Peters v. Desjardins Financial Security, 2018 ONSC 4124

COURT FILE NO.: CV-13-483884

DATE: 20180704

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANDERDAI PETERS, Executor and Trustee of the Estate of ISAAC PETERS

Plaintiff

– and –

DESJARDIN SECURITE FINANCIERE COMPAGNIE D’ASSURANCE VIE/DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY and METRO ONTARIO INC.

Defendants

James Jagtoo, for the Plaintiff

Chris Blom, for the Defendant Metro Ontario Inc.

HEARD: June 25, 2018

REASONS FOR DECISION

W. MATHESON J.

1The defendant Metro Ontario Inc. moves for summary judgment, dismissing this action as against it. This action has already been dismissed as against the defendant Desjardins Financial Security Life Assurance Company.

2This action arises from the death of Isaac Peters. The defendant insurance company paid life insurance benefits, but brought a motion for summary judgment disputing the claim for accidental death benefits. On that motion, the motion judge found that the plaintiff could not meet the burden of establishing that the death was an accident for purposes of that coverage: 2015 ONSC 5458, [2015] I.L.R. I-5801. That decision, in favour of the insurer, was upheld on appeal: 2016 ONCA 282.

3The insurance in question was group insurance through Mr. Peters’ employment with the defendant Metro Ontario Inc. The remaining claim, as against Metro, is for negligent misrepresentation in regard to that group insurance coverage.

4For the reasons set out below, this motion is granted.

Background

5As confirmed in oral submissions, the following facts, as found by the prior motion judge, are no longer disputed between the parties:

12Isaac was 40 years old when he died. He was five feet, nine and a half inches tall. He graduated from the University of Toronto with a degree in pharmacology in 1995 and subsequently became licensed as a member of the Ontario College of Pharmacists. Thereafter, he worked as a pharmacist and at the time of his death, had been employed by Metro Ontario Pharmacies Limited, a wholly owned subsidiary of Metro for 11 years. He earned approximately $88,000 a year and owned his own condominium in downtown Toronto, mortgage free. There is no evidence that he was under any financial distress. He is survived by his parents and two siblings.

13Isaac is described by his family and friends as having a peaceful disposition and demeanor. He had no criminal charges or convictions. He is described as being a neat and orderly person. His mother said that he began dating when he was 16 and has had a number of relationships since that time. His last relationship was with a girl called Amy to whom he was engaged to be married. They dated for approximately three and a half years during which time they broke up and then reconciled on a “number of occasions”. Amy ended the relationship in October 2012.

14At approximately 12:15 a.m. on December 22, 2012, Isaac attended at Amy’s place of work and followed her when she left work. Amy went directly to 52 Division Police Station where she filed a complaint against him. She told the police about their previous relationship and the break up. She said that Isaac had called her cell phone and that she had told him that the calls were unwanted. She said she was not concerned about violence.

15At 1:46 a.m., the police called Isaac and spoke with him on the phone. He was cautioned about contacting Amy and warned that he could be charged with criminal harassment. The officer who spoke to him described him as “calm, sober”.

16At 1:59 a.m., Isaac’s phone record indicates he called his brother Donald. Donald called him back at 2:00 a.m. and the call lasted 18:00 minutes. Donald then called his mother and related the conversation to her. Donald had a further call with Isaac at 2:30 a.m. which lasted 21 minutes. Donald said that Isaac was upset that Amy had called the police who had then called him to advise him not to contact her.

17At approximately 2:48 a.m., the Plaintiff telephoned 9-1-1 to have the police check on her son who she said was having relationship problems and was about to jump. She told the dispatcher that her other son had spoken to him 10 minutes ago. She said he was depressed and lived alone. She asked that the police call her with the results. The Plaintiff said that the reason she called 9-1-1 to have the police check on Isaac was because she and her family had the flu and were immobile.

18As a result of the Plaintiff’s call to 9-1-1, two police units were dispatched to Isaac’s apartment at 2:55 a.m. At the same time, the dispatcher spoke with Isaac and advised him that the police would visit him. The dispatcher noted that Isaac indicated he was in bed and didn’t feel like hurting himself.

19At approximately 3:00 a.m., four police officers arrived at Isaac’s apartment and spoke with him. They bluntly asked him if he was planning to hurt himself and he said no. The officers believed Isaac that he had no intention of harming himself and left him to go back to sleep. The event was closed by the police at 4:14 a.m.

20Isaac’s phone records indicate that he received another call from Donald at 3:37 a.m. which lasted 17 minutes. Donald said he spent time calming him down. He urged him to get a good night’s sleep and things would look different tomorrow. Isaac listened to him and went to bed.

21Around noon on December 22, 2012, Isaac visited a friend. He seemed preoccupied regarding his car which needed repair and winter tires. They made plans to meet later that evening for dinner. Isaac then left and went to Scarborough to visit his parents and sister where he spent a few hours before returning to his condominium downtown.

22At 5:32 p.m., Isaac called his brother Donald. Donald told Isaac that he couldn`t take the call at the time as he was in a store at the check-out and asked if he could call him back. Isaac said that would be fine. Donald said he sounded normal and nothing seemed out of the ordinary.

23At 5:54 p.m. a caller told police that he had heard a bang, looked down and saw a body below on a van. He was wearing a black house coat over a blue hoody sweater and black underwear. A white spa style sandal and a cell phone were found nearby. Emergency response personnel attended at the scene and attempted CPR on Isaac. He was taken to St. Michael’s Hospital where he was pronounced dead at 6:19 p.m.

24The toxicology report dated February 7, 2013 found a negligible amount of alcohol in Isaac’s system (.53 mg. per 100 ml of blood) together with Lorazepam and Clonazepam, both within therapeutic levels.

25The police attended at Isaac`s condominium. The front door was locked and had to be opened. There was no one in the apartment. The balcony door was closed. The apartment was orderly but had not been cleaned recently. The police observed two empty bottles of wine in the kitchen, one in the living room and one in the bathroom. There was a handwritten grocery list, a half pack of cigarettes and a half full ashtray on the center table. They also found a handwritten note which stated:

• “There were probably a lot of things you were overlooking that you didn`t like about her.

• You can`t force someone to love you

• You can’t change the past

• O / → □

• Walk away with dignity; force.”

26The investigating officer went out on the balcony. There was no precipitation. He said it was cool but not cold. There was very little wind. Everything was intact and there was nothing unusual.

27The Plaintiff filed weather data from Pearson Airport for December 22, 2012. At 5 p.m., the temperature was -0.1 Celsius; the wind was 28 km/hr. and it was mostly cloudy. At 6 p.m., the temperature was 0.1 Celsius; the wind speed was 30 km/hr. and it was still mostly cloudy.

28The balcony measures 42.5 inches from the concrete floor to the top of the railing. Isaac had a wooden deck installed on it which Donald says is 3.25 inches above the concrete floor.

29A post-mortem examination was carried out on December 24 and 25, 2012 and a report issued dated February 12, 2013. The immediate cause of death was determined to be blunt force injuries.

30The Coroner’s Office conducted an investigation and concluded that the death was suicide.

6Based on the above, the motion judge found that there was evidence to support both that Mr. Peters died accidentally and that he died from his own deliberate actions. Further, the motion judge found that the evidence did not give rise to credibility issues, a conclusion with which the Court of Appeal agreed at para. 7 of its reasons. What was at issue were the inferences to be drawn from the evidence. In that regard, the motion judge found that the plaintiff could not meet her onus of proving, on a balance of probabilities, that the death was an accident (at paras. 34, 48).

7The motion judge dismissed the entire action. However, the claim against Metro was based on a different cause of action, specifically negligent misrepresentation (although that is not particularly clear in the amended statement of claim). The Court of Appeal therefore set aside the dismissal of the claim against Metro, as follows, at paras. 10-11:

The appellant raises the additional issue of the dismissal of her action against Metro. She submits that the motion judge erred in dismissing the action against Metro, given that Metro did not participate in the motion and that the claim against it is based on alleged misrepresentations contained in a booklet produced by Metro explaining the Policy. We agree. The nature of the claim against Metro is different from the contractual claim asserted against Desjardins and it was not open to the motion judge to dismiss the action against it.

The appeal is dismissed, except to the extent that the dismissal of the action against Metro is set aside. [Emphasis added.]

8Metro has now brought this motion for summary judgment seeking the dismissal of the negligent misrepresentation claim against it. There is evidence before me regarding Metro’s dealings with its employees, and with Mr. Peters in particular, concerning the group insurance coverage.

Communications regarding group insurance benefits

9The insurance policy applicable at the time of Mr. Peters’ death was a 2012 group insurance policy. There is no dispute that the 2012 group insurance policy was, itself, not provided to Mr. Peters. Group insurance contracts are not usually given to employees: D. Norwood & J.P. Weir, Norwood on Life Insurance Law in Canada, 3rd ed. (Toronto: Carswell, 2002), at p. 227; Sorensen v. Investors Group Financial Services Inc., 2014 NSSC 398, 352 N.S.R. (2d) 318, at paras. 28-31.

10The plaintiff’s misrepresentation claim is based upon an alleged lack of communication about a change in the definition of “accident” in the group insurance policy.

11As set out in some detail in the affidavit of Andrew Mills, Manager of Pension and Benefits at Metro, Metro communicated with its employees about group insurance benefits through the provision of summaries and booklets. Over the period of Mr. Peters’ employment, there were a number of different insurers and changes in benefits, and related employee communications and booklets. In the relevant period, there were a total of eight booklets.

12When Mr. Peters was hired in 2000, he completed a Benefits Questionnaire Form, which indicated that his coverage included not only life insurance but also accidental death and dismemberment insurance. This Form did not contain a definition of “accident”. After that time, there were memoranda and email delivered to employees regarding benefits, which spoke about benefits generally, some of which spoke about the availability of a booklet.

13The plaintiff agrees that Mr. Peters received the 2007 booklet. The term “accident” is not defined in that booklet. However, accidental death and dismemberment coverage is described in it, as follows:

If death occurs as a result of an accident, this additional life insurance policy will be payable to your beneficiary. Death must be as a result of an accident and not … [in the] nature of degenerative causes (heart attack, stroke, liver disease, etc.).

14The cover page of the 2007 booklet included the following:

This booklet is designed to outline the benefits for which you are eligible and does not create or confer any contractual or other rights. All rights with respect to the Benefits of an eligible person will be governed solely by the Insurance Contract administered by the Insurance Carrier.

15The plaintiff located three documents regarding insurance benefits in Mr. Peters’ condominium after his death: a summary of benefits effective January 1, 2008, a summary of benefits revised January 1, 2012 and a document entitled “LIFE INSURANCE” revised January 1, 2007. These documents did not contain a definition of “accident”.

16Commencing in 2008, a definition of “accident” was referred to in the booklet that was made available to employees, as follows:

“Accident” means any unlooked for mishap or untoward event which is not expected or designed.

17When Desjardins became the insurer, employees completed applications for enrollment in its group insurance. Mr. Peters signed an application in February 2008 in which he acknowledged that insurance contract benefits were subject to limitation or reductions as well as exclusions.

18In 2012, a new booklet was made available to employees, which quoted the definition of “accident” in the applicable 2012 insurance policy, as follows:

Accident means any event due to sudden and unforeseeable external causes that inflicts bodily injuries which are certified by a Physician, directly and independently of any other cause. It does not mean any form of disease, or degenerative process, an inguinal, femoral, umbilical or incisional hernia, or any infection other than an infection of a visible, external cut or wound accidentally sustained.

19The plaintiff submits that Metro did not draw this 2012 definition to Mr. Peters’ attention. There is no specific evidence that either the 2008 or 2012 definition came to Mr. Peters’ attention. However, the evidence is that the booklets were sent to pharmacy managers to be distributed to employees, and as of the 2012 booklet, Mr. Peters was himself a pharmacy manager.

Reliance and damages

20The plaintiff submits that if Mr. Peters had known of the definition of “accident” as of 2012, which the plaintiff submits is a more restrictive definition than the prior coverage, Mr. Peters would have obtained additional accident benefits insurance separate from the group insurance coverage. However, here is no specific evidence that Mr. Peters would have taken those steps. The plaintiff’s evidence on her examination was that Mr. Peters had not discussed his insurance with her, or anyone else to her knowledge. There is no specific evidence that he was focused on or concerned about his accidental benefits insurance coverage. The plaintiff asks that inferences be drawn from other evidence, as discussed below.

21Nor is there any evidence before me about what alternative insurance would have been available to Mr. Peters, what definition of “accident” it would have included for its coverage, or other relevant information regarding the claim for damages.

Issues

22The issues on this motion are as follows:

(1) whether the claim against Metro for negligent misrepresentation should be dismissed on this motion; or,

(2) whether a trial or some other steps are required to determine that claim.

Summary judgment

23The core principles applicable to motions for summary judgment are not disputed. The relevant portion of subrule 20.04(2) 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 a defence. As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. 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.”

24On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, then the motion judge may, at his or her discretion, (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66. The proportionality principle means that “the best forum for resolving a dispute is not always that with the most painstaking procedure”: Hryniak, at para. 28.

Negligent misrepresentation

25As set out in Deraps v. Coia (1999), 1999 CanLII 3790 (ON CA), 179 D.L.R. (4th) 168 (Ont. C.A.), at para. 42, citing Hedley Byrne Ltd. v. Heller & Partners Ltd., [1963] UKHL 4, [1963] 2 All E.R. 575, Hercules Management Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, and Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87, a claim of negligent misrepresentation arises in the following circumstances:

(i) when there is a duty of care based on a special relationship;

(ii) when information has been provided that is inaccurate, or misleading, or untrue;

(iii) when the person giving the information was negligent in providing the information;

(iv) when the recipient of the information relied on the negligent misrepresentation;

(v) when the reliance was reasonable; and,

(vi) when the reliance resulted in damages to the person receiving the information.

26I accept for the purposes of this motion that the first criterion is satisfied. However, there are significant difficulties with respect to the plaintiff’s case on the rest of the requirements for this tort.

27To begin with, it is doubtful that there was inaccurate, misleading or untrue information provided to Mr. Peters. At best, he was not given a definition at all, and to the extent that the 2012 definition may be more restrictive, its restrictive characteristics did not prejudice the plaintiff’s claim in this case. The motion judge on the prior motion focused on the definition of “accident” arising from case law, as stated in para. 41 of his reasons for decision:

An accident is “any unlooked for mishap or occurrence”: Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., 1975 CanLII 141 (SCC), [1976] 1 S.C.R. 309 at pp. 315-16 (S.C.C.).

28The above definition has been found to be the “popular and ordinary sense of the word”: Mutual of Omaha v. Stats, 1978 CanLII 38 (SCC), [1978] 2 S.C.R. 1153, citing Fenton v. Thorley & Co. Limited, [1903] A.C. 443. The plaintiff has not put forward any alternative definitions of “accident”.

29As well, there is no evidence before me that the process of communicating about group insurance benefits utilized by Metro fell below the standard of care expected of an employer in its circumstances. The process used by Metro otherwise appears reasonable, not negligent.

30On the subject of reliance, the plaintiff submits that I should infer that Mr. Peters relied on the absence of a definition of “accident” and if presented with the more restrictive definition implemented in 2012, he would have obtained additional accident benefit insurance. The plaintiff submits that given Mr. Peters’ job as a pharmacist, which required that he be meticulous, careful and responsible, and given his good financial situation and lack of mortgage, he would have taken this extra step. He did have three insurance documents at home, but that does not establish reliance. There is no evidence that shows any particular concern about or focus on the accident coverage. The evidence is that he did not discuss the topic with the plaintiff or others. This evidence falls well short of what would be required to prove reliance on a balance of probabilities.

31Similarly, there is no evidence to substantiate that any damage was caused as a result of the 2012 definition not coming to Mr. Peters’ attention. There is no evidence before me about what alternative insurance was even available, let alone any insurance that incorporated a definition of “accident” that would have allowed for coverage in this case.

32The plaintiff submits that the burden is on the defendant on this motion. I agree that Metro must show that this claim against it should be dismissed at this time and using this procedure. But that does not relieve the plaintiff of putting forward its evidence in support of its claim.

33The plaintiff submits that a trial is required in this case. The plaintiff submits that it wishes to call all of the witnesses that had involvement in the events surrounding Mr. Peters’ death. The plaintiff submits that despite the prior ruling of the Court of Appeal to the contrary, there are credibility issues about what transpired. The plaintiff submits that the trial would be focused on whether the death was an accident or suicide.

34The plaintiff relies on Trotter Estate, 2014 ONCA 84, 122 O.R. (3d) 625 in this regard. However, that case involved “[v]astly differing factual assertions” giving rise to significant credibility issues: Trotter Estate, at paras. 1, 55. That is not the case here. As previously upheld by the Court of Appeal, the circumstances regarding Mr. Peters’ death do not give rise to credibility issues. Nor does the evidence regarding communications to Metro employees about benefits.

35The plaintiff also submits that Metro is seeking the same result as the insurer on the prior summary judgment motion, based on the 2012 policy, and cannot do so because the Court of Appeal overturned the dismissal of the action against Metro on that motion. However, the Court of Appeal did not decide the negligent misrepresentation claim and that is the claim that is the focus of this motion.

36In summary, there is no or insufficient evidence regarding a number of the required elements of a successful negligent misrepresentation claim. There is no genuine issue requiring a trial. The claim for negligent misrepresentation ought to be dismissed on this motion.

Orders

37This motion is granted and this action is therefore dismissed.

38If the parties are unable to agree on costs, they shall make their submissions in writing as follows: the moving party’s brief written submissions and any related material shall be delivered by July 17, 2018; the plaintiff’s brief written submissions and any related material shall be delivered by July 31, 2018.