2011 QCCQ 1338, 2011 QCCQ 1338

Lunny c. Sears Canada 2011 QCCQ 1338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-114428-099 DATE: January 18, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ PATRICK LUNNY […] Deux Montagnes, Quebec […] Plaintiff vs.

SEARS CANADA 3075 Thimens Ville St-Laurent, Quebec H4R 1Y3 -and- STANDARD LIFE 2045 Stanley Suite 400 Montreal, Quebec H3A 2V4 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Patrick Lunny sues Sears Canada for an amount of $7,000 alleging default on the part of Sears Canada (« Sears ») to pay indemnities due in relation a period of short-term disability. [ 2 ] Sears called Standard Life as a party in the case.

Standard Life is a life insurance company that provides services to Sears in connection with its short-term disability management program (STD). This is a program where Sears, as employer, indemnifies its employees for short-term disability.

The program operates as part of the employees’ working conditions but it is managed in the same way as a group insurance program. [ 3 ] Standard Life having expertise in that field provides the medical back up and makes recommendations to Sears as to the position to adopt in a given file. [ 4 ] Mr Lunny did not attend the trial, though he was called several times on the intercom system. [ 5 ] It is not in issue that Mr Lunny underwent a medical treatment to correct a problem with the rotator cuff of his right shoulder

and was entitled to indemnity under the STD program beginning June 25, 2008. [ 6 ] Standard Life's recommendations to Sears in this file were to continue the payments until August 1, 2008, consistent with the usual period for this type of operation which was done by endoscopic surgery rather than by an open procedure. [ 7 ] Mr Lunny's treating physician recommended a four-month period of incapacity. In fact, Sears provided indemnity up to September 15, 2008.

The additional period beyond August 1 st , resulted from certain administrative delays and additional time given to Mr Lunny to provide medical information. [ 8 ] The program is limited to 75 days.

Mr Lunny received 59 days of payments so that the additional period that he could claim is $2,059.20 based on 16 days at 7.5 hours per day at a rate of pay of $17.16 per hour. [ 9 ] The medical file was produced and the Court heard the testimony of Doctor Pierre Gosselin, a general practitioner who has developed an expertise in assisting insurance companies in the handling of claim files. [ 10 ] Doctor Gosselin testified that he spoke to Mr Lunny's treating physician after Mr Lunny had requested to his employer that he be contacted. [ 11 ] Doctor Gosselin reports that Mr Lunny's specialist, who had originally recommended four months convalescence, agreed that the six-week period recommended by Standard Life was appropriate given the sedentary nature of Mr Lunny's employment, which did not involve heavy lifting or any repetitive movements. [ 12 ] Doctor Gosselin explained that, although the maximum medical recovery period (MMR) may by significantly longer than six weeks, six weeks is an appropriate period of invalidity for the essentially clerical type of work that Mr Lunny performed at Sears. [ 13 ] Sears eventually stopped the payments effective September 15, because Mr Lunny had failed to provide any additional medical information that could change their assessment of the file. [ 14 ] The Court is satisfied, on the perusal of the file, and having heard the testimony of Doctor Gosselin that the indemnification paid is appropriate. [ 15 ] The Plaintiff's action against Standard Life will therefore be dismissed. [ 16 ] It is not necessary to deal in more detail with the relationship between Sears and Standard Life concerning their respective roles in the file. [ 17 ] The action therefore be dismissed against both Defendants.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action with respect to Sears Canada and Standard Life, without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 22, 2010