2013 NBCA 73, 2013 NBCA 73

COURT OF APPEAL OF NEW BRUNSWICK 37-13-CA IRENE GREEN APPELLANT IRENE GREEN APPELANTE - and - - et - AVIVA CANADA INC. RESPONDENT AVIVA CANADA INC. INTIMÉE Green v. Aviva Canada Inc., 2013 NBCA 73 Green c.

Aviva Canada Inc., 2013 NBCA 73 CORAM: The Honourable Justice Larlee The Honourable Justice Robertson The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Robertson l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: February 11, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 11 février 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 9, 2013 Appel entendu : le 9 octobre 2013 Judgment rendered: December 12, 2013 Jugement rendu : le 12 décembre 2013

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Robertson The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Robertson l’honorable juge Quigg Counsel at hearing: Irene Green appeared in person For the respondent: Donald V. Keenan Avocats à l’audience : Irene Green a comparu en personne Pour l’intimée : Donald V. Keenan THE COURT The appeal is dismissed without costs.

The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] The appellant, Irene Green, appeals, with leave, a decision of a judge of the Court of Queen’s Bench pursuant to the now repealed Rule 80. In that decision, the judge awarded her damages of $4,666.58, which the respondent Aviva Canada Inc. admitted to owing, and denied her claim for further

Section B no-fault medical and rehabilitation benefits on the basis they were not related to a November 9, 2006, accident in which she was involved. [ 2 ] On November 9, 2006, Ms. Green was apparently injured when the vehicle she was operating was rear-ended by an RCMP cruiser. Aviva Canada Inc. was the

Section B insurer of Ms. Green’s vehicle. Her insurance policy provided payment of

Section B medical and rehabilitation benefits for the injuries she sustained. On July 7, 2007, Ms. Green suffered a second, similar motor vehicle accident. She claims to continue suffering from various medical conditions, particularly head, neck and t emporomandibular joint (TMJ) issues, but maintains her present medical problems result from injuries sustained in the first accident. Ms. Green’s claim is mainly for orthodontic treatment.

Aviva denied her claim for further medical and rehabilitation benefits, arguing she has been fully reimbursed for expenses relating to the benefit period set out in the Standard New Brunswick Automobile Insurance Policy and any other expenses claimed are unrelated to the first accident, unreasonable, or outside the benefit period set out in the policy. [ 3 ] On November 4, 2010, Ms. Green abandoned part of her claim and filed an action under Rule 80 in the amount of $30,000 for a variety of medical and dental treatments. At trial, Aviva acknowledged it owed her $4,666.58 and the

trial judge granted judgment for that amount. However, he also concluded she had a history of pre-existing head, neck, and TMJ issues extending at least as far back as 2000. As he was not convinced her present medical condition was related to the first accident, he denied any further recovery. [ 4 ] Ms. Green relies on a number of grounds of appeal, all of which involve errors in findings of fact made by the trial judge:

a) Paragraph 14 (trial decision) – The trial judge stated that the remaining amounts claimed by Ms. Green are: for orthodontic treatments $7,650; $3,500 for a mandibular TMJ repositioning device; approximately $47,000 for full-mouth porcelain crowns on every tooth; and $5,000 in professional fees. She disagrees. The claim is $8,215 for orthodontic treatment. Aviva has already paid the cost of the repositioning device. She is not seeking a porcelain crown for every tooth as treatment for her mutilated occlusion. The $5,000 professional fee was already paid.

b) Paragraph 18 – The trial judge stated that Ms. Green claims for medical and rehabilitation expenses that relate to what seems to be mandibular TMJ related treatment. A mandibular TMJ related treatment is not the treatment being requested. She is requesting a mutilated occlusion as per treatment provided by Dr. Makkar, Victoria Court Dental, and Aviva paid for the temporary treatment.

c) Paragraphs 20 & 21 – The trial judge referred to Dr. Reg Goodday as Ms. Green’s family physician. Dr. Reg Goodday is not her family physician, but an oral surgeon, whom she consulted on a possible sleep apnea treatment.

d) Paragraph 22 – The trial judge referred to a medical report of Dr. Paul Hernandez, in which he referred to her TMJ problems. It was recommended that she see Dr. Hernandez for chronic cough, and his diagnosis was chronic dry cough which most likely relates to gastroesophageal reflux disorder. [ 5 ] The standard of review for an appeal on a Small Claims matter is set out in Rule 80.23 of the Rules of Court : 80.23 Appeal Appeal to the Court of Appeal on Question of Law Alone

(1) A decision of the Court of Queen’s Bench may, with leave from a judge of the Court of Appeal, be appealed to the Court of Appeal on a question of law alone. 80.23 Appel Appel interjeté à la Cour d’appel sur une question de droit uniquement

(1) Une décision de la Cour du Banc de la Reine peut, avec l’autorisation d’un juge de la Cour d’appel, faire l’objet d’un appel à la Cour d’appel sur une question de droit uniquement. [ 6 ] The policy of insurance upon which Ms. Green relies provides accident benefits including medical and rehabilitation benefits under

Section B – Accidents Benefits – Subsection 1 – Medical, Rehabilitation and Funeral expenses. This part of the policy reads in part as follows:

(1) The insurer will pay with respect to each insured person who sustains bodily injury as a result of an accident reasonable expenses resulting from the accident within the benefit period set out in clause (2) for, (

a) medical, surgical, dental, chiropractic, ambulance, hospital, or professional nursing services; (

b) any other service within the meaning of entitled services in the Hospital Services Act or the Medical Services Payment Act ; and

(

c) other goods and services, which, in the opinion of the insured person’s attending physician and in the opinion of the insurer'smedical advisor, are essential for the treatment, occupational retraining or rehabilitation of the insured person.

(2) The benefit period commences on the day of the accident and ends four years after the date of the accident. [Emphasis added.] [7] In my view, the trial judge could have analyzed Ms. Green’s claim on the basis of whether herfurther claim fell within the benefit period. Services provided after November 10, 2010, are arguably not recoverable as they are notreasonable expenses from the accident within the benefit period (see Hope v. Canadian General Insurance, (ONCA), [2002] O.J. No. 1643 (C.A.) (QL)). Instead, the trial judge decided the issue on the basis of causation: whether the medicalcondition for which Ms.

Green seeks indemnification was related to the November 9, 2006, accident. In Moreau v. Roman CatholicBishop of Edmundston, 2011 NBCA 26, 371 N.B.R. (2d) 360, Drapeau C.J.N.B. explains the requirements of causal connection: The onus is on the plaintiff to prove on a balance of probabilities that his or her losses would not have occurred without the tortfeasor'snegligence. As Chief Justice McLachlin underscored in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 78, and inResurfice Corp. v.

Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 22, the court must determine whether the losses would haveoccurred but for the tortious conduct. […] The existence of a sufficient causal link between the tortious conduct and the losses sustained is "essentially a practical question of factwhich can best be answered by ordinary common sense rather than abstract metaphysical theory" (see Alphacell Ltd v. Woodward(1972), 2 All E.R. 475, at p. 490, Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J.

No. 73 (QL), at para. 29,and Russell Brown, "The Possibility of 'Inference Causation': Inferring Cause-in-Fact and the Nature of Legal Fact-Finding" (2010), 55McGill L.J. 1). […] [paras. 19 and 20] See also Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 18 and applied in Ediger v. Johnston, 2013 SCC 18, [2013] S.C.J. No. 18(QL), for a discussion of the “but for” causation test. [8] The trial judge made the following crucial findings with respect to causation: I did consider all of Mrs.

Green’s medical information that was provided and could not be convinced on the balance of probabilities thatthe TMJ treatment that Mrs. Green is seeking is related to the November 9, 2006 accident. Mrs. Green's medical history of her present illness goes back to the year 2000 if not earlier. I would have to conclude that Mrs. Green didhave a pre-existing history of head, neck and TMJ issues. I have come to the conclusion that for lack of evidence, Mrs.

Green has not convinced this court, on a balance of probabilities, that herpresent medical condition is related to the accident of November 9, 2006, with the exception of the expenses agreed to by Aviva asearlier stated. [paras. 25, 26 and 27] [9] There is evidence, at least two medical reports, to support these conclusions, to whichdeference is owed. [10] The grounds of appeal all raise questions of fact and do not identify the prerequisite error in law.The judge may have made minor errors with respect to certain facts, but they are not reviewable or do not go to the root of the decision inthis matter.

He considered the medical evidence submitted and found, on a balance of probabilities, the damages claimed by Ms. Greendo not relate to the November 9, 2006, accident. I would not interfere with his decision.

[ 11 ] I would dismiss the appeal without costs. This is not a case where costs are contemplated by the applicable legislation. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ J.T. ROBERTSON, J.A. ____________________________________ KATHLEEN A. QUIGG, J.A.