IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Wright v. Sun Life Assurance Company of Canada, |
| 2015 BCSC 776 |
Date: 20150513
Docket: C983515
Registry:
Vancouver
Between:
Dr. Robert S.
Wright
Plaintiff
And
Sun Life Assurance
Company of Canada and the Prudential Group Assurance Company of England
(Canada)
Defendants
Before:
The Honourable Madam Justice Adair
Reasons for Judgment
The Plaintiff Dr. Robert S. Wright: | In Person |
Counsel for the Defendants: | Vincent R.K. Orchard, Allison K. Foord S. Luke Dineley |
Place and Date of Trial: | Vancouver, B.C. March 9-13, 16-20 and |
Place and Date of Judgment: | Vancouver, B.C. May 13, 2015 |
(b) Income
Replacement Benefits
(e) Future
Insurance Guarantee Option
(f) Claims
and General Provisions
(a) Dr.
Wrights circumstances before the Accident
(d) Dr.
Wright moves to California in 1995
(e) In
March 1996, Dr. Wright submits his claim for benefits under the Policy
(h) After
termination of benefits
(ii) The
Dentistry and Medical Experts
(b) Framework
for considering Dr. Wrights claim for benefits
(c) Was
Dr. Wright Totally Disabled after October 2001?
(d) Is
Dr. Wright entitled to benefits on the basis that he was Residually Disabled?
(e) The
FIG Option and the Cost of Living adjustment
(f) Dr.
Wrights claim for a declaration of entitlement to future benefits
(g) Dr.
Wrights claim for aggravated damages.
Introduction
[1]
In this action, the plaintiff, Dr. Robert Wright, asserts he is entitled
to income replacement benefits under a group policy of insurance (the Policy)
between the defendant The Prudential Group Assurance Company of England
(Canada) (Prudential) and the Canadian Dental Association. Dr. Wright
asserts that his entitlement to benefits arises as a result of injuries he
suffered in an accident (the Accident) while he was skiing on December 18,
1993. Dr. Wright says these injuries rendered him first, residually disabled,
and then totally disabled from carrying on his occupation practising dentistry
as a general practitioner. The benefits to which Dr. Wright says he is
entitled exceed $1.5 million. He seeks judgment for what he claims are the
unpaid benefits, as well as aggravated damages and other relief.
[2]
The defendants say that Dr. Wrights claim must be dismissed. Among
other things, they deny that Dr. Wright has been either totally disabled or
residually disabled (as those terms are defined in the Policy) at any time
after March 2000. Moreover, in their counterclaim, the defendants seek to
recover approximately $100,000 in income replacement benefits paid to Dr.
Wright for the period from March 1, 2000 to October 31, 2001, on the grounds
that Dr. Wright was not totally disabled during that time and actively
concealed and misrepresented his condition and activities to the defendant Sun
Life Assurance Company of Canada (Sun Life). The defendants say that Dr.
Wrights conduct also justifies an award of punitive damages.
[3]
I will first set out the main provisions of the Policy, after which I
will review the factual background. I will then set out my discussion and
analysis of the issues.
The Policy
[4]
Effective January 1, 1995, Prudential transferred all of its property,
assets and liabilities to Sun Life, and since that time Prudential has not
carried on any active business. Prudential changed its name to Sun Life in
March 1995. Accordingly, effective January 1, 1995, Sun Life assumed all of
the duties, obligations and liabilities of the insurer under the Policy. In
those circumstances, and although there are two named defendants, I will treat
the insurer under the Policy as Sun Life only.
[5]
The Policy is a group policy of insurance made in 1992 (and amended from
time to time) bearing policy number ZD 95010. On occasion, Dr. Wright
suggested that the policy documents before the court were incomplete, that (for
example) blank spaces on pages were suspicious and that text must be missing.
I find there is no reasonable basis for Dr. Wrights suggestions or suspicions,
and that a copy of the complete policy, containing all of the provisions
relevant to the issues in this action, is the document that was marked Ex. 94
at trial.
[6]
There is no dispute that Dr. Wright was a person (referred to in the Policy
as a Participant) insured under the Policy.
(a) Definitions
[7]
A number of terms are defined in the Definition section of the Policy,
including the following:
ACTIVELY AT WORK means
being actively at work on a full time basis . . . at the relevant persons
normal place of employment and able to perform all the usual duties of the
relevant persons normal occupation.
. . .
AVERAGE MONTHLY EARNED INCOME
means Earned Income prior to commencement of disability and shall be
determined, as elected by the Participant, by taking either the highest average
of any six consecutive months in the 18 month period immediately prior to the
month disability commenced, or the highest average of any two consecutive years
in the 5 year period immediately prior to the month disability commenced.
. . .
INJURY shall mean a bodily
injury.
. . .
PRACTICE OF DENTISTRY A
dentist is engaged in the practice of dentistry if he is:
1. practicing dentistry
as a general practitioner or a specialist;
. . .
REGULAR OCCUPATION means:
(a) in respect of Participants who
are engaged in the Practice of Dentistry, any and all occupations involving the
Practice of Dentistry carried on or engaged in by a Participant immediately
prior to becoming disabled.
. . .
SICKNESS shall mean sickness or disease which causes a
disability while coverage under this policy is in force.
(b) Income Replacement Benefits
[8]
The Income Replacement Benefit provisions the Policy state (in
relevant part) as follows:
TOTAL
DISABILITY PAYMENTS
1. If a Participant becomes
Totally Disabled, [Sun Life] will make income replacement payments in
accordance with the following conditions and provisions of this policy.
. . .
c) during Total Disability, the
Participant must be under the continuing care of a physician.
. . .
PRESUMED
TOTAL DISABILITY
A Participant will be deemed to
be Totally Disabled whether or not he is under the regular care of a physician
in the event that Injury or Sickness causes the Participant to totally and
irrevocably lose (i) speech, (ii) sight in both eyes, (iii) hearing in both
ears, (iv) use of both hands or both feet or (v) use on one hand and one foot.
RESIDUAL
DISABILITY BENEFITS
If immediately following an
applicable Elimination Period during which a Participant is Totally and/or
Residually Disabled, or immediately following a period during which a
Participant receives Total Disability benefits, such Participant continues to
be Residually Disabled, is under the continuing care of a physician, and as a
result thereof he suffers a loss of Earned Income of at least 15% of his
Average Monthly Earned Income [Sun Life] will make monthly payments in the amount
determined as follows: [formula set out]
. . .
TERMINATION OF PAYMENTS
. . .
2. Payments under this Income
Replacement Benefit will cease on the earliest of the following dates:
a) the date on which the
Participant ceases to be disabled,
. . .
d) the date [Sun Life] deems the
Participant has failed to furnish satisfactory evidence of the continuation of
disability, or fails to submit to medical examinations as required by [Sun
Life], and
e) the
date the Participant is no longer receiving regular and personal medical
supervision and treatment considered satisfactory by [Sun Life].
(c) Own Occupation Option
[9]
Dr. Wright had elected the Own Occupation Option under the Policy.
This option defines Total Disability and Residual Disability for the
purposes of this case.
[10]
For purposes of this option, Earned Income was defined to mean:
. . . income resulting from the performance of personal services
by the Participant in his Regular Occupation after the deduction of the usual
and customary business expenses incurred in earning such income and before the
deduction of any income taxes. It does not include interest, dividends, rents,
royalties, annuities, pensions, deferred compensation, wage continuation plans,
or any other payments not related to the performance of personal services.
[11]
The Coverage provided under this option is stated as follows:
A Participant who is engaged in
the Practice of Dentistry may elect the Own Occupation Option which provides
that the definitions entitled Total Disability and Totally Disabled and
Residual Disability and Residually Disabled are deleted in their entirety
with respect to the Income Replacement Benefit and are replaced with the
following:
Total Disability and Totally
Disabled shall mean that, as a result of Sickness or Injury, the Participant
is unable to perform the essential duties of his Regular Occupation and is
under the regular care of a physician.
Residual Disability and
Residually Disabled shall mean that the Participant is not Totally Disabled
but that as a result of Sickness or Injury, he is under the regular care of a
physician and has a loss of Earned Income for each month of at least 15% of his
Average Monthly Earned Income, resulting from the inability:
a. to perform one or more of the
essential duties of his Regular Occupation; or
b. to
perform the essential duties of his Regular Occupation for as much time as
those duties usually require.
[12]
When I refer in these Reasons to Total Disability or Totally
Disabled or Residual Disability or Residually Disabled, I am referring to
the definitions in the Own Occupation Option section of the Policy.
(d) Cost of Living Option
[13]
The Policy provided for optional coverage under a Cost of Living
Adjustment Option, and Dr. Wright had elected to have this optional coverage.
Essentially, it provided that, after a Participant was disabled for a
continuous period of 12 months, the benefits otherwise payable would be
adjusted to reflect the annual change in the Consumer Price Index. The Policy
set out a formula for calculating the Cost of Living Adjustment. The
Adjusted Monthly Income Benefit was defined as the amount determined by
multiplying the Cost of Living Benefit by the Monthly Income Benefit for the
Participant.
(e) Future Insurance Guarantee Option
[14]
The Policy also provided for another form of optional coverage, the
Future Insurance Guarantee Option (the FIG Option). Dr. Wright asserts that
he elected this coverage, and that Sun Life wrongfully refused to give effect
to his election, thus (Dr. Wright says) depriving him of increased income
replacement benefits from and after December 21, 1996 (his 45th birthday).
[15]
Under the FIG Option, the relevant definition of Option Date is the
Date of attainment of age 25, 30, 35, 40, 45 or 50 by the Participant.
Optional Amount is defined to mean the amount of additional coverage
exercised on any Option Date.
[16]
The Policy described coverage under this Option as follows (in relevant
part):
A Participant may elect the
Future Insurance Guarantee Option which permits the Participant to increase the
amount of coverage in force under the Income Replacement Benefit by an amount
equal to 25% of the amount of coverage then in force rounded to the next higher
$100 (if not already a multiple thereof), subject to the following:
(a) written application in a form
satisfactory to [Sun Life] must be received by [Sun Life] within 60 days after
an Option Date;
(b) the Optional Amount will become
effective on the later of the following dates:
(i) the relevant Option Date,
provided the Participant is Actively at Work on that date; and
(ii) the date the written
application is received by the Policyholder provided the Participant is
Actively At Work on that date;
(c) If the
Participant is not Actively at Work when an Option Date occurs, then unless
within 60 days of such Option Date, the Participant returns to full-time active
employment at his normal place of employment and submits written application
for insurance under this Option, the relevant Option Date for such Participant
will be forfeited.
(f) Claims and General Provisions
[17]
The Policy also contained provisions regarding Claims and a section of
General Provisions.
[18]
With respect to Proof of Loss, the Policy provided that:
1. Written proof of loss must be
provided to [Sun Life] within 90 days following the beginning of the period for
which the Participant is claiming benefits. If it is not reasonably possible
for the Participant to comply with the terms of the notice period, written
proof must be provided as soon as reasonably possible and in any event within
no more than one year from the beginning of the period for which benefits are
being claimed.
. . .
2. At all reasonable times [Sun
Life] shall be entitled to have examined by a physician or physicians and/or
dentist or dentists designated by it, any person in respect of whom a claim is
being made.
3. In
addition to any other proof required under this policy, proof satisfactory to
[Sun Life] of continued disability may be requested by [Sun Life] at all
reasonable times. If [Sun Life] requests any above-mentioned proof, and it is
not furnished, . . . within a reasonable period of time following such request,
it will be deemed that the disability terminated immediately prior to the
relevant request.
[19]
The Policy also contained a Non-Waiver provision, which stated:
One or more waivers of, or a failure to insist upon,
performance or observation of any provision of this policy by [Sun Life] or the
Policyholder, shall not be construed as a waiver of any subsequent breach of
the same provision. . . .
Factual Background
(a) Dr. Wrights circumstances before the
Accident
[20]
Dr. Wright was born in December 1951 in Scotland, and he grew up there.
He received his degree in dentistry from the University of Dundee in 1975. He
worked for about eighteen months in the United Kingdom (the U.K.). He then
emigrated to Canada and arrived in B.C. He qualified and became licensed to
practice as a dentist here. He opened up his own dental practice in Clearbrook
in 1978. After about four years, he moved to a large custom-built building in the
Abbotsford area, where he continued his dental practice. According to Dr.
Wright, he had a very busy practice, with seven dental chairs and a staff (full
and part-time) of fifteen. In 1985, he and his then-wife completed
construction of a large custom home in Abbotsford. Thus, by the mid-1980s,
according to Dr. Wright, he had a very successful dental practice and, as a
result, was able to enjoy a very comfortable standard of living.
[21]
However, Dr. Wright then became embroiled in high-conflict matrimonial
litigation, aspects of which (relating primarily to spousal and child support)
continued through 1993 and into 1994. The house in Abbotsford was sold in the
late 1980s. Moreover, a reassessment of Dr. Wright by Revenue Canada in
relation to some real estate investments contributed to serious financial
problems.
[22]
By 1987, Dr. Wright was under a great deal of personal and financial
pressure, and it was a very stressful time for him. He decided to take a leave
of absence from his dental practice, and planned to take a couple of months
off, to rest up. Dr. Wright notified his patients of his plans and put a
notice in the local newspaper. He did not arrange for a locum to carry on his
practice, although he did apparently make arrangements for his patients to be
taken care of by other dentists in the area. Dr. Wright then returned to the U.K.
There was apparently some uncertainty about whether he was going to return to
B.C. During Dr. Wrights absence, a receiver of the practice was appointed and
remained in place for about six months. However, with significant financial
help from his brother, Dr. Wright was able to refinance and recover his dental
practice from the receiver.
[23]
Dr. Wright then continued to operate his dental practice, practicing as
a general dentist (rather than a specialist). According to Dr. Wright, he was
seeing between 30 and 40 patients a day (although there was no independent
confirmation of this). He had multiple dental chairs and a sizeable staff. I
find that the practice description Dr. Wright gave in his Preliminary
Statement of Claim (which I refer to in more detail below) is a good summary
of the type of work Dr. Wright was doing: restorative and prosthetic
dentistry, endodontics, minor oral surgery, sedation and selective
orthodontics, plus administrative duties. According to Dr. Wright, his dental
practice was very busy and he was doing well financially.
[24]
However, even after Dr. Wright resumed his dental practice, his business
affairs were not altogether uneventful or smooth. For example, Dr. Wright was
involved in two court cases. One was an action by a supplier of dental
materials, in which Dr. Wright was the defendant. The second was a passing-off
action, in which he was the plaintiff and was suing another dentist in the
Abbotsford area.
[25]
Then, at the beginning of April 1993, Dr. Wright made an assignment in
bankruptcy. He blamed his former matrimonial lawyer and actions taken by
Revenue Canada for his circumstances. The statement of affairs sworn by Dr.
Wright disclosed liabilities of $1,061,895 and assets of $529,500. Based on
the list of creditors, Dr. Wrights liabilities were primarily business-related
(rather than consumer debt), and included liabilities in relation to the two
business-related lawsuits. Dr. Wrights brother was his second largest
unsecured creditor (at about $142,000), after Revenue Canada. On the list of
secured creditors, Dr. Wrights brother was shown as being owed about $350,000
out of $548,000, and was the largest secured creditor. Dr. Wright acknowledged
that, on December 8, 1993, his bankruptcy trustee opposed his automatic
discharge. As of the trial, Dr. Wright had not been discharged from
bankruptcy.
[26]
In late November and early December 1993, Dr. Wright was before the
court on the hearing of an application by his former wife to have him found in
contempt of court for failing to pay court-ordered spousal and child support
over a period of about nine months in 1993. Dr. Wright had been ordered to pay
$2,500 a month in spousal support and $900 per month in child support. As of
the contempt hearing, the total outstanding was about $30,000. On December 3,
1993, at the conclusion of a 5-day hearing, Dr. Wright was found in contempt by
Mr. Justice Warren. On December 13, 1993, Dr. Wright was sentenced by Mr.
Justice Warren to 30 days in prison, to be served intermittently on weekends,
together with 40 hours of community service. Dr. Wright acknowledged that he
never did pay the outstanding support. He tried to borrow the money from his
brother, but his brother was unwilling to lend it to him.
(b) The Accident
[27]
Nevertheless, according to Dr. Wright, everything was going fine with
his dental practice until the Accident on December 18, 1993.
[28]
Dr. Wright had spent the day skiing. According to Dr. Wright, at about
3 p.m., he was skiing on Blackcomb and came down to the crest of a ridge on the
final run down to the parking lot and the base of the mountain. As Dr. Wright
recalled, he stopped because there was a line-up of skiers. He recalled that
he was tired and that, to his left, the ridge dropped off quite sharply.
According to Dr. Wright, there was another skier in front of him who did not
seem to want to move, and Dr. Wright decided that he had enough room to go
around to the left of this skier and continue down the run. However, according
to Dr. Wright, just at that point, the skier started to move and there was not
enough room for Dr. Wright go to past. As he recalled, he then turned to his
right. According to Dr. Wright, his ski tips crossed and he went head over
heels, and landed on his neck, left shoulder and also his back. Dr. Wright
testified that he was knocked unconscious, although he could not say for how
long, maybe a few minutes. According to Dr. Wright, when he came to, other
skiers were standing around looking at him. His ski poles were still attached
to his wrists. According to Dr. Wright, initially, he did not feel any pain,
and he worried that he had broken his neck and been rendered quadriplegic.
However, as Dr. Wright recalled, after a few moments he was able to move. His
skis had come off in the fall. He got up, walked to the bottom of the hill and
met up with his then girlfriend (and now wife), Jacqueline.
[29]
On cross-examination, Dr. Wright denied that the accident occurred when
he collided with another skier. According to Dr. Wright, he swerved
to avoid the other skier. He rejected the suggestion that he had not been
knocked unconscious.
[30]
Dr. Wright acknowledged that the ski patrol did not attend on him and he
did not go to the ski patrol about the Accident. He did not report the Accident
to anyone at Whistler/Blackcomb. He did not try and find out the identity of
the other skier. He did not go to a medical clinic in the Village of Whistler
or seek any medical attention.
[31]
According to Dr. Wright, after the Accident, he slowly began
experiencing pain in his arm, neck and back. He and his wife decided they
would return home from Whistler. As Dr. Wright recalled, his wife drove.
According to Dr. Wright, when he arrived home, the pain was increasing and had
become quite intense.
(c) Following the Accident
[32]
According to Dr. Wright, on Monday, December 20, 1993, he contacted the
office of his family doctor, Dr. Douglas Henderson, and made an appointment to
see him on December 22.
[33]
Dr. Henderson was also from Scotland. As of December 1993, he had been
Dr. Wrights family doctor for more than ten years. Dr. Henderson and his
family members were also dental patients of Dr. Wright.
[34]
Dr. Wright saw Dr. Henderson three times in December 1993: on December
22, 29 and 30. December 30, 1993 was Dr. Wrights very last medical appointment
with Dr. Henderson.
[35]
A bundle of copies of pages from Dr. Hendersons clinical records relating
to Dr. Wright was entered into evidence as Ex. 106. These were not the
original records, which (as Dr. Henderson testified) had been destroyed after
10 years. Dr. Wright sought to challenge the reliability and completeness of
the contents of the bundle on a number of grounds, including that the original
records no longer existed and that Dr. Hendersons notes were typed, not
handwritten. However, Dr. Hendersons explanations about the state of clinical
records were reasonable and credible, and I accept them. For example, with
respect to the notes being typewritten rather than handwritten, Dr. Henderson
explained that his practice (at least in 1993) was immediately to write down by
hand what he was told by a patient (and make a note of any significant
complaint). He would then have his notes transcribed because he was working in
a practice with other physicians and his handwriting was mostly illegible.
[36]
With respect to Dr. Wrights visit on December 22, 1993, Dr. Henderson
recorded a fracture of Dr. Wrights left humerus (and specifically that an
x-ray showed a fracture of the tuberosity) and also CPX. In his evidence,
Dr. Henderson explained that CPX was an abbreviation for complete physical
exam. Another witness, Dr. Ian Connell (a medical doctor who testified as an
expert for Sun Life) confirmed this. Although, in his evidence and in
documents he had authored, Dr. Wright often used medical terms, he denied that
he understood what CPX meant, and he could not recall that one of the reasons
for his visit to Dr. Henderson on December 22 was for a complete physical. As
Dr. Henderson recalled, the complete physical exam was in relation to Dr.
Wrights renewal or registration of his dental licence in the U.K. I find that
one of the reasons for Dr. Wrights visit to Dr. Henderson on December 22, 1993
was for a complete physical examination, and that Dr. Henderson carried out
such an examination.
[37]
Of course, on December 22, 1993, Dr. Wright was also seeing Dr.
Henderson concerning what had happened to him in the Accident. Dr. Hendersons
notes reflect the history he was given about how the Accident occurred,
including that Dr. Wright told him he landed heavily on his left side and was
having a lot of pain. There is no mention that Dr. Wright suffered a
concussion, and Dr. Henderson testified that he would have recorded it if Dr.
Wright had reported it to him. This would be consistent with Dr. Hendersons
general practice. Dr. Henderson recorded that (on examination) Dr. Wright had
considerable bruising on his left arm, a slightly tender left lateral clavicle
and also that Dr. Wright had very little abduction. Dr. Henderson encouraged
Dr. Wright to use a sling, and wanted him to come back in one week.
[38]
Dr. Wright returned to see Dr. Henderson on December 29, 1993. Dr.
Henderson confirmed the diagnosis of a fracture of the left humerus. He
suggested that Dr. Wright attend physiotherapy and that Dr. Wright come back to
see him in two or three weeks or sooner if required. Dr. Wright returned on
December 30, 1993. Dr. Henderson noted Dr. Wrights concern about bruising
tracking down his left arm and that Dr. Wright had been aware for the last day
or two of a tender spot at his left elbow. At trial, Dr. Henderson explained
that the bruising was coming from the fracture of Dr. Wrights left humerus.
He rejected the proposition put to him by Dr. Wright on cross-examination that
there was bruising because Dr. Wright had fractured his wrist. On examination,
Dr. Henderson noted that Dr. Wright seemed tender over the left radial head
(i.e., at the elbow). He ordered an x-ray, which he expected would probably be
normal. He recommended that Dr. Wright continue to use a sling and to see him
in two weeks as advised. Dr. Wright never returned. The x-ray ordered by
Dr. Henderson was normal.
[39]
According to Dr. Wright, despite suffering from his injuries, he
returned to work, although only part-time and despite having his left arm in a
sling. He explained that the practice was very busy just before Christmas, and
he needed to be there to look after patients. With the help of assistants, Dr.
Wright did what he could. However, according to Dr. Wright, the pain was
becoming worse and he felt that he was unable to perform any procedures at
all. He explained that he had to refer many patients out to other dentists,
and was unable to accept any new patients. According to Dr. Wright, he
continued to limp along in his practice. However, according to Dr. Wright, he
realized (although without the benefit of any advice from or further
examination by a physician) after about six weeks that things were not getting
any better. As he recalled, he was having considerable pain in his low back
and his shoulder, and his left arm was still in a sling. As Dr. Wright
recalled, he was also having headaches and neck pain, and finding it very hard
to do even the minimum amount of dentistry, although he was trying. According
to Dr. Wright, some of his staff began looking for part-time work because he
was cutting back, and some of his patients were also going to other dentists.
He recalled realizing that if things continued this way much longer, the
goodwill and value of his practice would evaporate. He explained that he then decided
he better put his practice on the market and sell it, or at least get the
process underway.
[40]
According to Dr. Wright, around this time (about six or so weeks after
the Accident), he began thinking very seriously about a career change. He
explained that his first thought was to become a medical doctor, but concluded
(given his age) it would not be a wise choice. As Dr. Wright recalled, he
considered other professions engineering, law, architecture, computer
science. He concluded that the best choice would be to become a prosthodontist
(one of the specialities in dentistry), and also get an education degree, with
the idea that he could teach and also work part-time for higher fees than he
could charge as a general dentist. He explained that he wanted to cover his
options, so that, if he recovered from his injuries, he could continue in a
specialty dental practice, and if not, he could teach and do research.
[41]
According to Dr. Wright, he then applied to be admitted to the
University of Southern California (USC) and was accepted into the program for
the term beginning in August 1994. As he recalled, he also located someone who
was interested in purchasing the dental practice, however, that fell through.
As a result, he was unable to take up the position offered to him at the USC.
However, according to Dr. Wright, USC told him that they would make a place for
him the following year.
[42]
Dr. Wright explained that, in 1994, he had been winding down his
practice with the anticipated changes in mind. But, since he had been unable to
sell the practice, he had to keep going. According to Dr. Wright, he was doing
as much as he could to keep expenses down and keep the practice viable so that
it could be sold.
[43]
According to Dr. Wright, in 1994, he was still suffering symptoms in his
neck, back, shoulder and arm, which he attributed to the Accident. Although Dr.
Henderson had recommended physiotherapy, and Dr. Wright went to the office of a
physiotherapist, he never had any treatment because he felt it would be too
painful. He did not see Dr. Henderson or any other physician between December
30, 1993 and when he left B.C. for California in 1995. Before the Accident,
Dr. Wright had seen a chiropractor, Dr. Turner, from time to time for treatment
for low back pain. After the Accident, Dr. Wright saw Dr. Turner twice, once
in March 1994 and once in December 1994. The March visit was (according to Dr.
Wright) in relation to symptoms Dr. Wright was having in his shoulder, while
the December visit was for more general treatment.
[44]
In early July 1994, Dr. Wright wrote to the Canadian Dental Service
Plans Inc. (CDSPI), in relation to making a disability claim. CDSPI was the
organization that dealt with insurance-related issues for the Canadian Dental Association.
Dr. Wright asked to be sent a claims package, a copy of the Policy and
whatever information you can about the claims process.
[45]
Dr. Wrights dental practice in Abbotsford was eventually sold in March
1995 (about March 23). I did not hear any evidence concerning either the
asking price or how much it sold for.
(d) Dr. Wright moves to California in 1995
[46]
Shortly after the sale of the Abbotsford practice, Dr. Wright relocated
to California. According to Dr. Wright, he moved to Thousand Oaks, about an
hours drive from Los Angeles, and began his program at USC. Dr. Wright
recalled that, once settled in Thousand Oaks, he saw a doctor, Dr. Napolitano,
and told him about his problems. According to Dr. Wright, he asked Dr.
Napolitano for a referral to an orthopedic surgeon, and was referred to a Dr.
Gross. According to Dr. Wright, Dr. Gross referred him to a chiropractor, Dr.
Robert Cassar, and also wanted to have an MRI done. Dr. Wright was put off by
the cost of the MRI, but he did see Dr. Cassar. According to Dr. Wright, Dr.
Cassar practiced in a clinic with his brothers (also chiropractors) and several
physiotherapists. As Dr. Wright recalled, he had chiropractic treatment and
physiotherapy at Dr. Cassars clinic for years, until 2001. According to Dr.
Wright, Dr. Cassar also referred Dr. Wright to another orthopedic surgeon, Dr.
John Larsen. As Dr. Wright recalled, he saw Dr. Larsen a couple of times or periodically.
[47]
Dr. Wright also attended at the student clinic at the USC from time to
time for a variety of ailments. But he acknowledged that staff there were not
treating doctors for him in relation to any injuries he sustained in the
Accident.
(e) In March 1996, Dr. Wright submits his
claim for benefits under the Policy
[48]
Dr. Wrights formal preliminary statement of claim (the Preliminary
Statement of Claim) for income replacement benefits under the Policy is dated
March 2, 1996. It was sent under cover of a letter dated the same date from
Dr. Wright to CDSPI. I conclude that, by this time, Dr. Wright had been
provided with a copy of the Policy because, in his covering letter, he asked a
question based on my reading of the policy.
[49]
During his evidence-in-chief, Dr. Wright had admitted into evidence as
Ex. 55 the first and second pages, and a page (headed in the top left Section
D) signed and dated by him, from the Preliminary Statement of Claim. However,
I find that the complete document submitted by Dr. Wright as the Preliminary Statement
of Claim is what was marked as Ex. 93, minus the two documents headed
Attending physicians statement of disability. I find that the physicians
statements were sent separately, by Dr. Henderson and Dr. Turner, respectively.
[50]
In the Preliminary Statement of Claim, Dr. Wright stated that Total
Disability commenced on April 15, 1995, and Partial Disability commenced in
December 1993. I find that Dr. Wright was intending in the Preliminary Statement
of Claim to submit two separate claims for benefits: first, for benefits on
the basis that, for the period beginning April 15, 1995, he was Totally
Disabled; and second, for benefits on the basis that, for the period beginning
in December 1993, he was Residually Disabled, as those terms are defined in
the Policy.
[51]
In response to the question Condition that prevents you from working,
Dr. Wright provided a lengthy list, beginning with chronic moderate to severe
pain in the cervical, thoracic and sacral-lumbar region of the spine, and
including pain associated with varicose veins behind [the] knee and lower limb
of [the] right leg associated with working rheostat foot pedal, bursitis of
the left shoulder with limited range of motion and parasthesia of the fourth
and fifth fingers of the left hand.
[52]
Dr. Wright stated the following concerning how the Accident occurred:
I collided with another skier crossing my tips and going head
over heels landing on hard ice on my neck and left shoulder and arm.
He said nothing about being knocked unconscious. His
description of the Accident in the Preliminary Statement of Claim is consistent
with the history recorded in Dr. Hendersons clinical records.
[53]
The Preliminary Statement of Claim included a section Determining
Pre-disability net earned income, which was completed by Dr. Wright and which
indicated his pre-disability average monthly earned income was $11,382.50. There
are also two worksheets headed Statement of Pre-disability earned Income
dated February 16, 1996 and signed by Dr. Wright. One covers the period from
June 1993 to November 1993, and the other covers the period from October 1994
to March 1995. Dr. Wright did not explain, and was not asked, how these
work-sheets were completed or what source documents were used to complete them.
Finally, there is what appears to be a calculation of post-disability net
earned income (using the figures on the October 1994 to March 1995 worksheet),
which shows average monthly earned income of $6,533.
[54]
Ex. 93 also included Attending Physicians Statement of Disability
forms completed by Dr. Turner and Dr. Henderson. Dr. Wright agreed that the
statement in the form completed by Dr. Turner that Dr. Wright never discussed
his long term plans or disability on the two treatment dates following the
accident was true. On the form completed by Dr. Henderson, he stated a
primary diagnosis of chronic recurrent back pain. Otherwise, he responded
N/A or not applicable to many of the questions, on the basis that he had not
seen Dr. Wright since December 30, 1993.
[55]
As of the end of August 1996, Sun Life had not approved Dr. Wrights
claim for income replacement benefits. From correspondence he exchanged with
CDSPI in August, September and October 1996, it appears that Sun Life had not
been satisfied with the medical information provided from Dr. Henderson and Dr.
Turner as part of the Preliminary Statement of Claim. As a result, Dr. Wright
made arrangements to see a physician in California (Dr. Larsen) and had
obtained a report (dated August 8, 1996) from him. However as of October 6,
1996, Dr. Wright had not yet provided that report to CDSPI (to be forwarded to
Sun Life), despite being told that his claimed disability needed to be substantiated
medically.
[56]
I have no doubt that Dr. Wright understood that his disability needed to
be substantiated medically, and I find that was his reason for seeing Dr.
Larsen and requesting a report from him. However, his delay in providing the
information to CDSPI (for Sun Life) meant that his claim for Total Disability
benefits could not be completely adjudicated. Dr. Wright may have felt that he
should be receiving benefits without this information (and his correspondence
to CDSPI indicates a high level of frustration and unhappiness with the
process). But his own conduct in failing to provide information that Sun Life
was entitled to have under the Policy did nothing to facilitate his receipt of
benefits.
[57]
In late October 1996, Dr. Wright received a letter dated October 23,
1996 from CDSPI (what I would describe as essentially a form letter), notifying
him that his upcoming birthday (in December) entitled him to apply for coverage
under the FIG Option. An application form was enclosed, and the letter stated:
If you wish to take advantage of this valuable opportunity,
the enclosed application form must be completed and returned within 60 days
following your birthday.
The letter also stated that if you are receiving
benefits (on claim), you are not eligible for this FIG offer.
[58]
On November 27, 1996, Dr. Wright wrote to the President of CDSPI about
CDSPIs October 23, 1996 letter. Dr. Wright stated:
I would like to take full
advantage of this offer and go on record of making my intention known.
However, I would like you to advise me how my current situation impacts on the
CDSPI offer.
I have now received confirmation from Sun Life that they have
received my medical report, but, as yet, no payment. I do not feel that it is
appropriate for me to complete my application for the increased benefits until
I have a response from you but hope that such a delay will not prejudice me
from becoming eligible for increased coverage should a payment be made by Sun
Life in the meantime.
[59]
The Vice-President of CDSPI wrote back to Dr. Wright on November 29,
1996. That letter stated (in part):
The letter you received from
CDSPI extending an offer under the Future Insurance Guarantee (FIG) option . .
. is sent to the participants who have this option and are not on claim and
receiving benefits. At the time of sending the letter, your file was marked
claim pending and the benefits had not started to be paid.
Just today I have received word that your claim has been
accepted. The first payment cheque should be mailed to you within a week.
This now nullifies the FIG option unless you return to work within 60 days of
December 21, 1996.
Dr. Wright acknowledged that he received a copy of this
letter.
(f) Dr. Wright begins receiving Total
Disability benefits in December 1996; issues remain regarding his claim for
Residual Disability benefits
[60]
By letter dated December 4, 1996 from Sun Life, Dr. Wright was informed that
Sun Life had completed its assessment of his claim and that benefits had been
approved to November 23, 1996. A cheque for $20,000 (representing benefits of
$5,000 per month) was enclosed. Dr. Wright confirmed that he received this
letter. The letter mentions Dr. Larsens medical report and explains why (based
on that report) June 24, 1996 was established as the date of disability. Income
replacement benefits commenced effective July 24, 1996. Dr. Wright was advised
that subsequent payments will be issued to you automatically subject to
ongoing medical review. Dr. Wright was asked to provide information to allow
Sun Life to establish his pre-disability income and was told:
Copies of personal income tax return[s], assessment notice
and business income and expense statement must be submitted for the period
[you] elect.
This information was relevant to Dr. Wrights claim for
benefits from December 1993, on the basis that he was Residually Disabled.
[61]
Although Dr. Wright was now receiving income replacement benefits, the
date of disability (June 24, 1996) that Sun Life had determined (based on Dr.
Larsens report) was not acceptable to Dr. Wright, at least with respect to his
claim for benefits on the grounds that he was Residually Disabled. His view
was that the appropriate date was the date of the Accident.
[62]
In January 1997, Dr. Wright wrote to Dr. Henderson, requesting that he
provide another report for Sun Life, with the object of providing Sun Life with
the medical information and opinion to justify a date of disability (at the
least that Dr. Wright was Residually Disabled) as of the Accident. Dr.
Hendersons diagnosis and prognosis were important for Dr. Wrights claim
because he was the physician who examined Dr. Wright immediately after the Accident,
and the only physician who had examined Dr. Wright until he arrived in
California in 1995.
[63]
Over the next several months, Dr. Wright and Dr. Henderson corresponded
with one another on this matter. Dr. Henderson responded to Dr. Wrights
initial request by letter dated January 29, 1997. Dr. Henderson indicated that
he felt he could not say more than he already had, since any of Dr. Wrights
ongoing problems were being treated by persons in California, and he suggested
that Dr. Wright contact them for a more accurate and useful report.
[64]
Dr. Wright wrote to Dr. Henderson again on May 26, 1997. He described
(from his perspective) the conclusions that had been reached by Dr. Larsen and
Dr. Cassar, and told Dr. Henderson that he had been informed by CDSPI that, if
he could obtain a written report from the doctor who examined him after the
accident (namely, Dr. Henderson), he should be able to claim benefits (i.e.,
benefits on the basis of a Residual Disability) in accordance with the drop in
his net income after the Accident.
[65]
Dr. Wright was also communicating with Sun Life concerning his claim.
As of July 1997, Dr. Wright had not provided any income tax returns, notices of
assessment or other financial information that Sun Life had requested, apart
from the basic information in his Preliminary Statement of Claim. In a letter
dated March 20, 1997, Sun Life informed Dr. Wright that the information
requested in its December 4, 1996 letter had not been received and renewed its
request for this information.
[66]
By letter dated July 17, 1997, Sun Life repeated its request for
financial information so that Dr. Wrights pre-disability income could be
established. Dr. Wright was also informed that Sun Life required financial
information from claimants on an annual basis. Dr. Wright was informed that
We are unable to continue to approve benefits to you with this information
still outstanding, and he was requested to provide a copy of his 1996 tax
returns and notices of assessment.
[67]
Sun Life terminated payment of Total Disability benefits in July 1997.
[68]
Dr. Wright responded to Sun Lifes July 17 letter by letter dated July
26, 1997. He complained that Sun Lifes responses to his letters were predictably
tardy and delayed the processing of his claim, while my responses are
swift. He expressed his disagreement with the date of disability (June 24,
1996) that Sun Life had established, and said I have explained to you on
numerous occasions that the date of disability has not been established. He
complained in very strong terms about the termination of benefits. He wrote
that I reject any suggestion that I have been responsible for the delay in the
processing of the claim. Illustrating his concern that the date of disability
established by Sun Life would reduce the Residual Disability benefits payable,
Dr. Wright said:
It is important that I select an income period which will
maximize my benefits under the terms of [the Policy]. I shall provide you with
financial documentation and select an income period once the date of disability
is established. Until that date is accepted by your company I cannot do so.
Dr. Wright also stated that he was still not convinced
he was unable to increase his benefits under the FIG Option, and considered
that matter still to be open.
[69]
Sun Life responded by letter dated July 29, 1997, which Dr. Wright
acknowledged he received. The letter expressed puzzlement at Dr. Wrights
reluctance to provide the financial information Sun Life had requested, and
stated that the time frame selected could be adjusted if the date of disability
was amended. The letter acknowledged that it was Dr. Wrights decision whether
to supply the information or not, but stated that benefits could not continue
indefinitely while the information was outstanding.
[70]
By the end of July, Dr. Henderson had not responded to Dr. Wrights May
26 letter, and Dr. Wright wrote to Dr. Henderson again on July 26, 1997. His
tone was no longer friendly; rather, it was threatening. He said that Dr.
Hendersons delay was holding up over $100,000 in back payments to me when I
most need it. Dr. Wright continued:
I sense your reluctance to write a medical report. Doug, it
is a double-edged sword and the choice is yours. Either you diagnosed my
injury and treated it or you failed to diagnose my injury and treat it. Either
my insurance pays or your insurance pays. I could claim from both but provided
that I receive the appropriate medical report from you I shall be disinclined
to look beyond my own insurance for compensation.
[71]
Dr. Henderson responded by letter dated August 12, 1997. He apologized
for the delay. He repeated that he found it difficult to add to what he had
said in the Attending Physicians Statement of Disability he had completed in
February 1996. Dr. Henderson observed that Dr. Wrights last visit to him was
on December 30, 1993 and there was no documentation in his chart concerning
subsequent problems. He was prepared to provide a letter that summarized his
care and involvement with Dr. Wrights injuries up to the last visit and that
made note of Dr. Wrights subsequent difficulties and treating physicians and
chiropractors. Dr. Henderson did this in a letter also dated August 12, 1997,
addressed To whom it May Concern.
[72]
Dr. Wright sent another letter to Dr. Henderson, dated August 20, 1997.
Again, the letter was threatening and borderline insulting. It read in part:
In order for me to claim retroactive
benefits from the date of Dr. Grosss initial examination (08/22/95) to my
initial consultation with you in December of 1993, I require that you provide
me with a medical report confirming that the injuries I sustained, compounded
with the pre-existing disabilities, would result in my being partially disabled
and unable to perform my customary range of physical duties as a dentist.
I trust that you will have the wisdom not to be challenging
the reports of these highly qualified doctors and will be providing me with
your report shortly.
[73]
On August 30, 1997, Dr. Wright wrote again to Dr. Henderson, responding
to Dr. Hendersons August 12 letter, which Dr. Wright had just received. Dr.
Wright said:
Unless I receive a letter from you confirming that the
injuries sustained would impact on my ability to perform the customary
chairside duties, the insurance company will reject my claim and I shall have
to litigate. If I am forced to litigate then I shall have to include you in
the lawsuit as you would be interfering with my processing of the claim and
indirectly supporting the case of the insurance company.
[74]
Dr. Wright enclosed a statement he had drafted that he wanted Dr.
Henderson to give to Sun Life. Based on the contents of what Dr. Wright
drafted, I conclude that, at this point, he had a copy of Dr. Hendersons
clinical records. Contrary to Dr. Wrights evidence at trial, his description
in the statement of the Accident is consistent with the history recorded in Dr.
Hendersons clinical records and with Dr. Wrights description of the Accident
in the Preliminary Statement of Claim. However, one of the things Dr. Wright
wanted Dr. Henderson to say was that x-rays showed a compression fracture of
the head of the radius. At trial, Dr. Wright was quite insistent that he had
suffered such an injury in the Accident. However, no such diagnosis was ever
made by Dr. Henderson, who had noted the relevant x-ray as normal.
[75]
Sun Life wrote again to Dr. Wright on September 2, 1997. The letter
informed Dr. Wright that (as far as Sun Life was concerned) the medical
information on his file did not support an earlier date of disability. Moreover,
as of September 1997, Dr. Wright had not provided any of the tax returns,
notices of assessment or other financial documents Sun Life had requested.
[76]
Dr. Henderson provided a statement dated September 15, 1997. It said,
in part:
The above patient attended me at my
office . . . December 22, 1993 with a history of having been involved in a
skiing accident four days previously in which he collided with another skier,
landing on his left side follow[ing] which he had a lot of discomfort around
his left shoulder and arm.
Examination showed a lot of bruising
to be present. He was tender over the left lateral clavicle as well as
shoulder. X-rays showed longitudinal fracture through the base of the greater
tuberosity. The patient was encouraged to use [a] sling and take some time off
work and use analgesics that he had available. However, the patient indicated
that he had decided to try [to] continue working with the sling. He was
advised to return in one week with follow up x-rays.
The patient returned December 29,
1993 with x-rays showing no change in position and he was advised to start
attending [physiotherapy] in five days time and to return in after a further
two to three weeks. The patient returned the following day concerned about
excessive bruising tracking down the arm but also had become aware of tender
area in the left elbow. An x-ray was carried out to make sure he had no injury
to radial head. The x-ray was reported as normal.
. . .
At the time of his last visit as above this patient should be
considered as having a partial disability from his skiing accident with
subsequent difficulties performing his normal duties as an operative dentist.
[77]
Dr. Wright sent Sun Life a copy of Dr. Hendersons letter under cover of
a letter dated September 26, 1997. The letter again levelled a variety of
complaints against Sun Life, and asserted that Sun Life had failed to pay Dr.
Wright benefits of about $100,000. In the letter, Dr. Wright also asserted
that he wished to take advantage of the FIG Option.
[78]
Although, through Dr. Hendersons September 15, 1997 letter, Dr. Wright
had provided Sun Life with medical grounds to say the disability date for his
claim for Residual Disability benefits should be in December 1993, Dr. Wright
still did not provide any of the financial information that had been requested
by Sun Life, and that was relevant to that particular claim. His complaints
that Sun Life owed him money and was acting in bad faith were misplaced.
[79]
On November 10, 1997, in-house counsel for Sun Life wrote to Dr. Wright
concerning his claim for benefits for the period beginning December 1993. The
letter is written in the context of the Policy language and definitions, i.e.,
that as a result of . . . Injury, the Participant . . . is under the regular
care of a physician. The letter explained why Dr. Larsens August 1996 report
was of limited assistance in that respect, namely, that Dr. Larsen did not
treat Dr. Wright until June 1996. The letter referred to Dr. Hendersons
Attending Physicians Statement and his September 15, 1997 report, but
explained that, since Dr. Henderson had not seen Dr. Wright since December 30,
1993, he could not provide Sun Life with information concerning a partial disability
at any time thereafter. However, the letter informed Dr. Wright that Sun Life
intended to write to Dr. Henderson and Dr. Wrights other treating physicians
to obtain their clinical notes and records. The letter asked Dr. Wright to
advise Sun Life immediately if he was treated by other medical practitioners
between December 1993 and April 1995.
[80]
The November 10, 1997 letter also reminded Dr. Wright that Sun Life
required financial documentation from Dr. Wright and requested copies of his
complete income tax returns, financial statements and assessment notices for
the years 1993 to 1996. As of November 1997, Dr. Wright had not provided any
of this information or documentation to Sun Life.
[81]
By January 1998, Sun Life had concluded, based on a review of Dr.
Hendersons records, that, from a medical standpoint, Dr. Wright was partially
disabled from December 18, 1993 until his practice was sold in March 1995 and
thereafter Totally Disabled from his Own Occupation. By letter dated January
28, 1998, Sun Life advised Dr. Wright of its conclusions. Sun Life stated
further [bold in original]:
To complete the adjudication of
your claim, Sun Life requires financial documentation, as specified below.
Without said information, Sun Life cannot determine the quantum of your partial
disability benefits to which you may be entitled should you establish a
loss of income of at least 15% between December 1993 and the date you sold your
practice. As per the terms of the contract, Sun Life is entitled to the
following documents:
1. personal income tax returns for
and including the years 1991 to 1995, pages 1-4, inclusive;
2. corporate income tax returns,
financial statements and notices of assessment for the years 1991 to 1995,
inclusive;
3. if a locum assisted you, then
please provide the name of the locum and a copy of any agreements;
4. partnership agreements, if any,
for the years that you were not a sole proprietor.
The financial information from 1991 to 1992 will be used to
calculate your pre-disability income. Please be advised that you must satisfy
the terms of the policy from not only a medical standpoint but also a financial
one.
[82]
However, as of the end of June 1998, Dr. Wright had not provided Sun
Life with any of the financial documentation requested, or any other relevant
financial information.
[83]
On July 3, 1998, Dr. Wright wrote again to Sun Life. He asserted that,
on his reading of the Policy, he was not obliged to provide Sun Life with any
further financial documentation. He repeated his demand for payment of
benefits retroactive to December 1993, including (among other things) an
adjustment for the FIG Option.
[84]
Dr. Wrights reading of the Policy with respect to his obligations and
the FIG Option was incorrect. His combative approach was misplaced and unproductive.
[85]
On July 10, 1998, the writ of summons in this action was filed.
[86]
Also on July 10, 1998, Dr. Wrights then-solicitor (Mr. McFee) wrote to
Sun Lifes in-house counsel. He stated that Dr. Wright had provided him with a
copy of Sun Lifes January 28, 1998 letter. He noted the requests made for
financial information and documentation, and indicated that he would follow up
with Dr. Wright. In the meantime, Mr. McFee enclosed a copy of an income
statement prepared by the accounting firm of Hedden Chong, which covered the
six month period ended November 30, 1993, and a copy of Dr. Wrights corporate
tax return (including unaudited financial statements prepared by the accounting
firm Lake & Associates) for the period ended August 31, 1994.
[87]
Mr. McFee (quite properly) acknowledged the need for financial
documentation to determine the quantum of Residual Disability benefits.
However, he observed that the absence of that information could not justify the
termination (in July 1997) of Total Disability benefits.
[88]
In September 1998, Sun Life paid Dr. Wrights Total Disability benefits
up to date from July 1997 to the end of August 1998. Thereafter, Sun Life paid
monthly Total Disability benefits to Dr. Wright up to and including September
2001, and paid benefits for October 2001 on a reservation of rights basis.
[89]
In early April 1999, Mr. McFee again wrote to Sun Lifes in-house
counsel concerning a variety of matters relating to Dr. Wrights claims. There
is no evidence that, prior to this letter, Dr. Wright either directly (or
through Mr. McFee) provided Sun Life with any income tax returns or notices of
assessment for either any period prior to the date of disability of December
18, 1993, or after that period. There also is no evidence that any further
financial documentation had been provided to Sun Life, in addition to what Mr.
McFee had sent under cover of his July 10, 1998 letter.
[90]
Dr. Wrights claim for Residual Disability benefits was one of the
matters addressed by Mr. McFee in his April letter. He wrote that [i]n order
to establish the residual disability benefit, he was enclosing another
statement of income prepared by Hedden Chong and covering the nine months ended
August 31, 1994 and the seven months ended March 31, 1995. The position stated
in Mr. McFees letter was that, based on the statements provided (under cover
of his July 1998 letter and his April letter), Dr. Wright had suffered a loss
of earned income greater than 15% of his pre-disability Average Monthly Earned
Income, and was thus entitled to a Residual Disability Benefit of $5,000 per
month for the period December 18, 1993 to March 24, 1995. Mr. McFee wrote that
With this documentation in hand, I trust you are in a position to pay out Dr.
Wrights residual disability benefit immediately.
[91]
However, Sun Life did not pay any Residual Disability benefits to Dr.
Wright in response to Mr. McFees letter.
[92]
In the meantime, Dr. Wright was moving ahead with his studies at USC.
Dr. Wright was awarded a Master of Science in Education by USC in May 1998. In
September 1998, he obtained a Dental License from the State of California,
Board of Dental Examiners, giving him the right to practice dentistry in
California. With respect to his pursuit to become a specialist in
prosthodontics, in August 1999, Dr. Wright was awarded a certificate in
prosthodontics by the USC School of Dentistry, having successfully completed a
two-year course of study. In February 2000, Dr. Wright was informed by the
American Board of Prosthodontics that he had successfully fulfilled the
requirements for the Part 1 examination of the Board, and that he would be
eligible to take additional part of the examination when he had met the
guidelines set by the Board. In August 2000, Dr. Wright received a Master of
Science in Craniofacial Biology from USC.
(g) In late 2000, Sun Life requests additional
information from Dr. Wright and subsequently initiates independent
investigations of his activities
[93]
At the end of October 2000, Sun Life wrote to Mr. McFee concerning Dr.
Wrights claims. Dr. Wright recalled receiving a copy of this letter. No
additional medical information (that is, whether Dr. Wright was under the
regular care of a physician as a result of his injuries) had been provided to
Sun Life since 1997, and no additional financial information had been provided
since Mr. McFees April 1999 letter. Sun Lifes letter stated (among other
things) that [i]n addition to medical proof of ongoing eligibility to receive
benefits, we also require financial proof in order to verify that participants
are not engaged in their regular occupation. Sun Life stated that, in order
to update Dr. Wrights file, it required a number of items, including:
completion of a supplementary statement of disability by Dr. Wright and his
current attending physician; names and complete addresses of all physicians
consulted by Dr. Wright since April 1997, including dates; details of any of
Dr. Wrights employment activities since April 1997; and complete copies of Dr.
Wrights income tax returns for 1996 to 1999. The letter stated further that
benefits for Dr. Wright were approved to November 30, 2000, and that benefits
beyond that date would be considered on receipt of the information requested.
[94]
Dr. Wright completed, signed and sent the supplementary statement of
disability (the Supplementary Statement of Disability) to Sun Life on
December 12, 2000. That same day, Dr. Wright saw Dr. Larsen, whom he had not
seen for at least three years (perhaps longer). Dr. Larsen completed an
Attending Physicians Statement of Continuing Disability. Although Dr.
Larsens form is dated December 12, 2000, the date of the last visit is stated
to be December 12, 2001, an obvious (and somewhat odd) error. The
primary diagnosis stated was C5-6 and C6-7 disc herniation, while the secondary
diagnosis was thoracolumbar strain. I find that only Dr. Larsens 1-page
Attending Physicians Statement of Continuing Disability accompanied the
Supplementary Statement of Disability. I also find that, if Sun Life had not
requested Dr. Wright to provide the Supplementary Statement of Disability, he
would not have gone to see Dr. Larsen at all.
[95]
In the Supplementary Statement of Disability, Dr. Wright stated that he
had been unable to do any work from April 1995 to the present. On
cross-examination, it was put to him that this was not true. Dr. Wright
acknowledged that in the Fall of 1999, he had been working for a short time at
a dental practice in Newport Beach, California, although he said that he was hired
as a prosthodontist, not a general dentist. He also acknowledged that beginning
in March 2000, he had been working and earning income as a member of a dental
practice (Crown) in Monarch Beach, California. However, according to Dr.
Wright, he did not consider his work at either of these practices to be
relevant to his response in the Supplementary Statement of Disability, because
he understood the context of the inquiry to be whether he was able to work as a
general dentist. As far as Dr. Wright was concerned, he was not. He was
working as a prosthodontist. Therefore, as far as Dr. Wright was concerned, his
statement that he had been unable to work since April 1995 was true. Moreover,
according to Dr. Wright (although he was being paid and although he had
completed his 2-year course of study at USC in 1999), his work at Crown was
simply part of his practical training in prosthodontics.
[96]
In January 2001, Sun Life received a more complete report, also dated
December 12, 2000, from Dr. Larsen concerning Dr. Wright. Dr. Larsens stated
diagnosis was the same as in the Attending Physicians Statement of Continued
Disability, namely C5-6 and C6-7 disc herniation and thoracolumbar strain.
Dr. Larsen expressed his opinion that Dr. Wright would not be able to practice
dentistry in a private setting because he did not believe Dr. Wright would be
able to be productive enough to meet his overhead. However, Sun Life took
particular note of a statement in Dr. Larsens more complete report that Dr.
Wright was working approximately one day per week. Such information could
only have come from Dr. Wright, and I find that this statement was Sun Lifes
first indication that Dr. Wright had returned to work practicing dentistry. Sun
Life considered the statement in Dr. Larsens report inconsistent with what Dr.
Wright had stated in the Supplementary Statement of Disability, that he had
been unable to do any work since April 1995.
[97]
Sun Life then initiated an activities investigation. It learned that
Dr. Wright was working at Crown, and also learned about a separate practice Dr.
Wright had set up, the Newport Centre for Aesthetic Dentistry. According to
the office signage for the Newport Centre, the office hours were weekdays from
8:00 a.m. to 6:00 p.m., and Saturday and Sunday by appointment. Dr. Wright was
shown as a Prosthodontist. Mr. Robert Kling, who (as of April 2001) was
handling Dr. Wrights claim at Sun Life, concluded from the activities
investigation report that, contrary to what Dr. Wright had stated in the
Supplementary Statement of Disability, Dr. Wright was in fact working full time
at his own clinic.
[98]
At trial, Dr. Wright acknowledged that he started construction on the
Newport Centre sometime in 2000. Dr. Wright also acknowledged that the
build-out and fixturing of the office space cost over six figures. According
to Dr. Wright, the Newport Centre was intended as a multi-speciality practice, and
he was to be the only dentist practicing there. In the result, he operated a
solo practice, and there is no evidence he ever had any partners or business
associates carrying on business there. Dr. Wright applied for and obtained a
business licence for the Newport Centre on January 2, 2001. The description of
the business is Dental Practice, and the product sold is described as Dental
Services Dentistry. Despite having a business licence for the Newport Centre
in January, according to Dr. Wright, he did not start seeing patients there
until about March or April 2001. He agreed on cross-examination that the
business hours shown on the office signage were the office hours advertised to
the public, although on re-examination, he said that these were simply the days
available for appointments.
[99]
On April 30, 2001, Mr. Kling wrote to Mr. McFee, following up on
correspondence sent earlier in the year in which Sun Life had requested
information about Dr. Wrights employment and again requesting copies of tax
returns. Mr. McFee responded by letter dated May 11, 2001. Mr. McFee stated
that Dr. Wright had not filed tax returns for several years (something Dr.
Wright confirmed in his evidence at trial), but enclosed copies of cheques
from his employer. Mr. McFee also stated that Dr. Wright had worked about
one and a half days a week in a prosthodontics group speciality practice in
South Orange County, and indicated that this work was to facilitate Dr.
Wrights part-time faculty position at the University of California at Los
Angeles.
[100] Mr. McFees
letter does not identify by name the prosthodontic group specialty practice,
and there is nothing on the copies of the cheques enclosed that identified the
name or address of that practice, or the account on which the cheques were
drawn. As Dr. Wright acknowledged at trial, the cheques (which were payable to
him personally) in fact came from Crown, but any identifying information had
been hidden. The odd appearance of the cheques raised Mr. Klings suspicions,
in circumstances where Sun Life already had questions about what Dr. Wright was
doing.
[101] Mr.
McFees letter does not mention anything about Newport Centre, certainly not by
name. On cross-examination, Dr. Wright said at first that the prosthodontic
group speciality practice was the Newport Centre, because (he said) Crown was
a general practice with specialists. But when it was pointed out to him that,
if true, the Newport Centre must have been in operation in March 2000, he
reconsidered his evidence.
[102] In June
2001, Mr. Kling authorized payment of Total Disability benefits to Dr. Wright
for the period from March 24, 1995 to July 1996, in the sum of $80,000. At
trial, Mr. Kling explained that, while originally Sun Life felt there was
insufficient evidence that Dr. Wright was under the regular care of a physician
for this period, Sun Life had already accepted that Dr. Wright was Totally
Disabled while he was studying at USC and there did not seem to be a good
reason not to pay for this period. A cheque for $80,000 was sent to Mr. McFee in
trust for Dr. Wright.
[103] Although
Dr. Wright formally pleaded (in his further amended statement of claim (the
Amended Statement of Claim), para. 25) the fact that this payment was made,
at trial, he steadfastly insisted that, because Sun Life had not produced a
cancelled cheque to him, he was not satisfied the payment had been made. In
view of the pleadings, and based on the evidence at trial, there can be no
doubt, and I find, that Sun Life made the payment of $80,000 in Total
Disability benefits to Dr. Wright in June 2001, covering the period from March
24, 1995 to July 1996.
[104] On June
18, 2001, Mr. Kling wrote to Mr. McFee, in response to Mr. McFees May 11
letter. I find that Dr. Wright probably received a copy of Mr. Klings letter.
Mr. Kling asked for details about the dental procedures Dr. Wright was
performing or felt capable of performing, and whether any of these were similar
to what he was doing in September 1993. Mr. Kling also wanted to know when Dr.
Wright would be filing a tax return.
[105] By October
2001, Mr. Kling had not had a response to his June 18, 2001 letter. He had
initiated another activities investigation concerning Dr. Wrights activities
at the Newport Centre in particular, and retained the services of a private
investigator. On October 4, 2001, Mr. Kling wrote again to Mr. McFee,
following up on his June 18 letter and requested a response by October 30, 2001.
[106] On October
30, 2001, Mr. McFee sent a response to Mr. Kling. Mr. McFee enclosed a statement
prepared by Dr. Wright of his Pre-disability Professional Practice, his
Post-disability Professional Practice, and his Academic Responsibilities. I
will refer to this as the Pre and Post-disability Statement. No financial or
income information was included with the letter, although Mr. McFee indicated
that Dr. Wright was in the process of preparing tax returns for 1999 and 2000.
Thus, as of October 30, 2001, the only financial information Dr. Wright had
provided to Sun Life since April 1999 were copies of the cheques from Crown.
[107] According
to Dr. Wright, he prepared the Pre and Post-disability Statement much earlier
than October 2001, and testified that he believed he prepared it around late
June 2001. He explained that, because the Newport Centre practice had only
been in operation for a few months at that stage, the description reflected
more what he envisaged or anticipated his practice being, rather than what it
was. However, that is not how the description reads, and I do not find his evidence
credible. Rather, I see it as an attempt by Dr. Wright to minimize what he was
doing and able to do at the Newport Centre. The Statement has no qualifying
language (apart from the repetition of the adjective limited) to indicate
that this is what Dr. Wright is projecting for the practice. Instead,
the description uses terms such as now accounts for and now comprise. On
cross-examination, Dr. Wright acknowledged that he did not identify the Newport
Centre by name anywhere in the Statement. It is also not identified by name in
Mr. McFees letter. The description in Mr. McFees letter (apart from the
mistaken use of the word orthodontics, rather than prosthodontics) implies that
it is the practice namely Crown where Dr. Wright had been working since
March 2000. Dr. Wright did not disclose how long he had been carrying on his
post-disability professional practice.
[108] Of course,
as a result of the activities investigations, Sun Life was aware that the
Newport Centre had been in existence since at least March 2001 and advertised
regular office hours Monday through Friday. Sun Life also had some information
(through the private investigator) about what Dr. Wright was doing there.
[109] Dr. Wright
took very great offence to the activities investigations. However, he either
simply did not respond to Sun Lifes inquiries about what he was doing, or when
he did, the response was virtually guaranteed to raise questions (for example,
the odd-looking cheques enclosed with Mr. McFees May 11, 2001 letter). There
was nothing unreasonable in Sun Life taking steps to find out independently
what Dr. Wright was doing, with a view to making a determination whether Dr.
Wright continued to be Totally Disabled.
[110] On October
31, 2001, Mr. Kling sent a letter to Mr. McFee in response to Mr. McFees
October 30 letter. Among other things, Mr. Kling advised that Dr. Wrights
October 2001 benefits cheque was being issued on a reservation of rights
basis. On the basis of what he had been informed (including through the Pre
and Post-disability Statement), Mr. Kling concluded that Dr. Wright had
retained the functional capacity to perform the essential duties of his
occupation as a general dentist, and no longer qualified for income replacement
benefits under the Policy. Mr. Kling acknowledged that he made that
determination without requiring that Dr. Wright attend an independent medical
examination and without discussing Dr. Wrights claim with a dentist.
[111] By letter
dated December 5, 2001, Mr. Kling wrote to Mr. McFee and advised that Sun Life
was terminating Dr. Wrights income replacement benefits. No payments have
been made to Dr. Wright under the Policy since October 2001.
(h) After termination of benefits
[112] According
to Dr. Wright, he carried on business at the Newport Centre until 2003, when he
closed the practice. He explained that he was unable to operate profitably.
However, Dr. Wright filed tax returns only sporadically (and the returns in
evidence are, at best, incomplete), and there is no independent evidence (even
in the form of a notice of assessment) concerning the revenues and expenses of
the Newport Centre or any other professional practice carried on by Dr. Wright.
There is, therefore, nothing to corroborate Dr. Wrights evidence and no
reliable evidence on which to draw conclusions about Dr. Wrights financial
circumstances.
[113] After
closing the Newport Centre, Dr. Wright then moved back to the U.K. According
to Dr. Wright, for a year, he was in considerable pain and did not feel he was
capable of working. However, he was not under the regular care of a
physician. Rather, he visited medical clinics from time to time, when he felt
he needed some medical attention for this or that. As Dr. Wright recalled, at
one point, on his request, he was given a referral to an orthopaedic surgeon,
Dr. John Vanhegan. He then saw Dr. Vanhegan from time to time. For example,
at one stage, Dr. Wright consulted Dr. Vanhegan because he believed he might be
suffering from carpal tunnel syndrome. Otherwise, while in the U.K., Dr.
Wrights visits to physicians tended to be for routine matters. There is no
indication he sought treatment for anything related to injuries suffered in the
Accident.
[114] While in
the U.K., and again with the assistance of his brother, Dr. Wright set up a
practice in London, called American Dentistry in London. According to
excerpts from the website Dr. Wright created for the business, he offered
services as a Specialist in Cosmetic, Implant & Aesthetic Reconstructive
Dentistry, and noted his speciality training in prosthodontics. The items of
service listed include many that, according to Dr. David Thorburn (Dr. Wrights
expert in dentistry), would be procedures performed in a general dentistry
practice. Not surprisingly, there was nothing in the website excerpts that
suggested Dr. Wright suffered from any physical impairments that might affect
his ability to carry out the treatments offered to the high level of excellence
described.
[115] However,
once again, American Dentistry in London was not a financial success.
According to Dr. Wright, he was unable to attract enough patients to operate
profitably. However, his evidence is uncorroborated by any reliable evidence.
The practice was closed, and Dr. Wright returned to the U.S. in 2011. Dr.
Wright accepted a position at a practice called the Institute of Aesthetic
Dentistry, near Sacramento. However, although according to Dr. Wright he was
happy working there, he stayed for only a short time (about two months) as a
result of a conflict with an endodontist. Dr. Wright then accepted a position
at a dental practice in Wisconsin. However, again, that lasted only for a
relatively short time. According to Dr. Wright, he was unable to keep up the
pace the work demanded.
[116] In 2013,
Dr. Wright joined the faculty of the University of Saskatchewan College of
Dentistry in Saskatoon, in a full-time position as a prosthodontist. Dr.
Wright is on a 3-year contract in a tenure-track position.
[117] According
to Dr. Wright, he continues to suffer a number of physical problems and pain.
It is unclear whether he has a regular family physician in Saskatoon, although
from his evidence, Dr. Wright saw a Dr. Helfrich on a number of occasions.
However, to the extent that Dr. Wright has seen medical practitioners in
Saskatchewan, there is no admissible evidence that, in relation to such visits,
he is under the regular care of a physician as a result of any injuries he
suffered in the Accident, and no admissible evidence that any of these medical
practitioners has made a diagnosis of a current condition that was caused by
injuries Dr. Wright suffered in the Accident and that might result in Dr.
Wright being either Totally Disabled or Residually Disabled.
Discussion and Analysis
(a) Comments on the witnesses
(i) Dr. Wrights credibility
[118] Dr.
Wrights credibility and reliability are significant issues in this case.
[119] The
Accident occurred over 20 years ago. With respect to Dr. Wrights injuries
from the Accident, there is very little objective evidence. The medical
evidence (from Dr. Henderson and Dr. Keith Christian, one of Sun Lifes
experts) strongly suggests that Dr. Wright ought to have recovered from the
fracture to his left humerus within a period of months. The medical opinions (for
example, Dr. Larsens reports to Sun Life) on which claims decisions were made
were based at least in part on Dr. Wrights subjective reporting of pain and
discomfort. With respect to Dr. Wrights pre-Accident income (an important
issue in relation to his claim for Residual Disability benefits), there is no
reliable, contemporaneous, independent evidence: no income tax returns, no
notices of assessment. From the time Dr. Wright submitted the Preliminary
Statement of Claim, Sun Life asked for this information. It was never produced.
The Hedden Chong income statements sent to Sun Life under cover of Mr. McFees
July 10, 1998 letter were unaudited and based on information from Dr. Wright. Dr.
Wright is the only person who testified about what he was doing at Crown, the
Newport Centre and American Dentistry in London, and the only person who
testified about why the Newport Centre and the London clinic were not
successful. Dr. Wright firmly believes the reason lies in the injuries he
suffered in the Accident.
[120] In closing
submissions, Sun Life mounted a strong attack on Dr. Wrights credibility. Mr.
Orchard submitted that Dr. Wright was one of the most secretive, suspicious
individuals one could ever encounter. He submitted that, during
cross-examination, Dr. Wright was argumentative, evasive, employed a selective
memory and was prone to giving speeches. In short, Sun Lifes position is that
Dr. Wrights version of events (except to the extent he made statements against
his interest) completely lacks the hallmarks of credibility, and that his
credibility was so undermined that no reliance can be placed on his evidence.
[121] One of the
leading cases discussing the assessment of credibility is Madam Justice
Dillons decision in Bradshaw v. Stenner, 2010 BCSC 1398, affd 2012
BCCA 296. Madam Justice Dillon wrote, at para. 186:
[186] Credibility involves an assessment of the
trustworthiness of a witness testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides [citation
omitted]. The art of assessment involves examination of various factors such as
the ability and opportunity to observe events, the firmness of his memory, the
ability to resist the influence of interest to modify his recollection, whether
the witness evidence harmonizes with independent evidence that has been
accepted, whether the witness changes his testimony during direct and
cross-examination, whether the witness testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the
demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202
(Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Farnya at para. 356).
[122] Credibility
and reliability are different: see, for example, Hardychuk v. Johnstone,
2012 BCSC 1359, at para. 10. A witness whose evidence on a point is not
credible cannot give reliable evidence on that point. On the other hand, a
credible witness may provide unreliable evidence.
[123] I have
concluded that Dr. Wright is neither a credible nor a reliable witness. I will,
relatively briefly, explain my reasons.
[124] I am going
to begin with Dr. Wrights position concerning the payment by Sun Life of
$80,000 in benefits in June 2001. Dr. Wright simply would not accept that this
payment had been made unless someone produced a cancelled cheque to him. His
position was, without a cancelled cheque, how could he be sure? Dr. Wrights
stubborn refusal to accept the fact that Sun Life had made this payment is
inexplicable on any rational basis, and damaged his credibility. The clear
implication of Dr. Wrights evidence that no payment had been made was both
unlikely and unreasonable, in the face of other evidence and the pleading of
fact in his Amended Statement of Claim that it had been. Yet, Dr. Wright would
not yield.
[125] There were
other occasions when Dr. Wright strongly resisted agreeing with the highly probable.
For example, he would not agree that he received a letter from Sun Life dated
July 17, 1997 (Ex. 79), even though he sent a letter (Ex. 80) that is obviously
responding to the July 17 letter. He would not agree that the finding of
contempt made against him by Mr. Justice Warren was based on his failure to pay
spousal and child support. Rather, he repeatedly stated that, as best
he could recall, he always paid the child support ordered. However, his
statement concerning payment of child support is irreconcilable with the amount
of the arrears (which Dr. Wright did not dispute). In my opinion, Dr. Wrights
testimony that he always paid his child support was improbable and unlikely,
and a clear example of selective memory. Moreover, I am unable to draw the
inference that Dr. Wright could not accurately recall the basis on which he had
been found in contempt of court in early December 1993, but could accurately
recall (in 2015) details concerning the Accident. These are significant events
that happened within a few weeks of one another.
[126] With
respect to the Accident, Dr. Wright testified at trial that he swerved to avoid
running into another skier and was (among other things) knocked unconscious.
On cross-examination, he firmly resisted the propositions that he collided
with another skier (rather than swerving to avoid him) and that he was not
knocked unconscious. However, Dr. Wrights own description of the Accident in
his Preliminary Statement of Claim was that he collided with another skier and made
no mention that he was knocked unconscious. When the contradiction between
what he reported in his Preliminary Statement of Claim and his evidence at
trial was put to Dr. Wright, he said that his use of collided was a poor
choice of words.
[127] In this
case, nothing turns on whether Dr. Wright swerved to avoid someone or collided
with someone; Dr. Wright still could have been hurt regardless. And nothing
turns on whether Dr. Wright was in fact knocked unconscious in the Accident,
since he does not assert any disability as a result. However, Dr. Wrights
evidence about walking down the ski hill, not reporting the Accident to anyone
and not seeking any medical attention while in Whistler makes his evidence
concerning being knocked unconscious seem improbable.
[128] However,
what is significant to me is Dr. Wrights insistence that the Accident occurred
in the manner he described at trial, and his resistance to the possibility that
his memory, after all this time, might not be accurate. These examples illustrate
features of much of Dr. Wrights evidence that, in my view, impairs his
credibility and reliability, namely: a desire on the one hand to minimize his
personal responsibility for acts or events, and, on the other hand, a desire to
maximize the negative consequences he believes he suffered and place himself in
what he perceives to be the position most advantageous for his case. In my
opinion, these features strongly influenced Dr. Wrights evidence at trial. These
examples also illustrate Dr. Wrights strong resistance to making what are
reasonable concessions, which he nevertheless perceives are not in his
self-interest, as well as selective memory. When I assess Dr. Wrights
credibility, I consider his inability to concede he might be mistaken about
something (where there are reasonable grounds to concede) to be a negative
factor.
[129] Dr.
Wrights evidence about his thinking and ultimate decision in early 1994 to
embark on retraining and a career change also seems improbable. I am asked to
infer that the reason was because of the injuries Dr. Wright suffered in the
Accident, rather than other events (such as his bankruptcy or the continued
disputes concerning support payments or pre-existing physical problems) in Dr.
Wrights life that could have made carrying on his dental practice difficult or
undesirable. However, as described by Dr. Wright, the decision is remarkable
both for how swiftly it was made (although Dr. Wright continued to carry on
with his practice for about another year), and for the fact that Dr. Wright
(according to his testimony) made it without consulting a single medical doctor
to see whether his injuries should be considered career-ending or whether there
was treatment available. In my opinion, it also reaffirms that Dr. Wright had
(and has) a very high level of confidence in his own views, and was unlikely to
accept advice or opinions from others unless he agreed with them. Among other
things, this could make care by a physician problematic. I have concluded this
feature also makes Dr. Wright an unreliable reporter of facts that were or are
inconsistent with his own fixed views.
[130] When Dr.
Wright was asked on cross-examination about the office hours shown for the
Newport Centre, he agreed that these were the hours advertised to the public,
although he said later that the hours shown were simply hours when appointments
were available. However, the Newport Centre signage drew a clear distinction
between normal hours, and hours by appointment only. To assert (as Dr.
Wright did) that everything was by appointment only, and there were no
regular business hours, is simply not compatible with what he agreed was
displayed to the public. It is an attempt by Dr. Wright to avoid the logical
and reasonable inference from a reliable piece of evidence. I conclude, however,
that Dr. Wright perceived it to be in his interests to give an explanation
that was neither reasonable nor credible.
[131] My final
example concerns Dr. Wrights evidence when he was being cross-examined on Mr.
McFees May 11, 2001 letter, where Mr. McFee refers to the (unidentified) prosthodontic
speciality practice. At first, Dr. Wright testified that this was the Newport
Centre. However, when the logical consequences of his evidence that the
Newport Centre must therefore have been in operation in 2000 were pointed out
to Dr. Wright, he changed his evidence. Again, this illustrated to me that Dr.
Wright had a great deal of difficulty resisting the influence of what he
perceived to be his personal interest, and confirmed to me that it would be
dangerous to place much weight on his uncorroborated testimony.
[132] There is
another factor that has lead me to conclude I must be quite cautious before
placing much weight on Dr. Wrights uncorroborated evidence. Dr. Wright
demonstrated a deep suspicion and distrust of insurance companies and Sun Life
in particular, and high level of disdain for the claims process. Making an
insurance claim can be frustrating, but Dr. Wrights conduct appeared to me to
go far beyond any reasonable expression of frustration, especially since Dr.
Wright was himself the cause of some of the problems and delays. His feelings
of suspicion and disdain were illustrated (for example) in much of the
correspondence Dr. Wright personally sent to CDSPI and Sun Life. They were
illustrated by Dr. Wrights refusal to accept that Sun Life had paid $80,000 in
benefits in June 2001 unless he was shown a cancelled cheque. Although it
prejudiced his claim for Residual Disability benefits, Dr. Wright never did
provide the full financial documentation and information Sun Life requested
because he did not consider he should be obligated to, and what he did provide
(for example, the cheques from Crown) was incomplete. I am therefore left with
concerns that Dr. Wright would feel justified in concealing information,
engaging in selective memory and not telling the whole truth, in the context of
a dispute with Sun Life.
[133] Of course,
I do not have to reject all of Dr. Wrights evidence. A trial judge can accept
some, all or none of a witnesss evidence. However, because of my concerns
about Dr. Wrights credibility and reliability, I have concluded I cannot give
much weight to Dr. Wrights uncorroborated evidence about: injuries he
sustained in the Accident; his dental practice prior to the Accident; his
reasons for selling that practice, returning to university and retraining, to
the extent he identifies injuries sustained in the Accident as the cause; the
work he was doing in California at dental practices beginning in late 1999 and
continuing to 2003 (when he closed the Newport Centre) or the work he was doing
at American Dentistry in London. I am prepared to give considerable weight to
Dr. Wrights evidence where he has made statements against his interest, or
where there is some admissible and reliable contemporaneous documentary
evidence to support Dr. Wrights evidence.
(ii) The Dentistry and Medical Experts
[134] With respect
to what the practice of dentistry involves, I had the benefit of opinion
evidence from two experts. Dr. David Thorburn is a dentist who has practiced
as a general practitioner (rather than a specialist) in a solo practice in
Vancouver since 1989. Dr. Thorburn testified as Dr. Wrights expert. Dr.
Anthony McCullagh is a clinical associate professor in the School of Oral
Health of the Faculty of Dentistry at the University of British Columbia. He
testified as Sun Lifes expert. Dr. McCullagh qualified as a dentist at the
University of Liverpool and worked for several years as a general dentist. He
then took four years of additional training in the speciality of
prosthodontics, and received a specialists certification in prosthodontics.
He came to Canada from the U.K. in late 2004. He has practiced in B.C. as a
prosthodontist, but (in accordance with the limitations of an academic licence
from the B.C. College of Dental Surgeons) never full-time.
[135] Dr.
Thorburn was qualified to give opinion evidence in a more narrow scope than Dr.
Wright requested. Ms. Foord (for Sun Life) objected to the admissibility of a
number of parts of Dr. Thorburns report on the grounds that they went beyond
the limits of my ruling regarding Dr. Thorburns qualification as an expert. I
do not consider it useful to address each and every one of Ms. Foords
objections and requests for redactions. Although the presentation of Dr.
Thorburns opinions as set out in his report can be criticized (and I do not
fault Dr. Thorburn in that regard), his opinions within the limits of my ruling
are easy to recognize. Dr. Thorburn testified in a fair and balanced way, did
not hesitate to acknowledge points on which he felt he was unable to express
any opinion (for example, he testified that he had no idea whether Dr. Wright
was capable of returning to practice as a general practitioner) and helpfully
pointed out areas where he and Dr. McCullagh agreed.
[136] Dr.
McCullagh also testified in a fair and balanced way, and (as one might expect
given his position as a teacher) was able to explain relevant aspects of
dentistry and prosthodontics clearly and simply. Dr. Wright was critical of
Dr. McCullaghs lack of experience in B.C. as a full-time practicing
prosthodontist. However, in my opinion, that was less important than Dr.
McCullaghs overall experience. In his report, Dr. McCullagh summarized the
differences between general dental practice and prosthodontic speciality
practice, and Dr. Thorburn (in his report) acknowledged that Dr. McCullagh provided
a very good summary. I agree.
[137] Dr. Wright
did not tender any medical opinion evidence in support of his claim. Sun Life,
in closing submissions, argued that this was a serious (and perhaps fatal) gap
in Dr. Wrights case. In support of its position, Sun Life cited (among other
cases) Mathers v. Sun Life Assurance Co. of Canada, 1999 BCCA
292, Plouffe v. Mutual Life Assurance Co. of Canada, 2003 BCCA 96
and Plouffe v. The Mutual Life Assurance Company of Canada, 2005
BCSC 1531(the retrial).
[138] Sun Life
tendered expert reports from two medical doctors: Dr. Ian Connell, who was
qualified as an expert in occupational medicine; and Dr. Keith Christian, an
orthopaedic surgeon. Both carried out independent medical examinations of Dr.
Wright. Both Dr. Connell and Dr. Christian also testified at trial.
[139] Dr. Wright
criticized both Dr. Connells and Dr. Christians ability to give any opinions
about his ability to carry on practicing dentistry, since neither Dr. Connell
nor Dr. Christian had made any study of what that practice involved. However,
I consider Dr. Wrights criticisms to be somewhat misplaced. There was no
evidence that, for example, Dr. Wright went to see Dr. Larsen or Dr. Vanhagen
because either had special expertise in treating patients who were dentists.
Rather, Dr. Wright consulted these physicians because they were orthopaedic
surgeons, the same as Dr. Christian. Dr. Christian clearly had many years
experience in carrying on a surgical practice, and could speak to the mental
and physical demands of doing so. Dr. Connell at the very least had Dr.
Wrights Pre and Post-disability Statement available, along with additional
information provided to him by Dr. Wright, with respect to what (at least
according to Dr. Wright) practicing general dentistry involves.
[140] Dr. Wright
was also critical of the time Dr. Christian took to do his physical examination
of Dr. Wright. The implication of Dr. Wrights criticism is that the
examination was much too short to be meaningful. On the other hand, Dr. Christian
testified that the time he spent was not an unreasonable amount of time. There
is no evidence to the contrary. Dr. Wrights views as a lay person concerning
how long an orthopaedic physical examination should take are not relevant.
[141] Both Dr.
Connell and Dr. Christian were asked to give an opinion on the question of
whether Dr. Wright has been unable to perform the essential duties of his
Regular Occupation as a general practitioner practicing dentistry as a result
of Sickness or Injury, and asked whether Dr. Wrights symptoms would restrict
performing the essential duties of a general practitioner practicing dentistry,
if at all? Both doctors answered both questions, no. However, based on the
contents of the reports, I do not know what either doctor assumed made up the
essential duties. Clearly, both Dr. Connell and Dr. Christian must have made
some assumptions in that respect. But whatever assumptions they made are not
set out either in the doctors report or in the instructing letter. As a
result, since I do not know the full basis for the opinions, it is difficult
for me to give a great deal of weight to their opinions on these questions.
[142] Moreover,
although Dr. Connell has a specific section in his report headed Facts and
Assumptions, it is obvious from reading the report that this section does not
set out all of the facts and assumptions on which he bases his opinions.
Indeed, in the Opinion section, Dr. Connell says that his opinion is based
on my interview and examination of Dr. Wright and review of the supplied
documentation, and he does not mention his Facts and Assumptions at all.
Again, I am left to guess at what facts and assumptions actually ground the
opinions. As result, the report is considerably less useful to me than it
could have been, and I cannot give it the weight I would give to an opinion
where the facts and assumptions on which the experts opinions are based are
set out clearly. This is what Rule 11-6(1) of the Supreme Court Civil
Rules requires.
[143] There are
similar problems with Dr. Christians report.
[144] I also
note that Dr. Connell and Dr. Christian were both asked to express an opinion
on the question whether Dr. Wright has been under the regular care of a
physician since the onset of his condition. Whether Dr. Wright has been under
the regular care of a physician is, first, a factual issue for me to determine,
and then I must decide whether he has been under the regular care of a
physician in the context of the Policy. It is not a matter on which expert
opinion evidence is either necessary or admissible. I have given no weight to
the doctors responses to this question.
(b) Framework for considering Dr. Wrights
claim for benefits
[145] The issues
in this case are not about whether, for example, Dr. Wright has experienced or
experiences disabling back and neck pain, or disabling pain generally. Rather,
with respect to Dr. Wrights claim for income replacement Total Disability
benefits, the question is whether Dr. Wright is Totally Disabled as that
term is defined by the Policy. Similarly, with respect to Dr. Wrights
claim for income replacement Residual Disability benefits, the question is
whether Dr. Wright is Residually Disabled as that term is defined by the
Policy. This point is made in (for example) Ditomaso v. Manufacturers
Life Ins. Co., 2002 BCSC 502, where Ross J. wrote:
[50] The issue before me is not whether Mr. Ditomaso has
pain; nor whether he suffers from fibromyalgia. . . . The question is whether
he is disabled as that term is defined by the Plan.
[146] The point
is also made in Norwood on Life Insurance Law in Canada, 3rd ed.
(Toronto: Carswell, 2002), at p. 471 [italics in original; footnote
omitted]:
While the determination of disability depends
upon underlying medical facts, it should be noted that total disability is not
a pre-emptive medical judgment by a doctor about a medical condition, but a
legal judgment in light of the contractual measurement of liability. An
insured may be sick, but the legal question is whether the illness is disabling
in accordance with the terms of the policy definition.
[147] With
respect to Dr. Wrights entitlement to income replacement benefits under the
Policy, the essential issues are, therefore: (a) was Dr. Wright Totally
Disabled, as defined by the Policy, after October 2001 and until trial; and
(b) was Dr. Wright Residually Disabled, as defined by the Policy, either in
the period December 18, 1993 to March 23, 1995 or (if he was not Totally
Disabled after October 2001) after October 2001 and until trial, or both.
(c) Was Dr. Wright Totally Disabled after
October 2001?
[148] For
convenience, I will again set out the definitions of Total Disability and
Totally Disabled in the Own Occupation Option of the Policy:
Total Disability and Totally Disabled shall mean that, as a
result of Sickness or Injury, the Participant is unable to perform the
essential duties of his Regular Occupation and is under the regular care of a
physician.
[149] In closing
submissions, Dr. Wright cited the following passage from Paul Revere Life
Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541, at p. 546, in support
of his position that he satisfies the test for being totally disabled:
In Couch on Insurance
(1983), 2d (Rev. ed.) §53:118 there is the following relevant paragraph:
The test of total disability is satisfied when the
circumstances are such that a reasonable man would recognize that he should not
engage in certain activity even though he literally is not physically unable to
do so. In other words, total disability does not mean absolute physical inability
to transact any kind of business pertaining to ones occupation, but rather
that there is a total disability if the insureds injuries are such that common
care and prudence require him to desist from his business or occupation in
order to effectuate a cure; hence, if the condition of the insured is such that
in order to effect a cure or prolongation of life, common care and prudence
will require that he cease all work, he is totally disabled within the meaning
of health or accident insurance policies.
[150] Many cases
have cited this passage from Sucharov. However, ultimately, the
specific policy language will determine whether an insured is entitled to
coverage on the grounds that he or she is totally disabled.
[151] In the Amended
Statement of Claim, Dr. Wright alleged total disability as a result of Injury.
The injuries he alleged he suffered in the Accident were:
(a) a
concussion;
(b) a
fracture of the left humerus;
(c) traumatic
injury to the left radius;
(d) subluxation
of the left shoulder joint;
(e) a
hyperextension injury to the cervical spine; and
(f) exacerbation
of pre-existing chronic lower back pain.
[152] Dr. Wright
testified concerning his injuries, and used some medical terminology (for
example, subluxation, compression fracture, paresthesia) to describe what
he believed happened to him as a result of the Accident. Some of the
conditions (for example, varicose veins) that Dr. Wright identified in the
Preliminary Statement of Claim as conditions that prevented him from working as
a general dentist had no connection with the Accident. More importantly, Dr.
Wright is not a medical doctor and, despite his education and training, he
cannot provide a medical diagnosis for himself.
[153] On the
other hand, Dr. Henderson is a medical doctor. Dr. Henderson diagnosed a
fracture of Dr. Wrights left humerus (specifically, a fracture through the
tuberosity). At Dr. Wrights request, based on Dr. Wrights report of pain in
his left elbow and evidence of significant bruising tracking down Dr. Wrights
left arm, Dr. Henderson investigated whether Dr. Wright had fractured the left
radial head and ordered an x-ray. The x-ray was normal. Dr. Henderson
recommended that Dr. Wright use a sling for a period and attend physiotherapy.
On December 30, 1993, his recommendation was that Dr. Wright return in two
weeks as advised. That was the last time Dr. Henderson saw or treated Dr.
Wright as a patient.
[154] Dr.
Henderson testified that he expected the injury to Dr. Wrights shoulder would
improve over a few months. This is consistent with the opinion evidence from
Dr. Christian. Dr. Christian stated that the injury likely would have expected
to have taken four to six weeks to heal and ongoing problems would not have
been expected. Dr. Christian went on to say that in 30 years of orthopaedic
practice dealing with musculoskeletal trauma, he had not encountered physical
impairment causing ongoing disability as a result of this type of fracture. There
is nothing in the evidence to indicate that the injury to Dr. Wrights shoulder
failed to heal in the normal course.
[155] Dr.
Henderson did not make a diagnosis of a hyperextension injury to the cervical
spine, or a concussion, or a subluxation of the shoulder joint, or a fracture
to Dr. Wrights left wrist. On the other hand, in both the Attending Physicians
Statement of Disability completed in February 1996 and in the letter he later
prepared dated September 15, 1997, Dr. Henderson noted that Dr. Wright had a
history of chronic back problems.
[156] I find
that, in the Accident, Dr. Wright suffered a fracture of his left humerus, and
had associated pain and discomfort in his left shoulder, arm, neck and back. I
find, based on Dr. Christians opinion evidence, that the fracture probably
healed within a maximum of eight weeks and was not the cause of any ongoing
disability or impairment. Based on Dr. Hendersons statements, I find that Dr.
Wright probably also sustained aggravation of chronic back problems. However,
there has been no medical diagnosis made that, in the Accident, Dr. Wright
sustained an injury to his neck that resulted in chronic neck problems lasting
years after the Accident.
[157] The
Policys definition of Total Disability and Totally Disabled states further
that as a result of . . . Injury, the Participant . . . is under the regular
care of a physician.
[158]
In support of his position concerning the proper interpretation of a
term that the insured be under the regular care of a physician, Dr. Wright
cites Kirkness Estate v. Imperial Life Assurance Co. of Canada
(1993), 12 O.R. (3d) 285, 99 D.L.R. (4th) 391 (C.A.). There, Blair J.A. (for
the court) wrote (at O.R. p. 295):
Compliance with a "regular care and attendance"
clause is not a condition precedent for recovery under a disability insurance
contract. Rather, the purpose of such clauses is evidentiary. They provide
insurers with reliable assessments of the condition of insureds and protect
insurers against fraudulent claims. Where permanent and irremediable
disability exists, regular medical care and attendance is futile and
ineffective. To insist on it defeats the main purpose of the policy, which is
to provide indemnity in case of permanent disability, and is "unfair, unreasonable
and unjust" as Goodman J. stated in the Taaffe case.
[159] In effect,
Dr. Wright argues that his condition was permanent and untreatable, so being
under regular care of a physician was pointless.
[160] However, Kirkness
is not the law in B.C. Rather, the leading authorities in B.C. in relation to
this type of policy wording are Rose v. Paul Revere Life Insurance Co.
(1991), 62 B.C.L.R. (2d) 48 (C.A.) and Andreychuk v. RBC Life Insurance
Company, 2008 BCCA 492.
[161] In Rose
(a case that, co-incidentally, involved a dentist), Mr. Justice Taylor (for the
court) discussed a number of issues relevant to this case, including the burden
of proof where (as here) the insurer has accepted a claim and paid benefits for
a time on the basis of Total Disability, and then terminated payments.
[162] On the
facts in Rose, the plaintiff was diagnosed as suffering acute
depression and hypertension associated with his work as a dentist. He left his
practice, and for a period of 15 months, the insurer paid benefits under a
policy that provided:
Total Disability means that
because of sickness or injury:
1. You are unable to
perform the important duties of your regular occupation; and
2. You are under the regular and personal care of a
Physician.
[163] The
insurer then terminated benefits on the basis that the plaintiff was no longer
totally disabled, even though medical opinion evidence indicated that the
plaintiff could not return to dentistry. As of trial, the plaintiff was
working as the manager of a sporting goods store. His medical opinion evidence
did not indicate he was suffering from any underlying major psychiatric or
phobic disorder. Rather, his symptoms were only likely to recur if he returned
to the practice of dentistry. Dr. Roses action, seeking a declaration of
entitlement to benefits under the policy, was dismissed at trial.
[164] In framing
the issues on the appeal, Mr. Justice Taylor wrote:
[8] The case is one which turns, in my view, very much
on the wording of the policy. It is not, in my view, a disability policy in
the broadest sense of the term, but one which protects the insured from income
loss during the treatment phase of a sickness causing total disability and in
the event the insured suffers one of four forms of permanent disability.
[165] After
referring to specific provisions in the policy in issue, Mr. Justice Taylor
then wrote:
[11] So the policy protects the insured against income
loss due to disability caused by sickness for so long only as the insured is
"under the regular and personal attendance of a Physician" . . . and
provided that the sickness "requires the regular and personal
attendance of a licensed physician" . . . (my emphasis), unless the
sickness results in the loss of speech, hearing, sight or the use of two limbs,
in which case benefits are payable without continuing attendance of a
physician. It is of obvious importance in this case that the policy does not
cover loss of income due to inability to work resulting from sickness not under
regular treatment by a physician except when it results in loss of speech,
hearing, sight or the use of two limbs. Except in those defined cases,
benefits cease when the treatment phase of a sickness ends.
[166] In my
opinion, Mr. Justice Taylors comments apply here. The Policy is one that
protects the insured from income loss during the treatment phase of an Injury
causing Total Disability (as defined), and in the event the insured suffers
from one of five forms of permanent disability (described in the Policy as
Presumed Total Disability). In the latter case, the insured is not required
to be under the regular care of a physician. However, other than in cases of
Presumed Total Disability, the Policy does not cover loss of income due to
inability to perform the essential duties of [the insureds] Regular Occupation
resulting from Injury that is not under the regular care of a physician.
[167] One of the
issues on the appeal in Rose raised the question: on whom does
the onus of proof lie in an action on such a policy where the insurer has
acknowledged the existence of a valid claim, and paid benefits under the
policy, but later asserts that conditions have so changed that benefits are no
longer payable? See Rose, at para. 15. Dr. Rose argued that the
onus of proving that the disability had ended was on the insurer, and it had
not been met. Implicitly, Dr. Wright makes the same argument in this case.
[168] After
reviewing the authorities, and noting that, in accordance with the principle
normally applied in civil cases that the onus of proof, or the ultimate risk
of non persuasion, rested on the plaintiff Mr. Justice Taylor wrote:
[21] . . . In the end, in my
view, the fact that the insurer has at one time accepted a claim is something
which may or may not weigh in the scales against the insurer, depending on the
nature of the coverage and the precise wording of the policy.
[22] In the present case it seems to me that the insured
had the burden of showing that he was still being regularly treated by a
physician for a totally disabling sickness, as defined by the policy, after the
date when the insurer ceased paying benefits, and that the fact that the
insurer had admitted that the insured was earlier suffering from such a
sickness and under such treatment, by paying benefits under the policy,
involves no admission which can assist the plaintiff in this case.
[169] In my
opinion, that same analysis applies based on the wording of the Policy (which
includes a specific provision that proof satisfactory to Sun Life of continued
disability may be requested by Sun Life at all reasonable times). Dr. Wright
has the burden of showing that, during the period after October 2001 and to
trial, he was still being regularly treated by a physician as a result of
Injury.
[170] Physician
in the context of the Policy provisions means a medical doctor. Being under
the care, for example, of a chiropractor or other medical or health
professional is insufficient. See: Rose, at para. 25.
[171] In Roston
v. Paul Revere Life Insurance Co., [1996] B.C.J. No. 9, 1996 CanLII
2812 (S.C.), Low J. (as he then was) applied the analysis in Rose
to policy terms that defined Total Disability to mean that:
because of Injury of Sickness:
1. You are unable to
perform the important duties of Your regular occupation; and
2. You are under the regular and personal care of a
Physician.
[172] Low J.
found (at para. 38) that the plaintiff had been totally disabled, as that term
was defined in the policy. However, after a certain date, she could no longer
be considered to be receiving treatment as part of the treatment phase of her
injury. Although the plaintiff continued to be under medical care, Mr. Justice
Low concluded that the plaintiff had not proved total disability, as that term
was defined in the policy, beyond that date.
[173] In my
opinion, Roston emphasizes the point made by Mr. Justice Taylor
in Rose, that policies with wording such as the Policy are not
disability policies in the broadest sense, but protect an insured against
income loss during the treatment phase of an Injury or Sickness.
[174] The policy
in issue in Andreychuk provided total disability benefits if,
because of injury or sickness, the insured was: (a) unable to perform
important duties of his or her occupation; and (b) not engaged in any other
gainful occupation; and (c) under the regular and personal care of a physician.
The plaintiffs claim for benefits had been dismissed at trial. On appeal, she
argued that Rose was wrongly decided and that the provisions of
the policy should be given a liberal interpretation, as in Kirkness.
[175] Chiasson
J.A. rejected the plaintiffs argument and expressed the view (at para. 38)
that Kirkness proceeded on an incorrect analytical basis. He had
earlier observed (at para. 21) that the fact that a medical condition is not
treatable does not make Rose inapplicable. Chiasson J.A. continued:
[42] In my view, the issue
is not whether a liberal or strict construction of the provision should be
applied. Kirkness and the American authorities acknowledge that the
policy provision clearly requires the care of a physician, but conclude the
insured should not be obliged to comply with it. The proviso that the insured
be under the care of a physician is considered as an obligation imposed on the
insured by the policy, from which there should be relief. . . .
. . .
[44] In the present case, the provision concerning the
care of a physician is contained in the definition of Total Disability. This
defines the reach of coverage. It is not concerned with obligations imposed on
the insured. The insurer provides coverage when an insured is unable to
perform the important duties of his or her occupation and the insured is
under the regular and personal care of a Physician. Obviously, the insurer
does not provide benefits when the insured is not disabled and, equally
obviously, it does not provide benefits when the insured is not under the care
of a physician. Neither of these risks was undertaken by the insurer.
[176] In
summarizing his conclusions, Chiasson J.A. wrote (at para. 51):
1. A provision in a disability
insurance policy stating that total disability includes being under the care
of a physician is a provision that defines coverage, the risk accepted by the
insurer;
2. This
Courts decision in Rose reflects this analysis[.]
[177] In my
opinion, the analysis and conclusions in Andreychuk must apply
here, given the similarity in the policy wording.
[178] As in Andreychuk,
the definition of Total Disability and Totally Disabled in the Own
Occupation Option section of the Policy contains a provision concerning
regular care of a physician. As in Andreychuk, the provision
therefore defines the reach or scope of coverage and the risk accepted by the
insurer. It is not concerned with obligations imposed on the insured. The
language of the Policy is not ambiguous. Rather, the words are plain and
unambiguous in their ordinary meaning. Unless the insured can show that as a
result of . . . Injury, he or she is under the regular care of a physician,
the insured will not satisfy the burden on him to prove Total Disability and
Totally Disabled under the Policy and will have failed to prove he is
entitled to coverage under the Policy.
[179] After Sun
Life terminated benefits in October 2001, was Dr. Wright as a result of any
Injury suffered in the Accident under the regular care of a physician? Dr.
Wright has the onus of proof to show this, on a balance of probabilities. In
my opinion, the evidence does not support the conclusion that Dr. Wright was
under the regular care of a physician, as required for coverage under the
Policy.
[180] While
still in California (until 2003), Dr. Wright attended the Student medical
clinic occasionally. But, accepting Dr. Wrights evidence at face value, the
visits were not as a result of any Injury suffered in the Accident.
[181] After
moving to the U.K. in 2003, his visits to medical doctors and clinics were, generally
speaking, of the same type, to deal with occasional conditions or for routine
matters (for example, immunizations). He was not there seeking treatment for
any Injury suffered in the Accident. Between 2003 and 2011 (when he moved back
to California), Dr. Wright saw an orthopaedic surgeon, Dr. John Vanhegan, twice,
once in 2006 and again in 2009. (Whether Dr. Wright saw Dr. Vanhegan a third
time, and if so for what, is quite unclear on the evidence.) Dr. Wright made
one of the visits because he thought he might be developing carpal tunnel
syndrome. In my opinion, the evidence is inconclusive concerning whether Dr.
Vanhegan provided any treatment to Dr. Wright on any visit, and also
inconclusive (at best) concerning whether the purpose of a visit was as a
result of any Injury suffered in the Accident. In any event, two (or even
three) visits over this period cannot qualify as regular care, and I find
that Dr. Wright was not under the regular care of Dr. Vanhegan.
[182] Dr. Wright
testified that he consulted with Dr. Vanhegan in 2013 about having him
prepare a report in connection with an earlier trial date in this action.
However, such a consultation cannot qualify as regular care of a physician as
set out in the Policy.
[183] After he
returned to the U.S. in 2011, Dr. Wrights sporadic visits to medical
practitioners cannot qualify as regular care of a physician, as required by
the Policy. Once Dr. Wright moved to Saskatchewan, according to his evidence,
he again had a regular doctor (which he appears not to have had since leaving
B.C. in 1995). However, in view of my concerns (described above) about Dr.
Wrights credibility and reliability, I am not prepared to draw conclusions
favourable to Dr. Wright based on his evidence alone. I have no independent
evidence about whether, during Dr. Wrights time in Saskatchewan, he has been
receiving medical care from a physician in relation to any Injury that he
suffered as a result of the Accident. Dr. Wrights firm belief that his
current problems have their origins in the Accident is insufficient without
some independent corroboration, which is altogether lacking. The reason is because
Dr. Wright is not a credible or reliable witness.
[184] I find,
therefore, that Dr. Wright has not met his burden to show that, since October
2001, he has been under the regular care of a physician as a result of an
Injury suffered in the Accident. Rather, the evidence supports the conclusion
that Dr. Wright has not been under the regular care of a physician. As
a result, Dr. Wright has failed to meet the burden on him to prove that he is
Totally Disabled as that term is defined in the Policy, and therefore he has failed
to prove that he is entitled to coverage under the Policy for income
replacement benefits for the period beginning November 2001 to date.
[185] My
conclusion that Dr. Wright has not met his burden to show that he has been
under the regular care of a physician is sufficient to dispose of Dr.
Wrights claim for benefits for the period beginning November 2001, on the
basis that he has failed to show that he was Totally Disabled within the
terms of the Policy.
[186] However,
the Policy definition also includes a requirement that as a result of . . .
Injury, the Participant is unable to perform the essential duties of his
Regular Occupation. Since the parties presented evidence and argument on this
aspect of the definition of Total Disability and Totally Disabled, I will
address it, although only relatively briefly. Dr. Wright has the burden of
proof on this issue.
[187] The
relevant date of disability is December 18, 1993. On that date, Dr. Wright was
engaged in the practice of dentistry as a general practitioner (rather than a
specialist).
[188] One of the
main points I draw from Dr. Thorburns and Dr. McCullaghs evidence is that the
practice of dentistry is highly individual. Although every individual
practicing dentistry is involved with teeth and oral care, individual dentists
develop (as one would expect) their own individual areas of interest and
expertise. For example, Dr. Thorburn over his career developed a particular
interest in gold foil technique. Individual dentists may identify procedures
(for example, extractions or orthodontics or endodontic work) that they prefer
to refer to specialists (if available), rather than perform themselves. A
general practitioner working in a town or area where there are few specialists
may have to be proficient in many things, whereas someone working in a large
city is more likely to be able to refer a patient to a specialist (where
warranted). A general practitioner and an individual practicing as a
prosthodontist both perform oral surgery and may perform many of the same
procedures on patients (for example, crowns). On the other hand, a
prosthodontist is unlikely to do orthodontics, whereas a general practitioner
may. Whether an individual is practicing as a general practitioner or a
prosthodontist, working with a patient requires concentration, focus, and care
and attention to many small details. Whether an individual is practicing as a
general practitioner or a prosthodontist, the work can be stressful, and be
mentally and physically tiring. For example, Dr. McCullagh mentioned that working
with dental implants (a significant portion of any modern prosthodontic office)
was something that involves the manipulation of small screws and implant
components close to the patients airway, thus requiring careful concentration
and a steady hand. The lab work associated with a prosthodontists practice
can (depending on the situation) provide some respite to the rigours of a
clinical practice.
[189] Of course,
any dental practice is a business. It has overhead and expenses. Unless
patient care generates sufficient revenues, the business will not be
profitable. Whether (as I discuss below) Dr. Wrights dental practice was in
fact profitable before the Accident (and if so, to what extent) cannot be
determined because Dr. Wright did not produce the relevant financial documents.
There is also no reliable evidence of the extent to which Dr. Wright involved
himself in the actual running of the business (for example, submitting claims
for dental services rendered, paying bills, hiring and firing staff, keeping
equipment up-to-date), prior to the Accident.
[190] Business
records, or some reliable financial analysis, from Dr. Wrights pre-Accident
practice could also have shed light on how Dr. Wright was in fact spending his
time (and therefore assisted in determining Dr. Wrights essential duties),
in addition to showing how the practice was doing financially. However, no
such records or analysis were in evidence. The documents that Sun Life
requested when Dr. Wright originally submitted his Preliminary Statement of
Claim in 1996 might also have assisted. However, Dr. Wright never provided
what was requested, and there was no reliable evidence tendered at trial.
[191] Dr. Wright
argues that it is essential to distinguish between dentistry procedures (which
may well overlap as between someone practicing as a general practitioner and
someone practicing as a prosthodontist) and the style of practice. His
position was that someone practicing as a specialist in prosthodontics carries
on a completely different style of practice than someone practicing as a
general dentist, even though the individuals might perform many of the same
procedures. The implication of his argument is that, since the styles of
practice are different, the essential duties must also be different. Dr.
Wrights position was that even if he were able to carry on practice as a
prosthodontist (and he expressed grave doubts about his ability to do that), it
did not follow that he was able to carry on practice as a general practitioner,
as he had done before the Accident. The styles of practice were not the same.
Dr. Wright says that, since November 2001, he is unable to carry on the style
of practice he had in Abbotsford before the Accident, and therefore is unable
to carry out the essential duties of his Regular Occupation. He identifies
injuries he suffered in the Accident as the reason.
[192] On the
other hand, Sun Life says that Dr. Wrights description of his pre-Accident
practice in the Preliminary Statement of Claim is likely the most accurate.
There, Dr. Wright described his daily duties as: Restorative & Prosthetic
Dentistry, Endodontics, Minor Oral Surgery, Sedation & Selective
Orthodontics plus Administrative Duties. Sun Life says that this description
should be preferred over the contents of the Pre- and Post-disability Statement
(a self-serving document that was created in the context of litigation and is
therefore suspect), which Dr. Wright essentially repeated at trial. Sun Life
says that, with the possible exception of selective orthodontics, Dr. Wright
continued to do all of the things described in the Preliminary Statement of
Claim after the Accident. Sun Life says that the fact that Dr. Wright may have
done more prosthodontic and restorative treatment once he completed his
specialists training does not mean that he was unable to perform the
essential duties of his Regular Occupation. Sun Life says further that the
list of services Dr. Wright advertised were available to patients at American
Dentistry in London were the types of procedures he was performing at his
dental office in Abbotsford. Sun Life argues that I should conclude that Dr.
Wright was able to perform these procedures in other words, the essential
duties of his Regular Occupation as a general dentist because he was in fact
offering to perform them on patients.
[193] In my
opinion, Dr. Wright has failed to satisfy the onus on him to show that, for the
period in issue, he was as a result of . . . Injury . . . unable to perform
the essential duties of his Regular Occupation, and therefore Totally
Disabled. The ordinary meaning of essential includes absolutely necessary,
extremely important and fundamental. So, tasks or duties that were incidental
to Dr. Wrights pre-Accident practice do not fall into the category of
essential. I find that the description of Dr. Wrights pre-Accident practice
in his Preliminary Statement of Claim is probably a reasonably accurate
description of what he was doing, as compared to the more elaborate summary
(which Dr. Wright essentially repeated at trial) found in the Pre and Post-disability
Statement. This is one of the areas where I do not consider Dr. Wrights
evidence at trial to be reliable. Without better and more reliable evidence
from Dr. Wright (for example, some contemporaneous business records or independent
financial analysis), I am not prepared to conclude that orthodontics (a
procedure Dr. Wright probably did not perform after November 2001) qualified as
an essential duty, and, in the absence of some evidence corroborating Dr.
Wrights evidence concerning his capabilities, I am not persuaded that, from
November 2001 continuing through to trial, he was unable to perform the
essential duties of his Regular Occupation, and was therefore Totally
Disabled, as a result of an Injury (or Injuries) sustained in the Accident.
(d) Is Dr. Wright entitled to benefits on the
basis that he was Residually Disabled?
[194] There are
two periods in issue with respect to Residual Disability. The first is the
period from December 18, 1993 to March 23, 1995. The second is the period
beginning November 2001 to trial, since Dr. Wright claims that, if he is not
Totally Disabled for that period, he is at least Residually Disabled.
[195] Again, for
convenience, I will set out the relevant definitions of Residual Disability
and Residually Disabled:
Residual Disability and
Residually Disabled shall mean that the Participant is not Totally Disabled
but that as a result of Sickness or Injury, he is under the regular care of a
physician and has a loss of Earned Income for each month of at least 15% of his
Average Monthly Earned Income, resulting from the inability:
a. to perform one or more of the
essential duties of his Regular Occupation; or
b. to
perform the essential duties of his Regular Occupation for as much time as
those duties usually require.
[196] Sun Life
accepted that, for the period from December 18, 1993 to March 23, 1995, Dr.
Wright satisfied the medical requirements for being Residually Disabled. As
part of his case, Dr. Wright read in Discovery evidence from Mr. Kling to this
effect, and, during his evidence at trial, Mr. Kling acknowledged this was Sun
Lifes position. Sun Lifes defence to this part of the claim is that Dr.
Wright failed to provide sufficient financial information and documents to
quantify any amount of Residual Disability benefits that might be payable.
[197] I find
that Dr. Wright in fact failed to provide sufficient financial information and
documents to quantify any amount of Residual Disability benefits that might be
payable for the period from December 18, 1993 to March 23, 1995. In my
opinion, Dr. Wrights failure to make the necessary financial disclosure is
fatal to his claim for Residual Disability benefits for this period. His
failure made it impossible for all practical purposes to establish his pre-disability
Average Monthly Earned Income.
[198] Dr.
Wrights position was that he could not provide financial and income
information until the date of disability was determined. Dr. Wright fought
hard to have the date of disability fixed at December 18, 1993, rather than in
June 1996. His fears that he would be prejudiced (and the benefit payment
minimized) by the later date of disability were misplaced, because, for
purposes of arriving at the Average Monthly Earned Income, one of his options
was to elect the highest average of any two consecutive years in the 5-year
period immediately prior to the month disability commenced. Even with the June
1996 disability date, he was not forced to select years in which he was a
graduate student and earning little or no income. In my opinion, there was no
good reason for Dr. Wright to refuse to provide the financial information that
Sun Life was asking for, pending ultimate resolution (to his liking) of the
date of disability.
[199] Sun Life
repeatedly requested Dr. Wright to provide financial documents and information,
including in particular tax returns and notices of assessment. Sun Life
requested this information going back to 1991. In the context of the Policy
provisions, and Dr. Wrights claim for Residual Disability benefits, this
request was reasonable and justified. However, there is no evidence that Dr.
Wright provided Sun Life with a copy of a notice of assessment at any time for
any year. There are no notices of assessment for Dr. Wright in evidence at
all. There are no individual tax returns for Dr. Wright in evidence for any
year prior to 1999. Dr. Wright never provided Sun Life with a personal income
tax return in relation to income he earned from his dental practice in
Abbotsford, and no such returns are in evidence. Dr. Wright has produced no
financial records of any kind for any period prior to June 1993.
[200] I find
that Dr. Wrights failure to provide the financial information requested by Sun
Life caused the delay in Sun Life adjudicating this part of Dr. Wrights claim,
and ultimately made it impossible to adjudicate. Dr. Wright must have been
well aware that his claim for Residual Disability benefits required both
medical information and support (which Sun Life had accepted Dr. Wright had
provided) and financial information and support. Despite that, Dr.
Wright failed to provide the relevant financial information. What Dr. Wright
did provide was incomplete and could not be given much weight without some
independent confirmation (for example, by a notice of assessment), which he
never provided.
[201] Dr. Wright
submitted some financial information with his Preliminary Statement of Claim.
However, what he submitted was obviously incomplete. What source documents
were used is unknown. Whether the source documents that were used were
reliable is also unknown.
[202] Under
cover of Mr. McFees July 10, 1998 letter, Dr. Wright provided Sun Life with
some information concerning his pre and post-disability revenues and expenses. Some
additional information was provided under cover of Mr. McFees letter dated
April 6, 1999. The sum total of the information provided to Sun Life by Dr.
Wright in relation to his dental practice in Abbotsford (in addition to what
was in the Preliminary Statement of Claim) was:
(a) the
statement of income prepared by Hedden Chong for the six months ended November
30, 1993;
(b) a
corporate tax return (unsigned) prepared by Lake & Associates for Dr.
Wrights professional corporation (Dr. Robert S. Wright Inc.) for the year ended
August 31, 1994 (its first year of business) along with financial statements
prepared by Lake & Associates for the same period; and
(c) a
statement of income prepared by Hedden Chong and dated September 14, 1998,
showing the 9 months ended August 31, 1994, and the 7 months ended March 31,
1995.
[203] The first
Hedden Chong statement was provided in order to establish Dr. Wrights
pre-disability income. These were the six months chosen by Dr. Wright as his
highest months of income, as provided by the definition of Average Earned
Income. It is not a simple matter to try and reconcile what is shown in the
first Hedden Chong statement with the Preliminary Statement of Claim, especially
without the benefit of any source documents or explanation.
[204] I agree
with the submissions by counsel for Sun Life that the financial records submitted
by Dr. Wright show inconsistencies with one another (for which Dr. Wright was
not able to offer any credible explanation) and cannot be accepted as reliable
for the purposes of establishing either Dr. Wrights Average Earned Income or
his Earned Income, as those terms are defined in the Policy.
[205] For
example, based on the Lake & Associates financial statements, once Dr.
Wright began operating the dental practice through his personal corporation,
the expenses for the dental practice increased. The professional corporation
paid dental practice rent, an expense for the building lease and property
taxes. None of these expenses was being incurred prior to September 1, 1993.
None of these expenses is shown on the Hedden Chong statement for the period
ended November 30, 1993 (even though, beginning September 1, 1993, Dr. Wright
was operating through his professional corporation). As a result, expenses are
lower and net income is higher.
[206] Earned
Income is defined as income (before tax) after the deduction of the usual and
customary business expenses. This would probably require some evidence and
explanation from an accountant. But, at the very least, the figures presented
would require some explanation from someone about what the usual and customary
business expenses were. Dr. Wright was unable to assist on this point.
[207] Other
expenses of the dental practice appear to increase after December 1993 (despite
Dr. Wrights evidence that he was trying to keep expenses down). For example,
laboratory fees in the Lake & Associates financial statements (for a
12-month period) are almost four times the laboratory fees for the 6-month
period ended November 30, 1993. Indeed, based on the three sets of financial
documents, the laboratory fees for the six months ended November 30, 1993 at
the time when Dr. Wright asserts he was carrying on his normal busy practice
seem unusually low. Dr. Wright offered no reasonable explanation.
[208] I find
that Sun Life was not required to accept the statements from Hedden Chong and
Lake & Associates as appropriate support for the financial side of Dr.
Wrights claim for Residual Disability benefits, in place of the documents Sun
Life had clearly and repeatedly asked Dr. Wright to provide.
[209] In closing
submissions, Dr. Wright argued that a reasonable way to reconcile the
inconsistencies in these financial documents, to arrive at a proper
determination of his income before and after the Accident, was to remove what
he termed the confounding variables (for example, the dental practice rent),
and then redo the comparison. In Dr. Wrights submission, when this was done,
there was still a loss of more than 15% in his Earned Income, and he
therefore met the financial requirements for Residual Disability income
replacement benefits.
[210] However,
in my opinion, rather than answering the point argued by Sun Lifes counsel,
Dr. Wrights submission reinforces the point, namely, that the financial
information he provided to Sun Life (and that he tendered in evidence at trial)
was unreliable and incomplete. Looked at as a whole, the information raised
questions, but it was provided to Sun Life without any explanation of
inconsistencies. In my opinion, given that the information provided by Dr.
Wright was unreliable and incomplete, it could not be used in the context of
handling and adjusting Dr. Wrights claim, and cannot be used now, to establish
his Average Monthly Earned Income or his Earned Income.
[211] Dr. Wright
may believe it should be obvious that, after the Accident, he suffered a loss
of income from his Abbotsford practice after the Accident of at least 15%, as
compared with the period prior to the Accident. However, the Policy required
that he provide reasonable proof of that. I find that he has failed to do so.
[212] The result
is that, for the period December 18, 1993 to March 23, 1995, Dr. Wright has
failed to establish an entitlement to Residual Disability income replacement
benefits in accordance with the Policy. The reason is because he has failed to
show what the coverage terms require: that he had a loss of Earned Income of
at least 15% of his Average Monthly Earned Income resulting from the inability
either to perform one or more of the essential duties of his Regular Occupation
or to perform the essential duties of his Regular Occupation for as much time
as those duties require.
[213] With
respect to the period beginning November 2001, Sun Life argued that Dr. Wright
was not entitled to coverage for Residual Disability because he was not under
the regular care of a physician, relying on Rose and Andreychuk.
I agree. The same analysis and conclusions will apply with respect to this
claim as are set out above in respect of the claim that Dr. Wright was and is
Totally Disabled. On the facts, Dr. Wright has failed to meet the burden on
him to prove that, in the period beginning November 2001, he was under the
regular care of a physician as a result of an Injury suffered in the Accident,
and he has therefore failed to prove that he is entitled to coverage under the
Policy for income replacement Residual Disability benefits for the period from
November 2001 to date.
[214] Moreover, as
discussed above, the financial information and documentation provided by Dr.
Wright is insufficient. This is a second reason why Dr. Wright cannot succeed
in his claim for Residual Disability benefits for this period.
[215] Accordingly,
I find that Dr. Wright has failed to prove that he is entitled to Residual
Disability benefits, either for the period from December 18, 1993 to March 23,
1995, or for the period beginning November 2001 to date.
(e) The FIG Option and the Cost of Living
adjustment
[216] Even
though I have dismissed Dr. Wrights claims for benefits, Dr. Wright says that
he is nevertheless entitled to judgment for amounts he did not receive under
the FIG Option and the cost of living adjustment with respect to the benefits
Sun Life in fact paid.
[217] Dr. Wright
asserts that, by his November 27, 1996 letter to CDSPI, he made an election
under the FIG Option to increase the amount of coverage in force, which he
asserts increased the income replacement benefit amount payable to him by
$1,300 per month. Dr. Wright asserts that Sun Life breached the Policy by
refusing or neglecting to give effect to his election, and has deprived him of
benefits from and after December 21, 1996.
[218] However,
with respect to coverage under the FIG Option, the Policy required that a
written application in a form satisfactory to Sun Life be received by Sun Life
within 60 days of an Option Date. A blank form was attached to CDSPIs letter
dated October 23, 1996. The letter informed Dr. Wright that the application
form must be completed and returned within 60 days of his birthday. His
November 27, 1996 letter, given its contents, cannot be considered the written
application in a form satisfactory to Sun Life. There is no evidence that, at
any time, Dr. Wright ever completed or submitted the written application to Sun
Life. This is fatal to his claim for benefits under the FIG Option.
[219] In
addition, as of his 45th birthday, Dr. Wright was not Actively at Work as
defined by the Policy, and he did not return to full-time active employment at
his normal place of employment within 60 days of his 45th birthday. These
facts also disqualified him from coverage under the FIG Option.
[220] Accordingly,
Dr. Wright is not entitled to any increased benefits under the FIG Option for
any period.
[221] Dr. Wright
also asserts that, with respect to the income replacement benefits paid to him,
Sun Life did not apply the provisions of the Policy concerning the Cost of
Living Adjustment. Dr. Wright says that he is entitled to annual increases to
the income replacement benefits, beginning on the first anniversary of the date
determined to be his Disability Anniversary Date (as defined by the Policy),
and is entitled to payment of those amounts.
[222] Dr. Wright
tendered an expert report from Mr. Robert Carson, an economist, in respect of
this part of his claim. Mr. Carson provided calculations based on a number of
assumptions, including that: (a) long-term benefits were payable to Dr. Wright
beginning in March 1994; (b) the first cost of living increase would have been
0.2% and would have applied to a monthly benefit in March 1995; (c) certain
payments had in fact been made to Dr. Wright by Sun Life; and (d) assuming the
benefits were payable to Dr. Wright in every month from March 1994 to the
present, CPI increases that would have applied to the benefits were shown in
column 7 of Appendix 4 of Mr. Carsons report. The monthly benefits shown in
column 8 of Appendix 4 reflect the effect of compounding.
[223] The
matters that Mr. Carson assumed, including the payments that had been made to
Dr. Wright (and whether there was any shortfall as compared with the amount
payable including a cost of living adjustment), were matters that could not be
proved through Mr. Carson. Rather, those matters had to be established through
another witness or other admissible evidence.
[224] Dr. Wright
failed to prove the amount of the payments he received from Sun Life. I have
only his assertion that the payments failed to include a cost of living
adjustment. However, there is no foundation in the evidence on which I can
conclude that they did not. In addition, other assumptions made by Mr. Carson
have not been proved. I accept that Mr. Carsons calculations are accurate.
However, since they are based on factual assumptions that have not been
established in the evidence, I am unable to give Mr. Carsons calculations any
weight.
[225] As a
result, Dr. Wright has failed to make out this part of his case.
(f) Dr. Wrights claim for a declaration of
entitlement to future benefits
[226] One of the
items of relief Dr. Wright sought in his Amended Statement of Claim was a
declaration that he continues to be entitled to income replacement benefits
under the Policy. In other words, Dr. Wright seeks a declaration in respect of
benefits payable in the future. In his report, Mr. Carson provided a
calculation up to age 65.
[227] However,
the Policy provides that proof satisfactory to [Sun Life] of continued
disability may be requested by [Sun Life] at all reasonable times. Thus
(absent a case of Presumed Total Disability), the Policy does not provide for
payment of future benefits without proof of continuing disability.
Accordingly, even if Dr. Wright had proved an entitlement to benefits up to the
date of trial, the declaration he is seeking concerning future benefits is not
available.
(g) Dr. Wrights claim for aggravated damages
[228] In Dr.
Wrights Amended Statement of Claim, he claimed aggravated damages. However,
there were no facts pleaded (or proved) to support a true claim for aggravated
damages: see the discussion in Fidler v. Sun Life Assurance Co. of
Canada, 2006 SCC 30, at paras. 51-53. What Dr. Wright appears to have
had in mind is damages reflecting that the Policy was (as he described it) in
the nature of a peace of mind contract.
[229] In the
circumstances, since I have concluded that Dr. Wright has failed to establish an
entitlement to benefits and thus has failed to prove a breach of contract, it
follows that his claim for aggravated damages must also be dismissed. See Andreychuk,
at paras. 53-54.
[230] I will
however make some very brief observations.
[231] As I have
pointed out above in the discussion of Dr. Wrights claim for Residual
Disability benefits, Dr. Wrights failure to provide financial information and
documentation to Sun Life delayed and ultimately frustrated the proper
adjudication of his claim. Even as of trial, reliable, reasonably complete
financial information and documents had not been produced. Dr. Wright must
accept responsibility for the consequences of his decisions and actions.
[232] Sun Life
was entitled to rely on the terms of the Policy, subject to its obligation to
act honestly, fairly and in good faith: see Nayyar v. Costco Wholesale
Canada Ltd., 2012 BCCA 501, at para. 39. Sun Life, on the basis of
what could be described as incomplete information and virtually no proof that
Dr. Wright was under the regular care of a physician, accepted his claim in
1996 that he was Totally Disabled. That part of Dr. Wrights claim likely
could have been adjudicated more quickly had Dr. Wright provided Sun Life with
a copy of Dr. Larsens August 1996 report sooner than he did. Dr. Wrights
combative and suspicious approach to his insurer ultimately worked against
him. Even if I had found that Dr. Wright was entitled to benefits, it would
not follow necessarily that Sun Life was not justified in the approach it took
to Dr. Wrights claim.
[233] As I noted
above, Dr. Wright found the activities investigations carried out by Sun Life
highly offensive. However, if Dr. Wright had been more forthcoming about what
he was doing and why, there likely would have been little reason for Sun Life
to investigate. The fact is that he was working at Crown and being paid for
it, despite stating (without qualifications) in the Supplementary Statement of
Disability that he had been unable to do any work (underlining
added) since April 1995. However, rather than explain (or have Mr. McFee
explain) that his work at Crown was part of his practical training as a
prosthodontist (assuming it was), Dr. Wright covered up who he was working for
and left Sun Life with no practical alternative but to investigate on its own
what he was doing. The conclusions that Mr. Kling drew were, in the
circumstances, not unreasonable. Dr. Wrights strong disagreement with them
does not make them so.
(h) Sun Lifes Counterclaim
[234] By way of
counterclaim, Sun Life seeks to recover the income replacement benefits it paid
to Dr. Wright from March 1, 2000 to October 31, 2001, which it says total
$99,981. On the pleadings, there is no issue that monthly benefits (at least
$5,000 per month) were in fact paid to Dr. Wright for this period. However,
there was no evidence about how Sun Life arrived at $99,981 as the amount paid.
[235] Sun Life
says that, from March 1, 2000 to October 31, 2001, Dr. Wright was not Totally
Disabled, but was in fact practicing general dentistry. Sun Life says that
Dr. Wright concealed his activities and knowingly misrepresented facts to Sun
Life, with the intention of inducing Sun Life to continue to make payments
under the Policy. Among the facts Sun Life says Dr. Wright concealed was that
he was working full-time in his own practice, the Newport Centre. Sun Life
also says that while Dr. Wright informed it that he was unable to perform any
of the duties of a general dentist, he was in fact carrying on these duties
beginning in March 2000.
[236] Sun Life
does not rely on other grounds (for example, that Dr. Wright was not under the
regular care of a physician) to say that, during this period, Dr. Wright was
not entitled to any benefits because he was not Totally Disabled. Rather, its
position is that Dr. Wright was not, as a result of Injury, unable to perform
the essential duties of his Regular Occupation. Or, to put it another way, Sun
Lifes position is that, from March 2000 to October 2001, Dr. Wright was able
to perform the essential duties of his Regular Occupation, was in fact doing so,
and was deliberately concealing his activities so that he could continue to
receive benefits. In this context, Sun Life has the onus of proof.
[237] In
addition to repayment of the benefits paid for this period, Sun Life also seeks
punitive damages against Dr. Wright, on the basis that Dr. Wrights conduct
his concealment, deceit and misrepresentations is worthy of rebuke.
[238] Dr. Wright
filed an amended statement of defence to counterclaim in February 2014, and
filed a further amended statement of defence to counterclaim on March 5, 2015.
Regrettably, neither document complied with the provisions of the Rules
of Court (either the current Rules or the former Rules)
relating to pleadings, so they are of little assistance in defining the issues
on the counterclaim. However, at the very least, Dr. Wright denies any
liability to Sun Life for repayment of the benefits paid.
[239] Dr. Wright
was the only witness who had personal knowledge about his work activities at
Crown and the Newport Centre. The gist of Dr. Wrights evidence is that he was
not carrying on practice as a general dentist at either place, and he was not
capable of doing so on account of injuries he suffered in the Accident. In
that sense, nothing had changed between 1999 (and earlier), when Sun Life
accepted that Dr. Wright was Totally Disabled, and 2000.
[240] In January
2001, Sun Life received Dr. Larsens more complete report in which he expressed
the opinion that Dr. Wright would not be able to practice dentistry in a
private setting. However, Dr. Larsens opinion is based in part on what Dr.
Wright told him. Dr. Wright is not a reliable source of information (either
for Dr. Larsen or for the court), particularly where his self-interest is
involved.
[241] Mr. Kling
had no personal knowledge about what Dr. Wright was doing. All of his
information came from others, none of whom testified.
[242] Because of
the problems (which I described above) with Dr. Connells and Dr. Christians
reports, I am not prepared to give much weight to their opinions that, during
this period, Dr. Wright was not limited in the hours and type of work he could
perform.
[243] I have not
been persuaded that Sun Life has made out its case on the counterclaim. The
evidence concerning what Dr. Wright was doing, and what he was capable of
doing, during this period is too thin and unreliable. I agree with Sun Life
that Dr. Wright was concealing what he was in fact doing. However, Sun Life
was not left in the dark, and I do not see Dr. Wrights concealment as a
sufficient basis to grant judgment in favour of Sun Life on the counterclaim.
[244] In that
light, it is unnecessary for me to deal with Sun Lifes claim for punitive
damages. However, again, I will make a few brief observations.
[245] I begin by
noting the comments of McLachlin C.J.C. and Abella J. in Fidler
(at para. 62) that It is important that punitive damages be resorted to only
in exceptional cases, and with restraint.
[246] In my
opinion, there is much to criticize in Dr. Wrights conduct. It reflected a
misguided sense of entitlement and a very strong resistance to the idea that he
might be in error in any respect. Dr. Wrights conduct also reflected an
inability to accept both points of view different than his own and obligations
different from what he considered he should be required to do. That conduct
contributed in significant way to the failure of his claims, particularly the
failure of his claim for Residual Disability benefits. However, and
considering the comments in Fidler, I would not have been
inclined to order of punitive damages against Dr. Wright, even if Sun Life had
been successful on the counterclaim.
Summary and Disposition
[247] In
summary, Dr. Wrights claims are dismissed, and Sun Lifes counterclaim is also
dismissed.
[248] If the
parties are unable to agree on costs and wish to make submissions concerning
costs, they may do so by taking steps, within 30 days of this judgment, to
arrange a hearing date convenient to Dr. Wright and counsel, and to the court.
Adair
J.