CITATION: Bonilla v. Great-West Life Assurance Company et al, 2016 ONSC 1522
COURT FILE NO.: CV-10-00410279
DATE: 20160303
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENDA BONILLA
Plaintiff
– and –
GREAT-WEST LIFE ASSURANCE COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE
Defendants
Kevin Doan, for the Plaintiff
Keith Geurts and Barry Stork for the Defendant, Canadian Imperial Bank of Commerce
HEARD: February 24, 2016
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The plaintiff was involved in a motor vehicle accident on June 10, 2002. At the time of the accident, she was employed with the defendant, Canadian Imperial Bank of Commerce (“CIBC”), as a Call Centre Specialist. Specifically, the plaintiff received and responded to incoming calls from clients regarding mortgage inquiries.
[2] As part of her terms of employment with CIBC, the plaintiff was entitled to seek both short term disability (“STD”) and long term disability (“LTD”) income benefits through CIBC’s self-funded Income Protection-Long Term Plan (“the Plan”). The Plan was managed and administered by the defendant, Great-West Life Assurance Company (“GW”).
[3] Since the time she applied for STD and then LTD benefits, save for a one month period in or around May 2008, the plaintiff has received payment of STD and LTD payments under CIBC’s Plan.
[4] In this action, the plaintiff sues both GW and CIBC for the following relief (more particularly described hereinafter):
a) entitlement to and payment of the missing one month’s LTD benefits;
b) entitlement to and payment of the sum of $72,750.00, being the cost of a treatment plan;
c) entitlement to and payment of the sum of $8,484.19, being the amount of another proposed treatment, and
d) damages in the amount of $250,000.00 for mental distress, aggravated and punitive damages.
[5] Both CIBC and GW have denied the plaintiff’s claims. CIBC now brings a motion for summary judgment seeking an order dismissing all of the plaintiff’s claims against it.
[6] The motion was argued before me on February 24, 2016, and I took my decision under reserve.
Summary Judgment
[7] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence.” As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[8] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada established a road map outlining how a motions judge should approach a motion for summary judgment. The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new fact finding powers set out in the 2010 amendments. Summary judgment will thus be available if there is sufficient evidence to justly and fairly adjudicate the dispute, with the motion being an affordable, timely and proportionate procedure.
[9] If the Court finds the presence of a genuine issue requiring a trial, the motions judge must then determine if the need for a trial can be avoided by using the new, enhanced powers under Rules 20.04(2.1) and (2.2).
[10] It is important to remember that the applicable evidentiary principles developed under the previous incarnation of Rule 20.04 continue to apply. The motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party’s obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.
[11] In my view, summary judgment is a just and proportionate outcome for the parties. On the record before me, I am confident that I can find the necessary facts and apply the relevant law to the evidence, and that it is in the interest of expedient, proportional and affordable justice to proceed as such.
Post-Accident Events
[12] It is the function of GW to adjudicate disability claims on behalf of CIBC under the Plan. CIBC has established a trust fund from which the LTD benefits are e paid to eligible employees. CIBC relies on GW for assistance in administrating the Plan, but for all intents and purposes CIBC is colloquially “self-insured” for disability payments arising out of the Plan.
[13] As a result of the accident, the plaintiff claims that she has suffered significant physical injuries, and in particular ongoing difficulties with her left arm, neck and back.
[14] After receiving STD benefit payments for approximately six months pursuant to the Plan, the plaintiff became eligible for LTD benefits. She then applied to GW for LTD benefits and her application was accepted in December 2002.
[15] In or around 2003, and then again in 2005, the plaintiff attempted to return to work. CIBC tried to facilitate her return by providing her with an ergonomically accommodated work space and modified hours. Unfortunately, due to apparent restrictions with respect to sitting, standing and her ongoing physical injuries, the plaintiff was unable to return to work on a part time or full time basis.
The Plaintiff’s Trips Abroad
[16] In or around April 2008, the plaintiff left Ontario for El Salvador to attend to her ill father. The terms of the Plan require GW to provide the plaintiff with approval prior to her leaving Ontario. The plaintiff did not seek such approval from GW, and her failure to do so initially resulted in the interim suspension of her LTD benefits. CIBC ultimately revised its position and continued payment of the plaintiff’s LTD benefits for a further 30 days. However, GW advised the plaintiff (via her counsel) as follows:
“Despite neither procuring our approval nor providing us with the required notice for her trip to El Salvador, Ms. Bonilla will continue to receive disability benefits for four (4) weeks uninterrupted. While benefit payments will be suspended after May 3, 2008 if she still remains out of province, they will be reinstated the day of her arrival, provided that she arrives in Ontario on or by June 3, 2008. To date, your client’s arrival dates remains unknown/undetermined.”
[17] Despite being provided with GW’s position, the plaintiff remained in El Salvador and did not return to Toronto until June 4, 2008. Upon her arrival in Ontario, CIBC (through GW) reinstated the plaintiff’s LTD benefits effective June 4, 2008.
[18] CIBC continues to withhold payment of the plaintiff’s LTD benefits for the May 4-June 4, 2008 period. Of note, when the plaintiff left Ontario again later that year for El Salvador to attend this time to her ill mother, she did not provide notice to GW or CIBC ahead of her departure. Nevertheless, CIBC (through GW) ultimately provided her with complete retroactive payment for the time she was out of the province.
Odyssey Health Services
[19] In or around late 2008, GW requested the plaintiff to undergo a multi-disciplinary assessment at a rehabilitative facility known as Odyssey Health Services (“Odyssey”). GW never agreed to fund any potential rehabilitative treatment suggested by Odyssey. Once Odyssey completed its assessment and delivered a report, GW intended to review what treatment, if any, it would be able to support for the plaintiff in the circumstances.
[20] After the plaintiff’s assessment, Odyssey delivered its report to GW. CIBC relies on the report which found inconsistencies between the plaintiff’s presentation and the reported difficulty in making such findings on her direct examination. According to the report, this was either due to the plaintiff’s misrepresentations, or “operant illness behavior”. To the extent that the plaintiff’s symptoms were due to operant illness behavior, Odyssey recommended a treatment plan based upon, inter alia, operant therapy. The cost of this treatment plan was estimated by Odyssey to total $72,750.00.
[21] When GW received the Odyssey report, it needed to speak with CIBC before proceeding further, as the ultimate decision rested with CIBC. The internal email documents produced by the defendants disclose that by January 12, 2009, CIBC had decided not to proceed with the treatment plan proposed by Odyssey, and had communicated that decision to GW.
[22] According to Richard Marlin, a psychologist and director of Odyssey, Odyssey viewed the plaintiff’s chances of a successful recovery under the proposed treatment plan at 80-90%.
[23] CIBC’s decision not to proceed with the treatment was based upon the opinion of its corporate medical director Dr. David Brown who felt that the plaintiff’s chances of a successful recovery under the proposed treatment plan were approximately 15%. There is evidence in the record that GW believed that Dr. Brown had initially approved “the assessment with Odyssey” but subsequently changed his mind and refused to recommend any additional assessments or treatments proposed by Odyssey.
[24] Specifically, Dr. Brown was of the opinion that Odyssey’s methods and treatment recommendations were “so onerous that the plaintiff could not comply” at which point the plaintiff’s claim stood the risk of being terminated for non-compliance. In addition, Dr. Brown believed the cost of the Odyssey treatment plan was quite high. Dr. Brown was open to other facilities providing the plaintiff with alternative recommendations or treatment plans for CIBC’s review.
[25] CIBC did not provide the plaintiff with its formal decision until late March 2009. By then, the plaintiff’s own chronic pain specialist Dr. Grigory Karmy had corresponded with Marlin to advise that in Dr. Karmy’s opinion, the Odyssey treatment plan would not benefit the plaintiff. Specifically, Dr. Karmy wrote as follows:
“As far as (Odyssey) treatment recommendations, I am against them as well, because the patient participated in similar programs in the past without success. I feel that Glenda exhausted all treatment options with possible exceptions of Botox, therapeutic injections. Unfortunately, Botox Therapeutic Injections were not covered. I feel that self-directed exercise program combined with analgesic medication is the best approach for this patient. Perhaps membership at the gym would be useful.”
[26] While CIBC’s internal decision not to implement Odyssey’s treatment plan was made in early January 2009, formal notification was not communicated by GW to the plaintiff until after Dr. Karmy’s opinion was received.
Back to Health
[27] After CIBC communicated its refusal to implement the Odyssey treatment plan, the plaintiff submitted a further treatment plan which she received from a rehabilitation facility known as Back to Health. The Back to Health treatment plan was addressed to the plaintiff’s automobile insurer, The Personal Insurance Company of Canada (“Personal”). Of note, Personal is a defendant in another legal proceeding brought by the plaintiff, and recently moved for summary judgment (successfully) before me in that proceeding.
[28] The cost of the Back to Health treatment plan was $8,484.19, and it was based upon the recommendations made in the Odyssey report, which as stated above had already been refused by CIBC (and cast into doubt by Dr. Karmy).
[29] It is CIBC’s position that the Back to Health treatment plan was “nothing more than the Odyssey treatment plan revisited.” GW denied the plaintiff funding for the Back to Health treatment plan, and once again invited the plaintiff to submit another treatment plan for consideration.
Breach of the Duty of Good Faith
[30] In Bhasin v. Hrynew 2014 SCC 71, [2014] S.C.J. No. 71 (S.C.C.), the Supreme Court of Canada held that the duty of good faith requires that an insurer deal with its insured’s claim fairly, both with respect to the manner in which it investigates and assesses the claim, and the decision whether or not to pay it. The Court further held that the duty of good faith was reciprocal, and explained this reciprocity as follows (my emphasis in bold):
“The insurer must not act in bad faith when dealing with a claim, which is typically made by someone in a vulnerable situation, and the insured must act in good faith by disclosing fact material to insurance policy.”
[31] The Court of Appeal for Ontario has made it clear that mutual obligations of good faith between an insured and an insurer do not import any fiduciary obligations. The duty to act in good faith is distinct from the nature of the relationship itself between an insured and an insurer. In Plaza Fiberglass Manufacturing Ltd v. Cardinal Insurance Co. (1994) 1994 CanLII 653 (ON CA), 18 O.R. (3d) 663 (C.A.), the Court stated as follows:
“The fact that a contract is one of good faith does not however mean that it gives rise to a general fiduciary relationship. The relationship between insured and insurer is not akin to the relationship between, say, guardian and ward, principal and agent, or trustee and beneficiary. In these latter instances, the inherent character of the relationship is such that the law has traditionally imported general fiduciary obligations. The insurer-insured relationship is contractual, the parties are parties to an arm’s length agreement. The principle of uberrima fides does not affect the arm’s length nature of the agreement and, in my opinion, cannot be used to find a general fiduciary relationship.
[32] As there is no fiduciary component, the duty of good faith does not create any obligation upon the defendant to relinquish its own self-interest and agree to act in the sole interest of the plaintiff.
[33] As held by the Supreme Court of Canada in Bhasin, the duty of good faith should not be confused with the duty of loyalty or disclosure. As my colleague Justice Dunphy held in Addison Chevrolet Buick GMC Limited et al v. General Motors of Canada Limited et al 2015 ONSC 3404 (S.C.J.):
“Bhasin is no authority for unbridled creativity in the creation from whole cloth of obligations in a contractual context which the parties have not provided for or have addressed in a fashion which one party regrets in hindsight.”
[34] As held in Whiten, punitive damages can be awarded for breach of the duty of good faith which qualifies as an independent actionable wrong (which is distinct from a breach of the insurance contract).
Decision
[35] I agree with CIBC’s position. In reviewing the record before me, I find that the plaintiff has not tendered evidence which meets the threshold proving that CIBC breached its duty of good faith.
[36] CIBC’s Plan requires any rehabilitation program to be approved in advanced and in writing. GW did not have the ability to approve the Plan as that decision rested with CIBC. CIBC exercised its discretion in refusing to implement the Odyssey treatment plan.
[37] The plaintiff contends that CIBC’s decision was solely motivated by a refusal to pay the $72,750.00 price tag. While Dr. Brown did express a concern about the cost of the Odyssey treatment plan being “high”, that was only one factor taken into consideration by CIBC. Dr. Brown believed that the scope of the Odyssey treatment plan was simply too much for the plaintiff to physically and psychologically handle. Such conclusions were not arbitrary as evidenced by Dr. Karmy’s independent support for those same concerns. In addition, if CIBC was solely motivated by saving money, it would arguably not have requested that the plaintiff seek and provide alternative treatment plans for its consideration.
[38] I find that CIBC’s decision to refuse to implement the Odyssey treatment plan was not carried out in bad faith. Under the Plan, CIBC was entitled to exercise its discretion, and as long as it did so upon proper principles (which I find that it did), it did not breach its duty of good faith.
[39] I do not find a breach of the duty of good faith by reason of CIBC’s refusal to fund the Back to Health treatment plan as it was based and premised upon the Odyssey treatment plan, a course of action which was justifiably refused (and known to have been refused by the plaintiff). It appears that the plaintiff was attempting to obtain a result through the back door which it could not through the front door. CIBC’s refusal to permit such a result does not amount to a breach of its duty of good faith.
[40] Finally, on the facts of this case I do not find CIBC’s decision to withhold payment of one month’s LTD benefits to amount to a breach of the duty of good faith. As stated above, the duty of good faith is a reciprocal obligation. The plaintiff had an obligation to comply with the terms of the Plan, and chose not to provide GW/CIBC with advance notice of her intention to leave Ontario. While I have no doubt that the reasons supporting her decision to leave Ontario were completely justified, it does not lie in the plaintiff’s mouth to complain about missing one month of LTD benefits when she has received LTD benefits for approximately 13 straight years.
[41] Even when GW found out about the plaintiff’s departure from Ontario, CIBC was still willing to reimburse the plaintiff for the missing month if she returned by a certain date. The plaintiff did not do so, and has not provided any adequate evidence to explain that decision.
[42] Accordingly, I do not find the presence of any genuine issues requiring a trial, and I grant summary judgment dismissing the plaintiff’s claim against CIBC.
Costs
[43] I would urge the parties to resolve the costs of this motion, and of this proceeding if necessary. If such efforts prove unsuccessful, CIBC may serve and file written costs submissions (totaling no more than four pages including a Costs Outline) within 10 business days of the release of these reasons.
[44] The plaintiff shall thereafter serve and file her responding costs submissions (also totaling no more than four pages including a Costs Outline) within 10 business days of the receipt of CIBC’s costs submissions.
Diamond J.
Released: March 3, 2016
CITATION: Bonilla v. Great-West Life Assurance Company et al, 2016 ONSC 1522
COURT FILE NO.: CV-10-00410279
DATE: 20160303
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENDA BONILLA
Plaintiff
– and –
GREAT-WEST LIFE ASSURANCE COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE
Defendants
REASONS FOR DECISION
Diamond J.
Released: March 3, 2016