Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION. JOAN MacDONALD SUNLIFE ASSURANCE COMPANY OF CANADA

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION Citation: MacDonald v. SunLife Assurance 2005 PESCAD 25 Date: Docket: S1-AD-1003 Registry: Charlottetown BETWEEN: AND: JOAN MacDONALD SUNLIFE ASSURANCE COMPANY OF CANADA APPELLANT RESPONDENT Before: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber Appearances: Robert Tocchet, counsel for the Appellant Eugene P. Rossiter, Q.C., and Janet M.R. Clark, counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island November 30, 2004 Charlottetown, Prince Edward Island September 6, 2005 Written Reasons by: The Honourable Chief Justice G.E. Mitchell Concurred in by: The Honourable Mr. Justice J.A. McQuaid Dissented in by: The Honourable Madam Justice L.K. Webber

2 Page: 2 Disability Insurance - Total Disability - Continuous state of incapacity to perform job duties - Finding of fact Per Mitchell C.J.P.E.I. (McQuaid J.A. concurring): The majority of the Court of Appeal dismissed the appeal because the trial judge did not make an overriding or palpable error in finding as a fact that the appellant was not in a continuous state of incapacity which prevented her from her duties. Disability Insurance - Illness - Commensurate occupation - Evidence required Per Webber J.A. (dissenting): The trial judge erred in finding that proof of an illness under the insurance policy in question requires evidence of a specific medical cause, with a named diagnosis. On the evidence, continuous incapacity due to illness was proven with respect to the first part of the policy. However, the appellant failed to prove that she was unable to perform any commensurate occupation. Authorities Cited: By Mitchell C.J.P.E.I.: CASES CONSIDERED: Chaplin v. Sun Life Assurance Co. of Canada, [2001] B.C.J. No. 350, 2001 BCSC 310; Conlon v. Mutual Life Assurance Co. of Canada 2003 CarswellOnt 521 (O.C.A.); Kay v. Blue Cross Life Assurance Co. of Canada (1990), 75 D.L.R. (4 th ) 571 (N.B.C.A.); Johnston v. Murchison, 127 Nfld & P.E.I. R. 1 (P.E.I.C.A.) By Webber J.A. (dissenting): CASES CONSIDERED: Paul Revere Life Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541 (SCC); Eddie v. Unum Life Insurance Co. of America (1999), 177 D.L.R. (4 th ) 738 (BCCA) TEXTS REFERRED TO: McCunney, R.J.: Occupational and Environmental Medicine, [Little, Brown and Company 1994] Reasons for judgment: MITCHELL, C.J.P.E.I.: [1] The appellant seeks an order overturning the July 18 th, 2003 decision of a judge of the Trial Division, 2003 PESCTD 58, dismissing her claim for a declaration of entitlement to disability benefits from the respondent pursuant to a group insurance policy and an award of aggravated damages for breach of contract. [2] The appellant has also made a motion for the admission of fresh evidence on the appeal.

3 Page: 3 [3] I would dismiss both the motion and the appeal. [4] The proposed fresh evidence related to the following matters: (1) alleged misrepresentations by the respondent s medical expert, Dr. Rosemary Marchant, pertaining to the criteria for diagnosis of Chronic Fatigue Syndrome; and (2) that Dr. Marchant had examined the appellant in this province when she was not licensed to practice here. [5] I would dismiss the motion because the proposed evidence would easily have been available at trial through the exercise of due diligence. Furthermore, I am not at all satisfied that any of the proposed evidence relates to a potentially decisive issue or that it would have affected the outcome of the trial. I also agree with most of the respondent s criticism of the appellant s affidavit in support of the motion. Much of that affidavit was objectionable and inadmissible as evidence. [6] The appellant was employed by the Government of Canada as a file control clerk at the GST Centre with Revenue Canada at Summerside from 1993 until April 16, On the latter date she stopped work because she claimed to be chronically fatigued, suffering from pain and weakness in her muscles, and experiencing debilitating sensitivity to odours in the workplace. She has not returned to work. [7] The appellant applied for total disability benefits under a group insurance policy established by contract between Her Majesty in Right of Canada, as represented by the president of the Treasury Board, and the respondent for the benefit of Government of Canada employees at the Summerside GST Centre. [8] According to the policy, an Employee is Totally Disabled if he or she is in a continuous state of incapacity due to Illness which 1. while it continues during the Elimination Period and the following 24 months, prevents the Employee from performing each and every duty of his/her regular occupation or Employment While it continues thereafter, prevents the Employee from engaging in any Commensurate Occupation for which he/she is or becomes reasonably qualified by education, training or experience.

4 Page: 4 [9] The first category of totally disabled may be referred to as own occupation coverage and the second as Commensurate Occupation coverage. The trial judge in the case under appeal focused on the former. [see para. 8 of his decision]. [10] Illness is defined in the policy as Bodily injury, disease, mental infirmity, or sickness. [11] Elimination Period as it applies to the appellant is defined as one that: begins with the first full day of Total Disability and ends on the later of the days on which: 1. the Employee has completed A. Periods of Total Disability due to the same cause, which when accumulated within a period of twelve consecutive months, prevent the Employee from being Actively At Work for 13 weeks, or B. An uninterrupted period of Total Disability of 13 weeks, and 2. the Employee s accumulated sick leave credits and other paid leave granted (other than vacation leave) are completely exhausted. [12] Employee is defined as: A person working on a full-time or part-time basis, who holds an office or position in (i) the Public Service as listed in PART 1 of Schedule 1 of the Public Service Staff Relations Act, or (ii) with a Participating Employer, and who: 1. Is employed in a continuing position during pleasure or for a term of more than six months duration, or 2. Has been continuously employed for a period of at least six months, or 3. Is a seasonal employee who has completed the required Qualifying Period or been reinstated under the Commencement of Insurance section. Employee includes, where the text of the policy requires a former Employee who is eligible for benefits under [the] policy.

5 Page: 5 The policy also contains some specific exclusions from the definition of Employee but these have no application to the present case. [13] Employment is defined as: Employment as an Employee or Seasonal Employee by the Employer or a Participating Employer. [14] Commensurate Occupation is defined as: an occupation for which the current salary or current rate of pay is not less than 66.2/3% of the then current salary for the Employee s own regular occupation. [15] Neither the word continuous nor the phrase continuous state of incapacity is defined. These terms considered in the context of the policy as a whole may not require the incapacity to be completely uninterrupted but, if not, recurrences must be frequent and from the same cause. See: paragraph A of the definition of Elimination Period set out above. However, in this case the appellant did not return to work. Her claim is based on an uninterrupted period of incapacity commencing on April 16, [16] As Doherty J.A. observed in considering a similar definition in Conlon v. Mutual Life Assurance Co. of Canada 2003 CarswellOnt 521 (O.C.A.) at para.2, the ambit of total disability according to the policy is very narrow. In order to satisfy the test the appellant had to prove: (1) that she was in a continuous state of incapacity, (2) due to bodily injury, disease, mental infirmity, or sickness, (3) which prevented her from performing each and every duty of her occupation or Employment during the elimination period and the following 24 months and that it has subsequently prevented her from engaging in any commensurate occupation. [17] At the trial the appellant testified herself and called several other lay witnesses in support of her claim. In addition, she brought forward evidence in oral or documentary form from a number of medical experts. The respondent in presenting its case put forth both expert medical and video surveillance evidence. [18] The appellant claimed to suffer from fibromyalgia, chronic fatigue syndrome and multiple chemical sensitivity. A good deal of time was taken up at trial with evidence about whether or not the appellant fit the medically recognized criteria for those conditions and whether the latter of them was even recognized by the medical community. However, as was pointed out by Holmes J. in Chaplin v. Sun Life Assurance Co. of Canada, [2001] B.C.J. No. 350, 2001 BCSC 310, at paras ,

6 Page: 6 the issue is not whether the claimant fulfills the technical requirements of some particular diagnosis. The issue is whether the claimant is in a continuous state of incapacity due to bodily injury, disease, mental infirmity, or sickness which prevents him or her from performing the duties of their job or from engaging in a commensurate one. It is the fact of illness that is important not its name, cause, or explanation. It is true, as counsel for the respondent argues, that a person is not ill just because they say so but, on the other hand, a person may be ill even though there is little or no objective evidence to prove it. That said, the fact that a person suffers from an illness, even a chronic one, is not in itself sufficient to qualify for total disability benefits under the policy. The additional requirements that the resulting incapacity be continuous and that it be to such an extent that it renders the employee unable to perform their ordinary duties set a very demanding standard that is not easily satisfied. [19] In this case, after considering and weighing all of the evidence, the trial judge concluded that the appellant s capacity to function was significantly impaired as a result of various ailments which afflicted her. Nevertheless, he found she fell short of meeting the requirements to qualify for long-term disability benefits. His primary reason was that he found she had not proven she was in a continuous state of incapacity to an extent that prevented her from performing the duties of her own occupation. It would of course follow that she was not continuously incapacitated from performing the duties of a Commensurate Occupation. As a secondary matter the trial judge also found that the appellant had not proved that the incapacity she did have was due to an illness. Accordingly, he dismissed her claim. [20] I find the secondary finding problematic because it seems to place too much emphasis on technical definition and appears inconsistent with his earlier conclusion that there was significant impairment to the appellant s capacity due to ailments which afflicted her. However, overturning the secondary finding would have no impact on the outcome of the case unless the primary one was also overturned. A continuous state of incapacity which prevents the employee from performing each and every duty of their regular occupation or employment is an essential qualifying factor. If it is not established, the inquiry need go no further. If the incapacity is not continuous or does not prevent the employee from performing his or her duties its cause does not matter as there would be no coverage in any event. [21] The conclusion of the trial judge that the appellant was not continuously incapacitated to an extent which prevented her from performing her duties as a file clerk was essentially one of fact. See: Kay v. Blue Cross Life Assurance Co. of Canada (1990), 75 D.L.R. (4 th ) 571 (N.B.C.A.), at para. 13. That being the case, it is trite law that, absent some palpable and overriding error, this court must refrain from interfering. It is the role of the trial judge to weigh the evidence and to assess the credibility of witnesses including experts. An appellate court has no right to simply

7 Page: 7 retry a case and substitute its opinion for that of the trial judge according to what it thinks the evidence establishes on its view of the balance of probabilities. [22] The trial judge preferred the evidence of the respondent s expert Dr. Marchant to that of the other medical experts when there was conflict among them. It was within his province to do so. The privileged position of the trial judge to assess evidence extends to the evidence of expert witnesses. An appellate court should not reconsider the evidence of expert witnesses when the conclusions reached by the trial judge could reasonably be supported by the evidence of the expert witnesses. See: Johnston v. Murchison, 127 Nfld & P.E.I.R. 1 (P.E.I.C.A.) at para 13. [23] Dr. Marchant is an expert in occupational and environmental medicine. She has special skill in determining people s fitness to work. Her qualifications were admitted by the appellant. [24] Dr. Marchant was hired by the respondent to determine the appellant s fitness to work. Unlike some of the other physician witnesses who gave evidence in oral or written form, Dr. Marchant had the benefit of reviewing all the appellant s medical records, examining her in person, viewing her activities captured on video, and knowing about her exercise routine. Dr. Marchant was also familiar with the appellant s work history and the kind of work she had been doing at the Tax Centre. She testified that, in her opinion, the appellant was fit to do such work. [25] The trial judge also relied heavily on the clinical notes and evidence of Dr. Morais, the appellant s family physician. His evidence indicates that in August of 1996 the appellant was able to resume working although she was hesitant about returning to the same work environment. Dr. Morais testified that as of August 27, 1996 the appellant was not being prevented from doing her job by a continuous state of incapacity. He agreed with the suggestion of counsel for the respondent that the problem was the location of the job, not the appellant s fitness to do it. [26] After viewing the activity of the appellant in the surveillance video, the trial judge concluded from his own observations that she was clearly not as limited as she claimed. [27] I cannot conclude that the trial judge s findings of fact regarding the continuousness of the appellant s incapacity was unreasonable or unsupportable by the evidence. In my view, there was medical evidence and evidence about the appellant s activities in the record from which the trial judge could reasonably conclude that she was not in a continuous state of incapacity which prevented her from performing the duties of her occupation or employment. I do not see any palpable or overriding error to justify this court s intervention.

8 Page: 8 [28] Accordingly, I would dismiss the appeal with costs to the respondent. If the parties are unable to settle on the quantum of costs to be paid, the court will hear submissions concerning the same on a date to be fixed. The Honourable Chief Justice G.E. Mitchell I AGREE: The Honourable Mr. Justice J.A. McQuaid

9 Page: 9 WEBBER J.A. (Dissenting): [29] While I agree with the decision to dismiss the motion for the admission of fresh evidence on appeal, for the reasons set out in the decision of Mitchell, C.J.P.E.I., I am unable to agree with the majority s conclusion on the appeal of the July 18, 2003 decision of the trial judge in this matter. I would allow the appeal to the extent of granting a declaration of entitlement to disability benefits from the respondent with respect to the Elimination Period and the following 24 months. I would send the matter back to the trial judge to determine the issues relating to damages. [30] I have several difficulties with the position taken by the trial judge on this matter. They relate principally to: (1) An apparent failure to appreciate the significance of the two-stage element of the Sun Life policy and the implications of this with respect to the evidence presented. (2) An apparent assumption that in order for the plaintiff to meet the illness requirement of the policy to suffer from a sickness or illness she must be able to fit within some specific medical diagnosis that explains her symptoms. TWO-STAGE POLICY [31] The textbooks and case law make it clear that policies of the type in the instant case are in a very real sense dual policies. The first part of the policy refers to a claimant s inability to carry out each and every aspect of his or her pre-illness employment. In the instant case a claimant is entitled to compensation for the period of 13 weeks plus two years if he/she is unable to carry out all of these functions. [32] The second aspect of the policy deals with the period following that covered by the first part of the policy. In this period a claimant is only entitled to compensation if he/she is ill and is unable to carry out any commensurate occupation, which is defined as one which would pay 2/3 of the salary of the employment held at the time the claimant became sick. [33] This distinction, in my view, has implications with respect to the evidence required to prove a claim. ILLNESS [34] The policy states:

10 Page: 10 An employee is Totally Disabled if he/she is in a continuous state of incapacity due to illness which 1. While it continues during the Elimination Period and the following 24 months, prevents the Employee from performing each and every duty of his/her regular occupation or Employment While it continues thereafter, prevents the Employee from engaging in any Commensurate Occupation for which he/she is or becomes reasonably qualified by education, training or experience. Illness is Bodily injury, disease, mental infirmity, or sickness. Commensurate Occupation is An occupation for which the current salary or current rate of pay is not less than 66 2/3% of the then current salary for the Employee s own regular occupation. [35] The trial judge, in my view, found the appellant to be in a continuous state of incapacity due to illness: [7] There is no question the plaintiff s capacity to function is significantly impaired. She chronicled her ailments in great detail and described the limitations imposed on her as a result of those ailments. Four lay witnesses, including the plaintiff s adult son, gave testimony supporting her description of the impact her afflictions have had upon her life. There is no evidence of a happy, carefree individual whose state of health allows her to enjoy life in the manner she would like. Quite the contrary... [36] The appellant s family physician supported her claim and testified as to consistent and continuous problems, at various times described as fibromyalgia (first diagnosed in 1990 by a rheumatologist), chronic fatigue syndrome, and environmental sensitivity. The symptoms get better and get worse, apparently at least in part depending upon the physical environment she is in. At one stage in July/August of 1996 she felt ready to go back to work but feared that the work environment which she felt had triggered her problems again would set her back one more time. Her family physician agreed that going back to the same workplace was not advisable. [37] An independent assessment by the employer s occupational health specialist at that time concluded, in a letter to the employer dated August 30, 1996:

11 Page: 11 We have received Ms. Gillis fitness for work medical of 30 July/96 and we feel she is unfit to return to work to her previous work environment. This is expected to be permanent. It is possible that she may be able to work given the proper environment; however, that is not always achievable. Also, it is not always possible to determine what the problem is in the environment to give her these difficulties. Thus, it is difficult to advise exactly what she needs to avoid.... Thus, it is possible that she could show good improvement in such an environment but unfortunately there is no guarantee of this. This was written by Dr. Karen MacDonald, Medical Officer-in-Charge, Clinic Services, Occupational & Environmental Health Services Clinic, Health Canada. [38] The trial judge s position was that the appellant s symptoms of illness,... must be supported by the weight of medical opinion after examining the conflicting views brought forth at trial. (Para. 8). The conflicting views relate only to exactly what caused her symptoms. There was never any evidence that she was in any way fabricating her symptoms. [39] The trial judge s insistence on finding a medical cause for her illness with a specific, named diagnosis, in my view, was an error of law. The policy only requires that the appellant prove she is ill and has been continuously ill. [40] The case of Eddie v. Unum Life Insurance Co. of America (1999), 177 D.L.R. (4 th ) 738 (BCCA) dealt with a claimant who stated she suffered from fibromyalgia. In that case the insurer s witness agreed that the claimant met the necessary criteria for a diagnosis of fibromyalgia. [41] However, the majority decision in that case discussed the insurer s attempt to argue that a specific cause of the disability needed to be determined before the insurance was payable, and dismissed that argument. Prowse J.A. stated: 60 If the insurer were correct that disability payments can only be triggered when a claimant is able to pinpoint the precise cause of disability, then situations could arise in which a claimant is clearly disabled by some kind of sickness, but is not eligible for benefits because the exact nature of the sickness cannot be determined. 61 The trial judge did not find it necessary to attach a specific label to Ms. Eddie's condition in order to find that she suffered from a sickness that disabled her. In my view, he correctly identified and addressed the two issues before

12 Page: 12 him: was Ms. Eddie suffering from a sickness, and, if so, was she disabled by reason of that sickness within the meaning of the any and "own" occupation requirements of the policy. After a full consideration of the evidence, he answered yes to both of those questions.... [42] In the instant case, the trial judge s refusal to find that an illness had been proven was primarily based upon the evidence of one medical expert, Dr. R. Marchant who wrote the following with respect to the appellant, having reviewed her file and examined her once for a two to three-hour period six years after the claim was filed: Enclosed please find the lengthy report on a most interesting and challenging case. Ms. MacDonald has carried a heavy personal load for more than 10 years. Her symptom complaints do not meet the accepted criteria for any diagnosis to account for her concerns. However, she does lead a very stressful life. I trust that this report will bring some resolution. [43] As part of her lengthy report Dr. Marchant completed a Life Stress scale. Following her numerical calculations she stated: Note this scale does not include the serious problems of spousal alcoholism, sexual abuse of daughter, dealing with her family history of abuse, alcoholism and potential sexual abuse and fighting a Human Rights complaint. These would probably have significant scores. Score of 200 or greater over 2 years is significant. Only the years had lower scores. Carrying such a heavy personal load it is not surprising that she had periods of feeling unwell, particularly fatigue. However, stress is not an illness or disability. It is a response to, most commonly, unfortunate life events. In 1993 she was fit to return to work. Her periods of lowest scores were the time that she was at work in the last decade. By mid 1996 [about the time of her claim] there was evidence that assessments determined that she was capable of doing her job with caveats about the environment in which she does her job. This was repeated in July [Emphasis added.] [44] Then Dr. Marchant quotes from the text Occupational and Environmental Medicine, by R.J. McCunney, Little, Brown and Company 1994: Stress refers to not a single event or reaction but a process that begins with a stressful event or series of events with one s reaction to that event... In moderate amounts, stress can be motivating... However, if the duration or intensity of the stress overloads a person s ability to manage the stress, it can lead to distress, a spiral of emotional and physical ills. [Emphasis added] [45] Illness is defined in the Sun Life Policy as Bodily injury, disease, mental infirmity or sickness. There is no statement in the policy that stress cannot be an

13 Page: 13 illness. In the case law, one prominent case from the Supreme Court of Canada, often cited as confirming the approach to be taken to total disability, was on its facts a case solely about stress and a finding that the claimant was totally disabled due to sickness which sickness was stress. In that case, Paul Revere Life Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541, Laskin C.J. writing from the majority cited with approval the following: In Couch on Insurance (1983), 2d (Rev. Ed.) ss.53:118 there is the following relevant paragraph: The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one s occupation, but rather that there is a total disability if the insured s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies. [Emphasis added.] [46] In Sucharov, the insured found running his business caused him severe stress and this was the illness that totally disabled him. Even in his dissent, Ritchie J. referred to the test with respect to total disability as a legal test (as opposed to a medical test). On the other hand, the trial judge in the instant case required that a medical expert find a known medical cause/diagnosis before the policy would apply: [38]...Specifically, I accept Dr. Marchant s findings that there has been no timely, acceptable or valid diagnosis of CFS, fibromyalgia, MCS, or any other illness within the meaning of the policy with respect to the plaintiff s complaints. However, there is no support in the case law for this requirement. Dr. Marchant s statement that stress is not an illness was a statement of her opinion. This is not relevant to the interpretation of the contract of insurance. [47] This focus on finding a diagnosable cause of the illness resulted in the trial judge minimizing the evidence produced by the plaintiff. Instead of focussing upon the words of the contract and applying the legal test required, he added an evidentiary requirement of an agreed-upon medical diagnosis that cannot be

14 Page: 14 found in the contract. [48] On the evidence in the instant case the complainant was totally disabled from working in the work environment she had been in. Her doctor and the employer s occupational specialist agreed in 1996 that common prudence dictated she not return to that workplace although at one point in 1998 her doctor agreed that if Sun Life wished her to try working at the same site, it would be acceptable so long as it was closely monitored. There is no indication Sun Life ever responded positively to this suggestion. CONTINUOUS STATE OF INCAPACITY [49] As for the trial judge s finding that the appellant was not in a continuous state of incapacity, his analysis appears to be flawed by a failure to distinguish between the two aspects of the policy at issue. He makes no distinction between the appellant perhaps being able to work in a different setting, but not being able to return to work to her previous work environment. The latter is all that is required to fulfill the terms of the policy for the first 13 weeks plus 24 months of her total disability. [50] As well, in the instant case, at the time coverage was denied the family physician stated the plaintiff was unable to work because of illness and the employer s occupational specialist took the same position. It is therefore questionable that the insurer had any basis upon which to deny the claim at that time. When the decision was appealed, the insurer sought an independent medical assessment but that assessment was inconclusive principally because the doctor in question [Dr. J.M. MacSween] had difficulty in diagnosing the specific illness involved, not because he concluded the appellant was perfectly well and could work. In his report dated April 30, 1997 Dr. MacSween stated: I find it difficult on the basis of this interview to evaluate her ability to work... Yet it was this report that resulted in Sun Life s letter of August 5, 1997 to the appellant: As Dr. MacSween did not come up with any objective medical evidence to justify your ongoing symptoms, it was for this reason that your claim was redenied. [51] When the appellant continued to press her claim, an independent psychiatric assessment by Dr. G.C Gosse dated July 24, 1998 recommended a trial return to work. He stated:

15 Page: 15 I feel there are unresolved psychological issues in this claimant. Particularly the issues of alleged early sexual abuse need to be clarified and resolved. It does not appear these issues are, at the present time, preventing her from working, but their resolution would undoubtedly have therapeutic value for her as an individual. Ms. MacDonald-Gillis would appear to be ready for a trial return to work. In that environment, her work performance could be monitored, and objective evidence of fatigue, if present, could be monitored, and objective evidence of fatigue, if present, could be seen. If this were to be demonstratively the case, than [sic] further psychological investigations could be undertaken, such as comprehensive psychological testing, including both personality assessment and cognitive functioning. Additionally, occupation assessment which involves monitoring and objective assessment of work skills, indurance[sic], fatigue, and concentration could be done. Again, these testings would be appropriate if a trial return to work was unsucessful[sic]. For now, I would encourage the claimant to further explore the alleged childhood abuse, for her own personal, therapeutic benefit. As regards to work, I feel a trial return to work is reasonable at this point. [52] At this point was nearly at the end of the 13 weeks plus two years portion of the policy coverage. The comments of Dr. Gosse do not indicate that the appellant s problems were fabricated or that a return to work would necessarily be successful. There is no indication in the evidence that, in response to this report, a return to work was suggested to the appellant by Sun Life at that time. They simply continued to deny her any benefits. [53] If one looks only at the requirements of the contract, the appellant has clearly shown on the evidence, on a balance of probabilities, that she was continuously suffering from an illness that made her unable to perform the whole of her regular occupation. This finding refers to the requirement that she work in the specific work environment that triggered her negative symptoms. There was no medical evidence to the contrary with respect to the coverage provided by the first part of the policy. The first part of the policy test, covering the first 13 weeks plus two years of the policy, has thus been proven. COMMENSURATE EMPLOYMENT [54] However, different considerations apply to the second part of the policy. The second part of the insurance policy requires proof that the claimant is totally disabled from carrying out any commensurate employment. Because of his findings on the first issue, this aspect of the policy was not dealt with by the trial judge. Since I have concluded that the claimant met the first part of the test, it is necessary to deal with the second part.

16 Page: 16 [55] While normally the trial judge would assess the evidence to determine whether or not it supports the claim for long-term total disability benefits according to the second part of the policy, this matter has been outstanding for some time. In addition, this is not a situation where credibility is the primary issue. The insurer is not stating that it does not believe the claimant. Although there were video surveillance tapes used by the insurer to argue that the appellant was not as disabled as she claimed, the insurer s primary argument is that the claimant has not proven she is unable to carry out commensurate employment. The evidence on this issue is fully before this court and in the interests of finality it should be dealt with. [56] On the whole of the evidence, it cannot be said that the appellant has shown she cannot work in commensurate employment. There is simply no evidence that she tried and failed or that her medical advisers recommended no such efforts. There is even no evidence that she sought work through employment agencies and was told that positions meeting her requirements are unavailable. [57] If the appellant was so environmentally sensitive that she was essentially a prisoner in her house, then her failure to look for work might not be an impediment to her claim. However, she does manage to go to the gym for the exercise her doctor has urged her to take. She manages to do volunteer work at the Sherwood Home and to care for her granddaughter. Her testimony indicates that she can still have reactions to the environment but some activities are acceptable. Sun Life has the right to ask for more. If the appellant had tried various types of employment, learned that at best she could work half time, then her claim would be supported. However, her failure to pursue any possible employment (outside of a couple of very minor contacts with employment agencies that apparently were not followed up) undermines her claim. She has not shown on a balance of probabilities that she is totally disabled now from working at any commensurate occupation. [58] I would therefore allow the appeal in part. Joan MacDonald has proven she was totally disabled, during the elimination period and the following 24 months from performing each and every duty of her regular employment. The Honourable Madam Justice L.K. Webber