COURT FILE NO.: CV-14-511469

DATE: 20191017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Francis Miceli, personally, and the Estate of Filomena Miceli, deceased, by her estate trustee, Anthony Francis Miceli, Plaintiffs

AND:

Chrysler Canada Inc., Desjardins Financial Security Life Assurance Company (also known as Desjardins Insurance), and Metropolitan Life Insurance Company (also known as MetLife Inc.), Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: G. Mazin, for the Plaintiffs

C. Rae and S. Armstrong, for the Defendant, Chrysler Canada Inc.

HEARD: August 21, 2019

ENDORSEMENT

Overview

[1] Chrysler Canada Inc. brings this motion for summary judgment dismissing the action. Chrysler is the only remaining Defendant.

[2] Anthony Miceli was an employee of Chrysler from April 20, 1992 until his retirement on January 1, 2014. As an employee, Mr. Miceli was entitled to purchase group health and insurance benefits which were offered by Chrysler. The benefits included voluntary group accident insurance (“VGA”). In 2013, the insurer of the VGA policy was Desjardins Financial Security Life Assurance Company.

[3] Chrysler employees were provided with “flex dollar” credits which could be used to purchase some, none or all of the benefits offered. Each year the employees made selections as to which, if any, of the benefits they wanted to purchase with their flex dollar credits. Mr. Miceli elected to purchase VGA insurance for himself, his wife Filomena and his two children since January 1993.

[4] On October 4, 2013, Filomena Miceli died. The death certificate provided that the immediate cause of death was Metastatic Breast Cancer.

[5] Mr. Miceli made a claim for benefits pursuant to the VGA policy, as a result of his wife’s death. Desjardins denied the claim on the basis that Mrs. Miceli’s death was not the direct result of an accident.

[6] Mr. Miceli brought this action on his own behalf and on behalf of the estate of his late wife. The Defendants were Chrysler, Desjardins and Metropolitan Life Insurance Company (also known as MetLife Inc.). The action was dismissed as against Desjardins and MetLife.

[7] With respect to the claim against Chrysler, the Plaintiffs make the following allegations in the Statement of Claim:

• Chrysler was negligent in selecting Desjardins as the VGA insurer;

• Chrysler negligently inflicted mental and emotional distress on Mr. Miceli with respect to the manner in which the VGA claim was handled;

• Chrysler’s conduct was malicious, oppressive and high-handed and, as a result, it is liable for punitive damages.

[8] Chrysler argues that there is no factual or legal basis to support these allegations. Chrysler submits that there are no genuine issues requiring a trial and accordingly summary judgment is the appropriate procedure for resolving the action. The Plaintiffs argue that there is a genuine issue which requires a trial regarding the representations made by Chrysler with respect to the VGA policy. Mr. Miceli argues that there are disputed facts and issues of credibility and as a result this is not an appropriate case for summary judgment.

[9] For the following reasons, I find there are no genuine issues requiring a trial. I grant the motion brought by Chrysler and dismiss the Plaintiffs’ action.

BACKGROUND FACTS

Chrysler’s Insurance Benefits Program

[10] Chrysler offered its employees various group health and insurance benefits. Non-unionized employees such as Mr. Miceli were provided with “flex dollars” that could be used to purchase some, none, or all of the benefits offered to them.

[11] Chrysler chose the health and benefit plans which were offered to its employees. Each November, Chrysler sent a newsletter to its employees which provided general information regarding the available benefits. In addition to the newsletter, employees could also access information regarding the benefit plans through the “BenefitsLink” website which was administered by Aon Hewitt, the benefits program administrator retained by Chrysler. After receiving a newsletter in November, the employees elected the coverage they wanted for the coming year.

[12] The purpose of the annual newsletter was to highlight any changes to the employee benefit program from the previous year. Chrysler employees were advised that the newsletter did not grant or create any rights, and that their entitlement to coverage was subject to the terms and conditions of the underlying policies and any applicable legislation. The newsletter for the 2013 benefits includes the following disclaimer:

This newsletter does not grant or create any rights or vested rights nor does it impose any obligations on either Green Shield Canada or Chrysler Canada Inc. Your rights to benefits and Chrysler’s obligations with respect to benefits, if any, are found solely in the underlying policies, subject to the terms and conditions of the underlying policies and any applicable legislation. Chrysler reserves the right to modify, revoke, suspend, terminate or change the benefits referred to in this booklet, in whole or in part, at any time and from time to time, whether you are or are not in receipt of or eligible for such benefits and regardless of whether you are or are not an employee or retiree at the time such changes become effective.

[13] The same disclaimer appears at the top of the Plan Information page on the BenefitsLink website.

VGA Insurance Policy

[14] Prior to March 1, 2008, Chrysler offered VGA insurance to its employees through the insurer, Aetna Insurance Company. In the period leading up to March 1, 2008, Chrysler sought new quotes for the VGA insurance coverage. Following this process, Chrysler selected MetLife to provide the benefits. MetLife was the insurer for Chrysler employees in the United States. MetLife intended to issue a single policy to Chrysler U.S. which would cover the Canadian employees. Chrysler was later advised by MetLife that it could not proceed in this manner because of the high ratio of Canadian employees.

[15] MetLife arranged for its Canadian partner, Desjardins, to provide the VGA coverage for Chrysler’s Canadian employees. The policy issued by Desjardins provided the same coverage as provided by MetLife in the U.S. Both policies provided insurance benefits where an injury or death was cased by an accident.

[16] The VGA coverage was changed for the 2009 policy year, in that the benefits were enhanced. The employee benefit available for purchase was increased to a maximum of $2,000,000. In addition, the spousal benefit available was increased from a maximum of 65% of the employee benefit capped at $325,000 to a maximum of 70% of the employee benefit capped at $500,000. The VGA coverage did not change from January 1, 2009 to the date of Mr. Miceli’s retirement on January 1, 2014.

[17] The changes to the VGA coverage for the 2009 policy year were communicated to the Chrysler employees, including Mr. Miceli, during the annual enrolment process. The changes are set out in the 2009 Annual Enrollment Newsletter. The changes were also set out in the documents uploaded to the BenefitsLink website.

[18] The BenefitsLink website had a link to the VGA plan summary which provided further information about the VGA coverage. The 2012 plan summary states that the VGA policy provides coverage if the insured or their spouse is injured or killed in an accident while covered under the plan. Similar wording is set out in the 2013 plan summary; however, the 2013 summary also states that there is coverage if “the loss was the direct result of the accident, independent of any other cause.”

[19] There was no link on the website to the actual policy wording. The employees were advised to consult Aon Hewitt for further information about the coverage. The policy wording was available upon request.

[20] As of the 2013 policy year, the relevant wording of the Desjardins VGA policy was as follows:

Dependent Optional Accidental and Dismemberment Benefit.

Payment of Benefit

Upon receipt of proof of claim satisfactory to the Insurer that:

1. A Dependent suffered an eligible loss as specified in the Schedule of Losses from the Participant Optional Accidental Death and Dismemberment Benefit within 365 days of an Accident causing bodily injuries; and

2. The loss was the direct result of the Accident, independent of any other cause; and

3. The Accident occurred while the Dependent was insured under this Benefit.

The Insurer will pay the amount applicable to any such loss in accordance with the following Schedule of Losses and other applicable policy provisions… [Emphasis added.]

The VGA Policy defines “Accident” as follows:

Accident means any event due to sudden and unforeseeable external causes that inflicts bodily injuries that are certified by a Physician, directly and independently of any other cause. It does not mean any form of disease … [Emphasis added.]

The VGA Policy contains the following exclusion:

1. No payment will be made for a loss relating directly or indirectly, solely or partly from any of the following:

(a) Disease or bodily or mental infirmity, or medical or surgical treatment thereof.

Mr. Miceli’s Purchase of Life Insurance and VGA Insurance

[21] Using the flex credits provided by Chrysler, Mr. Miceli purchased benefits for 2013. He purchased life insurance for himself and spousal life insurance for his wife. The spousal life insurance was in the amount of $100,000 and was payable if Mrs. Miceli died for any reason.

[22] The life insurance limit of $100,000 was the maximum amount available in the absence of evidence of insurability. Mrs. Miceli had been diagnosed with breast cancer in 2004 and would not have qualified for higher life insurance coverage.

[23] Mr. Miceli also purchased VGA insurance for 2013. Mr. Miceli had purchased VGA insurance through the Chrysler benefit program since January 1993. He testified on the cross-examination on his affidavit that he purchased the VGA policy because accident insurance was “really big with me”. He provided the following testimony:

Q. 247 All right. And the life insurance. That was different than the accident insurance that you purchased?

A. That is right.

Q. 248 Okay. The accident insurance was to protect in the event of an injury or death caused by an accident. Right?

A. Right.

Q. 249 And you knew that was the difference the whole time that you were purchasing your accident insurance?

A. Yes. Accident insurance is really big with me. Right? Yes. We were very active as a family. We played sports. I coached sports. Both my kids played sports from a very early age. Like I say, we spent a lot of time on the water. We took risks.

Q. 250 Yes.

A. We took risks. Right?

Q. 251 Yes. As you said on your discovery.

A. And accident insurance is very near and dear to my heart. My father died in a car accident. Right? So yes.

Q. 252 So it made sense to you?

A. Absolutely.

Q. 253 Right. But again, it is different than life insurance?

A. It is different, because it is only through accidental death.

Mrs. Miceli’s Death, October 4, 2013

[24] Mrs. Miceli was diagnosed with cancer in 2004. In March 2013 she was told that the cancer was terminal.

[25] On May 25, 2013, Mrs. Miceli was vacuuming when she tripped over the hose and fell. As a result of the advanced stage of cancer, her bones were brittle. She sustained fractures to her hip and left shoulder along with micro fractures in her neck.

[26] Mrs. Miceli was admitted to hospital on August 26, 2013. In September 2013, she underwent surgery with respect to the orthopaedic fractures. Mrs. Miceli did not recover and died on October 4, 2013.

[27] The Medical Certificate of Death was completed by Dr. Trent Douglas at Sunnybrook Hospital. Dr. Douglas stated that the immediate cause of death was “metastatic breast cancer and malignant pleural effusions”. The Certificate of Death also notes that “pulmonary embolism” and “pathologic fractures” were “significant conditions contributory to the death but not causally related to the immediate cause”.

Mr. Miceli’s Life Insurance and VGA Insurance Claims

[28] Following Mrs. Miceli’s death, Mr. Miceli made a claim on the spousal life insurance policy. The claim in the amount of $100,000 was paid in full.

[29] Mr. Miceli also made a claim with respect to the VGA insurance policy. Initially he had difficulty making a claim. On the website, MetLife was listed as the insurer for the VGA policy. As stated above, MetLife never issued a VGA policy with respect to the Canadian employees of Chrysler. Desjardins was the VGA insurer at the time of Mrs. Miceli’s death.

[30] Mr. Miceli contacted Chrysler for assistance in making a claim. Based on the phone records, the call to Chrysler took place on November 19, 2013. The phone records are consistent with the affidavit evidence of Robert Chesnik, who was the person at Chrysler who was responsible for the Chrysler benefit programs. Mr. Chesnik deposed that he spoke with Mr. Miceli on November 19, 2013. At that time, Mr. Miceli was advised that the VGA insurer was Desjardins.

[31] On November 26, 2013, Mr. Chesnik sent an e-mail to Mr. Miceli and provided information on how to file a claim with Desjardins. Attached to the e-mail was a Desjardins Proof of Claim form.

[32] Mr. Miceli submitted his claim for VGA accidental death benefits to Desjardins. The Proof of Claim is dated January 21, 2014. In the claim form, Mr. Miceli noted that the immediate cause of death was “Metastatic Breast Cancer.” The claim was denied by Desjardins because Mrs. Miceli’s death was the result of an illness and not an accident.

Statement of Claim

[33] Following the denial of coverage, Mr. Miceli issued the Statement of Claim in this action. Initially the Defendants included MetLife and Desjardins. The claim was discontinued against MetLife soon after the claim was issued. Desjardins brought a motion for summary judgment to have the action dismissed as against it. Before the motion was heard, Mr. Miceli discontinued the action as against Desjardins.

[34] After the close of pleadings, Chrysler brought the motion for summary judgment. While the motion was pending, the Plaintiffs advised that they will be seeking leave to amend the claim to add an allegation that Chrysler is liable to the Plaintiffs for negligent misrepresentation. The Plaintiffs have not proceeded with the motion to amend notwithstanding the fact that the summary judgment motion was served 18 months ago.

[35] Chrysler takes the position that the Plaintiffs cannot move to amend the claim before the summary judgment motion is heard. Chrysler also takes the position that even if the Plaintiffs were permitted to amend the claim, there is no evidence to support a finding of liability for negligent misrepresentation.

THE ISSUES

[36] The issues to be determined on this motion are:

(1) Is summary judgment appropriate in the circumstances of this case?

(2) Are the Plaintiffs permitted to amend the Claim to plead negligent misrepresentation?

(3) Is there liability on Chrysler for:

(i) Negligent misrepresentation;

(ii) Choosing Desjardins as the VGA insurer;

(iii) Negligent infliction of mental and emotional distress; and

(iv) Aggravated and/or punitive damages arising out of the breach of the duty to act in good faith.

ANALYSIS

1. Summary Judgment

[37] A court may grant summary judgment if satisfied on the matter record that there is no genuine issue requiring a trial: R. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A trial will not be required if the summary judgment process:

− Allows the judge to make the necessary findings of fact including issues of credibility;

− Allows the judge to apply the law to those facts, and

− Is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

[38] In Hryniak, the court set out a two-part test for summary judgment. The first step requires the judge to determine whether there is a genuine issue requiring a trial based on the evidence contained in the motion records. There will be no genuine issue requiring a trial if the written record allows the judge to reach a fair and just determination, in a process that is timely, proportionate and affordable: Hryniak, at para. 66.

[39] The second step is activated if the judge finds that there is a genuine issue requiring a trial. The judge must then determine whether the issues can be decided using the powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. These powers may be used if they will lead to a fair and just result: Hryniak, at para. 66.

[40] I am satisfied that the written record is sufficient to allow me to make the necessary findings of fact to reach a fair and just determination of the issues. I find there are no genuine issues requiring a trial.

2. Amendment of the Statement of Claim

[41] In its factum, the Plaintiffs state that they are seeking leave to amend its pleadings in order to include a claim in negligent misrepresentation. The Plaintiffs have not brought a formal motion for leave.

[42] Chrysler takes the position that the Plaintiffs are not entitled to an amendment of the claim at this time, for two reasons:

(i) The Plaintiffs failed to bring a formal motion to amend; and

(ii) Even if a formal motion had been brought, the motion should not be heard until after Chrysler’s motion for summary judgment.

[43] Rule 26.01 of the Rules of Civil Procedure provides that on a motion, at any stage of the action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[44] Chrysler argues that the failure to bring a formal motion for leave is fatal to the Plaintiffs’ request for an amendment. Chrysler argues that if a formal motion had been brought, there would have been evidence before the Court with respect to the issues of the expiry of the limitation period, and whether there is any prejudice to Chrysler which cannot be compensated for by an adjournment or costs.

[45] The Plaintiffs have provided no explanation for their failure to bring a formal motion to amend. As stated above, the Defendant’s motion for summary judgment was served 18 months ago.

[46] Chrysler also takes the position that even if the Plaintiffs had brought a formal motion to amend the claim, the motion cannot be heard before Chrysler’s motion for summary judgment. Chrysler argues that after service of the motion for summary judgment, any act done by the opposing party which affects the rights of the parties on the pending motion will be ignored by the court: Bruce v. John Northway & Son Ltd., [1962] O.W.N. 150 (H.C.J. Master).

[47] This principle has been applied in the case of amendments to a pleading made in the face of a motion challenging the pleading. In Cosentino et al. v. Dominaco Developments Inc. et al., 2010 ONSC 208, the Defendant brought a motion to strike the Plaintiff’s claim. While the Defendant’s motion was pending, the Plaintiff served a cross-motion to amend the claim. The Defendant, MacColl argued that its motion for summary judgment should be heard before the motion for leave to amend. The court accepted the Defendant’s submissions:

I accept MacColl’s contention on this point. MacColl’s notice of motion was dated May 13, 2009, at which date the plaintiff’s claims were set out in his Second Amended Statement of Claim issued April 29, 2009. The authorities cited by MacColl establish that the rights of a moving party are determined as they existed as of the date of service of the notice of motion and the moving party’s rights cannot be prejudiced by anything done after the service of a notice of motion: See Bruce v. John Northway & Son Ltd. [1962] 4 O.W.N. 150 (H.C.J. – Master). This court (S.C.J.) has ruled that a plaintiff is not legally entitled to amend a Statement of Claim without leave of the court pursuant to Rule 26.02(a) of the Rules of Civil Procedure at a time when the sustainability of the pleading is being challenged by a defendant: See PaineWebber Mortgage Acceptance Corp. (Trustee of) v. Mundi [2004] CarswellOnt 1639 (S.C.J.): Cosentino v. Dominaco Developments Inc., at para. 10.

[48] Based on the authorities, once a Defendant brings a motion to dismiss an action or to strike out all or portions of a Statement of Claim, the Plaintiff is not legally entitled to amend a Statement of Claim without leave of the court. As stated in Cosentino the motion for summary judgment is to be heard before the Plaintiff’s motion for leave to amend the claim.

[49] The Plaintiffs argue that an amendment of the claim is not required to allow them to pursue a claim in negligent misrepresentation for the following reasons:

• Before Chrysler proceeded with its summary judgment motion, the Plaintiffs provided particulars which established a claim in negligent misrepresentation; and

• The claim in negligent misrepresentation arises out of the same factual matrix as pleaded in the Statement of Claim

[50] The Plaintiffs state that they provided particulars on August 31, September 1, and September 14, 2017, before the Chrysler motion was served on February 28, 2018. The particulars state that Mr. Miceli relied on the BenefitsLink website and had no way of knowing that the document attached was not the actual VGA policy. The Plaintiffs argue that the particulars form part of the pleadings and are sufficient to establish a claim that Chrysler misrepresented that the plan summary on the website was the actual policy.

[51] Chrysler argues that the “particulars” referred to by the Plaintiffs were not formal particulars as contemplated by R. 25.10 of the Rules of Civil Procedure. Instead, the Plaintiffs were responding to a request made by Chrysler to provide information regarding the discontinuance of the action against Desjardins. Chrysler further argues that the particulars do not establish a cause of action in negligent misrepresentation and even if the particulars established this cause of action, the claim was advanced following the expiry of the limitation period and therefore is statute barred.

[52] A claim for negligent misrepresentation requires the constituent elements of the cause of action to be pleaded with particularity. Rule 25.06(8) states that:

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[53] Full particulars of the claim in negligent misrepresentation are not pleaded in the original Statement of Claim. There are no allegations of a representation made by Chrysler which was untrue or misleading which was relied on by the Plaintiff to his detriment. I am not satisfied that the “particulars” provided by the Plaintiff on August 31, September 1, and September 14, 2017, establish the elements of the tort of negligent misrepresentation.

[54] I am of the view that the Plaintiffs have not, in either the original claim or as a result of information provided in August or September 2017, sufficiently pleaded the tort of negligent misrepresentation.

3. Liability of Chrysler

i) Negligent Misrepresentation

[55] Even if leave to amend the Statement of Claim to plead the tort of negligent misrepresentation had been granted, it is my view that the claim cannot be established on the evidence and does not raise a genuine issue for trial.

[56] The elements of a claim in negligent misrepresentation are:

a) There must be a duty of care based on a “special relationship” between the representor and representee;

b) The representation in question must be untrue, inaccurate, or misleading;

c) The representor must have acted negligently in making the misrepresentation;

d) The representee must have relied, in a reasonable manner, on the negligent misrepresentation; and

e) The reliance must have been detrimental to the representee in the sense that damages resulted: Queen v. Cognos Inc., 1993 146 (SCC), [1993] 1 S.C.R. 87, at p. 110.

[57] The Plaintiffs allege that Chrysler negligently represented that the VGA benefits schedule was the actual policy. The Plaintiffs argue that the Chrysler newsletter provides that the “full details” of what is covered under the VGA policy is contained in the Plan Information page on the BenefitsLink website. The website directs the person to a PDF which is the plan summary. Mr. Miceli takes the position he believed the plan summary was the entire policy. The plan summary does not refer to an exclusion for disease and, as a result, he believed there was coverage for his wife’s death.

[58] I am not satisfied that the information on the BenefitsLink website was inaccurate or misleading. The disclaimer in the newsletter and on the BenefitsLink website provides that the rights and obligations are found solely in the underlying policies and are subject to the terms and conditions of the policies. There is nothing in the plan summary which provides that it is the policy wording.

[59] I am also of the view that the information contained in the plan summary is not untrue. The 2012 plan summary provides that there is coverage pursuant to the VGA if the insured dies as a result of an accident. The 2013 plan summary also provides that the loss must be a direct result of the accident, independent of any other cause. The 2013 plan summary was available on the website starting in January 2013.

[60] The statement by Mr. Miceli that he believed that the plan summary on the website was the complete policy is not credible. Mr. Miceli, on his examination for discovery, made a distinction between the plan summary (which he referred to as the “detail sheet”) and the actual policy:

Q. 918 Okay. Sir, did you know that you could go and request at any time a copy of the different insurance policies that responded to each of the benefits that you were selecting during your enrollment through the enrollment process?

A. Oh, during the time, I knew they were fully available any time I needed to. I just never gave it any thought because I had no reasons to be suspicious of anything.

Q. 919 Okay.

A. I wasn’t that curious about it as well. Like I say, from the detail sheet, I had enough information on the policy that I was happy with it.

[61] Similarly, Mr. Miceli testified that he understood the disclaimer on the website which stated that the plan documentation summaries do not provide him with any entitlements and that his coverage is set out in the underlying policies:

Q. 960 You have seen – and you are pointing at the Disclaimer statement that is at the top of the page [referring to the “Plan Information” page of the Chrysler BenefitsLink website]?

A. Correct. …

Q. 968 And you looked at the statement, sir, the second sentence beginning on the second line – I should just start at the beginning:

“The plan documentation summaries do not grant or create any rights or vested rights, nor do they impose any obligations on Chrysler Canada Inc. or our providers. Your rights to benefits and Chrysler’s obligation with respect to benefits, if any, are found solely in the underlying policies, subject to the terms and condition of the underlying policies and any applicable legislation.”

Right?

A. Correct.

Q. 969 And you understand what that means, sir?

A. Yes.

Q. 970 Okay. And that means that the policies themselves are the documents that provide you with whatever entitlement it is that you are entitled to. Is that fair?

(interjection by counsel)

Q. 975 I had suggested to you a meaning and asked if that was a fair characterization of that. Do you agree?

A. I agree with that.

Q. 976 With the characterization that I had proposed to you?

A. Mm-hmm

Q. 977 Is that a yes or a no? You said “mm-hmm” and it is just that it won’t translate for the Court Reporter. You said “mm-hmm”.

A. Yes.

[62] It is the position of Chrysler that given the wording of the disclaimer which directs the insured to the policy wording, it is unreasonable for Mr. Miceli to have relied on any statement by Chrysler with respect to coverage.

[63] There is no common law duty on an employer to inform its employees with respect to any matters involving the insurance coverage. Chrysler relies on the case of Sharon Todd v. Felton Brushes Ltd. et al., 2016 ONSC 5252:

On the evidence before me I am satisfied that the role of Felton Brushes Ltd. with respect to the plaintiff’s disability insurance was to place the insurance and then to act as a conduit between the insurer and the plaintiff as far as information is concerned. I have applied the factors referred to in Hryniak v. Mauldin supra, and have come to the conclusion that there is no evidence to support the plaintiff’s claim of conspiracy between Felton and the other defendants. I am also satisfied that there is no common law duty on Felton as employers of the plaintiff to inform her of any matters relating to her insurance other than to pass on information from the insurers: at para. 36.

[64] Mr. Miceli alleges that he relied on the plan summary found on the BenefitsLink website to his detriment. He states that had he known of the exclusion for disease he would not have selected the VGA policy offered by Chrysler and would have purchased a different policy. The Plaintiffs have not put forward any evidence that another accidental death policy was available which would have provided coverage for his wife’s death.

[65] Mr. Miceli also argues that if he had known of the exclusion he would not have purchased the VGA insurance for his wife because she would not have been covered after being diagnosed with cancer in 2004. Although there was no coverage if the cause of death was cancer, there would be coverage if she sustained an injury or died solely as a result of an accident.

[66] Based on the evidentiary record, I am of the view that Chrysler did not make a negligent misrepresentation with respect to the VGA policy. The disclaimer in the newsletter and on the website provides that the plan summary does not create any rights and that entitlement is subject to the terms and conditions of the policies. The information contained in the plan summary correctly provides that there is coverage if the insured dies as a result of an accident.

ii) Choosing Desjardins as the VGA Insurer

[67] The Plaintiffs allege at paragraph 19 of the Statement of Claim that Chrysler was negligent and breached its duty to the Plaintiffs by changing the VGA insurer to Desjardins and for not advising Mr. Miceli of the change.

[68] The VGA insurer from 2008 onward was Desjardins. There was no change in the VGA insurer from 2008 to the date of Mr. Miceli’s retirement.

[69] There is no evidence before me that the Desjardins VGA policy provided any coverage different from the MetLife policy that may have been issued to Chrysler employees in the U.S. I note that both policies provided accidental death coverage. Mr. Miceli has not set out which sections of the MetLife policy were different from the Desjardins VGA policy. In addition, he has not introduced any evidence that another accidental death policy was available that would have provided coverage in the circumstances of Mrs. Miceli’s death.

[70] Even if there was evidence that the Desjardins policy provided coverage which was different from the MetLife policy or other accidental death policies, Chrysler had the right to decide which insurance benefits it would offer to its employees. The BenefitsLink website provides that Chrysler reserves the rights to modify or change the benefit plans from time to time.

iii) Negligent Infliction of Mental and Emotional Distress

[71] At paragraph 21 of the Statement of Claim, the Plaintiffs allege that the manner in which the claim was handled caused Mr. Miceli mental and emotional distress and upset. Mr. Miceli claims damages for the negligent infliction of mental and emotional distress.

[72] The Plaintiffs must prove the following elements of the tort of negligent infliction of mental distress:

(i) The Defendant’s conduct was flagrant and outrageous;

(ii) The Defendant’s conduct was calculated to harm the Plaintiffs; and

(iii) The Defendant’s conduct caused the Plaintiffs to suffer a visible and provable illness: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 41.

[73] Chrysler did not adjust the insurance claim. Desjardins concluded that Mrs. Miceli did not die as a result of an accident and denied the claim. Chrysler’s involvement was limited to advising the Plaintiff of the name of the insurer on November 19, 2013 and providing the claims forms on November 26, 2013. Chrysler is not liable for the manner in which Desjardins adjusted the claim.

[74] The Plaintiffs also argue that Chrysler’s failure to advise Mr. Miceli about the exclusion clause caused mental and emotional distress. Mr. Miceli alleges that he had difficulty with sleep and concentration as a result of Chrysler’s actions.

[75] The disclaimer in the newsletter and on the BenefitsLink website provides that the rights and obligations are found solely in the underlying policies and are subject to the terms and conditions of the policies. Chrysler directed Mr. Miceli to the underlying policy which included the exclusion wording. I am of the view that there was no failure on the part of Chrysler to advise Mr. Miceli about the exclusion.

[76] I am satisfied that the conduct of Chrysler in these circumstances was not flagrant or outrageous. There is no evidence that Chrysler’s conduct was calculated to harm the Plaintiffs.

iv) Punitive Damages

[77] The Plaintiffs plead that Chrysler’s conduct was malicious, oppressive and high-handed and, as a result, the Plaintiffs are entitled to aggravated and punitive damages. The Plaintiffs allege that the conduct which supports the claim for punitive damages, is Chrysler’s failure to advise the Plaintiffs of the proper name of the insurer and correct policy number and its failure to provide a policy information booklet.

[78] The BenefitsLink website indicated that the VGA insurer was MetLife. Following his wife’s death, Mr. Miceli contacted MetLife for the purpose of making a claim. MetLife did not have any record of Mr. Miceli being an insured. On November 19, 2013, Mr. Miceli contacted Mr. Chesnik at Chrysler, at which time he was advised that the insurer was Desjardins. On November 26, 2013, Mr. Chesnik provided the Desjardins claims forms to Mr. Miceli.

[79] Although there was a delay in learning the identity of the VGA insurer, once Chrysler was contacted by Mr. Miceli it provided the correct information. Mr. Miceli was advised of the name of the insurer and the policy number within about six weeks of Mrs. Miceli’s death. Once he was provided this information, Mr. Miceli made the claim to Desjardins. Desjardins did not deny the claim on the basis that it was not made in a timely manner.

[80] There was no failure to provide the policy information booklet to the Plaintiffs. Chrysler provided the plan summary on the BenefitsLink website. Also, the actual policy wording was available if requested. Mr. Miceli did not request a copy of the policy.

[81] I am not satisfied that the conduct of Chrysler was malicious, oppressive or high-handed.

DISPOSITION

[82] There is no genuine issue requiring a trial with respect to the allegations made against Chrysler. I am satisfied on the evidentiary record before me that there is no evidence of liability on Chrysler. I grant Chrysler’s motion for summary judgment and dismiss the Plaintiffs’ action.

[83] Chrysler is presumptively entitled to its costs of the action. If the parties cannot agree to costs, Chrysler may file written submissions of no more than 3 pages in length (excluding Bill of Costs and case law) within 21 days of this endorsement. The Plaintiffs may make reply submissions on the same basis within 21 days of receiving Chrysler’s submissions.

Chalmers, J.

Date: October 17, 2019