Bich, Bachand, Kalichman

Appeal from a judgment of the Superior Court granting an application claiming disability insurance benefits and moral damages. Allowed in part.

The respondent insured suffered an acute myocardial infarction in November 2014, which rendered him incapable of working. The insurer recognized the total disability of the insured and paid him the benefits set out in the insurance policy until March 31, 2015, as it considered that the medical information provided by the insured was not sufficient to establish his permanent disability after that date. The insured’s situation is unusual in that his heart attack gave rise to real and disabling symptoms the true cause of which, a psychiatric condition directly linked to the occurrence of the heart attack, was discovered during the course of the proceedings as the result of an expert assessment. The insured did not undergo any therapy in this respect. He remained under the care of his attending physicians, without, however, alerting them to the psychological condition diagnosed by the medical expert.

The insurer appeals from the judgment condemning it to pay its insured disability benefits as of April 1, 2015, with waiver of premiums, and to pay moral damages to repair the injury it caused by the non-performance of its obligations.

Disability benefits

Under the insurance policy, an insured who is disabled due to an illness or accident obtains and maintains benefits if his or her physical or mental condition is incapacitating and he or she remains under medical treatment and under the regular care of a physician, unless however his or her condition is stable, that is, not likely to improve or progress under treatment.

The insurer did not discharge its burden of proving that the insured no longer met the conditions for awarding and maintaining the total disability benefit between April 1, 2015, and July 24, 2018, the date of the expert report. During this period, the true source of the insured’s incapacitating symptoms was unknown and, even though he was being treated by physicians whose recommendations he followed, he was therefore not receiving the treatment that would have been appropriate for his condition.

However, with respect to the subsequent period, the trial judge committed a reviewable error in finding that the insured still met the conditions for maintaining the disability benefits, since he had constant medical care since his heart attack and his condition was indeed stable. That was insufficient under the insurance policy, which required follow-up and treatment of the disabling medical condition and made the payment of benefits conditional on the maintenance of these measures. The insured, however, refused psychological or psychiatric follow-up or treatment. In addition, the evidence in the record does not establish that the insured’s condition was stable as of 2018, or that, by that date, treatment would have been useless. Given the exceptional circumstances, it is reasonable and equitable to declare that as of May 2019, that is, after the insured raised this issue in its factum, that the insured had lost the right to disability benefits, due to his failure to comply with his contractual obligation.

Moral damages

The judge did not err in condemning the insurer to pay the insured $20,000 in moral damages to repair the prejudice caused by the improper handling of his insurance claim. This case does not lend itself to consideration of the transposition of Fidler v. Sun Life Assurance Co. of Canada (S.C. Can., 2006-06-29), 2006 SCC 30, SOQUIJ AZ-50380234, J.E. 2006-1316, [2006] 2 S.C.R. 3, [2006] R.R.A. 525 (sum.) in Quebec law. Article 1617 of the Civil Code of Québec (S.Q. 1991, c. 64.), however, which can be seen as an exception to article 1613, appears on its face to weigh against such a transposition.

Text of the decision: http://citoyens.soquij.qc.ca