2012 NBCA 55, 2012 NBCA 55

COURT OF APPEAL OF NEW BRUNSWICK 5-12-CA ATLANTIC BLUE CROSS CARE APPELLANT SERVICE CROIX BLEUE DE L’ATLANTIQUE

PARTIE APPELANTE - and - - et - MARGUERITE LeBLANC RESPONDENT MARGUERITE LeBLANC INTIMÉE Atlantic Blue Cross Care v. LeBlanc, 2012 NBCA 55 Service Croix Bleue de l’Atlantique c.

LeBlanc, 2012NBCA 55 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: December 12, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 12 décembre 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBBR 348 , 2011 NBQB 348 Décision frappée d’appel : 2011 NBBR 348 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: April 26, 2012 Appel entendu : Le 26 avril 2012 Judgment rendered: June 14, 2012 Jugement rendu : Le 14 juin 2012

Counsel at hearing: For the appellant: André G. Richard, Q.C., For the respondent: Edwin G. Ehrhardt, Q.C., Avocats à l’audience : Pour la

partie appelante : André G. Richard, c.r. Pour l’intimée : Edwin G. Ehrhardt, c.r. THE COURT The Notice of Appeal is quashed. The respondent is awarded costs on appeal, which are fixed at $2,500. LA COUR L’avis d’appel est annulé. L’intimée obtient les dépens de l’appel, qui sont fixés à 2 500 $. The following is the judgment delivered by THE COURT I.

Introduction [ 1 ] Atlantic Blue Cross Care wishes to appeal a decision determining, at the very least, that it is an appropriate party to the respondent’s action for, among other relief , total disability benefits under a group insurance plan sponsored by her employer, the Province of New Brunswick. However, leave to appeal has not been granted and, as a consequence, we must conclude the appeal was initiated without lawful authority. In the result, the Notice of Appeal is quashed. II.

Context and Analysis [ 2 ] In the underlying action, Marguerite LeBlanc seeks: (1) total disability benefits which she claims are payable to her under a group insurance plan sponsored by the Province and administered by the only defendant, Atlantic Blue Cross Care; and (2) punitive damages for “wrongful termination of benefits and aggravation to [her] condition and person”.

Atlantic Blue Cross Care resists the claim for disability benefits on the following grounds: (1) it is the plan’s administrator, not its underwriter, and, as such, cannot be made to answer for whatever liability might have been imposed upon the Province if it had been joined as a defendant; and (2) at all material times, Ms. LeBlanc was not “totally disabled” within the meaning of the plan and, therefore, does not meet one of its key eligibility qualifications. Not surprisingly, in the aftermath of Atlantic Blue Cross Care’s formal plea that Ms. LeBlanc had failed to sue the right party, she changed solicitors.

One might be forgiven for surmising that a malpractice action may be pursued if the current lawsuit against Atlantic Blue Cross Care fails because the only entity liable for recoverable benefits is the Province. [ 3 ] After the action was set down for trial, Atlantic Blue Cross Care applied for an order severing the issue of its exposure to liability under the plan from the issue of Ms. LeBlanc’s qualification for covered benefits. With the parties’ consent, a judge of the Court of Queen’s Bench issued an order under Rule 47.03(1) of the Rules of Court providing “the issue of whether [Ms.

LeBlanc] has a cause of action against [Atlantic Blue Cross Care] for payment of disability benefits (the “Preliminary Issue”) be severed from the remaining issues in this matter” (emphasis added). As counsel acknowledged at the hearing, that wording is poorly suited for a mere determination of Atlantic Blue Cross Care’s exposure to liability for the benefits claimed by Ms. LeBlanc. Indeed, one would have

thought, on a plain reading of the order, that the Preliminary Issue required a determination of Ms. LeBlanc’s qualification for benefits inthe event that Atlantic Blue Cross Care’s exposure to liability under the plan was confirmed. After all, absent success on both issues, Ms.LeBlanc would not have a cause of action against Atlantic Blue Cross Care. [4] Be that as it may, the Preliminary Issue came up for trial before another judge of the Court of Queen’s Benchon November 23, 2011.

In his December 12, 2011 decision, the judge described the issue under consideration in a manner that does nottrack the wording of the previously issued severing order. Indeed, the judge defined that issue as whether Atlantic Blue Cross Care was“an appropriate party to the action of [Ms.] LeBlanc to have her long-term disability payments re-instated” (see LeBlanc v. Atlantic BlueCross Care, 2011 NBBR 348 , 2011 NBQB 348, [2011] N.B.J. No. 446 (QL), para. 9).

Under the rubric of “Disposition”, thejudge confirmed that understanding of the dispute by stating: “I answer the question before this Court, namely, is Blue Cross anappropriate party to this action, in the affirmative” (para. 37). All we need state for our present purposes is that it is unclear whether thejudge intended to do more than determine that very narrowly circumscribed issue. In particular, it is debatable whether, as the partieswould have us believe, the judge intended to impose liability upon Atlantic Blue Cross Care for the benefits claimed by Ms.

LeBlancshould it be established in the trial’s next phase that she is totally disabled within the meaning of the plan. Presumably, all uncertaintyover the reach of the decision under appeal would have been eliminated if a formal judgment had been obtained and included in theappeal book, as required by Rule 62.13(1)(f). [5] At any rate, one thing is beyond dispute: as matters currently stand, “the merits of the case remain to bedetermined” (see Bourque v. New Brunswick, Leger and Leger (1982), (NB CA), 41 N.B.R. (2d) 129, [1982] N.B.J.No. 247 (C.A.) (QL)).

It follows that the decision under appeal is “interlocutory” in nature. In that regard, we see similarities between thecase at hand and one where

summary judgment has been denied, in which event the merits of the case remain unresolved and thedecision is “interlocutory” for the purposes of s. 8(3.1)(

a) of the Judicature Act, R.S.N.B. 1973, c. J-2 and Rule 62.03(1)(a). Of course,the opposite conclusion is warranted where

summary judgment has been granted because, in that scenario, the merits have been finallyadjudicated (see Spencer v. Laforge and Estate of Émile Sénéchal, 2001 NBCA 35, 237 N.B.R. (2d) 232, para. 7). [6] It is axiomatic that interlocutory decisions are appealable to this Court only with leave. Atlantic Blue CrossCare has yet to cross that statutorily-imposed threshold. That being so, the Notice of Appeal from which the present proceedings springwas issued without lawful authority. III. Disposition [7] Atlantic Blue Cross Care’s Notice of Appeal is quashed. Ms.

LeBlanc is entitled to costs on appeal, which arefixed at $2,500. _____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ______________________________________ M.E.L. LARLEE, J.A. ______________________________________ BRADLEY V. GREEN, J.A.