COURT FILE NO.: 08-CV-42719

DATE: 20140307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DENISE GARNEAU

Plaintiff

– and –

INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC.

Defendant

Self-represented

Stephen Victor QC, for the Defendant

HEARD: January 8, 2014

REASONS FOR Decision on motion for summary judgment

R. SMITH J.

Overview

[1] The plaintiff, Denise Garneau (“Ms. Garneau”) is a former Government of Canada employee who received an overpayment of long term disability (“LTD”) benefits of $114,644.76 from the defendant, Industrial Alliance Insurance and Financial Services Inc. (“Industrial”). The monthly overpayment commenced on June 28, 2002, when she retired and continued until September 24, 2007 when it was discovered by Industrial. The overpayment occurred because Ms. Garneau took medical retirement and commenced receiving Superannuation benefits (“retirement” benefits) which were not deducted from her LTD benefits.

[2] Industrial states that Ms. Garneau never advised it that she had taken medical retirement effective June 28, 2002 and had commenced receiving retirement benefits. As a result, she continued to receive her full LTD benefits without any deduction, as provided for in the Disability Insurance Policy. Ms. Garneau agrees that she never advised Industrial that she had retired and had commenced receiving retirement benefits. However, on June 13, 2002 the Superannuation Insurance Section of the Government sent a letter to National Life Assurance of Canada (“National Life”), Industrial’s predecessor, advising it that Ms. Garneau was taking a medical retirement effective June 28, 2002. Industrial denies that this letter was ever received.

[3] As part of the retirement process when an employee is receiving LTD benefits, the Superannuation Pension Section would verify the amount of the employee’s Retirement Pension and send a form outlining the verified pension amount and Canada Pension Plan (“CPP”) deduction to the disability insurer. In 2002, the disability insurer was National Life. The Superannuation Pension Section failed to send the form providing the exact details of the verified amounts of Ms. Garneau’s retirement benefits to Industrial or National Life until September 24, 2007, approximately five years after Ms. Garneau retired.

[4] After her retirement, Ms. Garneau was entitled to continue receive LTD benefits of $1,751.26 per month after deducting the amount she received from CPP and retirement benefits. When Industrial became aware of the overpayment of $114,644.76 it initially reduced Ms. Garneau’s LTD monthly benefits to zero for a period of three months. In December of 2007 Industrial paid Ms. Garneau 50 percent of her LTD benefits for October, November and December of 2007. Industrial has continued to pay Ms. Garneau 50 percent of her monthly entitlement to LTD benefits and applied the other $875.63 per month to repay the overpayment. A balance of approximately $45,000 is still owing to Industrial at the present time.

[5] Industrial has brought a motion for summary judgment seeking an order dismissing Ms. Garneau’s claim on the grounds that it has not breached any fiduciary duty, has not breached its duty of good faith or duty of fairness to her, and is not liable to her for any damages,

Issue

[6] The Court must decide whether the Court can make a fair and just determination on the merits without requiring a trial.

Background

[7] Ms. Garneau has commenced an action against Industrial seeking the following relief:

(a) a declaration that she does not owe the overpayment of $114,644.76;

(b) alternately limiting the overpayment to the period commencing September of 2005, two years before the overpayment was discovered;

(c) a declaration that the overpayment be reduced by the income taxes paid on account of such overpayment;

(d) an order that her monthly LTD benefits be only reduced by 20 percent to payback any overpayment;

(e) payment to her of the amount reduced from her benefits to payback the overpayment;

(f) damages as a result of Industrial’s breach of its duty to deal in good faith and breach of fiduciary duty;

(g) aggravated damages of $100,000;

(h) exemplary damages of $50,000;

(i) punitive damages of $50,000;

(j) special damages details to be provided;

(k) compensation for injury to dignity, feelings and self-respect due to discriminatory conduct under the Human Rights Act;

(l) Pre and post judgment interest and costs.

[8] Ms. Garneau suffers from Myalgic Encephalomyelitis and Fibromyalgia. She has received LTD benefits from National Life and then Industrial since April 1, 1999. In April of 2001 a settlement was reached in Ms. Garneau’s first action against National Life. The parties agreed that Ms. Garneau was disabled within the meaning of the Disability Insurance Policy. National Life also agreed to continue to pay Ms. Garneau LTD benefits so long as she was disabled within the meaning of the policy.

[9] Ms. Garneau was entitled to LTD coverage under Group Insurance Policy Number G68-1400 (the “Policy”) issued by the defendant’s predecessor National Life. Industrial is the successor to the plaintiff’s LTD insurer, National Life.

[10] In June of 2002, Ms. Garneau asked to retire from Public Works and Government Service Canada for medical reasons. Her request was approved as of June 28, 2002.

[11] The disability policy states that upon retirement, the amount of her LTD benefits will be reduced by the amount of the retirement benefits received from Superannuation, as well as the amount received from CPP. In June of 2002 Ms. Garneau met with Ms. McGibbon, a Compensation Specialist at Consulting and Audit Canada, who advised her that her LTD benefits would be reduced by the monthly amount of her retirement benefits, that she would receive from Superannuation. On July 11, 2002 a letter was sent to Ms. Garneau advising her that her LTD benefits would be reduced by the amount of the monthly retirement benefits that she would receive on retirement.

[12] Ms. Garneau does not dispute that she was so advised by Ms. Gibbon or that she received the above letter but she states that she did not understand its meaning and relied on the retirement specialists in the Government and Industrial to pay her correct monthly amounts of benefits.

[13] The Government’s Disability Insurance Policy pays an amount equal to 70 percent of an employee’s gross regular salary. In June of 2002 Ms. Garneau’s gross regular annual salary was $72,897. After her retirement, Ms. Garneau would have received an annual gross salary of approximately $76,928, made up of her retirement benefits, her LTD benefits without reduction, and her CPP payments. This amount exceeded her gross regular annual salary before retirement. Her salary after retirement should have been the same as the amount she received in LTD benefits before retirement, namely 70 percent of her gross annual salary.

[14] The Disability Insurance Policy permits Industrial to deduct any overpayment of LTD benefits from the plaintiff’s ongoing LTD benefits. Industrial has deducted 50 percent of the amount of Ms. Garneau’s LTD benefits each month to repay the overpayment.

Analysis

Test for Summary Judgment

[15] Rule 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states as follows:

(2) The court shall grant summary judgment if,

a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence;

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing of evidence

2. Evaluating the credibility of judgment

3. Drawing any reasonable inference from the evidence

[Emphasis added]

[16] In Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No.7 Karakatsanis J. stated that in order to grant a summary judgment the judge must be able to make a “fair and just determination on the merits” without requiring a trial. At para. 49 she stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[17] At para. 50 of the Hyrniak decision Karakatsanis J. stated:

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Is There a Genuine Issue Requiring a Trial Without Using the New Fact Finding Powers?

[18] Ms. Garneau submits that the issues of whether Industrial has breached its duty of good faith, its duty of fairness, and whether it has breached its fiduciary duty involve disputes of material facts and unsettled law. However, she does not state what material facts are in dispute or what area of the law is unsettled. Ms. Garneau has also claimed punitive damages, aggravated damages, mental damages and seeks a declaration that she does not have to repay the $114,644.76 overpayment to Industrial.

[19] While this is a Rule 20 and not a Rule 21 motion, for purposes of this summary motion, I will assume that the plaintiff’s evidence is fully accepted on any contested facts and apply the legal principles to this set of facts. If a trial is not required on the facts assuming the plaintiff’s evidence is accepted then I will have confidence that a trial is not required to decide the issue.

[20] Very few facts in dispute other than (a) whether National Life received the June 13, 2002 letter (b) whether Ms. Garneau knew that she was receiving greater benefits then she was entitled to, and (c) whether Ms. Garneau had an obligation to advise Industrial that she had commenced receiving retirement benefits.

[21] I will assume the following material facts:

(a) That on June 13, 2002 the Superannuation Insurance Section sent a letter to National Life which was received by National Life, Industrial’s predecessor, advising it that Ms. Garneau was taking a medical retirement as of June 28, 2002; (Ms. Garneau’s evidence is denied by Industrial);

(b) That Ms. Garneau relied on the Government, National Life and Industrial to calculate and pay her the correct amount of monthly benefits after she retired; (Ms. Garneau’s evidence);

(c) That Ms. Garneau was unaware that she was being overpaid by approximately $1,726 per month after she retired in 2002; (Ms. Garneau’s evidence)

(d) That Ms. Garneau was not aware of any obligation to advise Industrial of her retirement on June 28, 2002 and believed that this had been done by the Superannuation Pension Section of the Government. (Ms. Garneau’s evidence)

(e) That once Ms. Garneau’s retirement benefits were verified, a form listing the verified pension amount and CPP deduction should have been sent to National Life by the Superannuation Pension Section. This did not occur until September 24, 2007. (undisputed)

(f) The fact that National Life or Industrial made a clerical error of failing to follow up on the June 13, 2002 letter, advising it of Ms. Garneau’s upcoming retirement, the Superannuation Pension Section’s failure to send Industrial the form advising it of the verified pension amount that Ms. Garneau would be receiving as retirement benefits, and the fact that Ms. Garneau did not inform Industrial that she had commenced receiving her retirement pension on June 28, 2002, all contributed to Industrial overpaying Ms. Garneau LTD benefits of $114,644.76 from June 28, 2002 to September 30, 2007.

(g) On September 24, 2007 Industrial became aware that it had overpaid LTD benefits to Ms. Garneau and initially reduced Ms. Garneau’s monthly LTD benefits, of approximately $1,726 per month, by 100 percent, for the months of October, November and December of 2007.

(h) That in December of 2007 Industrial paid Ms. Garneau 50 percent of her LTD benefits for October, November and December of 2007 and each month thereafter has continued to pay Ms. Garneau 50 percent of her entitlement to LTD benefits and applied the remaining 50 percent of her LTD benefits to repaying the overpayment.

(i) The Disability Insurance Policy states at page 28 that 100 percent of any amount received by an insured for superannuation or CPP shall be immediately reduced from the monthly disability benefits being received by the insured.

(j) The Disability Insurance Policy states at page 40 that a clerical error shall not prejudice the rights of the insurer.

Is a Trial Required to Determine Whether Industrial Breached a Fiduciary Duty Owed to Ms. Garneau?

[22] In Garneau v. Industrial Alliance Insurance, 2009 26923 (ON SC), 74 C.C.L.I. (4th) 132, at para. 4, Métivier J. found that Industrial had overpaid Ms. Garneau by $114,644 and held at para. 13 that this amount was a debt owing to Industrial. This finding is not disputed by Ms. Garneau and has not been successfully appealed.

[23] In Plaza Fiberglas Manufacturing Ltd. v. Cardinal Insurance Co., [1994] 18 O.R. (3d) 633 (Ont.CA) at para. 15 the Ontario Court of Appeal held that: “The fact that a contract is one of utmost good faith does not however mean that it gives rise to a general fiduciary relationship … The insurer-insured relationship is contractual; the parties are parties to an arms-length agreement.”

[24] I find that a trial is not required to make a fair and just determination on the merits of whether Industrial owed Ms. Garneau a fiduciary duty on the undisputed facts before me, even accepting Ms. Garneau’s evidence.

Disposition on Fiduciary Duty Issue

[25] Based on the Plaza Fiberglas decision of the Ontario Court of Appeal, I find that Industrial is not in a fiduciary relationship with Ms. Garneau but rather in a relationship of an insurer and an insured and owed Ms. Garneau a duty of utmost good faith. As a result, I find that Industrial does not owe a fiduciary duty and, as a result, has not breached any fiduciary duty to Ms. Garneau.

Is a Trial Required to Determine Whether Industrial Breached its Duty in Good Faith or Fair Dealing by Overpaying her LTD Benefits?

[26] In Gateway Realty Ltd. v. Arton Holdings Ltd., 1991 2707 (NS SC), [1991] 106 N.S.R. (2d) 180 (N.S.Sup.Ct. (TD)) at para. 39 the Nova Scotia Supreme Court stated that the parties to a disability insurance contract must “exercise their rights under that agreement honestly, fairly and in good faith.” The insurer has a duty of good faith to the insured and a duty to act fairly to her. The Court continued: ““Good faith” conduct is the guide to the manner in which the parties should pursue their mutual contractual objectives. Such conduct is breached when a party acts in “bad faith” - a conduct that is contrary to community standards of honesty, reasonableness or fairness.”

[27] In the case of Branco v. American Home Assurance Company, 2013 SKQB 98, [2013] 6 W.W.R. 746, the Court found a breach of a duty of good faith and fair dealing because the insurer failed to pay disability benefits as reasonably required by the insurance contract, and as a result caused financial hardship and mental distress to the insured. The failure to pay benefits when an individual is disabled also breached the disabled individual’s reasonable expectations. The insurer’s breach of its duty of good faith flowed from its failure to pay disability benefits as reasonably required.

[28] The case before me does not involve a failure by Industrial to pay reasonably required disability benefits, but rather involves an overpayment of disability benefits caused as a result of clerical error and also as a result of not being advised that Ms. Garneau had retired and had commenced receiving retirement benefits. I find that the unintentional overpayment of disability benefits to Ms. Garneau does not breach a community standard of reasonableness or fairness.

[29] Most of Ms. Garneau’s allegations of a breach of the duty of good faith related to the previous insurer’s refusal to pay her disability benefits in the late 90’s and the mental suffering that this caused her. However, the conduct of the previous disability insurer, in the late 90’s of initially refusing to pay her disability benefits until the parties ultimately settled and agreed that Ms. Garneau was entitled to receive disability benefits, is not relevant to Industrial’s overpayment of LTD benefits to her from 2002 to 2007.

Disposition on Issue of Breach of Good Faith and Fair Dealing by Overpaying her LTD Benefits

[30] I am confident that I can make a fair and just determination on the merits of this issue, even accepting Ms. Garneau’s evidence that National Life was given notice of her upcoming retirement on June 13, 2007, and that Industrial’s unintentional error of overpaying the amount of LTD benefits to Ms. Garneau, without deducting her retirement benefits, did not breach its duty of utmost good faith or its duty of fair dealing owed to Ms. Garneau. Industrial did not withhold any payment due to Ms. Garneau but rather unintentially overpaid her.

Is a Trial Required to Determine if Industrial Breached its Duty of Good Faith or Fair Dealing by Unilaterally Reducing her Ongoing Disability Benefits to Repay the Overpayment?

[31] Ms. Garneau alleges that Industrial’s decision to initially apply 100 percent of her LTD benefits for October, November and December of 2007 to repay the overpayment of LTD benefits was a breach of its duty of good faith and fair dealing.

[32] On September 24, 2007 Industrial discovered that it had overpaid Ms. Garneau by $114,644.76. At that time, it wrote to her and advised her of the overpayment and of its decision to withhold 100 percent of her disability benefits until the overpayment was repaid. In December of 2007 Industrial changed its position and paid Ms. Garneau 50 percent of her LTD benefits for October, November and December of 2007. Thereafter, Industrial continued to pay her 50 percent of her monthly LTD benefits and to apply the other 50 percent to repay the overpayment.

[33] In May of 2009, Ms. Garneau brought a motion seeking an order limiting Industrial to deducting 20 percent of her monthly disability benefits pursuant to section 7 of the Wages Act, R.S.O., 1990 c. W.1. In the Garneau decision at para. 13, Métivier J. held that the overpayment of LTD benefits, by Industrial to Ms. Garneau, was a debt which was different from income replacement benefits and held that there had been no “seizure” of “wages”. Leave to appeal Métivier J.’s decision to the Divisional Court was denied and, as a result, this decision is final.

[34] In 2007, Ms. Garneau received income from two other sources in addition to her LTD benefits from Industrial. She received CPP benefits of approximately $803.43 per month ($9,636 per year) and retirement benefits of approximately $1,726 per month ($20,640 per year) for a total of approximately $30,000 per year from other sources. After retirement she was entitled to continue to receive approximately $18,876 per year of LTD benefits. In error she received approximately $39,516 per year in LTD benefits which was $20,640 per year more than she was entitled to receive from 2002 to 2007. Her annual income in 2002 should have been approximately $49,000.

[35] When Industrial discovered the overpayment in 2007 it initially her LTD benefits by 100 percent which reduced her annual income (based on 2002 figures) to approximately $30,000 ($20,640 retirement benefits plus $9,636 of CPP benefits). In December of 2007 Industrial decided to reduce her monthly LTD benefits by 50 percent leaving her an annual income of approximately $39,714 per year (made up of 50 percent of her LTD benefits of $9,636 per year, CPP benefits of $9,636 per year and retirement benefits of $20,640 per year).

[36] Industrial has repaid itself approximately $9,636 per year since October of 2007, thereby reducing Ms. Garneau’s annual income from $49,152 to approximately $39,700. The repayment of $9,636 per year from a total annual income of $49,152 per year amounts to a 19.61 percent reduction. I find that this amount is slightly below to the 20 percent amount that may be garnished under the Wages Act and is not an unreasonable amount to be repaid annually, based on her total income.

[37] In Ruffolo and Lepage v. Sun Life Assurance Co. of Canada [2007] 64 C.C.P.B. 277, at para. 7, Perell J. held that an insurer who discovers that it has overpaid an insured is entitled to the self-help remedy of withholding the future LTD payments until it has repaid itself. He held that the offsetting of benefits by a LTD insurer to recover an overpayment was not unreasonable, unconscionable, unexpected, illegal, or contrary to public policy. In Ruffolo the Court also held that Sun Life was not entitled to charge interest on the overpayment of benefits.

[38] In this case, Industrial has not charged Ms. Garneau any interest on the $114,446.76 overpayment which is being repaid by deducting 50 percent of her ongoing monthly LTD benefits. Following the reasoning of Ruffolo above, I find that Industrial was entitled to exercise the remedy of self-help and was entitled to deduct 50 percent of Ms. Garneau’s LTD benefits to repay the overpayment. I further find that when Industrial exercised the self-help remedy of reducing Ms. Garneau’s LTD benefit by 50 percent ($9,636 per year), which amounted to approximately a 19.61 percent reduction of her total income, it did not breach Industrial’s duty of good faith or fair dealing to Ms. Garneau.

[39] I further find that a trial is not required to make a fair and just determination on merits that Industrial’s exercise of the self-help remedy of reducing 50 percent of Ms. Garneau’s LTD benefits does not constitute an unfair action or a breach of Industrial’s duty of utmost good faith. The facts are not in dispute and no credibility findings must be made to decide this issue.

Is a Trial Required to Determine if Industrial Breached its Duty of Good Faith and Fair Dealing by Withholding of 100 Percent of Ms. Garneau’s LTD Benefits for three Months?

[40] Industrial initially withheld 100 percent of Ms. Garneau’s monthly LTD benefits for approximately three months from October to December of 2007. The facts are not disputed and I find that a trial is not required to make a fair and just determination on the merits whether withholding 100 percent of her benefits for three months amounts to a breach of a duty of good faith or fair dealing.

[41] When Industrial withheld 100 percent of Ms. Garneau’s LTD benefits for three months, to repay the overpayment, it still left with Ms. Garneau with an annual income of approximately $30,000 per year. In the Ruffolo decision Sun Life was allowed to use self help and to reduce the ongoing monthly LTD benefits to repay the overpayment.

Disposition of Issues of Breach of Good Faith for Initially Withholding 100 percent of Ms. Garneau’s LTD Payments for Three Months and then 50 Percent Thereafter

[42] For the above reasons, I find that Industrial has not breached its duty of good faith or fair dealing by initially deducting 100 percent of her LTD benefits for three months and thereafter deducting 50 percent of Ms. Garneau’s LTD benefits to payback the arrears of the overpayment because Industrial was entitled to use the self-help remedy of deducting her LTD benefits to repay the overpayment by the terms of the disability policy, and rely upon the reasoning in the decision of Ruffolo. I find that Industrial’s conduct was reasonable in the circumstances and not unfair to Ms. Garneau. Industrial’s conduct does not amount to a breach of its duty of good faith or fair dealing in circumstances where Ms. Garneau had approximately $30,000 per year of other income for three months and then approximately $39,000 per year of annual income instead of approximately $49,000 per year, until the overpayment was repaid.

Limitations Issue

[43] Ms. Garneau raised an issue that Industrial was limited to claiming for two years of overpayment, namely for two years prior to its discovery of the overpayment in September of 2007.

[44] I find that the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B has no application here as Industrial has not commenced a claim against Ms. Garneau, rather it is acting within the terms of the insurance contract by withholding future benefits to repay an overpayment. The insurance contract does not limit how far back Industrial can go to recover an overpayment. In addition, Metivier J. found that Ms. Garneau owed Industrial a debt of $114,644.76 and leave to appeal this decision was denied, making this decision final and it only discovered the overpayment on September 24, 2007.

[45] The Limitations Act, 2002 prevents a party from commencing an action after two years have elapsed from the date it discovered the essential facts giving rise to a cause of action. This is not the situation before me.

Disposition of The Limitations Issue

[46] Ms Garneau’s reliance on the Limitations Act, 2002 to prevent Industrial from deducting an overpayment for more than two years before it discovered the overpayment on September 24, 2007 is dismissed. A trial of an issue is not required to make a fair and just determination on the merits of this issue as there are no material facts in dispute.

Is a Trial Required to Determine Ms. Garneau’s Claim for Aggravated, Exemplary, Punitive and Special Damages and Compensation for Losses Arising Out of Injury to Dignity, Feelings and Self-Respect under the Ontario Human Rights Act?

[47] In Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595 the Supreme Court stated that punitive damages were limited to cases where the defendant exhibited malicious, oppressive and highhanded conduct which offended the court’s sense of decency. Industrial’s action of repaying itself the overpayment of benefits was found to be acceptable and reasonable in Ruffolo. In addition, the deducting of 50 percent of the LTD benefits, in circumstances where the insured continues to receive approximately $40,000 per year of retirement, CPP and disability benefits, and where the amount deducted amounts to slightly less than 20 percent of her total income, and where Industrial was permitted to set off any overpayment against future LTD benefits under the policy, does not amount to oppression or highhanded conduct which offends the courts sense of decency. As a result, I find that Industrial’s conduct does not justify an award of punitive damages applying the Whiten v. Pilot criteria to the facts of this case, even if all of Ms. Garneau’s evidence is accepted.

[48] The plaintiff cannot succeed on any of the above claims for damages unless there is a finding in her favour that she has raised a genuine issue for trial on one of the underlying tort claims, namely on the issue of breach of fiduciary duty, breach of duty of good faith or a breach of fair dealing. As I have found that she has not raised a genuine issue requiring a trial on any of the above issues, I find that she cannot be successful on a claim for damages on any of the above issues.

Disposition of Issue of Ms. Garneau’s Claim for Damages

[49] For the reasons above, I find that the plaintiff’s claim for aggravated, exemplary punitive and special damages for compensation for losses arising out of inquiry to dignity, feelings and self-respect do not constitute a genuine issue requiring a trial and are dismissed.

Disposition of Summary Motion

[50] For the above reasons, Industrial’s motion for summary judgment is granted and all of Ms. Garneau’s claims against Industrial are dismissed.

Costs

[51] Industrial seeks costs of $24,579 on a partial indemnity basis. Ms. Garneau sought costs of $2,901 for the costs of transcripts, parking, gas expenses and a computer if she was successful.

[52] Considering that Industrial was successful on their motion but also considering that Industrial’s administrative error was partly responsible for causing the overpayment. Ms. Garneau is ordered to pay costs of $5,000 inclusive of HST plus disbursement of $919 inclusive of HST. These costs are to be added to the amount owing on the overpayment at this date and shall be repaid by deducting 50 percent of her future monthly LTD payment in the same manner as the overpayment of LTD benefits without interest.

The Honourable Mr. Justice Robert J. Smith

Released: March 7, 2014

COURT FILE NO.: 08-CV-42719

DATE: 20140307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DENISE GARNEAU

Plaintiff

– and –

INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC.

Defendant

REASONS FOR decision on motion for summary judgment

R. SMITH J.

Released: March 7, 2014