Blake v. Dominion of Canada General Insurance Co., (2015) 331 O.A.C. 48 (CA)

• Judge: Weiler, Epstein and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 09, 2015
• Jurisdiction: Ontario
• Citations: (2015), 331 O.A.C. 48 (CA);2015 ONCA 165

Blake v. Dominion of Can. (2015), 331 O.A.C. 48 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.019

Michelle Blake (appellant) v. Dominion of Canada General Insurance Company (respondent)

(C57821; 2015 ONCA 165)

Indexed As: Blake v. Dominion of Canada General Insurance Co.

Ontario Court of Appeal

Weiler, Epstein and Brown, JJ.A.

March 13, 2015.

Summary:

Blake was injured in a motor vehicle accident on November 18, 2002. She was insured under a motor vehicle liability policy with Dominion of Canada General Insurance Co. Blake sued Dominion to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 6069, dismissed Blake's claim. The court held that the claim was statute-barred, but went on to conclude that Blake had not established her entitlement to caregiver benefits beyond the initial 104 week eligibility period. In addition, the court dismissed Blake's claims for damages for breach of the contractual duty of good faith, aggravated damages, and mental distress. Blake appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - [See Practice - Topic 5010 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Practice - Topic 5010 ].

Damages - Topic 915

Aggravation - In contract - Aggravated damages - Against insurer - Blake was injured in a motor vehicle accident - She sued her insurer to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The trial judge dismissed the claim - Blake appealed - She submitted, inter alia, that the trial judge erred in dismissing her claim for aggravated damages because he wrongfully equated aggravated damages with damages for mental distress arising in the context of a peace of mind contract and, by so doing, failed to consider any bad faith conduct as giving rise to aggravated damages - The Ontario Court of Appeal accepted Blake's submission that the trial judge erred in treating her claim for aggravated damages as synonymous with her claim for mental distress damages for breach of contract - However, given the court's conclusion that the trial judge did not err in dismissing Blake's claim for damages for breach of the duty of good faith, it followed that he did not err in dismissing her related claim for aggravated damages, which required a finding of breach of that duty - See paragraphs 86 to 87.

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - Blake was injured in a motor vehicle accident - She sued her insurer ("Dominion") to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The trial judge dismissed the claim - Blake appealed - She submitted, inter alia, that the trial judge erred by holding that a claimant for damages for mental distress had to file medical evidence in support of her claim - The Ontario Court of Appeal rejected this submission for two reasons - First, the trial judge concluded that Dominion had not breached its statutory accident benefits contract with Blake - As a result, the recovery of damages for mental distress for breach of contract was not available - Second, the trial judge did not hold that a claim for damages for mental distress required the filing of medical evidence - He simply noted the absence of such evidence and concluded that the remaining evidence was "not of a caliber that one can safely say this distress should be compensable" - In so finding, the trial judge directly addressed the second element for establishing a claim for mental distress upon the breach of a contract, i.e., that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation - See paragraphs 78 to 80.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - [See Evidence - Topic 1593.1 ].

Evidence - Topic 1591.1

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Doctor's opinions or notes - [See Evidence - Topic 1593.1 ].

Evidence - Topic 1593.1

Hearsay rule - Exceptions and exclusions - Business records - Particular records - Doctor's reports - Blake was injured in a motor vehicle accident - She sued her insurer to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The trial judge dismissed the claim - Blake appealed - She submitted, inter alia, that the trial judge erred by refusing to read all the evidence she proffered at trial - She contended that the trial judge improperly refused to consider certain medical reports - The Ontario Court of Appeal stated that "I see no error in the ruling made by the trial judge on the penultimate day of the trial that he would consider as evidence only those documents to which a witness had referred. That ruling was consistent with the directions he had given at the start of the trial and caused no unfairness to the parties. The trial judge's refusal to treat the Designated Assessment Centre medical assessments prepared by Drs. Garner, Ghouse, and Meloff as business records under s. 35 of the Evidence Act followed the long-established principle stated by the High Court of Justice in Adderly v. Bremner that a professional medical opinion, including a diagnosis, is not an 'act, transaction, occurrence or event' within the meaning of s. 35(2) of the Evidence Act. Moreover, in his ruling the trial judge followed this court's decision in O'Brien, which held that merely filing a large volume of records ... pursuant to notice given under s. 35 of the Evidence Act, without more, was insufficient to establish the truth of the contents of each document in the voluminous file. Absent express agreement by opposing counsel to the use of large sets of documents for the truth of their contents, the tendering party would have to lead evidence about the nature of the records or the circumstances in which they were created" - See paragraphs 33 to 62.

Insurance - Topic 730

Insurers - Duties - Duty of good faith - Blake was injured in a motor vehicle accident - She sued her insurer ("Dominion") to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The trial judge held that the claim was statute-barred, but went on to conclude that Blake had not established her entitlement to caregiver benefits beyond the initial 104 week eligibility period - The court also dismissed Blake's claims for damages for breach of the contractual duty of good faith, aggravated damages, and mental distress - Blake appealed - She submitted that the trial judge applied the wrong legal consideration when determining whether Dominion had acted in bad faith - The Ontario Court of Appeal rejected the argument - The trial judge identified and applied the principles set out in Whiten v. Pilot Insurance Co. (2002 SCC) - The trial judge reviewed at length Dominion's conduct in handling Blake's statutory accident benefits file - He examined the errors Dominion had made in respect of certain claims made by Blake, but he put those errors in context - There was no error in the trial judge's application of the Whiten principles to the evidence which would justify appellate intervention - See paragraphs 81 to 83.

Insurance - Topic 3357

Payment of insurance proceeds - Limitation of actions - When limitation period commences - [See Insurance - Topic 5076 ].

Insurance - Topic 5068.3

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Caregiver benefits - Blake was injured in a motor vehicle accident - She sued her insurer to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The claim was dismissed - The trial judge held, inter alia, that Blake had not established her entitlement to caregiver benefits beyond the initial 104 week eligibility period - Blake appealed - She submitted that the trial judge erred by holding that she failed to meet her evidentiary burden in relation to entitlement to the caregiver benefit - Blake submitted that the trial judge failed to apply the approach set down in Heath v. Economical Insurance Co. (2009 ONCA) properly to the facts of this case because he failed to conduct a holistic comparison of her pre-accident life activities with those after the accident - The Ontario Court of Appeal rejected this submission - The trial judge's reasons had to be read as a whole - In his lengthy reasons the trial judge canvassed the evidence concerning Blake's pre- and post-accident activities given by Blake and her sons, as well as that described in numerous medical reports - Blake did not point to any evidence the trial judge may have misapprehended - Nor did she identify any palpable or overriding errors of fact made by him - Her submission, in effect, asked this court to re-weigh the evidence - That was not an appropriate basis for appellate intervention - See paragraphs 65 to 68.

Insurance - Topic 5068.3

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Caregiver benefits - Blake was injured in a motor vehicle accident on November 18, 2002 - She sued her insurer to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The claim was dismissed - The trial judge held, inter alia, that Blake had not established her entitlement to caregiver benefits beyond the initial 104 week eligibility period - Blake appealed - She submitted that the trial judge erred in failing to apply the material contribution test to the issue of the causation of her post-accident symptoms - The Ontario Court of Appeal rejected the submission that the trial judge erred in applying the "but for" causation test - The primary reason for not accepting Blake's submission was that she was raising the issue for the first time on appeal - At trial she did not make submissions on which causation test should be applied - The court also observed that, when read as a whole, the trial judge's reasons disclosed he was not satisfied that Blake had established she was suffering from the degree of injury needed to qualify for caregiver benefits after 104 weeks under s. 13(4) of the Schedule, i.e., that she was suffering from a complete inability to carry on a normal life - Specifically, the trial judge noted the paucity of post-accident medical evidence on the issue of Blake's ability to carry on a normal life - He observed that some of the medical evidence commented favourably on the progress Blake was making after the 2002 accident - Finally, the trial judge preferred the opinion of Dr. Dost over that of Dr. Rathbone - See paragraphs 70 to 77.

Insurance - Topic 5076

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Limitation period - Blake was injured in a motor vehicle accident on November 18, 2002 - She sued her insurer ("Dominion") to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - Section 281.1(1) of the Insurance Act and s. 51(1) of the Schedule required a claimant to commence a court proceeding within two years after the insurer's refusal to pay the benefit or amount claimed - The trial judge held that on January 14, 2004, Dominion had informed Blake it would not pay her caregiver benefits, thereby triggering the running of the limitation period - Because Blake did not commence her action until May 30, 2007, it was statute-barred - Blake appealed - She argued that the trial judge erred in reaching that conclusion because the parties had proceeded to a mediation of caregiver benefit claims in March 2005, and thereafter "the Caregiver Benefit was paid in an ongoing manner" - Blake submitted that Dominion did not make a clear and unequivocal refusal to pay caregiver benefits until August 2006 - The Ontario Court of Appeal saw no error in the trial judge's conclusion that the action was statute-barred - The trial judge treated Dominion's decision to pay $398 in caregiver benefits at the March 2005 mediation as an error - Even if Dominion's mistaken agreement to pay Blake $398 in caregiver benefits for a period following the January 2004 stoppage of benefits re-set the limitation clock, that agreement was followed immediately by a clear and equivocal repetition by Dominion, in its March 12, 2005 OCF-9, of its original position that caregiver benefits had ended on January 31, 2004 - There was no evidence to support Blake's submission that Dominion paid her caregiver benefits "in an on-going manner" following the March 2005 mediation - The court also rejected Blake's submission that the limitation period did not start to run until Dominion's August 2006 denial of caregiver benefits - First, the submission of new applications for benefits following a clear refusal by the insurer to pay benefits did not re-start the limitation clock - Second, although an inconsistency regarding the termination date for Blake's caregiver benefit eligibility appeared in Dominion's August 2006, communications to her, it was evident that the reference to January 16, 2005 in the August 1, 2006 letter was to the OCF-9 of that date which, in turn, repeated the January 31, 2004 termination date - See paragraphs 5 to 31.

Limitation of Actions - Topic 2324

Actions in contract - Insurance contracts - When time begins to run - [See Insurance - Topic 5076 ].

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Blake sued her insurer ("Dominion") to recover caregiver benefits under s. 13 of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The claim was dismissed - Blake appealed - At the hearing of the appeal, Blake's counsel asserted that the trial judge had unduly interfered with the cross-examination of Dominion's adjuster, Mascarenhas, thereby preventing Blake from establishing her bad faith claim - The Ontario Court of Appeal rejected the argument - Counsel did not provide particulars to support this assertion - The claim of undue interference was not advanced by Blake in her factum - Her Amended Notice of Appeal had alleged that the trial judge "displayed attitudinal bias against the Plaintiff which rises to the level of error of law", but no details were offered - The court stated that "An appellant cannot reasonably expect that an allegation of misconduct by the trial judge, unsupported by any particulars, will carry any weight on an appeal. In any event, a review of the transcript of the cross-examination of Mr. Mascarenhas does not disclose any undue interference by the trial judge. The interventions made by the trial judge were designed to seek clarification of the evidence, to ensure the witness was permitted to complete his answers, to prevent undue repetition of questions, to deal with the consequences of his ruling on the use of exhibit 1, and to keep counsel focused on matters of fact relevant to the pleaded claim and within the knowledge of the witness" - See paragraphs 84 to 85.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See second Insurance - Topic 5068.3 ].

Cases Noticed:

Haldenby v. Dominion of Canada General Insurance Co. (2001), 149 O.A.C. 172; 55 O.R.(3d) 470 (C.A.), refd to. [para. 5, footnote 3].

Smith v. Co-operators General Insurance Co., [2002] 2 S.C.R. 129; 286 N.R. 178; 158 O.A.C. 1; 2002 SCC 30, refd to. [para. 23, footnote 2].

O'Brien v. Shantz (1998), 113 O.A.C. 346 (C.A.), refd to. [para. 49, footnote 8].

Iannarella v. Corbett et al. (2015), 331 O.A.C. 21; 2015 ONCA 110, refd to. [para. 53, footnote 9].

Adderly v. Bremner, [1968] 1 O.R. 621 (H.C.J.), refd to. [para. 59, footnote 10].

Heath v. Economical Mutual Insurance Co. (2009), 249 O.A.C. 164; 95 O.R.(3d) 785; 2009 ONCA 391, refd to. [para. 65, footnote 12].

Monks v. ING Insurance Co. of Canada (2008), 235 O.A.C. 1; 90 O.R.(3d) 689; 2008 ONCA 269, dist. [para. 71, footnote 13].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 72, footnote 14].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 78, footnote 15].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 82, footnote 17].

Statutes Noticed:

Evidence Act, R.S.O. 1990. c. E-23, sect. 35 [para. 59].

Counsel:

Robert Zigler, for the appellant;

Lisa C. Pool, for the respondent.

This appeal was heard on February 9, 2015, before Weiler, Epstein and Brown, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Brown, J.A., and was released on March 13, 2015.