Tyson v Holloway, 2016 ABQB 284

Court of Queen ’ s Bench of Alberta Citation: Tyson v Holloway, 2016 ABQB 284 Date: 20160518 Docket: 1403 02053 Registry: Edmonton Between: Jenna Tyson Plaintiff - and - Karen Holloway, Michael Kischuk, Lee Pickett, Gerry Martins, Drew Chipman, Kathy McIsaac, Doug Lerke, Valerie Ling, Chad Bowie and Heather Welwood in their capacity as Trustees for the Alberta School Employee Benefit Plan ("ASEBP") Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] The Plaintiff, Jenna Tyson, seeks an order that her disability claim under the Alberta School Employee Benefit Plan (the “Plan”) is not excluded under the provisions of the pre-existing condition exclusion in the Plan. [ 2 ] The application before me was directed by a consent order dated October 28, 2015, which specified that a special chambers application would determine the following question: Is the Plaintiff’s claim for extended disability benefits under ASEBP’s Extended Disability Benefits Plan (the “EDBP Plan”) excluded by Clauses 6.4 and 1.15 of the EDB Plan?

[ 3 ] The Plan disputes Ms. Tyson’s entitlement to disability benefits for her claim, relying on the pre-existing condition provisions of the Plan. Background [ 4 ] The facts are not in dispute. Most of the relevant facts are contained in an agreed statement of facts. [ 5 ] Ms. Tyson graduated in 2009 with Bachelor of Education and Bachelor of Physical Education Degrees. [ 6 ] She was unable to secure full-time employment as a teacher, but accepted a temporary teaching contract for a period, did substitute teaching and pursued other activities.

None of her early teaching work entitled her to benefits under the Plan. [ 7 ] Ms. Tyson began to experience headaches in early 2010, and her doctor suspected that she was suffering from migraines. The headaches became worse in July, 2010 when she was on a family vacation in Hawaii. When she returned from that vacation, she consulted her doctor on July 19, 2012, who again said that he thought she was suffering from migraines, but did not provide any treatment at that time as he wanted to have Ms. Tyson take some tests, including a skull x-ray. He apparently considered that Ms.

Tyson may have had a concussion at sometime because of her athletic lifestyle. [ 8 ] Ms. Tyson took all prescribed tests on July 23, 2012. The skull x-ray showed no irregularities. Ms. Tyson was headache-free from July 23, 2012 until August 26, 2012, although in that period, she consulted a doctor at a different clinic about a sore throat. [ 9 ] The headaches returned on August 26. Ms. Tyson returned to the first medical clinic on August 31, 2012 and consulted another doctor there. He reviewed the earlier test results and told her he thought she was suffering from migraines, but wanted her to have a CT scan.

The scan was scheduled by the doctor’s office on September 7, and was set for September 13. [ 10 ] In the meantime, Ms. Tyson returned to work as a substitute teacher and worked on September 7. That day, she was interviewed for a probationary teaching position. On September 10, she became employed by the Calgary Board of Education under a full-time probationary teaching contract. [ 11 ] Being employed in this fashion entitled Ms. Tyson to benefits, including being enrolled in the Plan. Her “date of coverage” under the Plan is September 10, 2012. [ 12 ] She began work under the new contract.

After school on September 13, she went for the CT scan. She was told that the scan revealed a large mass in her brain, and she was told to go immediately to the Foothills Hospital in Calgary. [ 13 ] The mass was surgically removed on September 18, 2012 and was determined to be cancerous. [ 14 ] The Agreed Statement of Facts states: 31. The Plaintiff acknowledges that the headaches, dizziness and nausea she experienced from July 1, 2012 to the date of her surgery were caused by her brain tumour.

However, neither the Plaintiff nor her physicians associated the headaches, dizziness, and nausea with a brain tumour until at least September 13, 2012. [ 15 ] Treatments for the brain tumor continued until December 31, 2013. [ 16 ] Ms. Tyson submitted a claim for benefits under the Plan on November 27. She was advised on December 16 that her claim was denied on the basis of it being a pre-existing condition. [ 17 ] For the purposes of this application, Ms.

Tyson’s claim is being treated as one for total disability as of the date of surgery and continuing indefinitely. [ 18 ] All appeals under the Plan have been pursued by Ms. Tyson, unsuccessfully. [ 19 ] She was able to return to work as a substitute teacher starting in October, 2014. Terms of the Plan [ 20 ] The relevant provision of the Plan is the definition of pre-existing condition.

Clause 1.15 states: 1.15 Pre-existing Condition means an accidental injury or illness for which an Employee received medical attention, consultation, diagnosis, or treatment during the 12 months before the Employee became covered under This Plan (2003-01-01) [ 21 ] Clause 6.4 provides: 6.4 The following Pre-existing condition clause applies to all eligible Employees who commenced employment on or after August 15, 1990 (2003-01-01): 6.4.1 No benefit is payable if Total Disability is related to a Pre-existing Condition and begins within 26 weeks of the Employee’s initial effective date of coverage or any subsequent effective date of coverage following a lapse in coverage (2004-09-01).

Position of the Parties [22] It is common ground that the burden of proof lies on the Plan to show that the exclusion applies. Ms. Tyson [23] Ms. Tyson has two arguments. Firstly, she argues that the definition of pre-existing condition is clear and unambiguous. Forthere to be a pre-existing condition, the condition must have been diagnosed during the 12 months before she became employed underthe Plan. [24] She argues that the words “for which” are key to the

interpretation of the provision and that “Illness”, for ease ofinterpretation, should be replaced with the name of the illness (here, brain tumor) which led to her disability. [25] As such, she did not receive medical attention for a brain tumor and had no consultation for a brain tumor in the 12 monthsbefore she became employed.

She was not diagnosed with a brain tumor during that period, nor was she treated for a brain tumor duringthat period. [26] She refers to the definition of “condition” in the Merriam- Webster Online Dictionary (www.merriam-webster.com/dictionary/diagnosis): • the act of identifying a disease, illness, or problem by examining someone or something • statement or conclusion that describers the reason for a disease, illness, or problem [27] Simply put, the use of “diagnosis” in the definition of pre-existing condition means that the illness (in this case, brain cancer)must have been diagnosed (specifically identified) before the commencement of coverage. [28] Alternatively, Ms.

Tyson argues that if there is another potential

interpretation of paragraph 1.15, that makes the paragraphambiguous and she is entitled to the benefit of the

interpretation favourable to her. [29] For this latter proposition, Ms. Tyson relies heavily on Lawson v Fortis Insurance Company, 300 F.3d 159, 2002 US App LEXIS 17410 (USCA 3rd Circuit). [30] She cites a number of authorities in support of her arguments: • Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24 , [2000] S.C.J. No. 26 • Hollett v Insurance Corp of Newfoundland Ltd, [1985] N.J. No. 133 (Nfld. S.C.) • Dunphy v Seaboard Life Insurance Co, [1987] B.C.J. No. 45 (Co. Ct.) • Hoult Estate v First Canadian Insurance Corp, [1994] B.C.J. No. 1226 (S.C.) • Medical Services Inc v Hurd, [2002] S.J.

No. 676 (C.A.) • Van Maele v Alberta Blue Cross Benefits Corp, [2004] A.J. No. 367 (Q.B.) • Ellis Estate v Cigna Life Insurance Co of Canada, [2005] N.S.J. No. 253 (S.C.) • Duke v Clarica Life Insurance Co, [2007] A.J. No. 404 (Q.B.) • Duke v Clarica Life Insurance Co, [2008] A.J. No. 1003 (C.A.) • Ross v Western Fidelity Insurance Company, 1989 U.S. App. LEXIS 6441 (U.S.C.A., 5th Circ.) • Hughes v Boston Mutual Life Insurance Company, 1994 U.S. App. LEXIS 18054 (U.S.C.A., 1st Circ.) • VanVolkenburg v Continental Casualty Company, 1996 U.S. Dist. LEXIS 16945 (Dist.

Ct.) • Ermenc v American Family Mutual Insurance Company, 1998 Wisc. App. LEXIS 939 (Wisc. C.A.) • Lawson v Fortis Insurance Company, 2002 U.S. App. LEXIS 17410 (U.S.C.A., 3rd Circ.) • McLeod v Hartford Life and Accidental Insurance Company, 2004 U.S. App. LEXIS 12253 (U.S.C.A., 3rd Circ.) • Golden Rule Insurance Company v Atallah, 1995 U.S. App. LEXIS 1218 (U.S.C.A., 1st Circ.) [31] Thus, Ms. Tyson argues that the Plan has not established that the exclusion applies, and accordingly she is entitled to thedeclaration she seeks. The Plan

[ 32 ] The Plan too argues that the wording of paragraph 1.15 is not ambiguous. They say the clear meaning of the paragraph is such that if a diagnostic process for the illness commenced in the 12-month period before coverage, the pre-existing provision exclusion applies. [ 33 ] Here, Ms. Tyson was ultimately diagnosed as having a brain tumor. The diagnosis process for that commenced in the 12 months before Ms. Tyson became employed.

It does not matter that the specific diagnosis of brain cancer was not made during the exclusion period. [ 34 ] The Plan relies heavily on the decision in Van Maele v Alberta Blue Cross Benefits Corporation , 2006 ABQB 246 , which they say is directly on point. [ 35 ] The Plan also relies on a number of other cases: • Duke v Clarica Life Insurance Co , 2008 ABCA 301 • Duke v Clarica Life Insurance Co , 2007 ABQB 233 • Van Maele v Alberta Blue Cross Benefits Corp , 2004 ABQB 246 • Ellis Estate v Cigna Life Insurance Co of Canada , 2005 NSSC 143 • Hollett v Insurance Corp of Newfoundland Ltd , 1985 CarswellNfld 50 (excerpts) • Dunphy v Seaboard Life Insurance Co , 1987 B.C.J. 45 • Hoult Estate v First Canadian Insurance Corp , 1994 B.C.J. 1226 • Medical Services Inc v Hurd , 2002 SKCA 130 • McWilliams v Capital Telecommunications Inc , 986 F.

Supp. 920 (M.D. Pa. 1997) • Cury v The Colonial Life Insurance Company of America , 737 F. Supp. 847 (E.D. Pa. 1990) • Bullwinkel v New England Mutual Life Insurance Company , 18 F. 3d 429 ; 1994 U.S. App LEXIS 4119 Review of Authorities [ 36 ] I am mindful of the admonition in Duke v Clarica Life Insurance Company , 2007 ABQB 233 at paragraph 62 to the effect that when faced with claims against insurers, the Courts should not seek out ambiguities to give the insured the benefit of contra proferentum and find coverage.

Insurers legitimately worry about sympathetic cases being decided more on the basis of sympathy than the facts and the law. [ 37 ] This is indeed a sympathetic case. Ms. Tyson is a young woman, whose good health, energy and career were significantly impacted by brain cancer. She has made a recovery from it, but not a full recovery. [ 38 ] However, sympathies are also due to the Plan to some extent, as they find themselves with a significant claim only three days after coverage commenced.

This is not, however, a case where there is any suggestion of non-disclosure or imperfect disclosure on the part of an insured. [ 39 ] No doctor had suggested to Ms. Tyson that she might be suffering from anything but migraines, and the doctor who ordered the CT scan gave her the impression that he was simply doing his “due diligence” to rule out other things, without being specific as to what other things he wanted to rule out. [ 40 ] There is no evidence from the doctor who ordered the CT scan as to what his thought process was, and since it was not communicated to Ms.

Tyson, his reasons and concerns are not relevant to my determination. [ 41 ] At first blush, the case seems very similar to Van Maele , and the Plan argues that I should follow the decision in that case. There too a claim was made under a group disability plan by someone who was determined after the coverage date to have a disabling illness for which diagnostic steps had been taken before the coverage date.

Coverage in that case was denied. [ 42 ] The relevant wording in the policy there was recited in paragraph 10: [10] The relevant provisions of the policy of insurance are: Clause 5E.1(4) Sickness: All disabilities that are not the result of an Accident, as defined above, shall be deemed to be a result of sickness.

Clause 5E.4.1 Pre-Existing Conditions: A pre-existing condition means sickness or injury for which the employee, during the three months immediately prior to the effective date of long-term disability coverage has received medical treatment, consultation, care or services (including diagnostic measures) or has been prescribed medication. Long-term disability benefits are not payable for any disability caused by or resulting from a pre-existing condition unless:

a. the Employee has not received medical treatment, consultation, care or services (including diagnostic measures) or has not beenprescribed medication for any six consecutive months within the 15 month time period beginning three months before and ending 12months after the Employee's effective date of long-term disability coverage or b. the disability begins after 12 consecutive months of employment from the Employee's effective date of long-term disabilitycoverage. [43] Topolniski J referred to Dunphy v Seaboard Life Insurance Co., 91987) 11 BCLR (2d) 106 (BC Co Ct) and Hoult Estate vFirst Canadian Insurance Company, (1994), (BC SC), 25 CCLI (2d) 255 (BCSC). [44] She distinguished Dunphy at paragraph 22: [22] Dunphy is distinguishable from the present case on two grounds.

First, the policy wording in Dunphy differs in that it does notinclude language relating to “diagnostic measures.” Second, and more significantly, the plaintiff's doctors in Dunphy were unable to saythat she suffered from malignant carcinoma before the effective date of the policy, whereas the evidence here is that the cause of thePlaintiff’s illnesses and symptoms during the waiting period was the very syndrome that was ultimately diagnosed. [45] Justice Topolniski described the relevant policy wording in Hoult in paragraph 25: [25] The policy in Hoult defined a pre-existing illness as: “… illness, disease or physical condition for which medical diagnosis,advice, consultation, service or treatment was acquired or recommended on or within a six (6) month period immediately preceding theEffective Date of Insurance and which recurs within six (6) months subsequent to the Effective Date of Insurance.” The plaintiff arguedthat the exclusion clause could not apply because the deceased did not die from an illness or physical condition for which he was treatedor diagnosed during the six month period immediately preceding the effective date of insurance.

The judge had difficulty accepting thatproposition. However, he found that it was unnecessary to rule on it since he was satisfied there was an ambiguity in the exclusion clausebecause it did not address the exact situation presented. He was of the view that the clause could be interpreted as calling for denial ofcoverage where the death resulted from a pre-existing illness, disease or condition which was known to the insured or which wasunknown to the insured.

The judge rejected the insurer’s argument that the term “pre-existing illness" should be broadly interpreted toinclude pre-existing symptoms of subsequently diagnosed serious conditions rather than narrowly to cover only pre-existing diagnosedconditions. He did so on the basis of the principle that exclusion clauses must be interpreted narrowly. [46] Van Maele was followed in Ellis Estate v Cigna Life Insurance Co. of Canada, 2005 NSSC 143.

There the definition of pre-existing condition was: 3. ‘Pre-existing Condition’ means any physical or medical condition, symptom, illness, or disease, diagnosed or undiagnosed,suffered by you for which you received Treatment or Advice in the 6 month period immediately preceding the Date Insurance Begins. APre-existing Condition does not include any condition(

s) that existed in the 6 month period immediately preceding the Date InsuranceBegins if you have been free of Treatment or Advice for such Condition(

s) for 6 consecutive months immediately following the DateInsurance Begins. 4. ‘Treatment or Advice’ means consultation, and/or care and/or service provided by a licensed medical practitioner. This includesbut is not limited to diagnostic measures and prescribed drugs. (quoted at para 6) [47] Edwards J followed Van Maele and Levesque v Seaboard Life Insurance Co., (1995), (SK KB), 138 SaskR 125 (QB) and distinguished Dunphy v Seaboard Life Insurance Company as had Topolniski J in Van Maele, stating at para 22: [22] The same grounds of distinction apply in the present case.

The Policy contains reference to “diagnostic measures” which wereclearly being undertaken by Mr. Ellis during the waiting period. Also, Mr. Ellis’ doctors are able to say that his symptoms experiencedduring the six month pre-existing period are fully recognized symptoms of pulmonary hypertension and cirrhosis of the liver. Further,the clause in this Policy refers to a pre-existing condition that is “diagnosed or undiagnosed.” The decision of the Court in Dunphyrequired a definitive diagnosis, whereas the clause in the present case contemplates an illness that is undiagnosed.

The clauses governingpre-existing conditions are entirely different and must be interpreted differently as well.

The Dunphy case is irrelevant to the case at bar. [48] In Leveque v Seaboard Life Insurance Co., (1995), (SK KB), 138 Sask R 125 (QB), the applicable policywording was described in paragraph 27: [27] Leveque involved a diagnosis of osteoarthritis that was made but not communicated to the plaintiff during the waiting period.The issue in the case was whether the plaintiff’s disability was due to sickness, which was defined in the policy as: “sickness contractedand which first becomes manifest after the Effective Date of Insurance”.

The evidence was clear that the plaintiff had osteoarthritisbefore the effective date of the insurance. The court held that her claim failed for that reason alone. The judge ruled in obiter thatsickness becomes manifest when it displays the symptoms for it, then evinces its presence, referring to the decision in McDaniel v. StateFarm Mutual Insurance Company, (1979) 591 Pac. Rep 2d 1094. As the plaintiff had displayed the symptoms of osteoarthritis prior tothe effective date, the sickness had manifested itself by that time.

Failure to communicate the diagnosis to the plaintiff was irrelevant. [49] The Plan also relies on Hollett v. Insurance Corporation of Newfoundland Ltd., 1985 CarswellNfld 50 (NFSC), [1985] NJNo 133. In that case, the pre-existing condition clause read: 24 In the application and underwriting agreement there is a paragraph entitled Pre-existing Conditions. This reads as follows: Pre-existing Conditions: Claims resulting from sickness or accident for which the employee has received medical treatment, or has taken drugs, during a period of

three (3) mouths preceding immediately the effective date of his/her insurance would not be insured for that medical condition untilhe/she have completed twelve (12) consecutive months following the effective date of the employee’s insurance without anyreoccurrence of medical treatment or taken prescription drugs for that medical condition. (at paragraph 24) [50] That case turned on the definition of “medical treatment”, and the trial judge concluded that “medical treatment” did notinclude diagnosis. [51] The policy wording in Hollett is very different from the Plan’s wording.

It is noteworthy that Goodridge J stated at paragraph36: 36 Undoubtedly it was the intention that pre-existing conditions should have been excluded and had the defendant not taken thetrouble to define pre-existing conditions, it might have succeeded in obtaining the exclusion. In attempting to define the exclusion,however, the defendant has in fact excluded from the exclusion pre-existing conditions though known but for which no medicaltreatment was being provided. [52] There are apparently only two Canadian appellate authorities that deal with the

interpretation of pre-existing disabilityexclusion clauses: Hurd v Medical Services Inc., (2002), 2002 SKCA 130 , 227 Sask R 133 (CA), 2002 SJCA 130 and theAlberta Court of Appeal decision in Duke v Clarica Life Insurance Company, 2008 ABCA 301. [53] Ms. Tyson points out that at trial in Duke, Lutz J questioned the correctness of Van Maele, and notes that the decision inDuke was upheld by the Court of Appeal without specific comment on Van Maele.

The policy wording in that case was quoted by thetrial judge at para 44: [44] The exclusion clause, as set out at p. 2 of the Policy, states: When we will not make a payment under the critical illness insurance benefit (Exclusions and reductions of coverage) if the insured person had a covered critical illness or any symptoms associated with the covered critical illness before the later of: the date this policy came into effect, ... [54] At paragraph 45, Lutz J observed: [45] The exclusion clause has two parts.

First, the exclusion clause applies if the insured had a covered critical illness before thedate the policy came into effect (“Illness Exclusion”). Second, the exclusion clause applies if the insured had any symptoms associatedwith a covered critical illness before the date the policy came into effect (“Symptoms Exclusion”). [55] That case was not about a group disability policy but was rather about an individual catastrophic illness policy.

Thedistinction is not relevant to the applicability of that case, however. [56] Lutz J found that the wording in the exclusion clause was ambiguous, stating at paragraph 64: [64] I do not agree with the Plaintiff that the word “associated” in the exclusion clause is used as a verb in the past tense. Rather, itappears to be used as a participial adjective. Further, in my opinion, focussing on the type of association required or not required, whetherfunctional or otherwise, does not assist in answering the question of when the association must occur.

Nevertheless, I find the requisitetiming of the association of the symptoms with the covered critical illness to be unclear from a plain reading of the exclusion clause. Theuse of word “associated”, particularly when read in conjunction with the verb in the past tense “had”, could but does not necessarilymean the association must occur before the policy is issued.

In other words, it is not clear from a plain reading of the exclusion clausethat having symptoms of Parkinson’s disease before the Policy was issued would exclude the Plaintiff whether or not anyone made anassociation between the symptoms and Parkinson’s disease before the Policy was issued.

Thus, I find the exclusion clause is ambiguous. [57] Accordingly, he found that the insurer had not proven that the exclusion clause applied, and gave judgment for the plaintiff. [58] Lutz J commented on Van Maele at paragraph 73: [73] I am disinclined to agree with the finding in Van Maele that the exclusion clause was unambiguous, but I need not decide oneway or the other. That is because I find Van Maele distinguishable given the exclusion clause in Van Maele made no reference tosymptoms.

Indeed, the focus of the exclusion clauses in Hoult and Van Maele was whether treatment was received, which is not an issuein this case as the evidence is clear the Plaintiff did not receive treatment for the alleged symptoms of Parkinson’s disease until after thePolicy was issued. [59] The Court of Appeal upheld the trial decision, stating at paragraphs 18 – 20: [18] The exclusion clause in question contains two grounds for denying coverage.

The appellant fairly concedes the first ground, thatthe respondent “...had a covered illness...”, would require him to know he had such an illness before the policy came into effect, and inthis case he did not. Hence that aspect of the exclusion clause is not now in issue. Instead, the appellant relies on the second part of theclause, namely that the respondent “... had symptoms associated with a covered critical illness before the date the Policy came intoeffect.” The trial judge found this phrase to be ambiguous. I agree.

It is unclear which of the following scenarios are intended to beexcluded by the impugned phrase: (

i) where the insured had symptoms of the disease that were diagnosed as such before the policy came into effect. In other words,the insured had the symptoms and either he, or his medical advisor, associated them with a listed critical illness.

(ii) where the insured had symptoms that were medically associated with a listed critical illness, but at the time the policy took effect, neither the insured nor his medical advisors were aware of the symptoms or had attributed them to some cause other than a listed critical illness. (iii) where the insured had symptoms that were medically consistent with a listed critical illness, but were not, in fact, that illness.

To illustrate with reference to the evidence in this case, the symptoms “associated with” Parkinson’s disease could also have been the result of a minor stroke, or another illness which is not listed as a critical illness in the policy. [19] The appellant submits that the clause was intended to exclude coverage to those individuals already suffering from a listed critical illness. That may be so, but the chosen words do not make that intention clear and the policy specifically uses the phrase “associated with”.

Indeed, the intent of the clause would be more clear if those words had not been used at all. [20] In my opinion, it was entirely appropriate for the trial judge to interpret the exclusion clause to apply only where the symptoms are linked to the critical illness prior to the effective date of the policy. The appellant accepts that no such association had been made before the policy came into effect. Therefore, this exclusion clause cannot be relied upon to deny coverage.

Accordingly, this ground of appeal must fail. [ 60 ] In Medical Services Inc. v Hurd , the Saskatchewan Court of Appeal recited the applicable policy wording in paragraph 8: [8] The appellant contends the trial judge erred in finding the surgery needed to be performed in Chicago and the pneumothorax treated in Saskatchewan was not a pre-existing condition as defined in the policy as: The following services are expressly excluded from coverage under this Policy: (Applicable to all sections of this Policy). -Services required as a result of a pre-existing condition.

A pre-existing condition is any condition which a licensed physician was consulted or for which treatment or medication was received prior to the effective date of this insurance. [ 61 ] The Court of Appeal, in an oral decision, overturned the trial judge’s finding of liability, holding at paragraph 12: [12] However, on the totality of the evidence, we cannot agree with the trial judge there was not a pre-existing condition. The respondent’s family doctor in Melfort described the pneumothorax as a traumatic pneumothorax which can result from an injury, blunt or penetrating.

Such an injury could result from a fall while water-skiing. However, the attending physician at the R.U.H. described the condition as a spontaneous pneumothorax. The attending physician in Chicago also referred to the condition as a spontaneous pneumothorax. Such a spontaneous pneumothorax can arise from a pre-existing condition, i.e. the bleb. The attending physician in Chicago thought the bleb could have existed since the respondent’s birth. The diagnosis in Saskatoon did not relate the pneumothorax to a trauma, and the condition was specifically referred to in the relevant reports as being spontaneous.

The trial judge erred in misconstruing crucial evidence, and the appeal must be allowed and the order below set aside. [ 62 ] At trial, reported at 2000 SKQB 340 , Dielschneider J stated at paragraph 26: [26] The question therefore is whether the drafter of the policy intended as pre-existing a condition which two physicians did not detect, and did not treat, or prescribe medication for; a condition which Dr. Adams said could not be diagnosed until there was a recurrence. [ 63 ] He relied on Hoult Estate , and found that the exclusion was ambiguous.

Judgment was given for the plaintiff. [ 64 ] The above references appear to reflect the Canadian case law directly relevant to the

interpretation issues of pre-existing disability wording. American Authorities [ 65 ] It is probably not surprising that there is more American authority on this subject than in Canada. [ 66 ] It is also not surprising that there is American authority going “both ways”. Counsel for Ms. Tyson provided an interesting

article discussing the positions of the various Circuits for the Federal Court of Appeals: Christiana M. Finello, One Word Can Make A Difference , 48 Vill L Rev 1355 (2003). While the

article focuses on decisions from the Third Circuit, it notes that all but the Seventh and Eighth Circuits appear to follow the Third Circuit. [ 67 ] The “one word” that makes the difference in the Third Circuit is “for”, referring the use of the phrase “condition or illness for which...” that defines the pre-existing condition. That same wording is in the policy at issue here. [ 68 ] The Lawson decision is from the United States Court of Appeals for the Third Circuit. Notably, the decision was authored by Alito J (as he then was) before his appointment to the United States Supreme Court in 2006. [ 69 ] In that case, the relevant facts were summarized at I(A): I(

A) On October 7, 1998, Joseph Lawson ("Lawson") purchased the Fortis short-term medical insurance policy to cover himself and his daughter, Elena Lawson. The policy became effective two days later, on October 9. On October 7, the same day Lawson applied for the insurance policy, Elena's mother, Tammy Malatak, took Elena to the emergency room at Palmerton Hospital in Palmerton, Pennsylvania. Elena had a dry, hacking cough, a fever, an elevated pulse rate, and a swollen right eye. The emergency room physician, Dr.

Shailesh Parikh, diagnosed Elena with an upper respiratory tract infection and prescribed an antibiotic and anti-allergy medication. Dr. Parikh further advised Ms. Malatak to take Elena for a follow-up visit to her family physician or to bring her back to the emergency room if the symptoms did not improve in a few days. Because the symptoms persisted, on October 13, Ms. Malatak took Elena to the family

physician, Dr. Narendra Ambani. On October 14, 1998, Elena’s grandmother, a registered nurse, took Elena to a pediatrician, Dr. Mira Slizovskaya (“Dr. Slizovsky”), who ordered Elena to undergo more tests and diagnosed her with leukemia. On October 15, Elena was transferred to the Children's Hospital of Philadelphia ("CHOP") under the care of Dr. Beverly Lange.

At CHOP, Elena underwent chemotherapy and other treatment that has since resulted in the remission of her leukemia. [ 70 ] The policy wording was described at B: The insurance policy at issue expressly excludes coverage for a pre-existing condition, which is defined as a “Sickness, Injury, disease or physical condition for which medical advice or treatment was recommended by a Physician or received from a Physician within the five (5) year period preceding that Covered Person's Effective Date of Coverage.” The policy defines “sickness” as an “illness, disease or condition which is diagnosed or treated while this policy is in force.” There is no dispute that the relevant sickness here is leukemia. [ 71 ] I find Alito J’s analysis and conclusions in C compelling: In this case, however, the treatment Elena initially received for a respiratory tract infection was not the appropriate treatment for leukemia, and thus it does not make sense to say that she received treatment “for” leukemia when the actual condition was not suspected and the treatment was in any event wrong.

In short, for the purposes of what constitutes a pre-existing condition, it seems that a suspected condition without a confirmatory diagnosis is different from a misdiagnosis or an unsuspected condition manifesting non- specific symptoms, as was the case here.

When a patient seeks advice for a sickness with a specific concern in mind (e.g., a thyroid lump, as in McWilliams, or a breast lump, as in Bullwinkel) or when a physician recommends treatment with a specific concern in mind (e.g., a “likely” case of multiple sclerosis, as in Cury), it can be argued that an intent to seek or provide treatment or advice “for” a particular disease has been manifested.

But when the patient exhibits only non-specific symptoms and neither the patient nor the physician has a particular concern in mind, or when the patient turns out not to have a suspected disease, it is awkward at best to suggest that the patient sought or received treatment for the disease because there is no connection between the treatment or advice received and the sickness. Here, there is no evidence that the possibility that Elena's condition was actually leukemia ever entered the minds of Elena's parents or Dr. Parikh. Therefore, it would not make sense to say that Dr.

Parikh offered medical advice or treatment for Elena's leukemia. In any event, to the extent that our decision here is at odds with Cury and McWilliams, we find the analysis in those cases unpersuasive because they focus primarily on the absence of a diagnosis requirement rather than simply construing the language of the policy. That is, Cury and McWilliams focused exclusively on the absence of a requirement for diagnosis in the insurance policies “without seriously considering whether the language concerning treatment ‘for’ a particular condition is ambiguous.” Hughes, 26 F.3d at 270 n.5 .

Although we base our decision on the language of the policy, we note that considering treatment for symptoms of a not-yet-diagnosed condition as equivalent to treatment of the underlying condition ultimately diagnosed might open the door for insurance companies to deny coverage for any condition the symptoms of which were treated during the exclusionary period. “To permit such backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of pre-existing condition as to make that term meaningless: any prior symptom not inconsistent with the ultimate diagnosis would provide a basis for denial.” In Re Estate of Monica Ermenc , 585 N.W.2d at 682 .

In Ranieli v Mutual Life Insurance Company of America , 271 Pa. Super. 261 , 413 A.2d 396 (Pa. Super. Ct. 1979) , the Pennsylvania Superior Court held that recovery under a pre-existing condition clause was “conditioned on the fact that prior to the stipulated date, the sickness was not manifest, nor could it have been diagnosed with reasonable certainty by one learned in medicine.” 432 A.2d at 401.

The court found such a policy to be “reasonable and salutary” because “to deny coverage because of an incipient disease that has not made itself manifest . . . is to set an unconscionable trap for the unwary insured” Id. At a minimum, the pre-existing condition language in Fortis’s insurance policy is susceptible to more than one reasonable

interpretation and is therefore ambiguous. See Myrtil v Hartford Fire Insurance Co , 510 F. Supp. 1198, 1202 (E.D. Pa. 1981) (“If reasonably intelligent people differ as to the meaning of a policy provision, ambiguity exists.”); Cohen v Erie Indemnity Co , 288 Pa. Super. 445 , 432 A.2d 596 , 599 (Pa. Super. Ct. 1981) (“The mere fact that several appellate courts have ruled in favor of a construction denying coverage, and several others have reached directly contrary conclusions, viewing almost identical policy provisions, itself creates the inescapable conclusion that the provision in issue is susceptible to more than one

interpretation.”). Therefore, we construe [**21] the insurance policy strictly against Fortis and find that Elena's leukemia was not a pre-existing condition under the language of the policy. [ 72 ] One of the significant factors in Lawson was that Ms. Lawson had not sought medical attention before the effective date of the policy.

That is a potential distinguishing factor for that case, and illustrates the fact-specific nature of the cases, and coverage exclusions. [ 73 ] The many American cases cited discuss “symptoms” exclusions, where the insured has experienced symptoms of the illness or condition before the effective date.

Other cases involve the inception date of the illness or condition, focusing on whether the condition existed or not at the time the policy came into force. [ 74 ] Others deal with the knowledge, actual or imputed, of the insured and deal with the extent to which the insured knew or ought to have known that he or she suffered from the illness or condition at the time the policy became effective. These cases sometimes describe the exclusions as a “treatment” exclusion. [ 75 ] Here, the medical evidence does not suggest that Ms. Tyson’s doctors were concerned that Ms.

Tyson was suffering from brain cancer when they ordered tests. For the purpose of comparing this case against the American authorities, this case would fit within the cases where the insured’s symptoms were “non-specific”. [ 76 ] In the agreed facts of this case, there is nothing to indicate that Ms. Tyson suspected, or should have suspected, that she was suffering from a brain tumor. Her doctors had not suggested even a possibility of that to her. What was in her doctors’ minds when they ordered the x-ray and the CT scan is not detailed.

Since the onus of proving the applicability of the exclusion rests with the insurer, “possibilities” would not meet that standard of proof, and it would appear from the evidence that Ms. Tyson’s doctors were trying to rule out possibilities, rather than to prove a tentative diagnosis.

[ 77 ] I note that in Van Maele , the most significant aspect of the policy wording was the use of the words “diagnostic measures”. That was the distinguishing factor noted in Duke , and one that is applicable in this case as well. [ 78 ] I observe that in Hughes v Boston Mutual Life Insurance Company , 26 F.3d 264, 1994 US App.

LEXIS 18054 , a decision of the United States Court of Appeal for the First Circuit, the policy wording included the definition of treatment as “consultation, care or services provided by a physician including diagnostic measures and taking prescribed drugs and medicines”. [ 79 ] The analysis in that case focused on the Court’s conclusion that the policy language should not be interpreted to include treatment for an undiagnosed condition.

In that case, there was no evidence that neither the insured nor his physicians were aware that the insured was being treated for “most likely MS”, “probable MS”, or even “possible MS.” (at 17) [ 80 ] That suggests to me that in the First Circuit, Van Maele might well have been decided differently than it was by Topolniski J.

For the reasons that follow, I do not need to reconcile that conflict. [ 81 ] The Plan cites three American authorities, McWilliams v Capital Telecommunications Inc. , Cury v The Colonial Life Insurance Company of America and Bullwinkel v New England Mutual Life Insurance Company . [ 82 ] McWilliams and Cury are both District Court decisions from the Third Circuit. They predate Lawson and were not followed in Lawson .

They were distinguished on the basis that “The reasoning underlying these decisions is that the pre-existing condition language is clear and unambiguous that treatment for a condition does not require accurate diagnosis of the condition (at page 6). [ 83 ] Bullwinkel was limited to its unique facts, which comes directly from that case, where the Court stated at page 5: Finally, this case is unique because the Bullwinkels’ attorney really rested his entire appeal on the argument that a court may not infer that a lump discovered to be cancerous in one month was also cancerous two months before.

But theirs is a reasonable inference, which becomes conclusive in the absence of competing inferences. [ 84 ] That case is distinguishable as well on the basis that the insured’s physician suspected that the lump was cancerous before the effective date of the policy. Analysis [ 85 ] Some of the cases, such as Duke , turn on a finding of ambiguity. Others, such as Van Maele , have concluded that the wording of the exclusion clause is clear and unambiguous. [ 86 ] Each party here argues that the exclusion is unambiguous. That is somewhat ironic as the two

interpretations argued yield very different results. Indeed, they yield opposite results on the facts of this case. [ 87 ] Ms. Tyson argues that the “illness for which (she) received medical attention, consultation, diagnosis, or treatment during the 12 months before (she) became covered under the plan can only refer to brain cancer. That follows by the use of “for which”.

She did not receive medical attention for brain cancer, she did not receive a diagnosis of brain cancer, she did not consult any care giver for brain cancer and she received no treatment for brain cancer during the 12 months before she became covered under the plan. [ 88 ] The Plan argues that “diagnosis” includes “diagnostic measures”, citing Van Maele at paragraphs 38 and 39: [38] The

interpretation which I place on the exclusion clause also accounts for the words “including diagnostic measures.” These words must be given their ordinary meaning and are not to be considered superfluous. [39] The Shorter Oxford English Dictionary definition of the term “diagnostic” is “of or pertaining to diagnosis.” In turn, “diagnosis” is defined as a “determination of the nature of the disease condition; identification of a disease by investigation of its symptoms and history; also, the formal statement of this.” Obviously, the diagnostic measures must relate to investigation of the symptoms of the ultimate disease.

For example, the Defendant could not avoid liability where the ultimate diagnosis is lung cancer and the diagnostic measures consist of testing for a sprained ankle. That is not the case here. The ultimate diagnosis is both directly related to the symptoms and the diagnostic efforts made. While it is regrettable that the diagnostic measures were not successful sooner, this does not affect my finding. [ 89 ] In my view, the ambiguity of the exclusion clause here is proven by the competing arguments made by counsel. Mr. Taylor points to the definition of “diagnosis” in the Online Merriam-Webster dictionary.

The Plan points to the definition from the Shorter Oxford English Dictionary referred to in Van Maele and quoted above. [ 90 ] Indeed, both dictionary

definitions provide two meanings. One is the act of identifying an illness ( Merriam-Webster ) and the identification of a disease by investigation of its symptoms and history ( Shorter Oxford ). [ 91 ] The other, in both dictionaries, is the statement or conclusion describing the reason for the illness ( Merriam-Webster ) or the formal statement of the illness’s identification ( Shorter Oxford ). [ 92 ] It is, of course, unclear what dictionary (if any) the drafters of the exclusion clause here had in mind. They may have chosen to use one of the real deals: Webster’s Third New International Dictionary (2002) or the Oxford English Dictionary (Second Edition, 1989). The

definitions in those dictionaries are more fulsome: Webster : 1. Determination of the nature of a diseased condition; identification of a disease by careful investigation of its symptoms and history; also, the opinion (formally stated) resulting from such investigation. 2. Distinctive characterization in precise terms.

Oxford : 1: The art or act of identifying a disease from its signs and symptoms, also: the decision reached. 2: A concise technical description of a taxonomic entity giving its distinguishing characters. 3: investigation or analysis of the cause or nature of a condition, situation or problem. [ 93 ] One definition is the definitive statement of the disease, as argued by Ms. Tyson. The other definition is the diagnostic process, as argued by the Plan. [ 94 ] If Ms.

Tyson’s argument is correct, there was no definitive statement of the condition prior to the effective date, such that there could have been no medical attention, consultation or treatment for brain cancer before there was a diagnosis of it. [ 95 ] Her argument is that the fact that she was having symptoms of brain cancer, and sought medical attention and consulted doctors for the symptoms was essentially irrelevant because there was, prior to the effective date, no evidence that either she or her physicians thought that she might suffer from brain cancer.

That is so even if it was clear that she was indeed suffering from brain cancer before the effective date. [ 96 ] If the Plan’s argument is correct, Ms. Tyson had brain cancer before the effective date. It is irrelevant that she did not know she had brain cancer and that no one had diagnosed it because diagnostic steps were being taken in response to her reported symptoms. A diagnosis in terms of the diagnostic process had begun before the effective date. [ 97 ] These two

interpretations are made out in the wording of the exclusion clause, and from the “ordinary meaning” ascribed to the word “diagnosis” from commonly used English dictionaries. [ 98 ] It also seems to me that the apparently competing Alberta cases are reconcilable. In Van Maele , the exclusion clause specifically referred to “diagnostic measures”. There was no ambiguity in that wording, and it was clear that Mr.

Van Maele had Cushing’s disease before the effective date, and that he had received diagnostic measures for it within the three months before the effective date. [ 99 ] In Duke , the plaintiff undoubtedly had Parkinson’s disease before the effective date, but it had not been diagnosed and the symptoms he suffered from had not been linked to the ultimate diagnosis applicable to the exclusion clause. The key policy wording was “symptoms associated with a covered critical illness”. [ 100 ] The Court of Appeal found that there were three scenarios possibly applicable to the exclusion clause.

The discussion in that case centered around the use of “associated with” in relation to treatment and consultations. [ 101 ] What is key from a review of the decisions is that the wording of the insurance policy and its exclusions determines the result. There is no “legal” definition of pre-existing illness, and insurers are free to offer whatever coverage they choose to offer, and exclude whatever they want to exclude. This is not the sort of insurance that is governed by statutory conditions. [ 102 ] Here, the Plan used ambiguous language.

If it intended to exclude coverage for illnesses or conditions that existed before the effective date whether diagnosed or not, it should have chosen more precise wording and used the sort of clause as in Van Maele . [ 103 ] My conclusion is similar to that reached by Alito J in Lawson . I prefer his analysis and reasoning to the Hughes line of cases. [ 104 ] I need not go any further in my analysis of the American authorities, having found that both the Plan and Ms. Tyson have come up with credible, competing and reasonable

interpretations of the exclusion clause. Those competing

interpretations render the wording of the exclusion ambiguous. Conclusion [ 105 ] I am satisfied that the exclusion clause is ambiguous. It is capable of bearing the meanings ascribed to it by both the insured and the insurer. Both

interpretations cannot stand. Contra proferentum and standard insurance policy

interpretation require the ambiguity to be resolved against the drafter of the policy. [ 106 ] My conclusion that the policy wording is ambiguous is a conclusion based on the facts of this case. It is not a finding that the policy wording in the Plan is ambiguous in all circumstances. There are undoubtedly cases where the exclusion clearly applies, and cases where it clearly does not. [ 107 ] Accordingly, Ms. Tyson is entitled to coverage. The exclusion clause does not apply to her. Conclusion [ 108 ] Ms.

Tyson is entitled to a declaration that she is entitled to coverage, and that her claim is not excluded by Clauses 6.4 and 1.15. Costs [ 109 ] Ms. Tyson is entitled to costs, which may be spoken to within 45 days from this decision if the parties are not otherwise able to agree on them.

[ 110 ] I am indebted to counsel for their able written arguments and oral presentations. Heard on the 20 th day of April, 2016. Dated at the City of Edmonton, Alberta, this 18 th day of May, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Jeremy L. Taylor Field LLP for the Plaintiff Wendy A. Young Emery Jamieson LLP for the Defendants