Nelson v. Industrial-Alliance Pacific Life Insurance Company, 2010 ABQB 746

Court of Queen ’ s Bench of Alberta Citation: Nelson v. Industrial-Alliance Pacific Life Insurance Company, 2010 ABQB 746 Date: 20101126 Docket: 0703 08134 Registry: Edmonton Between: Nadia E. Nelson Plaintiff - and - Industrial-Alliance Pacific Life Insurance Company Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Nadia E. Nelson is the widow of Dr. Gary Steven Nelson. Mrs.

Nelson commences this action against Industrial-Alliance Pacific Life Insurance Company (Industrial-Alliance) seeking benefits pursuant to a policy of insurance issued by Industrial-Alliance. II. Factual Background

[ 2 ] Dr. Nelson was a member of the Alberta Medical Association and at all material times carried on a general practice in medicine in Whitecourt, Alberta. [ 3 ] Effective January 1, 2003, Industrial-Alliance issued a group Policy Number 100004432 to the Alberta Medical Association as the policyholder (the Policy). Each member of the Alberta Medical Association was eligible for coverage pursuant to the Policy. Each eligible member of the Alberta Medical Association who applied for insurance and paid premiums became an insured pursuant to the Policy.

Agreed Facts [ 4 ] A document entitled Agreed Facts, was entered as Exhibit 1. It provided that the following facts had been agreed to and are not in dispute: 1. The Plaintiff is Nadia E. Nelson. 2. The Defendant is Industrial-Alliance Pacific Life Insurance Company, a life insurance company, licensed to do business in the Province of Alberta. 3. Dr. Gary Nelson was an insured person pursuant to an Accidental Death and Dismemberment Policy No. 100004432, which had been issued by the Defendant. 4. The Plaintiff was the named beneficiary under the Policy. 5. The Policy was in force at all relevant times. 6.

The Principal Sum payable under the Policy for death resulting from injury, as defined in and subject to the terms of the Policy, was for $400,000. 7. Dr. Gary Nelson died at Christina Lake on June 27, 2006. 8. The Plaintiff has submitted notice, proof of loss forms and medical documents to the Defendant, as required under the terms of the Policy. 9. The Defendant has denied the Plaintiff’s claim under the Policy. 10. The Plaintiff’s claim is based solely on the terms of the Policy.

The Plaintiff is not pursuing claims of bad faith, breach of fiduciary duties or trust, waiver, estoppel or any claim for aggravated or punitive damages or solicitor-client costs. Evidence of Nadia Nelson [ 5 ] Mrs. Nelson testified in this matter. She and Dr. Nelson were married on August 21, 1982. They have one son, Rodney Andrew Nelson, who was born on March 21, 1984. Dr. Nelson carried on his practice as a general medical practitioner in Whitecourt,

Alberta. He was the coroner for that region of the province and was involved in various committees on behalf of the College of Physicians and Surgeons of Alberta. [ 6 ] Dr. Nelson died on June 27, 2006 at Christina Lake, British Columbia. Prior to his death he had been in excellent health. He did not have a family physician. He was 6'3" tall and weighed 250 pounds. Some five or six years prior to his death he had suffered from some arthritic problems for a period of four months. He had suffered from psoriasis for most of his life.

At the time of his death, he was not on any prescription medications. [ 7 ] Dr. and Mrs. Nelson had a cabin at Christina Lake for approximately 20 years. Mrs. Nelson would spend a considerable part of each summer at the cabin. Dr. Nelson would attend at the cabin approximately four times a year. Dr. and Mrs. Nelson arrived at the cabin on June 22, 2006. Dr. Nelson had then returned to Edmonton and eventually drove back to Christina Lake arriving on the early morning of June 25, 2006.

It was his intention while at the cabin to provide some services in the emergency room of a local hospital. [ 8 ] On the morning of June 27, 2006, Dr. Nelson had gone to the local town to have a haircut and to do some shopping. He returned home at 11:00 a.m. He and Mrs. Nelson then had lunch and made their plans for the afternoon. Dr. Nelson advised that he was going to snorkel to the cabin of a friend, Janice Burrows. Mrs. Nelson estimated that Ms. Burrow’s cabin was 600 to 700 metres northeast across the lake from the Nelson cabin. Dr. Nelson asked Mrs. Nelson to drive to Ms.

Burrow’s cabin to pick him up. [ 9 ] Mrs. Nelson stated that she saw Dr. Nelson put on his snorkel mask and fins and saw him disappear over the dock at the Nelson cabin. She confirmed on cross-examination that she did not see him enter the water. She then drove to Ms. Burrow’s cabin. After approximately one to one and a half hours, she and Ms. Burrows became concerned that something had happened to Dr. Nelson. Later on June 27, 2006, a body was located in Christina Lake. Ms. Burrows identified the body as that of Dr. Nelson. Mrs.

Nelson saw the body covered with a blanket, which was not removed, on the beach near Ms. Burrow’s cabin. Mrs. Nelson did, however, touch the body and determined that the deceased was wearing a snorkelling mask. She was advised by the R.C.M.P. that Dr. Nelson had been found in an area of lily pads along the edge of the lake to the south of Ms. Burrow’s cabin. [ 10 ] Mrs. Nelson testified that on the day of the event, the air temperature was 40 degrees centigrade. Mrs. Nelson did not know the water temperature. Dr.

Nelson had had no alcohol to drink and as far as she was aware he had not taken any illicit or prescription drugs. Dr. Nelson had made no complaints that day. Mrs. Nelson testified that prior to June 27, 2006, Dr. Nelson would have snorkelled or swum in Christina Lake on virtually every day he was there. He had also snorkelled or swum all over the world in lakes and oceans. When she last saw Dr. Nelson on June 27, 2006, she made no specific observations of him. She stated that he looked the same as he usually did. [ 11 ] Mrs. Nelson had drawn a rough map of Christina Lake.

Christina Lake is fed from the North by an incoming creek which originates from snow melt. The incoming creek is some 13 miles to the North of the Nelson cabin and the general vicinity where Dr. Nelson was swimming on June 27, 2006. She stated that while she had not snorkelled or swum in Christina Lake she knew that the water was colder in June than it was after the middle of July each year. [ 12 ] At the time of Dr. Nelson’s death, their son, Rodney, was attending the University of Alberta. He returned to the University of Alberta in the fall of 2006. Mrs.

Nelson testified that Rodney was totally dependant on Dr. and Mrs. Nelson to complete his schooling. [ 13 ] On cross-examination, Mrs. Nelson confirmed that no one had observed what happened to Dr. Nelson nor when or how it happened. Medical Evidence [ 14 ] The Plaintiff called two witnesses to provide evidence in relation to the cause of Dr. Nelson’s death. Dr. Richard Lee Hutton

[ 15 ] Dr. Hutton was qualified as an expert in the area of general pathology to give an opinion as to the cause of Dr. Nelson’s death. Dr. Hutton had performed an autopsy on Dr. Nelson on June 28, 2006. The report prepared following the autopsy was included as part of Exhibit 4. [ 16 ] The autopsy performed on Dr. Nelson was a typical autopsy. Prior to performing the autopsy Dr. Hutton had received some information with respect to the circumstances of Dr. Nelson’s death. He recalled being advised that Dr. Nelson had been found in water. [ 17 ] Toxicology tests detected no presence of drugs or alcohol. Dr.

Hutton concluded that there was no physical indication of external injury. While Dr. Nelson had an enlarged heart and there was some evidence of atherosclerosis (hardening of the arteries) it was Dr. Hutton’s opinion that these conditions were not the cause of death. There was no evidence of natural disease processes which would cause death. There was no evidence of an infarct in the heart or lungs. While there was some evidence of fluid in Dr. Nelson’s lungs, Dr. Hutton did not believe that Dr. Nelson had drowned. His conclusion was that Dr.

Nelson likely suffered from an arrhythmia (an irregular heart beat), resulting in Dr. Nelson going under the water. He may then have partially regained consciousness and took a breath but due to his unconscious state this was unsuccessful. He stated that the arrhythmia suffered by Dr. Nelson was likely due to shock upon entering the cold water or perhaps due to exertion in the water. He stated that an arrhythmia cannot be diagnosed post-mortem. Inhalation is an indication of arrhythmia. [ 18 ] The findings in the autopsy report were as follows: Comment : At autopsy no definite anatomic cause of death was found.

However, his lungs did not show the usual changes of a drowning victim, which tend to be very voluminous and meet at the midline sometimes with pleural petechiae. Furthermore, only a small amount of frothy fluid was found in his trachea, which is often more abundant in drowning victims. Hence I suspect that this man suffered an arrhythmia perhaps precipitated by his immersion in cool water.

He then probably lost consciousness and made some meagre respiratory efforts leading to some rather mild signs of drowning, but I do not believe drowning was the primary cause of his death, again because his pulmonary findings were very mild compared to the usual drowning victim. Final Diagnosis: I suspect this man died from an arrhythmia. The arrhythmia may have led to a loss of consciousness followed by some rather meagre attempts at respiration; however due to his immersion in water that was not successful. He did not have the findings of a typical drowning victim. Dr. Andrew David Krahn [ 19 ] Dr.

Krahn was qualified as an expert in cardiology, arrhythmias and internal medicine. Dr. Krahn is a professor in the Division of Cardiology at the University of Western Ontario. His clinical expertise is in management of cardiac arrhythmias. His current research interests include investigation of genetic causes of arrhythmias, causes of loss of consciousness and implantable arrhythmia device monitoring. Dr. Krahn testified that his research in this area has focussed on conditions that can lead to sudden death. He explained that arrhythmia is a medical term for an abnormal hearth rhythm.

Arrhythmia simply means out of rhythm. An arrhythmic condition can be fatal. [ 20 ] Dr. Krahn had reviewed a copy of the Judgment of Inquiry into the death of Dr. Nelson. This Judgment of Inquiry was entered as Exhibit 7. It indicated that the immediate cause of Dr. Nelson’s death was “cardiac arrhythmia” by means of “natural disease process”. The Judgment of Inquiry classified the event as “natural”. The Judgment of Inquiry was signed by T.E. Chico Newell, a coroner in the Province of British Columbia. There is no evidence as to whether this individual is a medical doctor.

This document indicated that the estimated time of Dr. Nelson’s death was between 12:30 and 13:20 on June 27, 2006. [ 21 ] Dr. Krahn had also reviewed Dr. Hutton’s autopsy report. He testified that when there was no anatomical cause or

[ 21 ] Dr. Krahn had also reviewed Dr. Hutton’s autopsy report. He testified that when there was no anatomical cause or mechanism for a finding of structural damage on autopsy then the cause of death is presumed to represent an arrhythmia. He stated that upon review of the matter he was clinically confident that Dr. Nelson had had an arrhythmia. The key question was why? His conclusion was that Dr. Nelson was prone to this condition, a “substrate”, and some “trigger” must have set the condition off. In relation to arrhythmia, he described two conditions that are associated with sudden death during swimming.

These conditions are known as Long QT1 Syndrome and CPVT. [ 22 ] He testified that his clinical diagnosis in this case was that there was no structural cause for Dr. Nelson’s death. There was a context that suggested arrhythmia and a circumstance, namely swimming, in terms of a trigger, which is suspicious of setting the condition off. He agreed with Dr. Hutton’s opinion that the arrhythmia may have been triggered by immersion into cold water. Dr. Nelson was prone to this arrhythmic condition and required something to set it off.

There appears to be a unique association between the immersion in water and swimming that relates to this particular condition. He agreed with Dr. Hutton’s conclusions that although there appeared to be water in Dr. Nelson’s lungs this was secondary to the underlying heart condition. [ 23 ] In

summary, he concluded that Dr. Nelson was prone to an arrhythmic condition and he was in an environment, namely jumping into or swimming in a cold lake, which could trigger the condition. He stated that if Dr. Nelson had not been in Christina Lake on the day in question, he likely would not have died that day. [ 24 ] Under cross-examination Dr. Krahn testified that in his Statement of Expert Witness he had stated “that the death of Dr. Nelson arose from accidental causes”. His understanding of “accidental causes” was that an event external to Dr. Nelson’s body acted as a trigger.

He confirmed that Long QT1 and CPVT are both genetic, or inherited, conditions. That is, someone is born with these conditions. Not everyone suffers from these two conditions and 50% to 70% of people suffering from one of these conditions would never exhibit any symptoms. He confirmed that in his opinion Dr. Nelson had an inherent vulnerability to an arrhythmic condition and that swimming in the lake on the day in question constituted the trigger to that vulnerability. [ 25 ] Dr.

Krahn made the following comments in his report: When no cause is detected and death is sudden, it is presumed to be related to an arrhythmia, which leaves no practical evidence of its existence once the electrical system no longer functions after death. I have no reason to question the expertise of the pathologist [Dr. Hutton] when he noted that drowning seemed secondary to underlying heart disease. These [Long QT1 Syndrome and CPVT] are rare genetic conditions associated with normal structure of the heart, which cannot be detected at autopsy.

Both of these conditions may present for the first time as sudden death although they more commonly present with syncope or resuscitated cardiac arrest. Clearly in the context of drowning, it is not possible to call for help. It is a most unfortunate place to become incapacitated. As indicated above, the context of drowning and swimming as a trigger for events of LQT1 and CPVT is well recognized.

Factors that contribute are likely the physical exertion of swimming, the temperature change that occurs when diving into cold water, and the autonomic nervous system response to those stimuli and the inherent electrical vulnerability of the heart caused by the LQT1 or CPVT. An autopsy performed by Dr. L. Hutton on June 28, 2006 showed no structural evidence of heart disease. No autonomic cause of death was detected. The pathologist’s findings and conclusions do not suggest a primary drowning mechanism. Dr. Nelson’s death, on the balance of probabilities can be linked to one of these genetic conditions.

As a result, it is evident that an arrhythmia would have unlikely occurred in the absence of exposure to water. Having said this, the diagnosis of CPVT or LQT1 are made on a probability basis. The term “natural causes” may refer to an inherent vulnerability to stimuli such as swimming. As previously noted, as CPVT or LQT1 is consistent with the explanation for Dr. Nelson’s death, it follows that this represents a substrate for his sudden death, and exposure to the elements represents the trigger.

I agree with this finding [Dr. Hutton’s conclusions] and strongly suspect that an arrhythmia brought on by exposure to the elements is the mechanism by which this unfortunate man met his sudden death. In other words, if Dr. Nelson was not swimming that day, it was unlikely he would have suffered an arrhythmia and consequently death. III. Issues [ 26 ] The issues for determination in this matter are: 1. What was the cause of Dr. Nelson’s death? 2. Was Dr. Nelson’s death caused by an accident as contemplated in the Policy? 3. If Dr.

Nelson’s death was caused by an accident, what benefits are recoverable pursuant to the Policy? IV. Policy wording [ 27 ] The following provisions of the Policy are germane to the issues in this matter. [ 28 ] The declaration page of the Policy provides, in part, as follows: Policy Number: 100004432 Policyholder: ALBERTA MEDICAL ASSOCIATION Policy Effective Date: January 1, 2003 ...

The Company hereby agrees to insure eligible persons of the Policyholder for loss resulting from injury to the extent herein provided and subject to all of the exclusions, limitations and provisions of this policy. “Injury” wherever used in this policy means bodily injury caused by an accident occurring while this policy is in force as to the Insured Employee/Member, Insured Spouse or Insured Dependent Child sustaining the injury and resulting directly and independently of all other causes in loss covered by this policy. ... [ 29 ] The following provisions appear in the Attachment to the Policy:

PART 1 - ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS

If injury shall, within 365 days of the date of the accident causing such injury, result in any of the following losses, the Company will pay for loss of or permanent and total loss of use of: Life..............................................................................................The Principal Sum ...

PART 13 - SPECIAL EDUCATION BENEFIT If an Insured Employee/Member’s eligible Dependents are covered under this policy on the date of such Insured Employee/Member’s death due to an injury for which benefits are payable under this policy, the Company will pay the Education Benefit stated below for each of the Insured Employee/Member’s Dependent Children, as described in this policy, who are enrolled as full-time students: (

a) in a school for higher learning above the secondary school level as defined in the Province or State of residence; ...

The Education Benefit is equal to the reasonable and necessary expenses actually incurred, subject to 5% of the Insured Employee/Member’s Principal Sum to a maximum of $5,000.00, for each year the Dependent Child described above continues his/her education on a full-time basis in a school for higher learning, but not to exceed four years, which must run consecutively, with respect to any one Dependent Child. ... “School for higher learning” includes any university, private college, CEGEP or trade school.

In the event the Insured Employee/Member’s Dependent Child does satisfy the requirements indicated above, such Child shall be deemed the beneficiary with respect to the benefits payable under this provision. ...

PART 16 - EXCLUSIONS AND LIMITATIONS This policy shall not provide for payment in respect of any loss caused, resulting from or contributed to by: (1) suicide or any attempt thereat while sane or insane; (2) intentionally self-inflicted injury; (3) injury sustained in consequence of riding as a passenger or otherwise in any vehicle or device for aerial navigation, except as provided in the paragraph entitled “LIMITED AIR TRAVEL COVERAGE”; (4) declared or undeclared war or any act thereof; (5) full-time active service in the armed forces of any country. ...

PART 17- EXPOSURE AND DISAPPEARANCE If due to accident an Insured Employee/Member, Insured Spouse or Insured Dependent Child is unavoidably exposed to the elements and if, as a result of such exposure and within 365 days after the date of the accident the Insured Employee/Member, Insured Spouse or Insured Dependent Child suffers a loss for which indemnity would otherwise have been payable hereunder, such loss shall be deemed to be the result of injury as defined herein.

...

PART 21 - GENERAL PROVISIONS THE CONTRACT This policy, including the endorsements, insertions or riders, if any, and the application for the contract if attached to the policy, constitutes the entire contract and no agent has authority to change the contract or waive any of its provisions. ... TIME OF PAYMENT OF CLAIMS Indemnities payable under this policy for any loss other than loss for which this policy provides any periodic payment will be paid immediately upon receipt of due written proof of such loss. [. . .] ... [ 30 ] The

Schedule to the Policy contains, inter alia , the following provisions:

DEFINITIONS ... “Dependent Child or Children” - means a natural Child, legally adopted Child or step-Child of the Insured Employee/Member who is under 23 years of age, unmarried and receives full parental support and maintenance; or 23 years of age or over but under 25 years of age, unmarried and receives full parental support and maintenance for reason of full-time attendance at a recognized school, college or university. Mentally and physically disabled children may remain covered past 23 years provided they are incapable of self-sustaining employment and receive full parental support and maintenance. ...

Section 6 - Beneficiary: The beneficiary or beneficiaries of an Insured Employee/Member shall be that person or those persons designated by the Insured Employee/Member and filed with the Policyholder. V. Analysis Cause of Death [ 31 ] The only medical evidence before me was called on behalf of the Plaintiff. The Defendant chose not to call any medical evidence and, in fact, does not dispute the mechanism of Dr. Nelson’s death. Rather, the Defendant argues that the mechanism of death does not trigger coverage for benefits pursuant to the Policy.

[ 32 ] Dr. Hutton opined, upon conclusion of the autopsy, that Dr. Nelson died from an arrhythmia, that is, an abnormal heart rhythm. The arrhythmia led to a loss of consciousness followed by an attempt at respiration which proved unsuccessful due to the fact that Dr. Nelson was immersed in water. Drowning was not the primary cause of Dr. Nelson’s death. [ 33 ] I accept these findings by Dr. Hutton. [ 34 ] Dr. Krahn upon review of Dr. Hutton’s report accepted Dr. Hutton’s conclusions as to the cause of death. Dr. Krahn went on to opine that Dr. Nelson’s arrhythmic condition was a genetic or inherited condition.

He was inherently vulnerable. Dr. Nelson’s inherent vulnerability was triggered by his immersion in the cold lake waters or, alternatively, by exertion during the course of his swim. [ 35 ] I accept all of the foregoing opinions expressed by Dr. Krahn. I also accept Dr. Krahn’s opinion that had Dr. Nelson not been swimming in Christina Lake on June 27, 2006, it is unlikely that he would have suffered an arrhythmia and consequently death. Was Dr. Nelson’s Death Accidental? [ 36 ] The analysis of this issue must start with a consideration of the applicable provisions of the Policy.

Those provisions, paraphrased as to names, read as follows: Industrial-Alliance hereby agrees to insure Dr. Nelson for loss resulting from injury to the extent herein provided and subject to all the exclusions, limitations and provisions of this policy. “Injury” wherever used in this policy means bodily injury caused by an accident occurring while this policy is in force as to Dr. Nelson and resulting directly and independently of all other causes in loss covered by this policy.

If injury shall, within 365 days of the date of the accident causing such injury, result in any of the following losses, Industrial-Alliance will pay for loss of or permanent and total loss of use of: Life - $400,000. [ 37 ] It is, therefore, necessary to consider whether Dr. Nelson’s bodily injury and ultimate death was “caused by an accident”. The term “accident” is not defined within the Policy. [ 38 ] Mrs. Nelson argues that Dr.

Nelson’s bodily injury was caused by an accident, namely, his immersion or swimming in cold water which triggered his inherent arrhythmic condition. [ 39 ] Industrial-Alliance argues that the bodily injury suffered by Dr. Nelson was as a result of his inherent genetic arrhythmic condition which took his life on June 27, 2006. Dr. Nelson’s death occurred in normal or natural circumstances and there was nothing in the events on June 27, 2006 which would constitute an accident. What Constitutes an Accident? [ 40 ] Accident benefit policies generally do not define the word “accident” . The Policy is no exception.

Guidance as to what constitutes an accident is, however, found in cases which have considered this matter. The two leading cases from the Supreme Court of Canada are Gibbens v. Co-operators Life Insurance Co. , 2009 SCC 59 , [2009] 3 S.C.R. 605 ( Gibbens ) and Martin v. American International Assurance Life Co. , 2003 SCC 16 , [2003] 1 S.C.R. 158 ( Martin ) .

[ 41 ] The definition of accident from the text A.W. Baker Welford, The Law Relating to Accident Insurance , 2nd ed. (London: Butterworth, 1932) is often cited when this issue is considered by the courts. Most recently the Supreme Court of Canada in Gibbens adopted this definition: 17 Generally speaking the cases exclude from the concept of accident a "bodily infirmity caused by disease in the ordinary course of events", as summarized in Mr.

Welford's book: The word "accident" involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events. [ 42 ] The Court in Gibbens provided some general principles of

interpretation which should be applied when considering the term “accident”: 1. Words like “accident” should be given their ordinary meaning; 2. A generous

interpretation should be given to the term “accident”, unless a policy clearly restricts it; 3. The words of an insurance contract, when ambiguous, should be construed against the drafter (i.e. the insurer)( contra proferentem ); 4. Where a policy is ambiguous, effect should be given to the reasonable expectations of the parties; and 5. There should be continuity of

interpretation. [ 43 ] The Supreme Court of Canada in Gibbens endorsed its comments in Martin when it considered the term accident. In Martin , McLachlin C.J. for the Court stated: 15 This

interpretation of death by accidental means accords with the ordinary meaning of the phrase. Death by accidental means is death that has been brought about unexpectedly -- or that constitutes, in Lord Macnaghten's words, "an unlooked-for mishap or an untoward event which is not expected or designed": Fenton v. J. Thorley & Co. , [1903] A.C. 443 (H.L.) , at p. 448 . . . . 18 . . . "Accidental death" and "death by accidental means" connote a death that was in some sense unexpected.

The two phrases have essentially the same meaning. [ 44 ] The Supreme Court of Canada in both Gibbens and Martin gave further guidance as to other matters which must be taken into consideration in any analysis of what constitutes an “accident”. The expectations of both the insurer and the inured as to what circumstances will be covered when an accident benefits policy is issued must be taken into account. Any

interpretation of the term “accident” must attempt to strike a balance between the expectations of each of the parties [ Martin , para. 16] . The expectations of both parties must be considered. Care must be taken not to convert an accidental benefits policy into a general health, disability, or life insurance policy [ Gibbens , para. 23] . The chain of events as a whole must be looked at in analysing whether death occurred by means of an accident [ Martin , para. 14 ; Gibbens , para. 30] . Circumstances Giving Rise to Claims on Accident Benefits Policies [ 45 ] The cases submitted by the parties have considered numerous circumstances which have given rise to claims pursuant to

accident benefits policies. These circumstances can be broken down into different categories. I believe such categorization is useful in framing a consideration of whether a claim will be covered pursuant to an accident benefits policy. Antecedent Mishaps External to the Person of the Insured [ 46 ] The obvious type of claim pursuant to an accident benefits policy is a claim which arises from a “mishap or untoward event” which is completely external to the body of the insured itself. That is, bodily injury or death which results from some external force or impact on the body of the insured.

Examples would include bodily injury or death arising from such events as a motor vehicle accident, slipping on some ice on a sidewalk or tripping while going up or down a set of stairs. [ 47 ] There are relatively few reported cases of this type of claim, likely because when such an event is given its “ordinary meaning” it is obvious that it was fortuitous and unexpected and, therefore, clearly an accident. [ 48 ] Claims of this nature also include bodily injury or death arising from disease or illness which can be attributed to a “mishap or untoward event”. [ 49 ] An example in this area arises from the very early decision of the English Queen’s Bench in Sinclair v.

Maritime Passengers’ Assurance Co. (1861), 121 E.R. 521 . In that case Cockburn C.J. gave this example at p. 524: . . . [i]f, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. [ 50 ] In Etherington v.

Lancashire and Yorkshire Accident Insurance Co . (1909), 1 K.B. 591 (Eng.) an insured fell off his horse onto a wet surface and subsequently developed pneumonia, from which he died. The English Court of Appeal held at p. 603 that “the fatal pneumonia was a sequela of the accident against the consequences of which it was the object of a policy to insure”. [ 51 ] In Hepburn v.

Westbury Canadian Life Insurance Co. (1997), 1997 CanLII 466 (BC SC) , 43 C.C.L.I. (2d) 16 (B.C.S.C.) the insured had, for the five years prior to his death, suffered from a congested cardiac problem which had required several emergency admissions to hospital due to severe shortness of breath. On June 5, 1995, the insured was admitted to hospital with shortness of breath due to a combination of pneumonia and congested cardiac failure. On the evening before the day he was to be released from hospital, he fell in his hospital room and broke three ribs and his right hip.

Surgery ensued on June 10, 1995 and the insured died on June 11, 1995. The British Columbia Supreme Court held that the insured’s death was the natural consequence of the accident which resulted in a fractured hip which, in turn, resulted in the need for surgery. Coverage, however, was not available pursuant to the insurance policies there under consideration due to the existence of applicable specific exclusions. [ 52 ] In Heitsman v. Canadian Premier Life Insurance Co. , 2002 BCSC 1435 , 43 C.C.L.I. (3d) 138 the insured had, for a number of years, suffered from a significant coronary artery disease.

He was the driver of a tractor trailer unit which was involved in a single vehicle accident. The emotional and physical stress experienced by the insured as a result of the accident acted as a trigger to precipitate a cardiac arrhythmia which led to his death. Melnick J. of the British Columbia Supreme Court held that the motor vehicle accident played a pivotal role in the insured’s death, just as his heart disease and earlier heart attack also played a pivotal role.

In the circumstances the insured’s beneficiary was entitled to recover pursuant to the accident benefits policy under consideration. [ 53 ] Thus, if a “mishap or untoward event” external to the insured causes bodily injury or death, such a circumstance would be considered to be an accident. Similarly, bodily injury or death caused by a disease or illness which is the secondary consequence of a “mishap or untoward event” external to the insured would also be considered to be an accident. Antecedent Mishaps Internal to the Person of the Insured

[ 54 ] A number of cases have considered situations in which the “mishap or untoward event” has involved a voluntary act or movement by the insured him or herself which has resulted in bodily injury. These cases involve deliberate actions by the insured which actions are, however, relatively normal day to day actions. However, due to some bodily malfunction of the insured bodily injury results.

These cases have considered the mishap or event to be an accident and, therefore, the resulting bodily injury was a covered benefit pursuant to the accident benefit policies being considered notwithstanding that the action of the insured was deliberate. [ 55 ] In Claxton v. Travellers Insurance Co. of Hartford (1917), 1917 CanLII 605 (QC CA) , 36 D.L.R. 481 (Que.Sup.Ct.) the insured suffered a hernia due to the “violent exercise” of swinging a golf club.

The majority held that even where a person is predisposed to a hernia which must manifest itself at one time or another, there was nevertheless an accident within the meaning of the policy when it occurred as a direct result of an exterior factor. [ 56 ] In Voison v. Royal Insurance Co. of Canada (1988), 1988 CanLII 4736 (ON CA) , 66 O.R. (2d) 45 (C.A.) , the insured suffered an occlusion of the anterior spinal artery resulting in paralysis. The occlusion occurred when the insured assumed an awkward position and extended his neck while working inside a broom closet in his kitchen.

A highly unusual spinal cord malfunction occurred. Although a slightly protruding disc might have been a contributing factor, it could not have caused the damage by itself. [ 57 ] In Guillet v. American Home Assurance Co. (2004), 2004 CanLII 34505 (ON CA) , 72 O.R. (3d) 641 (C.A.) , the 33 year old insured twisted his neck while playing basketball and suffered a stroke and consequent paralysis. The majority held that deliberate acts of ordinary living can constitute an accident where the injury is unforeseen, unexpected, without design, and constitutes an unusual result.

In that case, the expert evidence established that the insured's stroke was caused by an arterial dissection, investigations had not uncovered any predisposing factors for the dissection, most if not all dissections that are not related to predisposing factors are caused by arterial trauma, and the probability of trauma was related to sudden movement in the neck. [ 58 ] In this type of case, while the action of the insured was deliberate, the bodily injury which in fact arose was fortuitous and unexpected as it was as a result of a bodily malfunction peculiar to the insured.

Coverage was, therefore, available in these cases. Antecedent Mishaps Due to Miscalculation by the Insured [ 59 ] This type of case also arises from deliberate acts on the part of the insured but entails the insured miscalculating the effect of such deliberate actions, from which it might be inferred that the insured intended the injury. Therefore, the key issue in these cases is whether the action of the insured was intended to cause injury or death or whether it was a miscalculation or misjudgment and, therefore, accidental. [ 60 ] In Glenlight Shipping Ltd. v.

Excess Insurance Co. , 1983 S.L.T. 241 (Scot.Ct.Sess.) the insured, believing that a ferry had reached the pier, drove off the ferry into the sea. In Cornish v. Accident Insurance Co. (1889), 23 Q.B.D. 453 (Eng. C.A.) , the insured failed to notice an oncoming train when crossing a railway track to get from one part of his farm to another. In Brown v. Continental Casualty Co. , 108 So. 464 (US La.S.C. 1926), the insured died when he mistakenly inhaled more chloroform than he had expected during a procedure that he used regularly to relieve headaches and insomnia. In Bertalan Estate v.

American Home Assurance Co. (1999), 1999 CanLII 6170 (BC SC) , 68 B.C.L.R. (3d) 118 , [1999] B.C.J. No. 1228 (S.C.) , the insured failed to remove the mask connected to his bottle of nitrous oxide in a timely fashion as he normally did. In all of these cases there was a finding that the deaths which resulted from the miscalculation or misjudgment were accidental. [ 61 ] The most recent consideration of this issue is the Supreme Court of Canada decision in Martin . The insured, a medical doctor, died when he injected himself with an overdose of Demerol.

McLachlin C.J. speaking for the Court held that consideration must be given not only to the whole chain of events, but also to whether the insured expected death to be a consequence of his actions and circumstances: para. 14. In holding that the insured’s death in the Martin case was accidental, McLachlin C.J. made these comments: 21 The pivotal question is whether the insured expected to die. The circumstances of the death -- what the insured said, or did, or did not do -- may point to the answer.

However, to the extent that the answer is unclear when the matter is viewed solely from the perspective of the insured, the court may consider whether a reasonable person in the position of the insured would have expected to die . . .

22 The general rule that unexpected death is accidental has been repeatedly applied. . . . All these cases rest on a finding that the insured did not expect or intend to die. As the cases attest, the absence of the expectation of death can arise from a variety of factors. The death may be caused by events outside the insured's control. The insured may have made a miscalculation, or may have had mistaken beliefs about his circumstances. The insured may have failed to perform a certain action in a timely manner, or have failed to undertake a necessary check.

Or the insured may simply have miscalculated the effects of his action on his body. [ 62 ] The Chief Justice then went on to consider the particular circumstances surrounding the death of the insured in the Martin case and concluded that such circumstances suggested that the insured “was simply attempting to ease the pain in his leg and perhaps also to satisfy his addiction to pain killers, and that he would not have willingly taken on the risk of administering a potentially lethal dose”: para. 39.

Therefore, while the insured’s act was deliberate when injecting himself it was not intentional in the sense of being a suicidal act. [ 63 ] As mentioned above, all of these cases concern facts from which it would be possible to infer that the insured perhaps intended the injury or death.

In this line of cases it is necessary to consider whether the intentional act on the part of the insured results in bodily injury or death due to events outside of the insured’s control, the insured having made a miscalculation, having a mistaken belief about his or her circumstances, having failed to perform an action in a timely manner or having failed to undertake a necessary check, or having simply miscalculated the effects of the intentional action on his body.

These questions are answered by considering the expectations of the insured or, if it is unclear when the matter is viewed from the perspective of the insured alone, then whether a reasonable person in the position of the insured, would have expected to die. Disease or Illness of the Insured [ 64 ] As set out previously in these Reasons, bodily injury or death resulting from disease may be an accident within the meaning of an accident benefits policy if such disease is a secondary consequence of a “mishap or untoward event”.

If, however, the bodily injury or death arises from processes that occur naturally within the body in the ordinary course of events, or from diseases that are transmitted in the ordinary way without any associated mishap or trauma, then such bodily injury or death would not be covered in an accident benefits policy. [ 65 ] This was the situation which was under consideration in Gibbens . The insured had unprotected sex with three women. He acquired genital herpes which in turn caused inflammation of his spinal cord (transverse myelitis), a rare but known complication of herpes.

This resulted in total paralysis from his mid-abdomen down. Binnie J. concluded on behalf of the Court that the paralysis arose from a process that occurred naturally within the insured’s body in the ordinary course of events: 62 The causal chain that led to Mr. Gibbens' bodily injury was sex that transmitted the herpes that led to transverse myelitis. Transverse myelitis was an unexpected consequence of the disease, but it occurs (though rarely) as a normal incident or consequence of that disease. . . 63 To conclude that Mr.

Gibbens' acquisition of herpes was "an accident" despite the absence of any mishap or trauma other than the acquisition of a sexually transmitted disease in the ordinary way would simply serve to add sexually transmitted diseases to the list of Critical Diseases in the group policy contrary to the intent of the policy. [ 66 ] In Wang v. Metropolitan Life Insurance Co. (2004), 2004 CanLII 21269 (ON CA) , 16 C.C.L.I. (4th) 69 (Ont. C.A.) , the insured woman underwent an elective caesarian section. Subsequent to the closing of her abdomen, she suffered a cardiac arrest and died.

It was later determined that the cause of death was an amniotic fluid embolism. The majority held that the insured did not die as a result of an accident: 29 There is no dispute that Mrs. Lin died as a result of an amniotic fluid embolism. There is also no dispute that this condition, although rare, happens naturally during child birth. Would an ordinary person describe what happened as an accident? Perhaps only in the figurative sense as a tragic “accident of nature”, but in my view, not in the ordinary sense of the word.

In respect of this kind of occurrence, I find that the Welford definition of “accident” approved by the Supreme Court of Canada in Smith is still informative. . .

[ 67 ] Therefore, if bodily injury or death results from natural causes or is a bodily infirmity caused by disease in the ordinary course of events, then same would not constitute an accident within an accident benefits policy. Deliberate Ingestion of Drugs or Alcohol [ 68 ] Counsel for Mrs. Nelson submitted that Golding v. Citadel General Assurance Co. (1990), 49 C.C.L.I. 296 (Ont.C.A.) was directly on point as the insured in that case died from a cardiac arrhythmia after voluntarily consuming diet pills.

The Ontario Court of Appeal upheld the trial judge’s finding that the heart stoppage was due to an accident within the meaning of the accident benefits policy being considered in that case. [ 69 ] In my view, this case is not as helpful as was urged by counsel for Mrs. Nelson. [ 70 ] First, it is contrary to a very similar and prior decision of the Alberta Court of Appeal in Leontowicz v. Seaboard Life Insurance Co. (1984), 1984 ABCA 346 (CanLII) , 36 Alta. L.R. (2d) 65 , [1984] A.J. No. 1021 , leave to appeal to S.C.C. refused (1985), 36 Alta. L.R. (2d) lxin.

In that case the Alberta Court of Appeal held that the voluntary consumption of excess amounts of alcohol did not constitute an accident as the death resulted from

an act voluntarily committed by the insured. [ 71 ] The Ontario Court of Appeal in Golding held that to the extent that the decision of the Alberta Court of Appeal in Leontowicz could not be reconciled with the later decision in Voison the Court was obliged to follow Voison . However, this comment was addressed specifically at the finding in Voison that there was no distinction between "accidental bodily injury" as opposed to "bodily injury caused by an accident".

All three of these cases are distinguishable on the facts from the present case. [ 72 ] Second, both the Golding and Leontowicz cases were, obviously, decided prior to the Supreme Court of Canada decision in Martin . In my view, both of these cases would now be determined having regard to that decision. Both cases involved deliberate ingestion of potentially harmful substances by the insured, resulting in their death.

In determining whether such an intentional act was accidental it is necessary to consider whether the insured, or a reasonable person in the position of the insured, would have expected to die or whether the death was as a result of a miscalculation as to the effects of the ingestion of the drugs or alcohol on the insured’s body. [ 73 ] In my view, as will become apparent from the discussion below, the Golding decision is distinguishable on the facts and therefore is of little assistance in determining the case before me.

Principles to Be Drawn from Cases [ 74 ] Although policy wording and the particular fact situation will determine the outcome in any given case, the following broad principles can be drawn from the above categories of cases: 1.

Accident occurs where: - a prior unanticipated mishap or occurrence external to the insured’s body causes bodily injury or death; - a disease or illness attributed to a prior unanticipated mishap or occurrence external to the insured’s body causes bodily injury or death; - a prior unanticipated mishap or occurrence due to a deliberate action of the insured results in bodily injury or death due to a bodily malfunction peculiar to the insured;

- a deliberate action on the part of an insured causes bodily injury or death due to the insured’s miscalculation or mistaken belief about his or her circumstances. 2. Accident does not occur where disease or illness resulting from natural causes or bodily infirmity in the ordinary course of events causes bodily injury or death. Application to Dr. Nelson’s Case [ 75 ] With this framework in mind, I turn now to a consideration of the claim advanced by Mrs. Nelson arising from the death of her husband. [ 76 ] It is first necessary to return to a determination of the cause of Dr. Nelson’s death.

As set out previously in these Reasons, Dr. Nelson suffered from a congenital heart condition, arrhythmia. Dr. Nelson was, therefore, prone to suffering from the effects of arrhythmia. Arrhythmia can be brought on by certain stimuli. Swimming is known to be such a stimuli. Dr. Krahn testified that this could be either as a result of exposure to cold water or the exertion from the swimming activity itself. The activity of swimming was therefore the trigger or event which brought on Dr. Nelson’s arrhythmia which led to his death. Dr. Krahn testified that had Dr.

Nelson not been swimming on June 27, 2006 “it was unlikely he would have suffered an arrhythmia and consequently death”. [ 77 ] Mrs. Nelson argues that the accident which caused the bodily injury in this case was Dr. Nelson swimming in the colder waters of Christina Lake on June 27, 2006. [ 78 ] In my view, Dr. Nelson’s death arose from his inherent congenital heart condition. The Supreme Court of Canada has adopted a definition of disease which includes congenital conditions.

In Gibbens reference was made to the definition of disease from Butterworths Medical Dictionary , 2 nd ed. (London: Butterworths, 1978) at p. 523: 31 Disease for present purposes may be defined as: In general, a departure from the normal state of health. More specifically, a disease is the sum total of the reactions, physical and mental, made by a person to a noxious agent entering his body from without or arising within (such as a micro-organism or a poison), an injury, a congenital or hereditary defect, a metabolic disorder, a food deficiency or a degenerative process.

These cause pathological changes in organs or tissues which are revealed by characteristic signs and symptoms. [ 79 ] As set out previously in these Reasons, liability under an accident benefits policy can arise from disease or death if such disease or death can be attributed to a mishap or untoward event. In this case Mrs. Nelson argues that the mishap or untoward event was Dr. Nelson’s swim in Christina Lake.

In Gibbens , the Supreme Court of Canada held that the accident benefits policy there under consideration did not provide coverage for “bodily injury from processes that occur naturally within the body in the ordinary course of events and, as well, from diseases that are transmitted in the ordinary way without any associated mishap or trauma except the spread (or inception) of the disease itself”.

In my view, this finding is applicable to the case before me. [ 80 ] In all of the cases which have found coverage under an accident benefits policy for disease or illness there has been a mishap or trauma which ultimately led to death as a result of the condition of the insured: broken hip ( Hepburn ), motor vehicle accident ( Heitsman ), shipwreck ( Sinclair ) and a fall from a horse ( Etherington ). In those cases where a bodily malfunction occurred ( Claxton , Voison , Guillet ), Claxton is the only one where a physical predisposition played a probable role.

The Court in Gibbens characterized these as “bodily contortion” cases turning on peculiar fact situations, and having nothing to do with the spread of a disease in the ordinary and natural course of events. [ 81 ] In this case, there is no such mishap, untoward event, contortion or trauma which led to Dr. Nelson’s death. The event - swimming - which caused Dr. Nelson’s arrhythmia is a very natural and common event, and particularly so for Dr. Nelson. Mrs. Nelson’s evidence was that he had swum all over the world, and in Christina Lake virtually every day that he was there. This was a very

ordinary event for Dr. Nelson. Having regard to Mr. Welford’s definition of accident as adopted by the Supreme Court of Canada, the circumstances of this case are the anthesis of an accident as they involve a “bodily infirmity caused by disease in the ordinary course of events”. The circumstances of the case before me are very similar to the circumstances in the Wang case. Mrs. Lin died as a result of an amniotic fluid embolism. While that condition is rare it does happen naturally during child birth. [ 82 ] In the case of Dr.

Nelson, due to his congenital condition, his death happened naturally during the course of a swim. Dr. Nelson did not die as a result of a sequella of an accident but rather, as a sequella of his congenital or hereditary defect. The antecedent event, namely, the swim, could not be characterized as an accident when that term is given its ordinary meaning. The expert evidence in this case, which I accept, is that Dr. Nelson did not die from drowning but rather from the manifestation of his arrhythmia. The context in which the manifestation occurred, namely swimming in Christina Lake, was for Dr.

Nelson a normal activity. [ 83 ] Insight from a medical perspective as to what constitutes a natural cause is found in the expert opinion provided by Dr. Krahn. At p. 3 of his report, he stated as follows: The term “natural causes” may refer to an inherent vulnerability to stimuli such as swimming. [ 84 ] It is also of note that the Judgment of Inquiry prepared by a coroner for British Columbia indicated that the immediate cause of Dr. Nelson’s death was “cardiac arrhythmia” caused by “natural disease process”. [ 85 ] Dr.

Nelson had an inherent vulnerability due to his congenital or inherited condition which was stimulated by the swimming. The meaning of natural causes, from a medical perspective, would suggest that the circumstances surrounding Dr. Nelson’s death would not constitute an accident. [ 86 ] Binnie J. in Gibbens contemplated the very situation that is presented by Dr. Nelson’s case. The policy under consideration in Gibbens did have coverage for certain critical diseases which were identified in the policy.

In considering a loss from an unlisted disease, Binnie J. commented: 49 A bit of reflection would suggest that in the case of an unlisted disease that pre-dates the event said to be the accident, there would be no coverage if the "event" simply provided an occasion on which the pre-existing disease manifested itself, e.g. the heart patient who goes out for a walk and, on being startled by the sound of a car horn, experiences an incapacitating cardiac arrest. On a common sense approach the incapacitation would be attributed to the pre-existing heart condition, not the sound of the car horn.

Customers would understand that such matters properly relate to the province of life, disability or comprehensive health insurance. 50 The prospective customer would not, I think, have any difficulty in distinguishing that case from the situation of an unlisted disease or physical infirmity that is produced by the event or events said to be the accidental means, e.g. a heart condition that arises as one of the elements of injuries suffered in a car crash. In such a case the insurer would be expected to pay. [ 87 ] In my view, Dr.

Nelson’s condition being triggered by a swim is analogous to the incapacitating cardiac arrest being triggered by the sound of a car horn in Binnie J.’s example. On a common sense approach, Dr. Nelson’s incapacitation was produced by his pre-existing heart condition and not by an event or events that could be said to be an accidental means. [ 88 ] One of the tools of

interpretation referred to by the Supreme Court of Canada is to give consideration to the expectations of both the insurer and the insured. A reasonable customer seeking an accident benefits policy, in my view, would not expect that the circumstances surrounding Dr. Nelson’s death would give rise to a claim under an accident benefits policy. In my view, to provide coverage in such circumstances would, in effect, convert Dr. Nelson’s accident benefits policy to a general health, disability or life insurance policy. [ 89 ] Mrs.

Nelson argues that coverage is available pursuant to the Policy having regard to the decision in Martin as Dr. Nelson’s going for a swim was a deliberate act and the result was neither expected nor designed from the perspective of Dr. Nelson.

[ 90 ] While it is true that Dr. Nelson’s act in going for a swim was deliberate, and that the results were neither expected nor designed from his perspective, this case does not fall for determination pursuant to the analysis in Martin . As stated previously, the analysis in Martin related to determining whether a death brought about by a deliberate act would be considered an accident through miscalculation or whether it would be considered a suicide. There is absolutely no evidence to suggest that Dr. Nelson had any suicidal intention in undertaking the deliberate act of going for a swim.

There was no evidence of any suicidal tendencies. Nor was swimming, for him, a potentially dangerous activity requiring particular calculation. His days leading up to the date of his death and his plans for the future were completely normal. There was no evidence that the lake conditions were unusual on the day in question. Further, it could not be said that Dr. Nelson had in any way miscalculated the effects of going for a swim on the day in question as he had no prior knowledge of his heart condition.

Therefore, in my view, the Martin analysis has no application to the case before me. [ 91 ] The Supreme Court of Canada in Martin addressed the applicable onus of proof in cases such as this. 30 . . . The onus is on the plaintiff to establish a prima facie case that the death was accidental, at the risk of non suit. The plaintiff must therefore adduce evidence that permits the trier of fact to infer, on a balance of probabilities, that the insured's death was accidental, within the ordinary meaning of that word. The tactical burden then shifts to the insurer to displace these inferences.

The burden of proof never shifts, but remains squarely with the plaintiff. [ 92 ] This articulation of the onus of proof in cases involving accident benefits policies was repeated in Gibbens . In my view, Mrs. Nelson has failed to establish a case on a balance of probabilities that Dr. Nelson’s death was caused by an unlooked for mishap or an untoward event which was not expected or designed. She has, therefore, failed to prove that Dr. Nelson’s death resulted from an accident. [ 93 ] Finally, regard must be had to the provisions contained in

Part 16 and

Part 17 of the Attachments to the Policy. None of the exclusions and limitations set out in

Part 16 are applicable in the circumstances surrounding Dr. Nelson’s death. Coverage is not available pursuant to

Part 17 for Dr. Nelson was not “unavoidably exposed to the elements” due to an accident. He deliberately and willingly went for a swim on June 27, 2006. Further, Dr. Nelson did not suffer a loss due to exposure to the elements. Rather, as set out previously, his loss was a result of his inherent heart condition. [ 94 ] I am mindful that the case law on this topic is difficult to navigate, as is well illustrated by the fact that Guillet and Wang were both split decisions of the Ontario Court of Appeal subsequent to Martin . However, the Supreme Court has provided welcome guidance. While Dr.

Nelson could be said to have experienced a “bodily malfunction” of sorts, the same could be said of many situations where seemingly healthy persons pass away in the course of a normal activity due to congenital conditions. Although a generous

interpretation should be given to the term “accident” unless a policy clearly restricts it, in my view this does not oblige a court to interpret “accident” in such a way as to render the policy one of life insurance. [ 95 ] Therefore, in all of the circumstances, while Dr. Nelson’s death was certainly tragic and unexpected, in my view, it proceeded from natural causes in the ordinary course of events and could not be said to arise from a disease or illness which was associated with a mishap or trauma. Mrs. Nelson’s claim for the payment of benefits pursuant to the Policy is therefore dismissed.

Benefits Recoverable [ 96 ] In light of my finding that Dr. Nelson’s death was not caused by accident, Mrs. Nelson, as the beneficiary pursuant to the Policy, is not entitled to the payment of any benefits by Industrial-Alliance. [ 97 ] If I am wrong in my finding, and Dr. Nelson’s death was caused by an accident, then Mrs. Nelson would have been entitled to the Principal Sum as defined in the Policy being the amount of $400,000 due to Dr. Nelson’s loss of life. In addition to the Principal Sum, Mrs. Nelson would have been entitled to recover interest thereon pursuant to the Judgment Interest Act, R.S.A. 2000 c.

J-1 from the date the payment was due. The Policy provided that “indemnities payable under this policy for any loss other than loss for which this policy provides any periodic payment will be paid immediately upon receipt of due written proof of such loss”. Therefore the commencement date for the payment of interest pursuant to the Judgment Interest Act would have been the date upon which Industrial- Alliance received the written proof of loss.

[ 98 ] In addition to the payment of the Principal Sum, had Dr. Nelson’s death been caused by an accident, Mrs. Nelson would have been entitled to recover the Education Benefit as provided for pursuant to the Policy in the sum of $5,000 per year to a maximum of four years in relation to the attendance of Rodney Andrew Nelson at the University of Alberta. He met the criteria of an eligible dependent as defined by the Policy. Mrs. Nelson testified that Rodney returned to the University of Alberta in the Fall of 2006 and that he was totally dependent on Dr. and Mrs. Nelson to complete his schooling.

Again, interest would have been payable pursuant to the Judgment Interest Act from the date that such payments were due on an annual basis. VI. Costs [ 99 ] Mrs. Nelson has been unsuccessful in this action and Industrial-Alliance is, therefore, entitled to its costs in this action. VII. Conclusion [ 100 ] Mrs. Nelson’s claim for benefits payable pursuant to the Policy is dismissed with costs to Industrial-Alliance. Heard on the 1 st and 2 nd days of November, 2010. Dated at the City of Edmonton, Alberta this 26 th day of November, 2010. K.G. Nielsen J.C.Q.B.A. Appearances: Ms. Sharon Stefanyk and Mr. Brian D.

Filips Field LLP for the Plaintiff Mr. Rinus de Waal Porteous de Waal LLP for the Defendant