Flanders v. Manufacturers Life Insurance Company

Flanders v. Manufacturers Life Insurance Company Court Supreme Court Date 2007-01-03 Citation 2007 NSSC 2 Docket SH-234512 Judge/Registrar/Adjudicator Tidman, Gordon A. (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Flanders v. Manufacturers Life Insurance Company, 2007 NSSC 2 Date: 20070103 Docket: SH-234512 Registry: Halifax Between: Diane Flanders Plaintiff v. The Manufacturers Life Insurance Company Defendant Judge: The Honourable Justice Gordon A. Tidman Heard: December 8, 11, 12, 13, 14, 15, 2006, January 3, 2007 in Halifax, Nova Scotia Written Decision: January 18, 2007 (oral decision rendered January 3, 2007) Counsel: Jeffrey S. Moors, for the plaintiff Eric LeDrew and Melanie McGrath, for the defendant Tidman, J. : THE CLAIM [1] The plaintiff claims benefits under a group disability insurance policy issued by the defendant. She also claims damages for mental distress suffered as a result of the defendant’s refusal to pay benefits. [2] The defendant refuses to pay benefits on the basis that the plaintiff is not “totally disabled” from working at her former or “own” job or working at another job or “other” job for which she is trained as defined in the policy. The defendant counter claims, as a credit against payments made, any benefits received by the plaintiff as disability benefits under the Canada Pension Plan. The defendant also claims a reduction of any benefits which may be payable in the future, any payments which may be made in the future from the Canada Pension Plan and cash benefits the plaintiff has received from her employer as retirement pension benefits. The Group Policy [3] The plaintiff claims that she is “totally disabled” as defined under the terms of a Group Insurance Contract (the policy) issued by the defendant to the plaintiff’s then employer, Keyano College, under the terms of which the defendant provided qualified employees with benefits including long-term disability coverage. [4] In the policy totally disabled employee is defined as: ...Totally disabled employee: during the Qualifying Period and the succeeding 24 months, an employee is totally disabled when he is wholly and continuously disabled due to illness or bodily injury and, as a result, is not physically or mentally fit to perform the essential duties of his normal occupation. Thereafter, an employee is totally disabled provided he is wholly and continuously disabled due to illness or bodily injury and, as a result, is not physically or mentally fit to perform the essential duties of: (A) his normal occupation; and (B) any other occupations, jobs or work: 1. for which he is, or becomes, qualified by his education or training or experience, considered collectively or separately; and 2. for which the current monthly earnings are 75% or more of the current monthly earnings for the employee’s normal occupation. The availability of such occupations, jobs or work will not be considered in assessing the employee’s disability... [5] Page 17 of the policy provides the following definition of ‘Other Income’ that will reduce the amount of monthly benefits. Other Income The amount of monthly benefit will be reduced by the following benefits or payments resulting from the employee’s disability if, on or after the date the employee became totally disabled, he begins to receive such benefits or payments, or would be entitled to receive them had he made satisfactory application. (A) Disability benefits payable under a public pension plan (the Canada Pension Plan or Quebec Pension Plan). (B) Earnings or payments from any employer. (C) Disability benefits payable under any other group, association or franchise insurance plan. (D) Disability benefits payable under any other government plan excluding Employment Insurance benefits. (E) Benefits payable under any workers’ compensation act. (F) Retirement or pension benefits provided by an employer and/or a government. (G) Income replacement indemnity payable under any automobile insurance plan or policy. ... (H) Earnings recovered through a legally enforceable cause of action against some other person or corporation in accordance with provisions under THIRD PARTY LIABILITY. Overall History - Diane Flanders [6] Since the issue in the action includes whether the plaintiff is able to work at any job for which she is qualified by education, training or experience, it is necessary to examine the plaintiff’s education and work history. [7] The plaintiff lives in Bayswater, Nova Scotia. She was born in 1952 and attended school in Glace Bay, Nova Scotia. She graduated with her Grade XII in 1972. [8] She moved in 1981 with her husband, Laurie, from Glace Bay to Fort McMurray, Alberta. She married in 1973 and has 3 grown children, age 32, 30 and 27 years. [9] While in Nova Scotia the plaintiff worked at a service station doing office work which included handling cash and banking. [10] After moving to Alberta the plaintiff did volunteer work in her community and at the school attended by her children. [11] In or about 1982 the plaintiff graduated from Keyano College in Fort McMurray after taking a one year course in Business Education. She was then employed at Keyano College as an administrative assistant and continued in the employ of Keyano College for a 7 year period. She ceased working there after being diagnosed with breast cancer in 2001. She underwent radical mastectomy surgery in 2001 and has not been employed since that time. She was paid total disability benefits by the defendant after a policy mandated waiting period of sixty working days. She was paid those benefits from May 1, 2001 to May 4, 2003 when the defendant ceased paying benefits claiming the plaintiff was not disabled from working at her own occupation or at employment for which she was suited by education and training and/or experience. As well, payments to the plaintiff were not made for the period from February 28, 2002 to April 12, 2002. Claim Payment History [12] On behalf of the defendant, Shelley Baker gave the claim history. Ms. Baker is a Senior Claims Consultant with the defendant. As such she decides whether a claim should be paid. She has been involved personally with the plaintiff’s claim since 2005 and has reviewed the file history of what took place prior to taking over the file. [13] The monthly disability benefits are calculated as a portion of the member’s regular monthly income and are paid on proof of disability at the end of the sixty day mandatory waiting period. [14] The plaintiff first made application for benefits on April 4, 2001 on the basis that she was totally disabled from working due to her cancer surgery and treatment. The defendant accepted that the plaintiff was totally disabled from working and commenced payment of benefits in the amount of $1,964.00 monthly. That amount as calculated under the terms of the policy is seventy percent of the plaintiff’s pre-illness earnings of $2,805.33 monthly. [15] Benefits were paid to March 1, 2002 when they were suspended until April 11, 2002. (Page 665, Exhibit 1 (B)). The benefits were terminated on the basis that Dr. Mehta of the Cross Cancer Institute, where the plaintiff was treated, informed the defendant that the plaintiff should have no trouble returning to work. The plaintiff’s family doctor also informed the defendant that the plaintiff had no recurrent cancer. [16] At that time the plaintiff, although then cancer free, was still experiencing pain and numbness in her right arm and hand which she claimed prevented her from working. [17] At that time the plaintiff was unable to provide immediate proof of disability since she was relocating to Nova Scotia. Following the move it took some time to secure the services of the appropriate medical professionals to deal with her condition and report to the defendant. [18] In May, 2002 the plaintiff was examined in Halifax by Dr. David King, a neurologist. Dr. King wrote to the plaintiff’s Halifax doctor on May 30, 2002 describing the plaintiff’s medical problem thusly: ... History: 1. Current: Her chief complaint is that her right hand is asleep. In addition to this, she describes a numbness which extends down the inner aspect of her arm, extends down from the elbow, down the ulnar aspect of the arm to the hand. The feeling is a partial anaesthetized feeling with paraesthesiae. It is not painful, but it is irritating. She feels that there is weakness of grip in the right hand, that makes it difficult, for example, for her to keep the hand on the wheel of a car. She says that she has difficulty holding a pencil and pen and her penmanship has deteriorated. She feels her ability to use a keyboard has been reduced. Her previous job required her to use a keyboard on a regular basis and she feels now that she is unable to sustain that action with her right hand. ... [19] Dr. King also ordered EMG testing of the plaintiff’s right side. After receiving the test results Dr. King wrote to the defendant on August 2, 2002 informing the plaintiff, in part: ... Ms. Flanders asked me to write you on her behalf. You will be aware that she had Ca of breast with metastasis to lymph nodes around the brachial plexus. Following her surgery she had numbness in her right arm and disability with the use of her right hand. She was seen by an oncologist out west who felt that she was coming along nicely, and he was speaking basically from the oncological perspective, not from the neurologic perspective. I have had an opportunity to review her in my office and she has very definite evidence of a plexopathy on the right-hand side which is confirmed electrically. This makes it extremely difficult for her to use her hand for writing, she could not effectively be a secretary and use a keyboard and mouse with her right hand... [20] As a result of this further medical information, the plaintiff’s benefits were reinstated effective April 12, 2002. The plaintiff was notified of this by letter dated October 7, 2002. By the same letter the plaintiff was also informed that because medical evidence of continued medical supervision and treatment had not been provided on a timely basis as required under the terms of the group policy, no benefits would be payable for the period between March 1, 2002 and April 11, 2002. [21] By letter dated January 24, 2003 (Exhibit 1(B), page 722) the defendant informed the plaintiff that her “own” occupation twenty-four month benefit period, as stated under the terms of the group policy, would expire on May 5, 2003. By the same letter the plaintiff was informed that benefits would continue after that period only if a determination was made that she was unable to perform “any” occupation for which she was or may become qualified by education, training or experience. The plaintiff was asked to provide additional information in support of a continuing claim. [22] By letter of June 15, 2003 the plaintiff was informed that her benefits would be terminated as of May 4, 2003. She was further informed that the termination was as a result of their assessment of her medical information, and the results of a Functional Capacity Evaluation and Vocational Assessment. [23] The plaintiff, by the same letter, was informed that these evaluations and assessments were used to determine if she fit the changing definition of total disability, i.e. whether she was totally disabled from performing any occupation for which she was or could become qualified by education and training and experience. [24] The letter also stated that the benefits were terminated because it was determined that neither was she totally disabled from performing her “own” occupation as an Office Supervisor. Functional Capacity Evaluations [25] The Functional Capacity Evaluation referred to by the defendant was performed on April 16 and 17, 2003 by Bobi MacKinnon an occupational therapist at the request of the defendant. Ms. MacKinnon prepared a report entitled Key Functional Assessment dated May 7, 2003 (Exhibit 1(A), Page 198). [26] Ms. MacKinnon gave evidence on behalf of the defendant. She graduated from Dalhousie University as an occupational therapist in 1995 and began work with the Halifax Centre in March, 1996. Halifax Centre is made up of two separate companies, Physiotherapy and Sports Injuries Ltd. And Work Hardening Ltd. [27] The plaintiff was tested by Ms. MacKinnon over a two day period, April 16 and 17, 2003. The purpose of the testing was to determine the plaintiff’s physical ability to function in a work environment by measuring the capability of body movement. [28] In her report Ms. MacKinnon records the plaintiff’s complaints as follows: ... Ms. Flanders states that she had been experiencing ongoing numbness in her right upper extremity. She describes her areas of greatest discomfort in her right underarm, forearm and fingers. She states that she has a tendency to use her left upper extremity more frequently than the right. She also indicates that she does have difficulty identifying objects in her hand and placing her right fingers when performing any form of handling tasks and states “I can’t feel anything with my right hand”... [29] Ms. MacKinnon tested the plaintiff for toleration levels in performing various physical activities, some of which were recommended or described as being reproducible on a continuous basis, some on a frequent basis and some on an occasional basis. It should be noted that the plaintiff’s ability to “fine grasp with the right hand” was reported to the defendant to be reproducible on a “frequent” basis. However, Ms. MacKinnon in giving her evidence stated that her report was in error as that movement was reproducible only on an “occasional” basis. [30] Ms. MacKinnon made the following comments after the first day of testing: ... General Comments: Ms. Flanders was very pleasant and cooperative throughout this 4 hour assessment. The main barrier with respect to her level of function was that of reported right hand, wrist and arm pain. Validity: As you will note on page 1 of the attached overview, the validity determination was that of Valid. This indicates that Ms. Flanders put forth a consistent effort throughout the functional assessment. Workday Tolerance Recommendation: Again you will note on page 1 of the attached overview, that based on the Key Functional Assessment, Ms. Flanders’ workday tolerance is that of 8 hours, given that the job requirements did not exceed the functional parameters as outlined in this report. This projection has been largely based upon her current demonstrated tolerance for sitting, standing and walking. Weighted Capabilities: As you will note on page 2 of the attached overview, Ms. Flanders’ weighted abilities would fall within the Light workload level as defined by the National Occupational Classification System. Please see the attached appendix for full descriptions. Her choice of body mechanics during all lifting activities involved forward bending at the waist... [31] The light workload classification is described in Appendix A of the report (Exhibit 1(A), page 208) as: ... Work activities involve handling loads of 5 kg. (11 lbs) but less than 10 kg. (22 lbs.) Examples: - repairing soles, heels, and other parts of footwear - filing materials in drawers, cabinets and storage boxes - preparing and cooking meals ... [32] Limited or sedentary workload classification is described as: ... Work activities involve handling loads up to 5 kg. (11 lbs) Examples: - examining and analyzing financial information - selling insurance to clients - conducting economic and technical feasibility studies ... [33] Ms. MacKinnon made the following comments after the second day of testing: ...Upon arriving for the second day of the assessment, Ms. Flanders reported that her hand was tired following Day 1 of this assessment. She indicated that she did not do much that night and that her arm and hand felt swollen. She reported that she did not take any extra pain medication and had no differences in her sleep patterns. Additionally, she reported that the beginning of Day 2 that her arm felt like it was back to its regular “tingling sensation”. When asked to rate her discomfort on the Visual Analog Scale, where 0 equals no pain and 10 equals severe pain, she rated her discomfort as a 7/10 at the beginning of the assessment (Day 1) and an 8.5-9/10 the night previous to Day 2. At the beginning of Day 2 she rated her pain as a 7/10. Upon completion of Day 2 of this assessment she rated her pain to be at an 8-8.5/10... [34] The second day included testing of the strength, agility and the sensitivity of touch of the hands and fingers. [35] On the second day Ms. MacKinnon noted that the plaintiff again appeared to put forward a valid effort in performing the various tests. [36] After having the plaintiff perform various tests dealing with her sense of touch in the right hand, Ms. MacKinnon noted: ...The majority of Ms. Flanders’ sensory impairment is that of levels 3-5 on both the dorsal and palmer surfaces of her hand. This indicates that she has a range of diminished protective sensation to pure deep pressure sensation in her right hand. Reportedly, Ms. Flanders has had difficulties feeling objects with her right hand and being able to recognize how things are in relation to her hand when performing tasks such as typing and/or reaching for objects. Ms. Flanders’ sensory impairment, as measured in this assessment, would be consistent with her reports. Her present level of impairment could be a barrier to her should she return to work in the field of administrative duties, particularly with duties involving data entry or typing tasks. Summary/Recommendations: Ms. Flanders is currently demonstrating a Light workload level as described in Appendix A and her workday recommendation was that of 8 hours. She put forth a consistent effort identified as a Valid Assessment. Additionally, with respect to hand function testing, Ms. Flanders demonstrated consistencies and inconsistencies throughout the assessment. However, it is worth noting she does demonstrate a loss of sensation in her right hand at the levels of 3-5 being diminished protective sensation to deep pressure sensation, which may be a contributing factor to inconsistencies noted in right hand function testing... [37] As well as requesting the testing and report, the defendant asked Ms. MacKinnon to respond to a number of questions including the following: ... Q. Is the ability demonstrated during this testing consistent with the claimant’s reported complaints and/or symptomology? ... [38] Ms. MacKinnon gave the following answer: ... A. As indicated during my attached report, consistencies and inconsistencies were noted during the hand testing components of this assessment. This being said, it was noted during sensation testing that Ms. Flanders has a significant loss of sensation in her right hand, which may be a contributing factor to any inconsistency noted. Additionally, this loss of sensation can be a contributing factor to her reported difficulties identifying objects in her hand, identifying where she is putting her hand without looking at it and performing activities with her right hand. ... [39] A Functional Capacity Evaluation of the plaintiff was also carried out by Mr. Thomas Stanley at the request of the plaintiff’s counsel. Mr. Stanley is a physiotherapist also employed at the Halifax Centre. Mr. Stanley graduated from Dalhousie University in 1980 with a B.Sc. in physiotherapy. He has practised as a physiotherapist since 1980 and has been with the Halifax Centre since 2001. He has presented on the practise of physiotherapy on many occasions during his working career. [40] Mr. Stanley gave evidence for the plaintiff. His assessment was carried out on November 9, 2004. [41] Mr. Stanley also had the plaintiff perform a number of physical tests concentrating on the right hand, although he did not have the plaintiff do as many tests as did Ms. MacKinnon. [42] After the testing of the plaintiff, Mr. Stanley in his report dated November 25, 2006 made this general comment: ... General Comments: Ms. Flanders was on time, alert, pleasant, and very co-operative throughout the entire assessment. She did not describe any pain symptoms that were disproportionate to the activity in which she was participating, nor did she display any undue to exaggerated pain behaviour during the assessment. ... [43] Mr. Stanley also estimated the plaintiff’s work tolerance at 8 hours for sitting, standing and walking. In his opinion the plaintiff was functioning at only a sedentary workload level (previously defined), one level below the light work level as opined by Ms. MacKinnon. [44] Mr. Stanley in his report cautioned that the workday tolerance level of 8 hours shown for the plaintiff in the assessments of both Mr. Stanley and Ms. McKinnon should be explained carefully as it may be misconstrued as indicating that Ms. Flanders is able to return to her previous job. [45] As to other types of work activity Mr. Stanley had this to say at page 7 of his report: With respect to any other type of work activities, what can be said from this assessment is that, despite her general activity tolerance, which is estimated at the equivalent of full-time, her ability to manage in a real world work environment would be significantly compromised by the pain and dysfunction that she describes in her right (dominant) upper extremity. If she were to return to work in another type of work capacity, it would likely be a job that had a reasonable mixture of sitting, standing, and walking, with minimal to occasional upper extremity related activities. From the various tests performed during the assessment, it is the writer’s considered opinion that Ms. Flanders would not be able to return to the work force in a competitive manner, performing sedentary level activities such as typing and writing in any reasonable work environment. That is not to say that she is completely prohibited from returning to any type of work activity involving the right upper extremity; however, the degree of her dysfunction in the right upper extremity would limit her to minimal right upper extremity usage, rendering her essential (sic) incapable of returning to a work force that often requires her to have skills involving sustained or repetitive upper extremity usage, typically keyboarding type work. ... Medical History - Doctors King and Gillespie [46] Two medical doctors were called to give evidence on behalf of the plaintiff. The defendant presented no medical evidence, but was content to deal with the plaintiff’s medical evidence by way of cross-examination. [47] Dr. David King gave evidence. Dr. King is an adult neurologist who has practised as a neurologist for several years and on numerous occasions has lectured and presented papers in his field of expertise. He has also given evidence in this and many other courts over the years. He is widely recognized as an expert in his field of practise. [48] Dr. King in his report of May 30, 2002 to the plaintiff’s family doctor after seeing the plaintiff gave the following opinion: ... It looks like she has a brachial plexus injury on the right side, presumably as a result of scarring or traction during surgery. The persisting symptoms need further elucidation.... [49] Dr. King performed an intensive examination of the plaintiff on August 11, 2005 and prepared a lengthy report of that examination on August 15, 2005. [50] At page 25 of Dr. King’s report he noted after motor examination that the plaintiff: ...had significant swelling of her right arm and her grip was weakened in the right hand as compared to the left. Finger motion was slower with the right hand... [51] On the same page he noted that after sensory examination the plaintiff’s light touch was “diminished in the right arm primarily in C8 distribution” and that pin prick showed “diminished in the right arm primarily in C8 distribution”. [52] In describing the plaintiff’s physical limitations Dr. King reported at page 17: ...Her prime limitation on her ability to work is the pain, numbness and dysfunction in her right or dominant arm. She cannot use a computer keyboard with dexterity. She can’t lift anything moderately heavy with her right hand. [53] At page 30 of Dr. King’s report he noted the results of an EMG: ...EMG showed a delay in the F wave on the right side. Mild chronic denervating changes in the first dorsal interosseous, preserved ulnar sensory response. This is consistent with a brachial plexopathy... and of a MRI of the plaintiff’s brachial plexus: ...Asymmetry in size, mild diffuse enlargement of the brachial plexus on the right side. High signal around the cord on the right side 3.3 x 1.3 cm mass lesion within the right lung apex. Mild degree of enhancement. Findings on the MRI felt secondary to radiation involvement of the brachial plexus... [54] At page 37 of his report Dr. King gave the following prognosis: ...Poor. Even if we are able to bring her neuropathic pain syndrome under control it is very unlikely that we will be able to influence the numbness and weakness in her right hand... [55] At page 38 of his report Dr. King under the heading ‘work prognosis’ had this to say: ...Chances of returning to her previous job are extremely poor. She has relocated to Nova Scotia and her chances of returning to a similar job are also significantly limited because of her on-going pain syndrome and neurologic deficits in her right arm and the distraction related to the pain. She is disabled from performing her previous job or similar occupation because of intractable pain and the neurologic deficits in the right arm... And of her chances of returning to lesser but meaningful work: ...I don’t believe that these are realistic. I reviewed the positions outlined in the Transferrable Skills Analysis. She would not have the ability to competently work as a Hospital Information Clerk if any significant degree of concentration were required. She does not have adequate stamina to work full days... [56] On cross-examination Dr. King allowed that the plaintiff’s rating of her physical abilities and pain intensity was purely subjective. However, he stated that her own reporting was consistent with his testing and with the MRI and EMG results. Dr. King expressed some surprise when told of the plaintiff’s present ability to knit, but was not certain of the specific hand skills required for knitting. [57] Dr. Gail Gillespie gave evidence on behalf of the plaintiff by video from Cornwall, England. Dr. Gillespie practises in the field of Pain Management and Anaesthesiology. From March, 2005 to March, 2006 Dr. Gillespie was employed as Staff Anaesthesiologist and Pain Management Specialist at the Q.E. II Health Science Centre in Halifax. Dr. Gillespie graduated with a medical degree from Glasgow University in 1993. She has taken specialist training in pain management and is currently employed as a consulting anaesthesiologist with special interest in pain management at Royal Cornwall Hospital Trust in Truro, Cornwall, England. [58] Dr. Gillespie first saw the plaintiff at the Q.E.II Pain Management Centre on January 7, 2005. She took over the plaintiff’s treatment from Dr. Alexander Clark who left the clinic. [59] Dr. Gillespie prepared a report dated February 1, 2006 regarding the medical condition of the plaintiff. Dr. Gillespie’s report provides in part : ...She described the onset, within a day or so of surgery, of pain in the right axilla, right chest wall and in the medial aspect of the right arm to the hand, affecting the middle ring and small fingers. She has seen Dr King (neurologist) in 2002 who commenced Gabapentin and carried out EMG studies which confirmed brachial plaxopathy. CT of chest, carried out on 11th August 2003, showed post radiation changes in the subpleural region of the right upper lobe of the lung. Unfortunately she has had persistent constant daily pain... [60] On the second page of her report Dr. Gillespie states: ...Ms. Flanders is a very pleasant lady whose dialogue was appropriate and reactive throughout the consultations I have had with her. She made good eye contact and did not display any abnormal or exaggerated pain behaviours... [61] On the third page of her report Dr. Gillespie gives the following impression: ... I agree with Dr. King that this is a classic presentation of post-mastectomy neuropathic pain with right Brachial Plexopathy affecting predominantly the ulnar distribution... [62] On page 4 of her report, Dr. Gillespie summarizes her findings thusly: ...Ms. Flanders has significant chronic neuropathic pain associated with a classical brachial plexopathy of her right arm since mastectomy surgery in 2001. She is continuing to experience severe levels of pain that are not being well controlled despite anti-neuropathic pain medication taken on a regular basis and injection therapy. At this time it is clear that she is unable to return to even part-time wage earning work in the area she was previously working (ie as a secretary) and with her current pain levels and loss of right arm function she is unable to return to any type of work at this stage. She is a very motivated lady who complies with treatment. I do not anticipate that the situation will change dramatically and thus the prognosis is that of continued pain with continued pain-related disabilities from right arm dysfunction. This pain syndrome has had a significant impact on her life to the extent that she is unable to perform even routine activities of daily living. The prognosis is poor. There is no cure. I expect the pain to continue at some level. [63] On cross-examination Dr. Gillespie agreed that pain is subjective and that she had to rely on Ms. Flanders to tell her of the degree of pain. She also agreed that patients can get used to chronic pain. [64] Dr. Gillespie summarized the problems the plaintiff experiences with her right hand and fingers as having pain, decreased sensation and a weakening of the small muscles controlling the fingers. Occupational Therapy Evidence [65] Both the plaintiff and defendant presented evidence regarding the type of work the plaintiff may be now capable of performing requiring skills comparable to those used by the plaintiff in performing her “own” job and within the seventy-five percent salary range as set out in the definition of total disability under the group policy. [66] Debra Vieth-Morse, an occupational therapist, gave evidence on behalf of the plaintiff. After testing the plaintiff Ms. Vieth-Morse found her capable of performing sedentary work activities. After conducting a Transferable Skills Analysis, Ms. Vieth-Morse in her report dated November 30, 2004 (Exhibit 1 (A) Tab 33) listed work positions in which the plaintiff may be able to perform which are similar to her “own” job. [67] Ms. Victoria Martin, an employee of the defendant, gave evidence on behalf of the defendant as to job positions in which in her opinion the plaintiff would be able to work which are similar to work done by the plaintiff in her “own” job. [68] Ms. Martin has a master’s degree in Kinesiology and was recently promoted to the position of manager of the Life and Group Disability Departments in the Halifax branch of the defendant. [69] Ms. Martin conducted a Transferable Skills Analysis of the plaintiff’s capability of performing jobs similar to her “own” job. [70] After completing an exhaustive and comprehensive computer-assisted analysis of jobs requiring skills similar to the plaintiff’s own job, Ms. Martin concluded in her report dated January 14, 2004 that the plaintiff would be able to work in the following positions: Supervisor, General Office and Administrative Support Clerk; Records Manager Clerk; Real Estate Clerk; Postal Clerk; Manager, Other Services; File Clerk; Dispatcher; Collector; and Administrative Clerk. [71] Ms. Martin stressed the positions of postal clerk and collector as jobs the plaintiff is physically capable of performing. [72] The plaintiff looked into the position of postal clerk as one that she thought she may be able to perform, but after examining the specific functions of the job, she concluded that she would not be able to perform the job satisfactorily. [73] The court questioned Mr. LeDrew as to whether the skills required as a collector were similar to the skills used in the plaintiff’s “own” job. The court was obviously exhibiting a dated view of a collector’s job as being one in which the collector hounds debtors by frequently knocking on doors and which involves primarily tracing and hounding. Mr. LeDrew opined that the skills of the more modern collectors are those required in an “office setting”. [74] In the court’s view employment similar to the plaintiff’s own job are jobs performed in an “office setting”and it is only those types of jobs for which the plaintiff is qualified by virtue of her education, training and/or experience. [75] The parties do not appear to take issue with the type of work that would fall into the category of any other occupation for which the plaintiff is or may become suited by virtue of her education, training and/or experience. Mr. Moors on behalf of the plaintiff does not seriously dispute that the particular occupations suggested for the plaintiff by Ms. Martin in her Transferable Skills Analysis are occupations for which the plaintiff is suited by education, training and experience. [76] The issue was considered by Freeman, J.C.C.. in Fulton v. Manufacturers Life Insurance Co., [1990] N.S.J. No. 528 96 N.S.R. (2d) 200 wherein he stated at page 13 of 14: ... 69 The concept of “any employment” was considered by the Supreme Court of Nova Scotia in the Porter case referred to above in which Hallett, J., reviewed the authorities and cited with approval the following from David Norwood’s Life Insurance Law in Canada at p. 32: [*page213] “A policy with the ‘any occupation’ type of definition usually requires that total disability is such that the insured person is prevented from engaging in any occupation or performing any work for compensation or profit. Notwithstanding this all embracing definition, this does not mean that the person is not entitled to the benefit if he is so sick that he can take on only trivial or inconsequential work, or work for which he is over-qualified, or work for which he is completely unsuited by background.” ... [77] All of those persons who tested the plaintiff’s ability to perform work concluded that she could work an 8 hour day in jobs requiring sitting, standing and kneeling. [78] That opinion was reinforced by the plaintiff’s own evidence that she worked as a volunteer for long periods of time in assisting at charitable fund raising events. The Plaintiff’s Evidence of her work history and her present ability to work. [79] The plaintiff’s description of the employment she held at the time of her surgery was of a very busy job at Keyano College where she worked for 7 years immediately prior to her cancer surgery and treatment. [80] She described her job as initially a secretary responsible for typing, personnel management, computer operation, shorthand, word processing, human relations and filing. Just prior to her illness the plaintiff had been promoted to Office Supervisor with secretarial responsibility to the Dean of the College. She described her work in that position as including filing, writing and typing memos, attending meetings and taking and transcribing minutes and word processing. The plaintiff says that she very much enjoyed her job and did not miss one day of work in her 7 years on the job. The plaintiff’s surgery was followed by six months of chemotherapy. Chemotherapy was followed by radiation treatment to the right shoulder down to the rib cage and under the right arm to the middle of the chest. [81] Prior to her illness the plaintiff says she was also very busy doing community volunteer work, fund raising, operating bingos and selling tickets for minor hockey. [82] Socially and athletically, the plaintiff says that she very much enjoyed playing golf, and played often during the golf season in a regular foursome. The plaintiff says she can no longer play golf because of the difficulties with her right arm and hand. [83] The plaintiff says she underwent mastectomy surgery on February 21, 2001 which involved removal of the right breast together with the removal of eighteen lymph nodes, fourteen of which were cancerous. [84] The plaintiff says according to her understanding of the medical evidence the radiation probably did damage to the nerve cells controlling her right arm and hand. [85] The plaintiff says that following surgery and treatment her right arm, right hand and the chest area below her arm were painful. She says that over the course of her recovery she became depressed because of her physical condition and the fear of the cancer returning. The plaintiff’s right arm from elbow to knuckles is visibly swollen and the plaintiff says it has been swollen since her treatment. [86] The plaintiff described the difficulties with her right arm, hand and fingers. She described the sensations in her arm, hand and fingers as tingly, “pins and needles” and numbness. She says she cannot feel what is in her hand and that her right arm is painful from shoulder to finger tips. She says her hand feels worse when she walks normally so that she now walks with her right hand in her pocket, which gives some relief. She says her condition is unchanged since her radiation treatment in September, 2001. She says she tends to drop coins she is attempting to pick up and that the loss of feeling in her right hand caused her to lose $40.00 from her pocket. [87] The plaintiff says it is difficult to write with her right hand and that she sometimes uses her left hand to write although she is right handed. She says that she writes by vision and also with typing and word processing she must now watch the keyboard because she has lost the sense of touch in her fingers. She says the difficulty is mostly with the little, ring and middle fingers although there is some loss of sensation in the forefinger and thumb. She says she cannot hold a pen for a long period of time. The plaintiff on a scale of 1 to 10 estimated the severity of her pain in the right side of her rib cage as a 6 and in the right arm as a 8. She also rates the degree of numbers in her right hand as an 8. [88] The plaintiff says that when she last worked she could type 60 words per minute, but her typing speed has been reduced to 15-20 words per minute because of the difficulties with her right hand. [89] The plaintiff says that she also can no longer do all the household chores that she could before surgery and is not able to fasten all the buttons and snaps on her clothing. She says her husband assists her to do so and sometimes she uses her left hand to do so. [90] She says that she now walks approximately 6 kilometres daily by herself and does arm exercises for fluid control in her right arm. [91] She says she can no longer sleep as she did before surgery and is awakened by pain periodically during the night. She says she takes a mild sleeping pill which helps her to sleep. [92] She says in order to keep her occupied, she helps at the Hospital and Ladies Auxiliary. She organizes meals for the Ladies Auxiliary and Fire Fighters fund raisers. [93] The plaintiff says that her right hand prevents her from working. She says she cannot type or write with any speed and posed the question, “who would hire me?”. [94] The plaintiff was asked about all the jobs suggested as those she could do as described in the transferrable skills reports. Upon reviewing each of the suggested jobs she says that all of them require right hand dexterity which she does not have. She says she has difficulty in writing, using a keyboard and computers and says she cannot properly operate a computer mouse. [95] The plaintiff says that she is totally disabled under the terms of the Canada Pension Plan Disability and since February, 2004 has been receiving monthly benefits of $827.00 from that plan. [96] The plaintiff has taken various types of medication for pain as well as pain management therapy and nerve blocks but she says that none of them have provided relief. [97] The plaintiff says that the whole recovery period has been mentally stressful. She says the defendant’s refusal to pay benefits has also caused her stress. She says she felt cheated and stressed financially. She says she wants to work, but cannot do so. She says she feels she is too young to stay at home and misses the people at work. [98] On cross-examination the plaintiff initially said that she no longer knits, but upon seeing a recently taken surveillance video showing her knitting while in a motor vehicle she agreed that she does knit, but not to the extent that she did before her surgery. She said that she drives, but not for long distances, but admitted that she recently drove alone twice from Halifax to Cape Breton and return. [99] She admitted while being specifically cross-examined on the issue that she had worked long hours at the Fireman’s Community Centre. She says that she also does grocery shopping but is restricted to lifting 5 pounds with her right hand. The Law Burden of Proof [100] The plaintiff does not disagree with the defendant’s submission as to who bears the burden of proof. The burden of proof is upon the plaintiff. That burden remains even where the defendant has previously paid total disability benefits to the claimant as a result of the same ailment and where the policy provides a change of coverage from disability from performing “own” job to performing “any” job. [101] In Mathers v. Sun Life Assurance Company of Canada, [1998] I.L.R. 1-3564 (B.C.S.C.), affirmed by [1999] B.C.J. No. 1023 (B.C.C.A.), the court states as follows at paragraph 26 regarding the onus of proving total disability for any job: ...The law is clear that if the policy provides a change in coverage from ‘own occupation’ disability to ‘any occupation’ disability, the effect is as if the insurer had issued two separate policies with two separate coverages. The onus is on the claimant to prove eligibility under both definitions of total disability (‘own occupation’ and ‘any occupation’): Mutual of Omaha v. MacDonald (1987), 36 D.L.R. (4th) 492 (N.S.C.A.). ... [102] Thus the plaintiff, in order to succeed, must prove on a balance of probabilities that she is totally disabled from performing the essential duties of her normal occupation and jobs or work for which she is qualified by education, training or experience which pay seventy-five percent or more of her pre-illness salary. [103] Again the parties do not disagree on the definition of “total disability” as applied by the courts. [104] In their briefs both counsel cited the definition set out in Paul Revere Life Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541 (S.C.C.); and Mathers (S.C. Decision), supra at par. 65. ...An insured is totally disabled where a reasonable person would recognize he should refrain from certain activities, such as when medical advice or common prudence require him to desist from any occupation for which he is reasonably fit in order to effect a cure or prolong his life. ... [105] Plaintiff’s counsel refers the court to what Mr. Moors describes as a common sense practical approach in assessing a claimants level of disability which was taken by Freeman, J.C.C. (as he then was) in Fulton (Supra). At paragraph 68 of Fulton, Freeman (J.C.C.) stated: ... The test must be whether it is probable that a reasonable employer would hire Mr.Fulton, either with his present qualifications or those he might reasonably acquire through education or training. Even on the good days, which occur less than half the time, he experiences a degree of pain and cannot sit for long nor remain physically active for long. He must rest frequently. On bad days I am satisfied that he is so consumed by pain he is incapable of gainful activity. The general pattern of good and bad days is proven; the specific pattern is unpredictable. He copes poorly with his pain; he finds it disabling. This may be attributed to his underlying depression. The combined effects of the pain and the depression together, each interacting with the other, are keeping Mr. Fulton in the grip of a cycle from which he has been unable to break despite the best of medical attention and reasonable efforts on his part. Until he is released from that cycle I cannot conclude that any reasonable employer would hire him for any occupation. ... Conclusion [106] Using those cases as a back drop has the plaintiff proved her total disability? The court’s conclusion is that she has. [107] The plaintiff has described her pain and inability to efficiently carry out functions with her right hand. This is not a case in which the court must rely totally on the subjective evidence of the plaintiff. There is medical evidence to support her own evidence. Dr. King describes her as having a brachial plexopathy which was confirmed by electrical testing and thermal imaging. Both Ms. MacKinnon and Mr. Stanley confirmed the difficulties the plaintiff has in using her right hand. All of those who treated and tested the plaintiff were of the opinion that the plaintiff was consistent and truthful in her complaints and conscientiously put forth her best efforts in carrying out the tests given to her. [108] I found the plaintiff to be a credible witness and accept that she would rather go back to work than collect disability benefits. This is consistent with her work attendance record at her former employment and her interest in now doing voluntary work that she is physically able to perform. Notwithstanding that the plaintiff said on cross-examination that she could no longer knit or drive long distances, in the court’s view, what the plaintiff actually meant was that she can no longer knit to the extent she did before her surgery and that normally she does not drive long distances as she did before surgery. That is not inconsistent with her evidence on direct examination that she could knit but not to the extent she did before surgery. [109] I did not detect that the plaintiff exaggerated her symptoms and her actions and movements in court were consistent with her evidence. In fact, in the court’s view the plaintiff was somewhat stoic about her pain and left the court with the impression that the main reason for her inability to work was as a result of the difficulty she has in using her right arm and hand and not because of her pain. The court noted that the plaintiff when exiting the courtroom used her left hand to open the door and led out of the courtroom with her left side. This would seem unnatural for a right handed person. [110] It appears that the results of the Functional Capacity Evaluations carried out by Ms. MacKinnon and Mr. Stanley led mainly to the defendant’s decision to permanently discontinue disability benefits since the defendant had resumed paying benefits after their temporary suspension based on the initial report of Dr. King. There was no material change in the medical evidence after that report nor did the plaintiff show any improvement in her ability to use the right arm and hand. [111] Both Ms. MacKinnon and Mr. Stanley were of the opinion that the plaintiff could tolerate an 8 hour work day in relation to sitting, standing and walking. In the Court’s view the defendant in deciding to discontinue benefits placed too much reliance on the opinion that the plaintiff could tolerate an 8 hour workday while ignoring the medical and other evidence indicating that the plaintiff could not effectively perform tasks with her right hand. Mr. Stanley, in my view, gave a realistic prognosis when he stated in his report: ...Without having specific knowledge, other than Mrs. Flanders’ self-report of her pre-disability work duties, based on what she has told the writer, it would be my considered opinion that she would have considerable difficulty in going back and performing her regular duties of her pre-disability employment. Any amount of activity in this type of work involving either sustained or repetitive arm usage, such as typing, would need to be minimized. Likewise, sustained writing would be very difficult for her. With respect to any other type of work activities, what can be said from this assessment is that, despite her general activity tolerance, which is estimated at the equivalent of full-time, her ability to manage in a real-world environment would be significantly compromised by the pain and dysfunction that she describes in her right (dominant) upper extremity. If she were to return to work in another type of work capacity, it would likely be a job that had a reasonable mixture of sitting, standing, and walking, with minimal to occasional upper extremity related activities. From the various tests performed during the assessment, it is the writer’s considered opinion that Mrs. Flanders would not be able to return to the workforce in a competitive manner, performing sedentary level activities such as typing and writing in any reasonable work environment. [112] Both Ms. MacKinnon and Mr. Stanley in testing the plaintiff’s manipulative dexterity found that the plaintiff took much longer than the norm for females age 20-59 in performing tests including writing, card turning, picking up small objects, simulated feeding, manipulating large light objects and large heavy objects. This is consistent with the plaintiff’s evidence that her typing speed has decreased from 60 words per minute to 15 - 20 words per minute. [113] The difficulty in determining whether the plaintiff is able to work full time at her “own” or “any other” job is knowing exactly what specific work or tasks she would be required to perform over the span of a typical work day. [114] Part of the defendant’s application form for long term disability required the plaintiff’s former supervisor to complete a questionnaire regarding the plaintiff’s employment while at Keyano College. The supervisor was asked to describe the plaintiff’s job duties and the time spent daily in performing each duty. The supervisor completed the questionnaire and provided the following detailed time and motion information of the plaintiff’s typical work day. ... Monday - Friday Primary Duties Hours Per Day Administer the operations of the Trades and Technology Office 3 hrs. Furnishes Administrative Assistance to the Dean and Chairman of the Division 1.75 hrs. Provides Co-ordination for the Division 1.5 hrs. Provides clerical support for the Dean and Chairman of Trades .75 hrs. Other related duties .5 ... [115] Although that description tells the reader generally what the employees job entails over a typical work day, what I have found more helpful in making my determination on the essential issue before the court is the plaintiff’s supervisor’s answers to the job requirements questionnaire found at page 6 of the application form. (Tab 46, Page 581 of Exhibit 1 B). [116] The supervisor at the material time was Dean of Keyano College. In completing his portion of the plaintiff’s application for benefits he listed the machines and equipment the plaintiff used in her job as being computers, printers, scanners, typewriters and C.D. Rom. He also estimated the frequency of the use of those machines by the plaintiff over the course of a typical day. Five categories of time of use of each machine are provided on the form. The supervisor estimated the time of use of the computer and printer as frequent (4-6 hours) in a 7 ½ hour workday, the use of a scanner and typewriter as infrequent (1-2 hours daily) (the second lowest time category - the lowest being under 1 hour) and the C.D. Rom. use as occasional (2-4 hours). [117] Under the heading ‘Job Requirements’, the application form provided by the defendant seeks to obtain information as to the specific physical job tasks the plaintiff performed in her typical work day. Again there were 5 spans of time performing categories ranging from seldom (under 1 hour) to constant (over 6 hours) in a 7 ½ hour work day. [118] No physical task was listed by the plaintiff’s supervisor as being performed constantly. Under four listed headings - ‘fine manipulation; finger’, ‘simple grasping’, ‘fine manipulation’ and ‘fine manipulation; hands’- the supervisor described each of those job requirements as being performed frequently (4-6 hours daily). [119] Those answers provided by the plaintiff’s supervisor, in my view, are consistent with one another and what one may reasonably expect from all employees using the listed type of equipment in an office setting. That is, it would be reasonable to expect that an employee in an office setting, whether as a full time secretary or part time supervisor and secretary, the position the plaintiff held at the College, would spend a considerable amount of work time using a computer involving the use of a keyboard and mouse and a typewriter or word processor requiring the use of a keyboard. It is primarily in that realm of job requirements that the plaintiff has limited ability to perform, because of the impairment in dexterity and touch sensation in the right arm, hand and fingers. [120] Is it reasonable to expect that an arms length employer would hire an employee who could not fully perform in a timely manner all the tasks ordinarily assigned to the position? I think not. As the plaintiff plaintively stated “who would hire me?” [121] In my view, because of the plaintiff’s physical limitations she could not effectively compete for any of the jobs suggested in both Transferable Skills Analyses. [122] To paraphrase Freeman, J.C.C. as he stated in Fulton supra, I cannot conclude that any reasonable employer would hire the plaintiff for any of the occupations suggested by the defendant or any other position that would fall under the definition of “other” employment as set out in the group policy. [123] Consequently, I find that the plaintiff has proved her total disability as defined in the group policy, and is entitled to receive continuing benefits. Entitlement to damages for the hiatus period February 28, 2002 to April 12, 2002. [124] The defendant refused to pay benefits for that period because the defendant had not timely reported her medical condition. The defendant knew that at the time of that suspension period the plaintiff was relocating to Nova Scotia. It was also explained to the defendant that in Nova Scotia it was difficult to obtain timely medical examination and testing. I find that the plaintiff made a conscientious effort to provide the defendant with necessary medical information to substantiate her claim for that period of time. There is no doubt that the defendant subsequently received evidence of the plaintiff’s medical condition during that suspension period and that it was the same medical information upon which the defendant decided to reinstate benefits. Although the defendant’s conduct in failing to make those payments may have been within a strict interpretation of the words of the policy, it was not in keeping with the spirit of the policy. The essence of the policy is that a policy holder is entitled to benefits while disabled. I find that the plaintiff is also entitled to full disability benefits for that period. Damages [125] The plaintiff is entitled to receive total disability benefits under the terms of the group policy from the date of the last cessation of benefits on May 4, 2003 and for the hiatus period from February 28, 2002 to April 12, 2002. The plaintiff in her present health condition is also entitled to continuing full benefits for the duration of her disability during the period of eligibility for benefits as determined under the provisions of the policy. [126] As set out under the terms of the policy, the defendant is entitled to deduct from those disability benefits all payments made or to be made to the plaintiff as Canada Pension Plan disability benefits. Lump Sum Payment [127] When the plaintiff left the employ of Keyano College she received a lump sum payment of $47,000.00 representing her accumulated benefits in a pension plan maintained by Keyano College for the benefit of its employees. [128] Mr. LeDrew, during final oral argument, submitted that the full amount should be deducted from any amount of damages the court may award to the plaintiff. [129] As previously set out, page 17 of the policy (Exhibit 1(A), Tab 1) provides for deductions from benefits. Under the heading “Other Income” the following is pertinent to this issue: ... The amount of monthly benefit will be reduced by the following benefits or payments resulting from the employee’s disability if, on or after the date the employee became totally disabled, he begins to receive such benefits or payments, or would be entitled to receive them had he made satisfactory application. ... Retirement or pension benefits provided by an employer and/or a government. ... [130] Little, by way of evidence, was provided at trial with respect to the nature of the $47,000.00 lump sum payment. Neither was the issue dealt with in the parties pre-trial briefs. It was raised only at the end of Mr. LeDrew’s final oral submissions immediately following the termination of evidence. [131] Upon a reading of the section it seems obvious to the court that the description, “retirement or pension benefits provided by an employer” as set out in Subsection F refers only to those type of benefits or payments paid by the employer as a result of the employee’s disability. Upon the evidence before the court I cannot find that such payment was made “as a result of” the plaintiff’s disability”. It was a payment to which the plaintiff would have been entitled for whatever reason she left the employ of Keyano College. [132] Further, such monies are ordinarily considered as being held by an employer in trust for the employee. Thus the lump sum payment was not a payment of the employers’ money but money held by Keyano College “in trust” for the plaintiff. At the time of payment it was money already owned by the plaintiff and not by her employer. [133] Consequently, the court finds that the lump sum payment of $47,000.00 is not deductable and will not reduce the disability benefits otherwise payable to the plaintiff. The Plaintiff’s Claim for Damages for Mental Distress [134] The plaintiff claims damages for mental distress which the plaintiff submits she suffered as a result of the defendant improperly and unfairly withholding benefits to which she was legally entitled. [135] The issue of damages for mental distress in disability claims was dealt with by the Supreme Court of Canada in Fidler v. Sun Life Insurance Co., [2006] S.C.J. No. 30. In Fidler the court acknowledged the general principle that had been followed by the courts in contract cases, that damages for mental distress may be awarded only where a claimant proved an independent actionable wrong. [136] The court then reviewed a number of cases decided since the 1970's in which damages for mental distress were awarded as an exception to that general principle in cases where the contract had as one of its objects the “peace of mind”of a contracting party. [137] The court then reached back in time to the general principle established in Hadley v. Baxendale (1854), 9 Ex 341, 156 Ex145 and found that under that original principle, applicable in awarding damages for breach of contract, damages for mental distress could be awarded without proving the “peace of mind” exception. [138] The principle established in Hadley v. Baxendale (supra) was that of reasonable expectation as explained at page 151 by the Court of Exchequer Chamber: ...Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. [Emphasis added; p. 151] ... [139] The court stated that under that enunciated principle, damages for mental distress in such cases do not fall under the heading of aggravated damages, as they have been heretofore categorized, but simply as general damages naturally flowing from the breach of contract. [140] The court then found that one of the objects of the group disability insurance policy in Fidler was the plaintiff’s peace of mind (no longer italicized as an exception) and confirmed an award of damages for mental distress granted by the trial judge. [141] In the Fidler case, Ms. Fidler was covered by a group disability policy issued by the defendant similar to the one here in issue. The defendant originally accepted that Ms. Fidler was “totally disabled” from performing her “own” and “other” jobs and paid benefits to her for a period exceeding seven years. [142] Partly on the basis of a surveillance video commissioned by the defendant, it terminated benefits. Ms. Fidler then provided a report from her doctor that she was still totally disabled from working. This opinion was confirmed by an independent medical examination requested or agreed to by the defendant. Notwithstanding those two reports, the defendants in-house doctor who had neither examined nor communicated with Ms. Fidler found that she was not totally disabled. On the basis of the surveillance video and the report of the in-house doctor, the defendant refused to resume payment of benefits. The defendant also refused the plaintiff’s request to provide to her the investigative report (including the surveillance video) upon which it based its decision not to pay. [143] Ms. Fidler then brought action against the defendant for benefits and also claiming damages for mental distress and punitive damages. Just prior to trial the defendant agreed that Ms. Fidler was and had always been totally disabled from working and agreed to pay her discontinued payments and to resume paying her full benefits. Ms. Fidler nevertheless continued her action for damages for mental distress and punitive damages. The trial judge awarded damages of $20,000.00 for mental distress but no punitive damages. The Court of Appeal affirmed the damage award for mental distress but overturned the trial judge’s decision on the punitive damages issue and awarded punitive damages of $100,000.00. On further appeal, the Supreme Court of Canada restored the trial court’s decision. [144] The Supreme Court of Canada in Fidler established a two-pronged test in considering an award of damages for mental distress in contract cases. At page 11 of 16 of Fidler the court stated: ...The court must be satisfied (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation... [145] The court went on to say that those questions require sensitivity to the particular facts of each case. I am not certain why the court found it necessary to add this comment since all cases must be decided on their particular facts. I take the comment as perhaps being a direction to trial judges that in these type of cases, an award of damages for mental distress should not become the norm. [146] The court considered the facts in Fidler and stated at page 12: ... 56 Turning to the case before us, the first question is whether an object of this disability insurance contract was to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made? In our view it was. The bargain was that in return for the payment of premiums, the insurer would pay the plaintiff benefits in the case of disability. This not a mere commercial contract. It is rather a contract for benefits that are both tangible, such as payments, and intangible, such as knowledge of income security in the event of disability. If disability occurs and the insurer does not pay when it ought to have done so in accordance with the terms of the policy, the insurer has breached this reasonable expectation of security. 57 Mental distress is an effect which parties to a disability insurance contract may reasonably contemplate may flow from a failure to pay the required benefits. The intangible benefit provided by such a contract is the prospect of continued financial security when a person’s disability makes working, and therefore receiving an income, no longer possible. If benefits are unfairly denied, it may not be possible to meet ordinary living expenses. This financial pressure, on top of the loss of work and the existence of a disability, is likely to heighten an insured’s anxiety and stress. Moreover, once disabled, an insured faces the difficulty of finding an economic substitute for the loss of income caused by the denial of benefits. See D. Tartaglio, “The Expectation of Peace of Mind: A Basis for Recovery of Damages for Mental Suffering Resulting from the Breach of First Party Insurance Contracts” (1983), 56 S. Cal. L. Rev. 1345, at pp. 1365-66. 58 People enter into disability insurance contracts to protect themselves from this very financial and emotional stress and insecurity. An unwarranted delay in receiving this protection can be extremely stressful. Ms. Fidler’s damages for mental distress flowed from Sun Life’s breach of contract. To accept Sun Life’s argument that an independent actionable wrong is a precondition would be to sanction the “conceptual incongruity of asking a plaintiff to show more than just mental distress damages were a reasonably foreseeable consequence of breach” (O’Byrne, at p. 24 of manuscript (emphasis in original)). 59 The second question is whether the mental distress here at issue was of a degree sufficient to warrant compensation. Again, we conclude that the answer is yes. The trial judge found that Sun Life’s breach caused Ms. Fidler a substantial loss which she suffered over a five-year period. He found as a fact that Ms. Fidler “genuinely suffered significant additional distress and discomfort arising out of the loss of the disability coverage” (para. 30 (emphasis added)). This finding was amply supported in the evidence, which included extensive medical evidence documenting the stress and anxiety that Ms. Fidler experienced. He concluded that merely paying the arrears and interest did not compensate for the years Ms. Fidler was without her benefits. His award of $20,000 seeks to compensate her for the psychological consequences of Sun Life’s breach, consequences which are reasonably in the contemplation of parties to a contract for personal services and benefits such as this one. ... [147] The difficulty I have in interpreting Fidler and applying its principles to the case at bar is whether to consider the character of the conduct of the defendant in refusing Ms. Flander’s benefits in determining whether the plaintiff is entitled to damages for mental distress. [148] Although on the surface the Supreme Court of Canada seems to indicate that once there is a breach of such a contract then it is only left for the plaintiff to prove she suffered mental distress as a result of the breach. However, the court implies that the contract must first be unfairly breached before a mental distress claim may be considered. If that is the case the court must also consider the conduct of the defendant in breaching the contract before awarding damages for mental distress. Can one conclude that the contract was unfairly breached where it is found that the defendant held a bone fide belief based on valid evidence that the plaintiff was not totally disabled? In other words, are there facts upon which the defendant could reasonably form the opinion, even though found by the court to be wrong, that the plaintiff was totally disabled. [149] Having expressed that difficulty, I have concluded that the character of the defendant’s conduct in refusing to pay benefits should be considered by the court. The conduct of the defendant in this case is markedly different than the defendant’s conduct in Fidler. In Fidler the defendant obviously knew it could not justify its conduct when it agreed just prior to trial to pay full benefits. There is no indication that new evidence of disability came to the defendant’s attention at that time. The defendant unreasonably refused to provide Ms. Fidler with the evidence upon which it based its refusal. It refused to pay benefits over a five year period. It refused to pay benefits in the face of an independent medical report that Ms. Fidler was then totally disabled. Ms. Fidler was also misled as to the duration of time over which her actions were captured on film. [150] In the case at bar, the defendant in refusing to pay benefits relied on the results of two separate physical function tests which concluded that the plaintiff could tolerate an 8 hour work day. It seems to the court that in making its decision not to pay benefits the defendant relied primarily on the view that the plaintiff had the stamina to work a full day and did not properly consider her inability to competitively perform the requested job functions. Although I have found that the defendant was wrong in it’s conclusion, I do not categorize its conduct as being unfair. In other words, I find that the defendant had an honest belief that the plaintiff was not totally disabled based on valid evidence which the court ultimately found was wrong. [151] However, if my reasoning is flawed in considering the character or the conduct of the defendant, I nevertheless find that the plaintiff has not proved she has suffered significant mental distress as a result of the defendant’s failure to pay benefits. I have no difficulty in finding that since her surgery Ms. Flanders has suffered a great deal of mental distress, but in the court’s view that mental distress was primarily caused by her concern for her health and her difficulties in using her right arm and hand. In her testimony, Ms. Flanders indicated that she was extremely concerned that the cancer would return and that she was relieved when she reached the five year survival mark in 2006. She also expressed anxiety and frustration over the difficulties with her right upper extremities and not being able to do those things she could do before surgery and treatment. I have concluded, however, that the additional annoyance caused by the defendant’s refusal to pay benefits was not of a degree sufficient to warrant compensation. [152] Consequently, I would not award damages against the defendant for the mental distress suffered by the plaintiff. [153] The plaintiff is entitled to party and party costs. However, if there is a circumstance that warrants further consideration by the court on the issue of costs, I will expect to hear so from the parties. J.