and alleged resulting disability flowing from that harassment are significantly intertwined. So much so, that I am not persuaded by Manulife's argument that if Ms. Cruise has any outstanding issues, they do not involve Manulife. I do not think that Ms. Cruise's issues can be viewed in isolation. Her claims against Wal-Mart and Manulife arise out of the factual matrix that involve both defendants.

[50] I have come to the conclusion that no dispositive findings can be made on an application of the full appreciation test that Manulife is entitled to summary judgment dismissing Ms. Cruise's claim only against Manulife. There are genuine issues requiring a trial as they relate to whether she has met the test of total disability which would necessarily involve a consideration of many sub-issues arising out of conflicting evidence. I find that whether Ms. Cruise can meet the test of total disability can only be answered upon review that totality of the evidentiary record which in this case must include complete medical and employment files. The question of causation, i.e., whether workplace harassment caused her psychiatric and psychological problems which in turn disabled her from work, is very much in issue.

[51] Lastly, there is the question of whether is a reasonable cause of action for mental distress and punitive damages. This claim has been made against the both the employer, Wal-Mart, and Manulife. The claim discloses a real cause of action. Failure on the part of Manulife to pay disability benefits is an allegation of breach of contract and, if proven, may, and I only say may, give [page313] rise to damages for mental distress as well as for punitive damages. The courts have considered claims for mental distress. Ms. Cruise relies upon Fernandes v. Penncorp Life Insurance Co., 2013 ONSC 1637, [2013] O.J. No. 1304, 2013 CarswellOnt 3163 (S.C.J.) as one example where the court has considered an insurer's unreasonable denial of disability benefits which caused mental distress. This issue is not to be decided on a motion for summary judgment. It is a genuine issue requiring a trial. It is in the interest of justice that a trial be held. This issue too cannot be determined in isolation but should also be viewed within the overall factual context against which this and all other issues are to be considered.

Conclusion

[52] Accordingly, for the foregoing reasons, I dismiss Manulife's motion for summary judgment. As for costs, the parties agreed that the successful party would be entitled to costs in the amount of $5,000, all inclusive, on a partial indemnity scale payable within 30 days.

[53] I find that Ms. Cruise is the successful party on this motion. I order Manulife to pay Ms. Cruise $5,000, all inclusive, within the next 30 days.

Motion dismissed.

Notes

[^1]: Vickie-Anne Marie Cruise's affidavit sworn August 5, 2013, Tab 1A of the responding motion record.

[^2]: Responding motion record, Exhibit B.