McQueen v. Echelon General Insurance Co., (2011) 285 O.A.C. 64 (CA)

• Judge: Gillese, Armstrong and Karakatsanis, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 25, 2011
• Jurisdiction: Ontario
• Citations: (2011), 285 O.A.C. 64 (CA);2011 ONCA 649

McQueen v. Echelon General (2011), 285 O.A.C. 64 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. OC.016

Janey McQueen (plaintiff/respondent) v. Echelon General Insurance Company (defendant/appellant)

(C51165; 2011 ONCA 649)

Indexed As: McQueen v. Echelon General Insurance Co.

Ontario Court of Appeal

Gillese, Armstrong and Karakatsanis, JJ.A.

October 18, 2011.

Summary:

The plaintiff was injured in a motor vehicle accident. She commenced two actions against the defendant insurer seeking certain statutory accident benefits pursuant to the provisions of the Statutory Accident Benefits Schedule and damages for mental distress and bad faith by the insurer.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. N06, allowed the actions and awarded the plaintiff $7,800 for housekeeping benefits, $7,500 for transportation benefits, $4,271.54 for the cost of three assessments and $25,000 for mental distress. The insurer appealed.

The Ontario Court of Appeal allowed the appeal in part. The court reduced the award of $7,500 for transportation benefits to $2,280.

Damages - Topic 5706

Contracts - Breach of contract - Injured feelings or emotional upset - The plaintiff was injured in a motor vehicle accident - Her insurer gave her limited statutory accident benefits, including housekeeping and transportation expenses - The insurer later discontinued those benefits - The plaintiff sued alleging that the insurer caused her mental distress and engaged in bad faith conduct - The trial judge awarded the plaintiff $25,000 for mental distress - In some instances the insurer had terminated or denied benefits even though the medical evidence demonstrated that those benefits were reasonable and necessary - The trial judge found that one object of the insurance contract was to secure the plaintiff's peace of mind and that it was within the reasonable contemplation of the parties that breach of the peace of mind promise would bring about mental distress - He found that the insurer had created an adversarial relationship with the plaintiff - The plaintiff had suffered and that the suffering was of a degree that warranted compensation - The Ontario Court of Appeal dismissed the insurer's appeal - The trial judge was aware of the differences between a claim for benefits and for damages for mental distress and did not err in his various factual findings - See paragraphs 62 to 63.

Damages - Topic 5706

Contracts - Breach of contract - Injured feelings or emotional upset - The Ontario Court of Appeal stated that damages for mental distress could be awarded to a person who was insured under a standard automobile policy, whether that person was the named party to the insurance contract or not - Mental distress to anyone insured under the policy upon breach would have been within the reasonable contemplation of the insurer and the insured and, thus, damages were recoverable pursuant to the basic principle of compensatory damages for breach of contract - People purchased motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity - An object of such contracts was to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made - As an insured person entitled to call on the policy, the plaintiff in this case was entitled to that peace of mind and to damages when she suffered mental distress on breach - See paragraphs 65 and 75.

Insurance - Topic 730

Insurers - Duties - Duty of good faith - [See both Damages - Topic 5706 ].

Insurance - Topic 5067.6

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Housekeeping and home maintenance - The plaintiff was injured in a motor vehicle accident - Her insurer gave her limited statutory accident benefits, including $43 per week for housekeeping expenses pursuant to s. 22 of the Statutory Accident Benefits Schedule (SABS) - The insurer later discontinued those benefits - The plaintiff sued - The trial judge awarded the plaintiff $7,800 for housekeeping benefits ($100 x 78 weeks) - The insurer appealed - The Ontario Court of Appeal dismissed the appeal - The trial judge was fully alive to the requirements in s. 22 and the plaintiff was required to prove both her entitlement to, and the quantum of, SABS benefits on a balance of probabilities - There was ample evidence that she was substantially unable to perform the housekeeping and home maintenance services that she had performed prior to her accident - The trial judge was entitled to reject an orthopaedic surgeon's report, where it was based on 30 minute, "superficial" examination - The fact that the plaintiff did not have particularized receipts for the housekeeping services that were provided did not disentitle her to housekeeping benefits - See paragraphs 27 to 33.

Cases Noticed:

Belair Insurance Co. v. McMichael (2007), 224 O.A.C. 304; 86 O.R.(3d) 68 (Div. Ct.), refd to. [para. 32].

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, appld. [para. 55].

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. 58].

Counsel:

Jamie R. Pollack and Daniel M. Himelfarb, for the appellant;

Jane Poproski, for the respondent.

This appeal was heard on August 25, 2011, before Gillese, Armstrong and Karakatsanis, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., released the decision for the court on October 18, 2011.