



COURT OF APPEAL FOR ONTARIO

CITATION: Blake v. Dominion of Canada General Insurance
    Company, 2015 ONCA 165

DATE: 20150313

DOCKET: C57821

Weiler, Epstein and Brown JJ.A.

BETWEEN

Michelle Blake

Appellant

and

Dominion of Canada General Insurance Company

Respondent

Robert Zigler, for the appellant

Lisa C. Pool, for the respondent

Heard: February 9, 2015

On appeal from the judgment of
    Justice Alan C. R. Whitten of the Superior Court of Justice, dated September 30,
    2013, with reasons reported at 2013 ONSC 6069.

Brown J.A.:

OVERVIEW

[1]

Michelle Blake, the appellant, was injured in a motor vehicle accident
    on November 18, 2002. At the time she was insured under a motor vehicle
    liability policy with the respondent, Dominion of Canada General Insurance
    Company. Ms. Blake sued Dominion to recover caregiver benefits under s. 13 of
    the
Statutory Accident Benefits Schedule  Accidents on or after November
    1, 1996
[1]
(the Schedule).

[2]

Following a 10-day trial, the trial judge dismissed Ms. Blakes claim. He
    held that her claim was statute-barred, but went on to conclude that Ms. Blake
    had not established her entitlement to caregiver benefits beyond the initial
    104-week eligibility period. In addition, the trial judge dismissed Ms. Blakes
    claims for damages for breach of the contractual duty of good faith, aggravated
    damages, and mental distress.

[3]

Ms. Blake appeals, seeking to set aside the judgment and requesting this
    court to award her damages or, alternatively, to direct a new trial. For the
    reasons set out below, I would dismiss the appeal. I see no error in the trial
    judges finding that Ms. Blakes action was statute-barred, or in his
    alternative findings that she had not established her claims to caregiver
    benefits and damages for breach of the contractual duty of good faith.

ISSUES ON APPEAL

[4]

Ms. Blake raises four main grounds of appeal. She submits that the trial
    judge erred by:


(i)

finding that her claim was statute-barred;


(ii)

refusing to read all the evidence she proffered at trial;


(iii)

holding that she had failed to meet her evidentiary burden in relation
    to entitlement to the caregiver benefit and by applying the wrong legal
    causation test; and,


(iv)

dismissing her claims for extra-contractual damages.

I shall review the applicable evidence in the context
    of dealing with each ground of appeal raised by Ms. Blake.

FIRST ISSUE: DID THE TRIAL JUDGE ERR IN FINDING THAT MS.
    BLAKES CLAIM WAS STATUTE-BARRED?

[5]

Section 281.1(1) of the
Insurance Act
[2]

and s. 51(1) of the Schedule require a claimant to commence a court
    proceeding within two years after the insurers refusal to pay the benefit or
    amount claimed. It is the insurers refusal that triggers the limitation
    period.
[3]


[6]

The trial judge held that on January 14, 2004, Dominion had informed Ms.
    Blake it would not pay her caregiver benefits, thereby triggering the running
    of the limitation period. Because Ms. Blake did not commence her action until
    over two years later, on May 30, 2007, it was statute-barred.

[7]

Ms. Blake submits that the trial judge erred in reaching that conclusion
    because the parties had proceeded to a mediation of caregiver benefit claims in
    March, 2005, and thereafter the Caregiver Benefit was paid in an ongoing
    manner. Ms. Blake submits Dominion did not make a clear and unequivocal
    refusal to pay caregiver benefits until August, 2006, with the result that she
    had commenced this action within the two year limitation period.

Chronology of Events

[8]

At the time of the accident, Ms. Blake was caring for three young
    children, ranging from seven to ten years of age. On December 30, 2002, Ms.
    Blake filed an application for accident benefits (OCF-1/59) seeking caregiver
    benefits. On her application she explained: I need a lot of assistance to
    complete my duties as a mother.

[9]

In his reasons, the trial judge described the caregiver benefits
    available under the Schedule:

[6] The caregiver benefit provides reimbursement to
    insured persons for reasonable and necessary expenses incurred as a result of
    the accident in caring for a person in need of care (Schedule, s. 13(2)). The
    criteria for entitlement to and quantum of the caregiver benefit are stipulated
    under Section 13 of the Schedule:

13. (1) The insurer shall pay an insured person who sustains an
    impairment as a result of an accident a caregiver benefit if the insured person
    meets all of the following qualifications:

1. At the time of the accident,


i.

the insured person was residing with a person in need of care, and


ii.

the insured person was the primary caregiver for the person in need of
    care and did not receive any remuneration for engaging in caregiving
    activities.

2. As a result of and within 104
    weeks after the accident, the insured person suffers a substantial inability to
    engage in the caregiving activities in which he or she engaged at the time of
    the accident.

[7] Section 13(3) of the Schedule provides that the
    amount of the caregiver benefit shall not exceed $250.00 per week for the first
    person in need of care, plus $50 per week for each additional person in need of
    care.

[8] A definition for a person in need of care can be
    found under Section 2(1) of the Schedule. It means, in respect of an insured
    person, another person who is less than 16 years of age or who requires care
    because of physical or mental incapacity.

[9] The test for entitlement with respect to the
    caregiver benefit becomes more stringent after 104 weeks of accident-related
    disability. In this regard, Section 13(4) of the Schedule provides the
    following:

The insurer is not required to pay a caregiver benefit for any
    period longer than 104 weeks of disability, unless, as a result of the
    accident, the insured person is suffering a complete inability to carry on a
    normal life.

[10] In accordance with Section 2(4) of the Schedule,
    the test for entitlement post-104 weeks is met if, and only if, as a result of
    the accident, the person sustains an impairment that continuously prevents the
    person from engaging in substantially all of the activities in which the person
    ordinarily engaged before the accident.

[10]

By
    Explanation of Benefits Payable by Insurance Company (hereafter an OCF-9)
    dated January 9, 2003, Dominion informed Ms. Blake that she was eligible for
    reimbursement of reasonable and necessary expenses incurred as a result of the
    accident in caring for a person in need of care. The maximum incurred expenses
    shall not exceed $350.00 per week ($250/wk for the first + $50/wk for each
    additional person in need of care.) This benefit is payable only during the
    period of time that you cannot provide care, for as long as the person remains
    dependent and is payable for no more than 104 weeks unless you meet a more
    stringent disability test.

[11]

By
    election dated April 9, 2003, Ms. Blake informed Dominion that she chose to
    receive the caregiver benefit.

[12]

Over
    the course of 2003, Ms. Blake underwent a number of medical examinations,
    including ones conducted by Drs. Meloff, Klienman, and Goodfield. As a result,
    on January 14, 2004, Dominion sent Ms. Blake an OCF-9 in which it advised:

As per the reports Dr Meloff, Dr Klienman and Dr. Goodfield you
    do not qualify for future caregiving benefit effective Jan 31 2004.

[13]

On
    the same date Dominion sent Ms. Blake a Notice of Stoppage of Weekly Benefits
    and Request for Assessment in which it advised that it would be stopping her
    caregiver benefits because:

As per Dr Meloff, Dr Klienman and Dr Goodfields report it was
    determined that you do not suffer a substantial inability to complete your
    caregiving duties.

[14]

On
    February 11, 2005, Ms. Blake signed back the notice disagreeing with the
    stoppage of benefits, but she did not seek to go to mediation at that time.

[15]

In
    late 2004 and early 2005, Ms. Blake filed with Dominion three further
    applications for caregiver benefits:


(i)

a November 11, 2004 application which sought payment of caregiver
    benefits in the amount of $350 per week for the period November 18, 2002 until
    November 11, 2004;


(ii)

a December 13, 2004 application for payment of $130 in babysitting
    expenses for the period November 12, 2004 until December 11, 2004; and,


(iii)

a January 11, 2005 application for caregiving expenses in the amount of
    $200 to cover babysitting costs incurred between December 11, 2004 in January
    11, 2005.

[16]

On
    November 26, 2004, Dominion denied Ms. Blakes November, 2004, application for
    caregiver expenses. That led Ms. Blake, through her counsel, to file an
    application for mediation dated December 23, 2004, with the Financial Services
    Commission of Ontario (FSCO).

[17]

Dominion
    issued a further OCF-9 on January 16, 2005 addressing Ms. Blakes claim for
    caregiver benefits for the period November 12, 2004 until January 11, 2005,
    which stated:

Please be advised effective Jan 31 2004, your caregiving
    benefit was reduced to $0.00. Our decision was based on the medical report from
    Dr Meloff, Dr Goodfield and Dr Klienman. These reports stated that you did not
    suffer a substantial inability to complete the tasks of your caregiving duties.
    We have enclosed a blank OCF 17 and OCF 3 for your review. If you wish to
    dispute the denial of your benefits please complete the enclosed OCF 17 and OCF
    3 and return it to our offices

[18]

The
    mediation requested by Ms. Blake was held on March 10, 2005. The parties
    settled part of the dispute concerning Ms. Blakes applications for caregiver
    benefits. By an OCF-9 dated April 22, 2005, Dominion advised it would pay Ms.
    Blake her caregiver expenses in the amount of $5,200 for the period from
    January, 2003, until January, 2004. As to Ms. Blakes claim for caregiver
    expenses incurred after January, 2004, Dominions position was explained in its
    March 12, 2005 OCF-9 as follows:

As per the mediation which occurred on March 10, 2005, the
    Dominion of Canada General Insurance Company has agreed to pay the following
    expenses:



4) caregiving expenses: $398.88 (inclusive of interest)
**

**
Please be advised,
we acknowledge an
    error in our judgement in approving your caregiving expenses for the period of
    November 12 2004 to January 11 2005. In good faith we will pay for your
    expenses as agreed upon during the mediation of March 10 2005. However we must
    note that during this period you were not entitled to a caregiving benefit.

In relation to the supporting medical information on file, we
    will honor your reasonable caregiving expenses for the period of November 18
    2002 to January 31 2004. [Emphasis added.]

[19]

There
    matters stood for over a year until July 4, 2006, when Ms. Blakes counsel
    wrote to Dominion concerning her entitlement to further caregiver benefits:

We act for Michelle Blake and she advised me that in fact you
    told her not to submit any more caregiver benefit expenses because they had
    expired. She then told me that she was told by you that there was only 2 years
    worth of benefits payable and that you had paid all that she was entitled to
    have.

That, of course, is not correct. She still has children under
    the age of 16 and she is entitled to continuing caregiver benefits in our view.

I have asked her to submit those benefits retroactively, and
    asking you now, in the form of application for benefit, to pay those benefits
    as she submits them and to pay those benefits she submits in arrears plus
    interest.

[20]

That
    letter elicited the following response from Dominion on August 1, 2006:

Please be advised we have not received any further Caregiver
    Benefit expenses from Ms. Blake and we are therefore unable to respond to such
    benefits.

You stated in your letter of July 4, 2006 that the writer
    advised Ms. Blake that there were only two years of benefits payable and that
    we had paid all that she was entitled to have. The writer does not remember any
    such conversation with Ms. Blake.

We issued stoppage of the Caregiver Benefit on Jan 14, 2004
    based on Independent Medical reports, via an Ocf 9 (Explanation of Benefits
    Payable Form). We again issued stoppage on Jan 16, 2005 and provided the Ocf 17
    and Ocf 3 in the event that the claimant wished to dispute our decision

We have already been to mediation on the issue of Caregiver
    Benefit-initial entitlement and ongoing. After the mediation, we issued payment
    for Caregiver Expenses that were submitted up to that point in time which was
    for the period November 12 2004 to Jan 11 2005, plus interest. Subsequent to
    this we received further Caregiver Expenses for the period January 2003 to
    January 2004 in the amount of $5200.00. This was paid also. No further
    Caregiver Expenses have been received.
The claimant does not qualify for
    Caregiver Benefits beyond January 16, 2005, based on the Independent Medical
    Examinations
. [Emphasis added.]

[21]

Ms.
    Blake then proceeded to submit to Dominion a set of August 1, 2006 applications
    for caregiver benefits seeking payment of babysitting expenses for the period
    January, 2005 through to July, 2006. Dominion received those applications on
    August 10, 2006, and the company denied them by an OCF-9 dated August 21, 2006,
    which stated:

Caregiver Benefit  We have received Caregiver expenses in the
    amount of $6190.00 for the period from January 2005 to July 2006. Please be
    advised that you do not qualify for this benefit based on the Independent
    Medicals we received in our office.
We have previously forwarded an Ocf 9 
    Explanation of Benefits payable form on January 16, 2005 and advised you of our
    position with regard to this matter at that time
[Emphasis added.]

[22]

On
    August 24, 2006, Ms. Blakes counsel filed an application for mediation in
    respect of her claim for caregiver benefits arising after November 1, 2004. The
    parties did not resolve their dispute at a January 11, 2007 mediation. Ms.
    Blake issued her statement of claim on May 30, 2007.

Analysis

[23]

In
Smith v. Co-operators General Insurance Company
,
[4]
the Supreme Court of Canada held that the limitation period under the
Insurance
    Act
in respect of statutory accident benefits only begins to run upon the
    insurers giving a proper refusal of the benefits claimed. Citing
Smith
,
    FSCO arbitral decisions under the Schedule have held that a proper termination
    of benefits requires an insurer to issue a clear and unequivocal refusal of
    benefits, in a simple straightforward fashion.
[5]


[24]

The
    trial judge held that January 31, 2004, was the date of Dominions refusal to
    pay caregiver benefits, based upon the insurers advice in its January 14, 2004
    letter to Ms. Blake that her caregiver benefits would stop at the end of that
    month. In its OCF-9s dated January 14, 2004, and January 16, 2005, Dominion had
    taken the position that Ms. Blakes eligibility for caregiver benefits
    terminated on January 31, 2004.

[25]

Notwithstanding
    that position, at the March 2005 mediation, Dominion agreed to pay Ms. Blake
    $398.00 in caregiver benefits claimed for the period after January, 2004. Ms.
    Blake submits that by agreeing at that  mediation to pay her some post-January,
    2004 caregiver benefits, Dominion negated its January, 2004 refusal to pay
    benefits, with the result that the limitation period did not start to run until
    its August, 2006 denial of her application.

[26]

The
    trial judge treated Dominions decision to pay $398.00 in caregiver benefits at
    the March, 2005 mediation as an error:

[179] At mediation, Dominion also agreed to pay Ms. Blake
    $398.00 (inclusive of interest) for caregiving expenses incurred between
    November 12, 2004 and January 11, 2005. In correspondence to Ms. Blake dated
    March 12, 2005, Dominion acknowledged they had approved these expenses in
    error. The period for which caregiver benefits were claimed was after the
    benefit denial date of January 31, 2004 (Exhibit 22). Mr. Mascarenhas testified
    that Dominion nevertheless agreed to cover the amount promised at mediation in
    good faith.

[27]

The
    evidence at trial provided the trial judge with a basis upon which to make such
    a finding. Mr. Mascarenhas, Dominions accident benefits adjuster assigned to
    Ms. Blakes file, had testified that at the mediation the insurer had agreed to
    pay Ms. Blake caregiver benefits up until January 11, 2005, even though she was
    not entitled to receive them. Mr. Mascarenhas stated it was a mistake to agree
    to pay those amounts because they were past the period for which Dominion
    already had denied the benefit: we realized that we just approved something
    that we shouldnt have been paying. That led Dominion to issue to Ms. Blake
    its March 12, 2005 OCF-9 acknowledging an error in our judgement in approving
    to pay your caregiving expenses for the period of November 12 2004 to January
    11 2005, noting that during this period you were not entitled to a caregiving
    benefit, and concluding by stating Dominion would honor your reasonable
    caregiving expenses for the period of November 18 2002 to January 31 2004.

[28]

FSCO
    decisions have held that the resumption of payment of benefits by an insurer
    after an initial denial of benefits negates the denial previously issued.
[6]
Here, even if Dominions mistaken agreement at the March 10, 2005 mediation to
    pay Ms. Blake $398.00 in caregiver benefits for a period of time following the
    January, 2004 stoppage of benefits re-set the limitation clock, that agreement was
    followed immediately by a clear and equivocal repetition by Dominion, in its
    March 12, 2005 OCF-9, of its original position that caregiver benefits had
    ended on January 31, 2004. In the event, Ms. Blake issued her statement of
    claim more than two years after Dominions March 12, 2005, communication of its
    refusal to pay benefits.  As a result, her action would remain statute-barred.

[29]

In
    para. 35 of her factum, Ms. Blake submits that Dominion paid her caregiver
    benefits in an on-going manner following the March, 2005 mediation. There is
    no evidence to support that submission. Dominion made only one caregiver
    benefit payment for a period of time after January 31, 2004  its mistaken
    March, 2005 payment of $398.00 for the period November 12, 2004, until January
    11, 2005. There was no evidence of any on-going caregiver benefit payments for
    the period after January 31, 2004.

[30]

Ms.
    Blake also submits that the limitation period did not start to run until
    Dominions August, 2006 denial of caregiver benefits. I do not accept that
    argument. First, the submission of new applications for benefits by the
    claimant following a clear refusal by the insurer to pay benefits does not
    re-start the limitation clock. Where an insurer has denied statutory accident
    benefits, the claimants remedy is to seek recourse for the termination of
    benefits within the limitation period, not to submit further applications for
    benefits.
[7]
Second, although an inconsistency regarding the termination date for Ms.
    Blakes caregiver benefit eligibility appeared in Dominions August, 2006,
    communications to her  January 16, 2005 in the August 1, 2006 letter and
    January 31, 2004 in the August 21, 2006 OCF-9  it is evident that the
    reference to January 16, 2005 in the August 1, 2006 letter was to the OCF-9 of
    that date which, in turn, repeated the January 31, 2004 termination date. Finally,
    Dominion did not alter its position on the issue in August, 2006  it continued
    to maintain that Ms. Blake had not qualified for further caregiver benefits at
    least from January 1, 2005, more than two years before she commenced her
    action.

[31]

In
    sum, I see no error in the trial judges conclusion that Ms. Blakes action was
    statute-barred.

[32]

Although
    that conclusion is sufficient to deal with this appeal, Ms. Blake has advanced
    several other grounds of appeal concerning findings made by the trial judge
    about the merits of her claim.  For completeness, I will proceed to consider
    those other grounds of appeal.

SECOND ISSUE: DID THE TRIAL
    JUDGE ERR IN FAILING TO READ ALL OF THE EVIDENCE PROFERRED BY MS. BLAKE?

Positions of the parties

[33]

The
    trial judge made several rulings about the use to which the parties could put
    documents contained in a large, two-volume brief of documents filed by Ms.
    Blake at the start of the trial and marked as exhibit 1. In her factum Ms.
    Blake framed this issue in the following terms:

At the outset of the Trial, the Trial Judge refused to consider
    the entirety of a 246 tabbed brief of evidence. Only documents referred to by a
    witness were allowed to be part of the medical record were admitted for the
    truth of their contents

Unfortunately, we do not know what evidence the Trial Judge in
    this case skipped. We can be fairly certain he skipped his review of at least
    some of the medical evidence as he was clear he would not read the entire
    medical file.

Some of the evidence the Trial Judge may not have read, that
    formed a necessary part of the Appellants claim was that of Dr. Garner, Dr.
    Ghouse, Maureen Ward, and Dr. Meloff.

[34]

In
    her Amended Notice of Appeal Ms. Blake stated that the trial judge had erred
    in rendering many documents made in the usual and ordinary course of any
    business and submitted by the Appellant as inadmissible evidence at trial.

[35]

Ms.
    Blake contends the trial judge improperly refused to consider the following
    medical reports: (i) Designated Assessment Centre reports prepared by Dr. Scott
    Garner, a physiatrist dated August 14, 2003 and June 1, 2005; (ii) an
    independent physiatry assessment report dated October 2, 2006, prepared by Dr.
    A. Ghouse; (iii) an April 4, 2003 report prepared by Dr. Keith Meloff, a
    neurologist; and, (iv) three reports prepared in 2003 by Maureen Ward, an
    occupational therapist.

[36]

Dominion
    submits there was no misunderstanding during the trial about the use parties
    could make of the documents in exhibit 1. Further, Dominion argues that Ms.
    Blake controlled the witnesses whom she could call in support of her case and,
    in the result, failed to call Drs. Garner, Ghouse and Meloff, even though it
    was open to her to do so.

Chronology of events

[37]

This
    10-day trial was conducted in three tranches in May, June and December of 2012.
    On the second day of trial, Ms. Blakes counsel, Mr. Ferro, tendered as an
    exhibit a two-volume Accident Benefits Brief that was marked as exhibit 1. At
    para. 184 of his reasons the trial judge recounted the directions he had given
    about exhibit 1:

[184] At the outset of the trial, counsel for the Plaintiff
    filed two volumes of documents with 120 tabbed items in Volume 1, and 126
    tabbed items in Volume 2. Collectively the items were made Exhibit 1, with a
    proviso by the court that these 246 items would not necessarily become items of
    proof in the trial (i.e. evidence). In other words, the items in tabbed volumes
    would not become traditional exhibits, unless the item was specifically
    referred to by a witness.

[38]

By
    the fifth day of the trial, June 21, 2012, an issue had arisen about the use
    which could be made of the numerous documents contained in exhibit 1. Ms.
    Blakes counsel sought leave to file three further binders containing extracts
    of the exhibit 1 documents. That request prompted the trial judge to state:
    Im assuming at some point youre going to tell me what item is relevant or
    pertinent in this case and were going to tear out the rest. The following
    exchange then ensued:

The Court: Look, the problem that I have is that Ive got two
    big briefs here, and I have no intention of reading these entire briefs unless
    they  well, I want to know whats relevant and you see, if you come along with
    a different set of briefs which have a different numbering system, youre
    really, youre adding to the confusion

Mr. Ferro: Can we call this Exhibit 2 or Exhibit 2/3?

The Court: Not if its duplicating whats in there.

Mr. Ferro: Well, then I have a significant problem. Like Im
    not going to- Im not going to mislead the court, I cannot go ahead unless I
    can make reference to the documents that I used to prepare

The Court: Well nobodys denying you the opportunity to make
    reference to them Okay Ms. Pool, what do you say?

Ms. Pool: I was - right at the outset of trial and you had
    ruled on the matter and said that if he wants to make a separate brief he can
    but to please  if my friend wanted to make a separate brief that was available
    to him but to please use the same numbering system so at the end the day we
    would be left with one exhibit.

[39]

Shortly
    thereafter, the trial judge stated:

Ill tell you all right now, I am really concerned about
    reading 200 batches of 120 documents because I cant imagine that they are spot
    on as far as the issues that Ive got to deal with in this case and, you know,
    its just, its unworkable, its not efficient. So if I can get a  if Mr.
    Ferro puts pen to paper and ends up with something that somehow organizes it or
    says, this is what I want you to look at You guys see that, then fine, it
    sounds like were making a little bit of progress.

[40]

At
    that point Dominions counsel advised she was preparing a table of all of the
    documents to which witnesses had referred in their evidence and that any document
    in exhibit 1 that had not been commented on by a witness could be pulled out of
    the exhibit 1 brief. To that suggestion the trial judge stated:

The Court: I think thats excellent, having canvassed this with
    some of the jurists, thats basically what they say is they have the counsel
    pull out everything out of these briefs that hasnt been referred to.

In the result, counsel prepared a list of all
    documents contained in exhibit 1 to which witnesses had referred in their
    testimony, and the list was marked as exhibit 1A.

[41]

The
    issue arose again on the sixth day of trial, June 22, 2012. Dominions counsel
    informed the court that she did not intend to call as witnesses Drs. Garner and
    Ghouse who had performed two independent physiatric examinations of Ms. Blake
    at Designated Assessment Centres, or to file their assessment reports as expert
    reports. Those reports were reproduced in exhibit 1. Ms. Blakes counsel took
    the position that Dominions decision not to call either physician reduced
    their independent medical examiner reports to mere business records and I just
    wanted to be on the record. The trial judge disagreed with that position,
    stating:

I dont think so. I think thats more sort of, its an
    alternative means of proving  I mean you can correct me if Im wrong, Mr.
    Ferro, but in a civil suit you can either prove an experts opinion by filing
    their report or calling the individuals.

[42]

Ms.
    Blakes counsel contended that even if the medical practitioners were not
    called to testify about their reports, the reports could be admitted and
    treated as business records. The following exchange then occurred:

Mr. Ferro: Well, if theyre business records, Your Honour, then
    theyre not being offered for the truth of their contents. So.

The Court: It is just for the fact that they saw the person and
    they diagnosed him or they

Mr. Ferro: No.

The Court:  made any observations?

Mr. Ferro: No. I dont believe they can go even that far.
All
    it is, is these records are not disputed as to authenticity or authorship,
    thats all. The contents, the contents are not being provided as truth of or
    proof of what they say. In other words, the facts contained or the information
    contained in those reports are not offered as evidence, they are only offered
    as a business record.
[Emphasis added.]

[43]

When
    the trial judge asked counsel for some assistance and education on the point,
    Ms. Blakes counsel stated: We can do that at some other time, Your Honour.
    There the matter was left. At the end of the sixth day of trial, the plaintiff
    rested its case.

[44]

The
    trial resumed on December 13, 2012. On the eighth day of the trial, December
    14, 2012, the trial judge returned to the issue of the use that could be made
    of exhibit 1:

As you know, Exhibit 1 and 2 in these proceedings is  are
    these two huge volumes and I believe I asked you to  at the beginning, what
    was the arrangement in so far as all those medical documents are concerned and
    I think I gave you warning that I wasnt going to read every last one of them
    unless they became formally exhibits during the course of these proceedings or
    it was agreed upon between counsel I am not taking into account as evidence
    all of those documents in Exhibits 1 and 2.

[45]

Ms.
    Blakes counsel objected that such an approach by the trial judge would
    compromise his clients claim, and the following exchange took place:

Mr. Ferro: My understanding of the agreement that my friend and
    I have is that they are in as exhibits and they are evidence, they are business
    records primarily and they are in as exhibits and I, I had no idea that we had
    to prove the documents or make them an, an additional exhibit. Im not sure why
    that would be. That compromises my entire case, Your Honour.

The Court: Oh, okay. Well, then maybe this is the time to
    address it then, so, so your position is that all of, all of the documents in
    Exhibits 1 and 2 are in?

Mr. Ferro: Yes, Your Honour, they are exhibits, yes.

[46]

Dominions
    counsel, Ms. Pool, stated that she was operating on the basis that the medical
    reports in Volumes 1 and 2 of exhibit 1 had not been entered for the truth of
    their contents. To that, Ms. Blakes counsel stated:

Mr. Ferro: Your Honour, I have to disagree with my friend. Had
    I known that she would be taking that position I would have called the DAC
    doctors and all the doctors that I intend to refer Your Honour to. I  that
    fully compromises my claim completely Im afraid Im going to have to advise
    the court that I cannot proceed on that basis. If Id have known that this is
    what my friend wanted, I would have called those doctors My impression was
    that we didnt have to go through that formal process of actually having the
    physician or the author of the document in the box

The Court: Your characterizing this as the position of your
    friend. I think I put it squarely on the table at the outset that I would only
    consider those documents which  I mean this was a useful tool to have
    everything in two volumes, because we knew that we were going to be going through
    a lot of material, but it didnt necessarily mean that each and every one of
    them would become exhibits.

[47]

Ms.
    Blakes counsel then indicated that his only concern was with respect to the
    evidentiary treatment of the Designated Assessment Centre reports prepared by
    Drs. Garner and Ghouse. He asked the trial judge to treat the medical records
    as proof that the treatment discussed in them was reasonable or necessary. The
    trial judge responded that in the absence of case law to that effect, he would
    not. Ms. Blakes counsel was not able to provide any case law on the point.

[48]

Ms.
    Blakes counsel then began his closing submissions. On the ninth day of trial,
    before finishing his closing submissions, plaintiffs counsel moved before the
    trial judge for leave to call as witnesses Drs. Garner, Ghouse and Meloff, as
    well as Maureen Ward, an occupational therapist, on the ground that if the
    trial judge was not prepared to read their reports contained in exhibit 1, it
    would be unfair to Ms. Blake to proceed without allowing her to adduce that
    evidence through those witnesses. Ms. Blakes counsel conceded that any
    confusion surrounding the use of the documents in exhibit 1 had resulted from
    poor communication on his part:

Mr. Ferro: And I  and, and for the for the record Im not, Im
    not suggesting that anyone had any intent here. I, I misunderstood my friends
    intentions and perhaps my fault for not clarifying In this case, I dont think
    I communicated effectively, and I take responsibility for that.

[49]

The
    trial judge then ruled on the use that could be made of any DAC reports in exhibit
    1 that had not been referred to by a witness. Drawing on the decision of this
    court in
OBrien v. Shantz
[8]
,
which dealt with the use of a claimants Workers Compensation Board file as a
    business record, the trial judge stated:

In other words, proffering records whether they be WCB or DAC
    does not make such records evidence. There has to be an intermediary step
    between these documents having been generally admissible according to the statute
    and their being or constituting evidence before the court. Failing agreement or
    admission through a witness, such documents are not evidence before a court.

For all of the above reasons the court will only consider as
    evidence those documents in Exhibit 1 which are referred in the table made
    Exhibit 1A.

[50]

The
    trial judge then proceeded to reject the request by Ms. Blakes counsel for an
    adjournment in order to re-open her case and call the physicians and
    occupational therapist:

For reasons touched upon in the ruling as to what constitutes
    evidence in this matter, as opposed to admissible documents, an evidentiary
    distinction which should have been known by experienced counsel after that and
    for the fact that we are now in the place of closing arguments, the request for
    an adjournment to address the deficiencies in the plaintiffs case caused by
    misunderstanding (sic) of counsel is denied.

[51]

Ms.
    Blake did not include as a ground of appeal the trial judges refusal to grant
    her an adjournment.

[52]

In
    his reasons, at paras. 190 and 191, the trial judge re-iterated the rulings he
    had made at trial:

[190] The vast majority of the 246 documents were not
    introduced through witnesses. Counsel blithely assumed that they could be
    dumped, deposited at the foot of the bench and all would be considered in
    their entirety.

[191] The initial proviso that the court had raised at the
    outset of the trial, was again raised by the court at the conclusion of the
    evidence. Granted some of the documentation had been referred to by the various
    witnesses during the course of the trial, and would be admissible pursuant to
    Section 35 of the
Evidence Act
. Fortunately for counsel for the
    Plaintiff, by virtue of an agreement between counsel, Exhibit 1A was generated.
    This exhibit is essentially a list of those documents out of the 246 that were
    referred to by witnesses, or were agreed to be part of the record. Medical
    reports on this list were not admissible for the truth of their contents, but
    were received to explain why certain actors had acted the way they did. Naturally,
    if a witness was an author of a document, he or she could adopt the report as
    part of their truth.

Analysis

[53]

Parties
    frequently use comprehensive document briefs in civil trials. As this court
    stated in
Iannarella v. Corbett
:
[9]


It is commonplace in civil actions for counsel to prepare a
    trial document brief containing documents that are admitted as authentic and
    admissible. See John Sopinka,
The Trial of an Action
, 2nd ed.
    (Markham: LexisNexis, 1998) at pp. 41-42. Counsel typically agree on a list of
    documents and one party attends to the briefs preparation.

[54]

When
    a document brief is tendered at trial, the record should reflect clearly the
    use the parties may make of it. Such use may range from the binders acting merely
    as a convenient repository of documents, each of which must be proved in the
    ordinary way, through an agreement about the authenticity of the documents, all
    the way to an agreement that the documents can be taken as proof of the truth
    of their contents. Absent an agreement by the parties on the permitted use of a
    document brief, the trial judge should make an early ruling about its use.

[55]

In
    his case, the trial judge clearly indicated at the commencement of the trial
    that that he would not treat a document contained in exhibit 1 as admitted
    evidence for his consideration unless a witness had referred to it or the
    document was admitted on consent. In my view, that was adequate notice to
    counsel that absent an agreement about a document, it would have to be proved
    in the ordinary course through a witness.

[56]

Although
    the import of that ruling initially seemed unclear to Ms. Blakes counsel, the
    events of the sixth day of trial should have resolved any uncertainty. On that
    day Dominion advised that it did not intend to file the reports prepared by
    Drs. Garner and Ghouse or to call those physicians to testify. Against that
    background, the trial judge advised that the admission of an expert opinion
    required the filing of the expert report, the calling of the expert or the
    agreement of counsel. Ms. Blakes counsel acknowledged that even if a report by
    a physician was treated as a business record, the facts contained or the
    information contained in those reports are not offered as evidence and the
    admission of the report would only establish their authenticity and authorship.

[57]

Those
    directions by the trial judge gave counsel fair notice that if they intended to
    rely on the opinions expressed by any medical practitioner, they would have to
    meet the ordinary rules governing the admission of such expert reports.

[58]

I
    see no error in the ruling made by the trial judge on the penultimate day of
    the trial that he would consider as evidence only those documents to which a
    witness had referred. That ruling was consistent with the directions he had
    given at the start of the trial and caused no unfairness to the parties.

[59]

The
    trial judges refusal to treat the Designated Assessment Centre medical
    assessments prepared by Drs. Garner, Ghouse, and Meloff as business records
    under s. 35 of the
Evidence Act
followed the long-established
    principle stated by the High Court of Justice in
Adderly v. Bremner
[10]
that a professional medical opinion, including a diagnosis, is not an act,
    transaction, occurrence or event within the meaning of s. 35(2) of the
Evidence
    Act
.

[60]

Moreover,
    in his ruling the trial judge followed this courts decision in
OBrien
,

which held that merely filing a large volume of records  in that case,
    the contents of a partys Workers Compensation Board file  pursuant to notice
    given under s. 35 of the
Evidence Act
, without more, was insufficient
    to establish the truth of the contents of each document in the voluminous file.
    Absent express agreement by opposing counsel to the use of large sets of
    documents for the truth of their contents, the tendering party would have to
    lead evidence about the nature of the records or the circumstances in which
    they were created.
[11]


[61]

In
    her factum Ms. Blake submitted that the trial judge had erred by excluding from
    consideration the reports of the occupational therapist, Maureen Ward. There is
    no basis in the record for that submission. On the third day of trial, Ms.
    Blake had intended to call Ms. Ward as a witness. Dominions counsel advised
    that she did not need to cross-examine Ms. Ward and, as a result, Ms. Wards
    September 25, 2003 report was marked as an exhibit. Her report therefore did
    not fall within the scope of the trial judges ruling about the admissibility
    of documents found in exhibit 1.

[62]

For
    these reasons, I would not give effect to this ground of appeal.

THIRD ISSUE: DID THE TRIAL JUDGE ERR IN FINDING THAT MS. BLAKE
    FAILED TO MEET HER EVIDENTIARY BURDEN REGARDING ENTITLEMENT TO CAREGIVER
    BENEFITS AND DID HE APPLY THE WRONG CAUSATION TEST?

[63]

At
    trial Ms. Blake sought damages for caregiver benefits in the amount of
    $112,875, calculated from August 16, 2006, until the date of trial. Section
    13(4) of the Schedule provides that an insurer is not required to pay a
    caregiver benefit for any period longer than 104 weeks of disability unless,
    as a result of the accident, the insured person is suffering a complete
    inability to carry on a normal life. The trial judge dismissed Ms. Blakes
    claim due to the absence of medical evidence regarding her complete inability
    to carry on a normal life, questions as to causality between her symptoms and
    the accident, and a concern with respect to the reliability of Ms. Blakes
    evidence as to her health status pre and post-accident.

[64]

In
    her written and oral submissions, Ms. Blake argues that the trial judge
    committed three main errors in reaching that conclusion:


(i)

Although the trial judge articulated the correct legal test, he did not
    properly apply it to the facts of the case;


(ii)

The trial judge failed to read all the evidence in order to appreciate
    the full nature of Ms. Blakes pre-and post-accident activities; and,


(iii)

The trial judge erred by applying the more restrictive but-for
    causation test rather than the more inclusive material contribution test.

Did the trial judge fail to apply properly the correct legal
    test?

[65]

In
    para. 203 of his reasons, the trial judge accurately noted that in order to
    establish her entitlement to caregiver benefits beyond the initial 104-week
    period, s. 13(4) of the Schedule required Ms. Blake to establish that, as
    result of the accident, she was suffering a complete inability to carry on a
    normal life. The trial judge then described the approach set down by this court
    in
Heath v. Economical Insurance Company
[12]
to assess claims advanced under s. 13 of the Schedule.

[66]

Ms.
    Blake submits that the trial judge failed to apply the
Heath
approach
    properly to the facts of this case because he failed to conduct a holistic
    comparison of her pre-accident life activities with those after the accident. I
    see no merit in that submission.

[67]

The
    trial judges reasons must be read as a whole. In his lengthy reasons the trial
    judge canvassed the evidence concerning Ms. Blakes pre- and post-accident
    activities given by Ms. Blake and her sons, as well as that described in
    numerous medical reports. He found, at para. 209, that Ms. Blake had
    experienced some significant health issues before the 2002 accident that would
    impact upon her purported pre-accident level of vitality. He expressed concerns
    about the reliability of Ms. Blakes evidence dealing with her health status
    pre and post-accident. The trial judge reviewed in detail the evidence from the
    physicians who had treated Ms. Blake following the accident. He also conducted
    a thorough analysis of the reports and evidence from the two medical experts
    called by the parties at trial; Dr. Rathbone, who was called by the plaintiff,
    and Dr. Dost, whom Dominion called. The trial judge explained why he preferred
    the evidence of Dr. Dost over that given by Dr. Rathbone.

[68]

Ms.
    Blake does not point to any evidence the trial judge may have misapprehended. Nor
    does she identify any palpable or overriding errors of fact made by him. Her
    submission, in effect, asks this court to re-weigh the evidence. That is not an
    appropriate basis for appellate intervention.

Did the trial judge fail to read all the evidence in order to
    appreciate the full nature of Ms. Blakes pre-and post-accident activities?

[69]

Ms.
    Blake repeats her earlier submission that the trial judge erred in ruling that
    he would not read some of the medical reports contained in exhibit 1. For the
    reasons given earlier, I give no effect to this submission.

Did the trial judge err by applying the but-for test rather
    than the material contribution test?

[70]

Ms.
    Blake submits that the trial judge erred in failing to apply the material
    contribution test to the issue of the causation of her post-accident symptoms. I
    do not accept her submission.

[71]

The
    primary reason for not accepting Ms. Blakes submission is that she is raising the
    issue for the first time on this appeal.  At trial she did not make submissions
    on which causation test should be applied. That distinguishes this case from
    the circumstances in
Monks v. ING Insurance Company of Canada
,
[13]
in which this court held that having advocated at trial for the adoption of the
    material contribution test in a statutory accident benefits case, the insurer
    could not fault the trial judge for applying the test.

[72]

Here,
    Ms. Blake did not ask the trial judge to depart from the general but for test
    of causation as described by the Supreme Court of Canada in
Clements v.
    Clements
, at para. 46.
[14]
Under those circumstances, I see no error in the trial judges having applied
    the but for causation test to the facts of this case.

[73]

I
    also observe that, when read as a whole, the trial judges reasons disclose he
    was not satisfied Ms. Blake had established she was suffering from the degree
    of injury needed to qualify for caregiver benefits after 104 weeks under s. 13(4)
    of the Schedule  i.e. that she was suffering from a complete inability to
    carry on a normal life.  Unlike in
Monks
where it was conceded that
    the plaintiff was catastrophically impaired  and the issue was whether a third
    automobile accident had contributed to the impairment  here, the trial judge
    was unable to conclude on the evidence that Ms. Blake was suffering from a
    complete inability to carry on a normal life.

[74]

Specifically,
    the trial judge noted the paucity of post-accident medical evidence on the
    issue of Ms. Blakes ability to carry on a normal life:

[216]   Theres no snapshot post-accident except perhaps
    through Dr. Rathbones evidence offered retrospectively nine years after the
    evidence. It is extremely difficult, if not impossible, to obtain that holistic
    impression.

[75]

He
    observed that some of the medical evidence commented favourably on the progress
    Ms. Blake was making after the 2002 accident:

[217] If anything, there is indication in the evidence of Dr.
    Parkinson (see Exhibits 10- 13), a rehabilitation psychologist, suggesting that
    with exercise Ms. Blakes condition improved during a treatment regime of
    approximately three months. In fact, according to the test data of Dr.
    Parkinson, the pedometer reported better than average output. During that
    period, Ms. Blake also started working out on an elliptical machine. As noted
    by Dr. Parkinson, Ms. Blake was progressing nicely.

[76]

Finally,
    the trial judge preferred the opinion expressed by Dr. Dost over that of Dr.
    Rathbone, an opinion which he summarized in para. 135 of his reasons:

[135] Dr. Dost concluded, realizing his opinion was
    retrospective and that he did not access Ms. Blake within 104 weeks of the
    accident, from a neurological point of view there was no impairment or
    disability arising as a result of the accident within the first 104 weeks. The
caveat
was with regards to Ms. Blakes headaches. There was no indication of a
    complete inability to carry on a normal life from a neurological point of view.

[77]

In
    sum, I do not accept Ms. Blakes submission that the trial judge erred in
    applying the but for causation test in the circumstances of this case.

FOURTH ISSUE: DID THE TRIAL JUDGE ERR IN DISMISSING MS.
    BLAKES CLAIMS FOR EXTRA-CONTRACTUAL DAMAGES?

Claim for damages for mental distress

[78]

Damages
    for mental distress arising from a breach of contract may be awarded where an
    object of the contract was to secure a psychological benefit that brings mental
    distress upon breach within the reasonable contemplation of the parties.
[15]
In the present case, the trial judge dismissed Ms. Blakes claim for damages
    for mental distress. Ms. Blake submits that he erred by holding that a claimant
    for damages for mental distress must file medical evidence in support of her
    claim, which Ms. Blake did not do.

[79]

I
    do not accept that submission, for two reasons. First, the trial judge
    concluded that Dominion had not breached its statutory accident benefits
    contract with Ms. Blake. As a result, the recovery of damages for mental
    distress for breach of contract was not available.

[80]

Second,
    Ms. Blakes submission does not afford a fair reading to the reasons of the
    trial judge. At paras. 246 and 247 the trial judge stated:

[246] The only evidence of mental distress comes from Ms. Blake
    and her sons. The latter recalled their mother crying, possibly when she had
    received correspondence from the insurance company. Their evidence is not of a
    caliber that one can safely say this distress should be compensable.

[247] There is absolutely no medical evidence of this form of
    distress. There are no notations of any complaints by Ms. Blake to her treating
    physicians of such distress. It would be hard to say that Ms. Blake experienced
    anything more than frustration, which as we all know is inevitable in life.

In those passages the trial judge did not hold that a
    claim for damages for mental distress required the filing of medical evidence.
    He simply noted the absence of such evidence and concluded that the remaining
    evidence was not of a caliber that one can safely say this distress should be
    compensable. In so finding, the trial judge directly addressed the second
    element for establishing a claim for mental distress upon the breach of a
    contract  i.e. that the degree of mental suffering caused by the breach was of
    a degree sufficient to warrant compensation.
[16]


Breach of duty of good faith and aggravated damages

[81]

The
    trial judge dismissed Ms. Blakes claim for damages for breach by Dominion of
    its contractual duty of good faith. Ms. Blake submits that the trial judge
    applied the wrong legal consideration when determining whether Dominion had
    acted in bad faith.

[82]

I
    do not accept that submission. The trial judge identified and applied the
    principles set out in
Whiten v. Pilot Insurance Company
.
[17]
In his reasons, the trial judge reviewed at length Dominions conduct in
    handling Ms. Blakes statutory accident benefits file. He examined the errors
    Dominion had made in respect of certain claims made by Ms. Blake, but he put
    those errors in context:

[239] The processing of Ms. Blakes claim was not
    straightforward. There were pre-accident medical issues and events. There was
    the suggestion from time to time by certain treatment providers that there were
    likely psychological issues involved. It would be inevitable that the company
    would engage in further investigation, or request independent assessments as
    part of its due diligence.

[240] The treatment of Ms. Blake does not in any way approach
    the severity of the treatment of Daphne Whiten in
Whiten v. Pilot
,
    which demonstrates the hardball approach on the part of the insurer. Overall,
    this is not a picture of bad faith treatment of Ms. Blake.

[83]

I
    see no error in the trial judges application of the
Whiten
principles
    to the evidence which would justify appellate intervention.

[84]

At
    the hearing of the appeal, Ms. Blakes counsel asserted that the trial judge
    had unduly interfered with the cross-examination of Dominions adjuster, Mr.
    Mascarenhas, thereby preventing Ms. Blake from establishing her bad faith
    claim. Counsel did not provide particulars to support this assertion. The claim
    of undue interference was not advanced by Ms. Blake in her factum. Her Amended
    Notice of Appeal had alleged that the trial judge displayed attitudinal bias
    against the Plaintiff which rises to the level of error of law, but no details
    were offered.

[85]

An
    appellant cannot reasonably expect that an allegation of misconduct by the
    trial judge, unsupported by any particulars, will carry any weight on an
    appeal. In any event, a review of the transcript of the cross-examination of
    Mr. Mascarenhas does not disclose any undue interference by the trial judge. The
    interventions made by the trial judge were designed to seek clarification of
    the evidence, to ensure the witness was permitted to complete his answers, to
    prevent undue repetition of questions, to deal with the consequences of his
    ruling on the use of exhibit 1, and to keep counsel focused on matters of fact
    relevant to the pleaded claim and within the knowledge of the witness.

[86]

Turning
    finally to Ms. Blakes claim for aggravated damages, as her counsel explained
    on the first day of trial, Ms. Blakes claim for aggravated damages related to
    her claim that Dominion had unreasonably denied her claim for benefits. Ms.
    Blake submits that the trial judge erred in dismissing her claim for aggravated
    damages because he wrongfully equated aggravated damages with damages for
    mental distress arising in the context of a peace of mind contract and, by so
    doing, failed to consider any bad faith conduct as giving rise to aggravated
    damages.

[87]

I
    accept Ms. Blakes submission that the trial judge erred in treating her claim
    for aggravated damages as synonymous with her claim for mental distress damages
    for breach of contract. However, given my conclusion that the trial judge did
    not err in dismissing Ms. Blakes claim for damages for breach of the duty of
    good faith, it follows that he did not err in dismissing her related claim for
    aggravated damages, which required a finding of breach of that duty.

DISPOSITION

[88]

For
    the reasons set out above, I would dismiss Ms. Blakes appeal.

[89]

At
    the hearing the parties agreed that costs of $7,500, together with the costs of
    transcripts and filing fees, would be paid to the successful party. I would order
    Ms. Blake to pay Dominion costs in that amount.

Released: March 13, 2015 (G.E.)                           David
    Brown J.A.

I
    agree K.M. Weiler J.A.

I
    agree Gloria Epstein J.A.





[1]
O. Reg. 462/96, s. 2.



[2]
R.S.O. 1990, c. I.8.



[3]

Haldenby v. Dominion of Canada General
    Insurance Co.
(2001), 55 O.R. (3d) 470 (C.A.), at para. 23.



[4]
2002 SCC 30, [2002] 2 S.C.R. 129, at para. 15.



[5]
See,
T.N. v. Personal Insurance Company of
    Canada
, FSCO A06-000399 dated July 26, 2012 at p. 5, and the decisions
    cited therein at footnote 3; as well,
Ross
    v. TTC Insurance Company Limited
, FSCO A01-000064 dated April 5, 2002,
    at p. 7.



[6]

T.N. v. Personal Insurance Company of
    Canada
, at p. 8.



[7]

Haldenby
, at para. 30.



[8]
[1998] O.J. No. 4072 (C.A.)



[9]
2015 ONCA 110, at para. 127.



[10]
[1968] 1 O.R. 621 (H.C.J.), at pp. 622-623.



[11]

OBrien
, at para. 11.



[12]
(2009), 95 O.R. (3d) 785 (Ont. C.A.).



[13]
2008 ONCA 269, para. 90.



[14]
[2012] 2 S.C.R. 181, 2012 SCC 32.



[15]

Fidler v. Sun Life Assurance Company of
    Canada
, 2006 SCC 30, [2006] 2 S.C.R. 3, at para. 47.



[16]

Fidler
, at para. 47.



[17]
[2002] 1 S.C.R. 595.


