Labonte v. Sun Life Assurance Company of Canada – Court File No. 15-64830, unreported

On November 16, 2017, the Plaintiff brought a motion for answers to undertakings, advisements and refusals arising out of the examination for discovery of Sun Life.  The motion was heard by Master Champagne, in Ottawa. 

Facts:   The Plaintiff was a college professor who was denied LTD benefits by Sun Life.  The Plaintiff suffered from fibromyalgia, chronic fatigue and depression.  The Plaintiff resided in Ottawa, and her LTD file was administered from Sun Life’s Montreal office.  By the time the Defendant was examined for discovery, the responsible Abilities Case Manager (“ACM”) had left Sun Life’s employ, and Sun Life produced its litigation consultant as a witness for examination for discovery.  Needless to say, this witness provided non-substantive answers to many questions, owing in part to the fact that she knew almost nothing about both the file at hand as well as the ACM herself.

The Motion: Many of the undertakings were answered in the two weeks before the motion.  The remaining undertakings included disclosure of the contact information for the ACM, as well as her employment, education and work history, and personnel file.   The Plaintiff also sought to serve the ACM with a summons to witness via service on the Defendant.

Issues: One of the main issues that overshadowed successful resolution of the unanswered undertakings was a jurisdictional one.  The former ACM resided in Quebec.  Sun Life argued that despite Rule 31.06(2), Quebec privacy legislation prohibited the disclosure of much of the information the plaintiff was seeking including her contact information, without the ACM’s consent – and the ACM in this case did not consent to such disclosure. She had even retained her own counsel.  The other issue had to do with disclosure of “MD Guidelines” that the ACM referred to in her notes in the claims file, which the ACM relied on to draw conclusions about the nature of the Plaintiff’s disability.

Result:    

  • As the ACM resided in Quebec, the Master did not have jurisdiction to order the Plaintiff to serve the ACM with a summons to witness via service on the Defendant.  Instead, the Plaintiff would have to bring a motion, before a judge, under the Interprovincial Summons Act RSO 1190 Ch.I.12.s.5.
  • The ACM’s work and employment history were relevant to the litigation and should be disclosed to the Plaintiff.
  • Sun Life was ordered to ask the ACM’s managers if there were any concerns about this ACM’s adjudication of the Plaintiff’s claim or other claims of a similar nature, particularly concerns about her understanding of and ability to apply “MD guidelines” to the Plaintiff’s claim;
  • Sun Life was ordered to ask the ACM for a copy of her CV, and information about her work history, education and experience relating to disability claims management, underwriting, nursing, or health, and if the ACM provided this information then same was to be forwarded to the Plaintiff within 7 days;
  • If the ACM refused to provide such information, then the Plaintiff may serve her with a notion of motion for production of third party records by way of service of same on the Defendant, and the Plaintiff may make submissions for substantial indemnity costs against the ACM in that motion.
  • The ACM’s personnel file is not relevant to the litigation, on the basis of the reasoning in Bridge v. Dominion of Canada [2000] O.J. No. 5349 and based on the “boilerplate” allegations in the Statement of Claim.  However, Master Champagne did not make an order in this regard, but instead opened it to the ACM to make submissions as to why her personnel file should not be disclosed, in the motion for third party records to be served on her if that step is taken.
  • Sun Life was ordered to make inquiries as to whether the MD Guidelines from 2014 – when the Plaintiff’s claim was denied – were still available to be produced.

The other broader issue that this motion highlights is the importance of executing a Discovery Plan.  The parties’ Discovery Plan indicated that they would answer undertakings within 60 days of the completion of examinations for discovery.  Sun Life did not respond to the Plaintiff’s requests for answers within those 60 days.  Sun Life answered the undertakings only two weeks before the motion date – well after the Plaintiff had served her materials and factum and well after the 60 days had expired.  As such, Master Champagne ordered Sun Life to pay $8,000 in costs.

Shortly after this motion, the parties settled the action. For more details about this case and a copy of the Endorsement, please contact Plaintiff’s counsel Najma M. Rashid.

On November 16, 2017, the Plaintiff brought a motion for answers to undertakings, advisements and refusals arising out of the examination for discovery of Sun Life.  The motion was heard by Master Champagne, in Ottawa. 

Facts:   The Plaintiff was a college professor who was denied LTD benefits by Sun Life.  The Plaintiff suffered from fibromyalgia, chronic fatigue and depression.  The Plaintiff resided in Ottawa, and her LTD file was administered from Sun Life’s Montreal office.  By the time the Defendant was examined for discovery, the responsible Abilities Case Manager (“ACM”) had left Sun Life’s employ, and Sun Life produced its litigation consultant as a witness for examination for discovery.  Needless to say, this witness provided non-substantive answers to many questions, owing in part to the fact that she knew almost nothing about both the file at hand as well as the ACM herself.

The Motion: Many of the undertakings were answered in the two weeks before the motion.  The remaining undertakings included disclosure of the contact information for the ACM, as well as her employment, education and work history, and personnel file.   The Plaintiff also sought to serve the ACM with a summons to witness via service on the Defendant.

Issues: One of the main issues that overshadowed successful resolution of the unanswered undertakings was a jurisdictional one.  The former ACM resided in Quebec.  Sun Life argued that despite Rule 31.06(2), Quebec privacy legislation prohibited the disclosure of much of the information the plaintiff was seeking including her contact information, without the ACM’s consent – and the ACM in this case did not consent to such disclosure. She had even retained her own counsel.  The other issue had to do with disclosure of “MD Guidelines” that the ACM referred to in her notes in the claims file, which the ACM relied on to draw conclusions about the nature of the Plaintiff’s disability.

Result:    

  • As the ACM resided in Quebec, the Master did not have jurisdiction to order the Plaintiff to serve the ACM with a summons to witness via service on the Defendant.  Instead, the Plaintiff would have to bring a motion, before a judge, under the Interprovincial Summons Act RSO 1190 Ch.I.12.s.5.
  • The ACM’s work and employment history were relevant to the litigation and should be disclosed to the Plaintiff.
  • Sun Life was ordered to ask the ACM’s managers if there were any concerns about this ACM’s adjudication of the Plaintiff’s claim or other claims of a similar nature, particularly concerns about her understanding of and ability to apply “MD guidelines” to the Plaintiff’s claim;
  • Sun Life was ordered to ask the ACM for a copy of her CV, and information about her work history, education and experience relating to disability claims management, underwriting, nursing, or health, and if the ACM provided this information then same was to be forwarded to the Plaintiff within 7 days;
  • If the ACM refused to provide such information, then the Plaintiff may serve her with a notion of motion for production of third party records by way of service of same on the Defendant, and the Plaintiff may make submissions for substantial indemnity costs against the ACM in that motion.
  • The ACM’s personnel file is not relevant to the litigation, on the basis of the reasoning in Bridge v. Dominion of Canada [2000] O.J. No. 5349 and based on the “boilerplate” allegations in the Statement of Claim.  However, Master Champagne did not make an order in this regard, but instead opened it to the ACM to make submissions as to why her personnel file should not be disclosed, in the motion for third party records to be served on her if that step is taken.
  • Sun Life was ordered to make inquiries as to whether the MD Guidelines from 2014 – when the Plaintiff’s claim was denied – were still available to be produced.

The other broader issue that this motion highlights is the importance of executing a Discovery Plan.  The parties’ Discovery Plan indicated that they would answer undertakings within 60 days of the completion of examinations for discovery.  Sun Life did not respond to the Plaintiff’s requests for answers within those 60 days.  Sun Life answered the undertakings only two weeks before the motion date – well after the Plaintiff had served her materials and factum and well after the 60 days had expired.  As such, Master Champagne ordered Sun Life to pay $8,000 in costs.

Shortly after this motion, the parties settled the action. For more details about this case and a copy of the Endorsement, please contact Plaintiff’s counsel Najma M. Rashid.

Najma Rashid
Written by

Najma Rashid joined Howard Yegendorf & Associates in 1999 and became a partner of the law firm in 2009. Her practice is devoted exclusively to personal injury litigation and she is well versed in Ontario’s Insurance Act and its Regulations, including the Statutory Accident Benefits Schedule.

Najma has developed an expertise in disability and bad faith claims against insurance companies, and participates in the Long-Term Disability Section of the Ontario Trial Lawyers Association.

Najma is a member of the Ontario Trial Lawyers Association and the Advocates Society, as well as a supporter of organizations such as REACH Canada, the Ontario Brain Injury Association and the Canadian Paraplegic Association.