Court File and Parties

Court File No.: CV-17-0053188-0000 Date: 20181114 Superior Court of Justice - Ontario

Re: Istvan Hirosik, Plaintiff/Applicant And: Canada Life Assurance Company, Defendant/Respondent

Before: A. O’Marra, J.

Counsel: Henry Juroviesky, for the Plaintiff Scott McTaggart and Rebecca Grima, for the Defendant/Respondent

Heard: November 14, 2018

Endorsement

[1] The plaintiff, Hirosik has brought an action against the defendant, Canada Life Assurance Company (“Canada Life”) for payment of benefits under two long-term disability insurance policies issued by the defendant. He has brought a summary judgment motion seeking payment of the benefits and seeks an award of aggravated, exemplary and punitive damages. The defendant/respondent takes the position that the summary judgment motion is not the appropriate procedure to determine whether the applicant/plaintiff is entitled to receive benefits for disability under the policies as a result of insufficient materials/evidence to assess the issues of disability, causation and credibility.

[2] Mr. Hirosik made claims for disability payments under the policies in 2002 relating to a disease of the cervical spine for which he received benefits during a “period of disability” of five years (60 months). He had a second claim for payment of benefits made in 2006 due to deep vein thrombosis and occlusion of his femoral arteries, and vascular claudication in his lower limbs and received benefits during a “period of disability” on that policy. During the period of receipt of benefits Canada Life waved payment of premiums.

[3] On July 5, 2016 he made a further claim for benefits asserting he has debilitating pain and discomfort from the lower spine (lumbar) degeneration, degenerative disc disease.

[4] The plaintiff/applicant and defendant/respondent agree that Mr. Hirosik is disabled however, Canada Life argues that the core issue in the action is whether Mr. Hirosik is disabled by virtue of symptoms associated with the degenerative disc disease in his lumbar spine or whether his disability is attributable to vascular claudication in his lower limbs or related cause that formed the basis of a prior claim.

[5] Mr. Hirosik takes the position that regardless of whether there is an association or not between conditions, he has an entitlement to receive benefits under the “recurrent disability provision” of the policy. Specifically the terms of the riders to the policies which state that after the end of a period of disability for which disability benefits were paid, if within 12 months (or 6 months depending on the policy) he again became disabled due to the same or related cause Canada Life would consider the later period of disability to be a continuation of the previous period of disability and benefit period.

[6] Mr. Hirosik asserts that there is an identifiable gap or break in his disability based on the medical information provided by Dr. Otto Veidlinger in his July 5, 2016 claim for benefits. The doctor wrote that the first reported symptoms of pain by Mr. Hirosik associated with the degenerative disc disease was May 20, 2015. In a letter prepared by Dr. Veidlinger, dated October 2017 to Dr. G. Davoodi he states he had seen Mr. Hirosik on numerous occasions since 2011 and that his most recent problem is as a result of a low back injury.

[7] Counsel for Mr. Hirosik argues that this is evidence of a gap/break in time in his spinal disability and as such it is a recurrent ailment which is causing his most recent disability, thereby qualifying under the recurrent disability provision of the policies.

[8] The defendant/respondent notes that Mr. Hirosik has a number of ailments and a note by Dr. Veidlinger appended to Mr. Hirosik’s affidavit is not admissible medical opinion upon which the decision can be rendered. Moreover, it is an insufficient basis upon which to determine whether he is “disabled”, as defined by the policies, due to degenerative disc disease or the other diseases that disable him. Such a determination also requires an understanding of his complex medical history, an understanding of the role of the other disability diseases in causing pain, and a determination as to whether the symptoms from the degenerative disc disease result in “disability” as defined in the policies. The plaintiff’s counsel responds that it does not matter. Whether there is a gap or break in his disability it is a factual determination, which can be made on the material on the motion.

[9] I do not agree. This is a matter in which I am unable to make the determinations based on the record before the court. I have given consideration to directing viva voce evidence of Dr. Veidlinger and other referenced physicians under Rule 20.04 of the Rules of Civil Procedure, but I have concluded that it would be unfair to the defendant/respondent without the plaintiff/applicant to have produced a complete medical record that has been fully assessed. Mr. Hirosik has not made a production of documents and I consider the brief references made by Dr. Veidlinger in Mr. Hirosik’s claim form and a brief note to be insufficient to draw the inferences counsel encourages to make any determinations.

[10] I understand the great desire of Mr. Hirosik to resolve this matter as expeditiously as possible as he is in obvious great need. However, the court requires admissible expert evidence on what is an exceedingly complex medical issue as to the cause of Mr. Hirosik’s subjectively voiced degree of pain in the context of all of his extant debilitating/disabling ailments.

[11] It is unfortunate that this matter was precipitously undertaken as a summary judgment motion without production of documents, particularly the provision of a fulsome medical record of treatment received by Mr. Hirosik. There has been some delay with Canada Life in responding to his claim and to setting up an independent medical examination, which no doubt led to his frustration and attempt to obtain an earlier resolve. However, as a result of commencing a summary judgment motion without an adequate record, a year has passed during which there could have been a production of documents, exchange of affidavits and reports of experts together with cross-examinations, all of which will be necessary to determine a complex medical issue.

[12] Clearly, there is a genuine issue for trial and it should proceed to trial. The motion is dismissed without prejudice to Mr. Hirosik advancing his cause of action to trial. The parties shall proceed to exchange affidavit of documents, expert reports and the conduct of examinations as deemed appropriate.

[13] If counsel are unable to resolve the issue of costs as between themselves written submissions, no greater than 4 pages inclusive of outline of costs, may be made within 15 days of this endorsement.

A. O’Marra, J. Date: November 14, 2018