Court File and Parties

COURT FILE NO.: C-324-15 DATE: September 21, 2018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Judith Marlen Fricke, Plaintiff AND: SSQ, Life Insurance Company Inc., Defendant

BEFORE: Barnes J.

COUNSEL: Mark S. Grossman for the Plaintiff Tracey L. Hamilton for the Defendant

Endorsement

LEAVE TO FILE A REPLY and to set aside the map decision

[1] Ms. Fricke’s application for leave to file a reply is dismissed. Her application for leave to set aside the decision of Dr. William’s under the MAP process is also dismissed. The court will entertain an application from Ms. Fricke to amend her Statement of Claim pursuant to Rule 25.06(5).

[2] Ms. Fricke was employed by a hospital. The defendant (SSQ) provided group insurance to employees of the hospital. Ms. Fricke applied for total disability benefits on the basis that she was disabled. SSQ denied her claim. Ms. Fricke exhausted avenues of appeal provided under the SSQ policy. The last route of appeal was the Medical Appeals Process (“MAP”). As per the terms of the policy, the results of the MAP process were to be binding with no route of appeal. Ms. Fricke’s appeal under the MAP process was unsuccessful. Thus, Ms. Fricke has commenced an action in the Superior Court.

[3] Ms. Fricke’s Statement of Claim was based on an alleged breach of contract by SSQ to pay her long term disability (LTD) benefits. SSQ’s Statement of Defence pleads that Ms. Fricke is not entitled to sue as per the provisions of a final and binding appeal process (the MAP process) established pursuant to the MAP agreement referenced in the insurance policy.

[4] SSQ’s Statement of Defence was inconsistent with the allegations made in Ms. Fricke’s pleadings. Therefore, as per Rule 25.06(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Ms. Fricke should have sought an amendment to her pleadings to plead a challenge to the enforceability of the MAP process. Ms. Fricke elected not to seek leave for an amendment to her Statement of Claim. Rather, she raised issues challenging the validity and enforceability of the MAP agreement at SSQ’s summary judgment motion. This is three years after she first issued her Statement of Claim.

[5] According to subrules 25.08(1) and (2) a party may deliver a reply to allege a version of facts or a matter not yet pleaded, however, this is subject to subrule 25.06(5).

[6] In pleading a challenge to the enforceability of the MAP process, Ms. Fricke will be raising a new ground of claim. Rule 25.06(5) prohibits raising this new ground in a subsequent pleading. Instead, Ms. Fricke is required to amend her Statement of Claim. The application to file a reply is denied. The court will entertain a motion for leave to amend her statement of claim.

[7] Ms. Fricke also seeks leave for an order to set aside an arbitral award. Namely, Dr. Williams’ decision that Ms. Fricke does not exhibit a severe impairment that would render her totally disabled from performing her duties as a ward clerk. Leave is denied. Ms. Fricke has not filed proper pleadings before the court in support of the relief she seeks.

[8] Should the parties be unable to resolve the issue of costs a cost outline shall be provided to the court within 30 days.

Barnes J. Released: September 21 2018