Judy Nicholas Plaintiff And: The Metropolitan Life Insurance Company of Canada, carrying on business as Met-Life, the Great West Life Assurance Company, Health Sciences Association of British Columbia Ltd. Trust #1 v. the Board of Trustees of the Health Sciences Association of British, 2003 BCSC 506

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nicholas v. The Metropolitan Life Insurance Co. of Canada et al 2003 BCSC 506 Date: 20030402 Docket: S003102 Registry: Vancouver Between: Judy Nicholas Plaintiff And: The Metropolitan Life Insurance Company of Canada, carrying on business as Met-Life, the Great West Life Assurance Company, Health Sciences Association of British Columbia Ltd. Trust #1 and the Board of Trustees of the Health Sciences Association of British Columbia Defendants Before: The Honourable Madam Justice Bennett Reasons for Judgment Counsel for the Plaintiff Stephen P.

Grey Counsel for the Defendant, the Board of Trustees of the Health Sciences of British Columbia Alan Ross Date and Place of Trial: March 24-27, 2003 Vancouver, B.C. [ 1 ] The plaintiff, Judy Nicholas, claims for long term disability from the Trustees of her Union’s health plan. Ms. Nicholas worked for many years as a medical technologist at South Okanagan General Hospital. She has been denied long term disability based on a claim that she is totally disabled in “any occupation”.

She sues in contract and alternatively, seeks judicial review of the decision of the Board of Trustees of the Health Services Association Ltd. #1. Consent dismissals have been obtained regarding the claims against both The Metropolitan Life Insurance Company of Canada and The Great-West Life Assurance Company. [ 2 ] In 1989, the Health Science Association of British Columbia (the Union), the union which represents medical personnel, decided to operate its own health plan. The Health Sciences Association Trust was created and is governed by three trustees (the Trustees) chosen from the membership of the Union.

Union members are required to contribute to the plan. Ms. Tillotson, a former trustee, testified that the Union was appointed as the administrator of the plan at its inception. A company called D.A.

Townley & Associates Ltd. replaced the Union as administrator in 1996. [ 3 ] When the Union was the administrator, it entered into an agreement with Metropolitan Life Insurance Company of Canada (Met-Life) to administer part of the plan, including the long term disability benefits. [ 4 ] The health plan defined total disability as follows: “Totally Disabled” or “Total Disability” means such complete incapacity, as determined by Metropolitan, resulting from Injury or Sickness which requires the regular care and personal attendance of a Physician, and which during the Elimination Period, (as defined in (

l) of this Section), and up to the subsequent 24 months, (including but not limited to time in receipt of Worker’s Compensation Benefits and any paid or unpaid leave from the Employer) totally and continuously disables and prevents the Employee from performing the essential duties of her/his own occupation, and thereafter totally and continuously disables and prevents the Employee from performing any occupation or work for which she/he is, or

may become, reasonably qualified by education, training or experience. [ 5 ] The powers of Met-Life are set out in the agreement. Ms. Nicholas submitted that her claim was in contract and that Met-Life had breached the terms of its agreement by going beyond the scope of its authority, in particular regarding its ability to decide an appeal. [ 6 ] I have concluded that no action lies for breach of contract. I have not been provided with any authority which supports this argument. Ms. Nicholas did not have a contract with Met-Life or with the Trust.

Her claim lies in her alternative position and that is a review of the decision of the Trustees (as delegated to Met-Life pursuant to the agreement), to disallow her long term disability benefits. [ 7 ] The scope of the review is found in Boe & Millar v. Alexander (1987), 1987 CanLII 2596 (BC CA) , 15 B.C.L.R. (2d) 106 ( C.A. ) , where the Court of Appeal upheld the decision of Mr. Justice Finch (as he then was): see [1985] 21 E.T.R. 246 (B.C.S.C.) . In simple terms, a trustee must act reasonably.

The court has the jurisdiction to interfere with the decision of the trustee if the discretion was exercised improperly or unreasonably or not at all: See Ashford v. Plumbing and Pipefitting Workers, Pension Plan, Local 170 (Trustees of) , [1991] B.C.J. No. 2319 at p. 7 . [ 8 ] Ms. Nicholas was granted long term disability in 1996 as she was totally disabled from performing as a medical lab technologist (referred to as “own occupation”). These benefits expired on August 28, 1998.

She appealed this decision and the appeal was denied by Met-Life, the administrator of the long term disability plan, on December 22, 1998. She quickly sought a review by a medical review panel, but her application was misplaced. Having heard nothing, Ms. Nicholas raised the issue of the review panel with her Union in November 1999 and a panel was scheduled for May 2000. Ms. Nicholas postponed the review and then decided to abandon the review process and proceed with her claim in court. [ 9 ] No viva voce medical evidence was called at trial, but numerous reports were filed as exhibits. [ 10 ] Ms.

Nicholas worked as a medical lab technologist at the South Okanagan Hospital in Oliver, B.C. She qualified as a medical technologist in 1965. She commenced work at the South Okanagan Hospital in 1977 and worked there until 1995. [ 11 ] Until 1995, Ms. Nicholas enjoyed her job, had few health problems and led an active lifestyle. In July, 1995 she was diagnosed with infectious mononucleosis and took approximately five weeks off from work.

She returned to work, despite not feeling completely recovered, as she did not want to impose on fellow workers who had no relief staff available to them in her absence. [ 12 ] In September, 1995, she began experiencing a constellation of symptoms that she still endures today. She began to feel a tingling all over her body. She suffered difficulty sleeping, and she lost weight. The symptoms escalated and the tingling turned into a feeling of a severe sunburn, one side of her body felt numb and she suffered from headaches.

She became very concerned about her health and was afraid she was developing multiple sclerosis. [ 13 ] She left work in May, 1996. She saw a number of doctors who did not initially identify a cause for her symptoms. Ms. Nicholas was quite convinced that she was suffering from electromagnetic sensitivity, which she believed was aggravated by the fluorescent lights in the lab where she worked. [ 14 ] In September, 1996, her family physician at the time, Dr. Ruddiman, diagnosed her as delusional based on her belief that the fluorescent lights were causing her symptoms. He prescribed Zoloft, an anti-depressant.

This report was sent to Met-Life, in support of her claim for disability from her own occupation. [ 15 ] Dr. Ruddiman referred Ms. Nicholas to Dr. McIntyre, a psychiatrist. In his reports, also sent to Met-Life, he diagnosed a delusional disorder based on her views that her symptoms were caused by electromagnetic sensitivity due to the fluorescent lights at her workplace. He repeated in these reports that she was prescribed Zoloft. She did not want to obtain treatment from him.

He opined that her prognosis was poor and that she would not cope well when she returned to work. [ 16 ] Met-Life approved long term disability for what is referred to as “own occupation”, meaning she was disabled from working in her own occupation as a lab technician. [ 17 ] She commenced a gradual return to work in January, 1997 and was back to full-time work by the end of January, 1997. She noticed that her symptoms, (which had improved, but had not resolved), returned. She had a planned holiday scheduled to see her son in Indonesia at the end of February.

She worked until that time, took her vacation and returned to work after seven weeks. She had felt fine while on her holiday. [ 18 ] Shortly after returning to work she noticed the same symptoms return: a burning sensation in her skin, tingling, sore joints and muscles, a sore back, fatigue and a general decline in her health. Ms. Nicholas enjoyed her work very much and initially tried to ignore her symptoms because she did not want to leave her employment. [ 19 ] She worked until early July, 1997 and then recommenced long term disability for “own occupation”. In August, 1997, her new family doctor, Dr.

McIntosh diagnosed multiple chemical sensitivity. On September 4, 1997, Dr. Wickert, a specialist in internal medicine (who had been seeing Ms. Nicholas for a year), diagnosed depression and chronic fatigue syndrome. Both doctors supplied these diagnoses to Met-Life. [ 20 ] Ms. Nicholas continued taking Zoloft and received regular physiotherapy. [ 21 ] In November, 1997, Ms. Nicholas received a letter from Met-Life advising that her own-occupation disability was approved, but that her benefits would expire on August 28, 1998 as she was not totally disabled from “any occupation”. [ 22 ] On November 26, 1997, Ms.

Nicholas attended at the lab as a test to see if she experienced any symptoms. Within an hour her

symptoms returned. This was reported to Met-Life the next day by Ms. Nicholas. In the same letter, Ms. Nicholas set out options she was considering for alternate employment. As a result of the test in the workplace, Dr. McIntosh sent a letter to Met-Life opining that Ms. Nicholas could not return to work in the lab environment. [ 23 ] On January 27, 1998, Met-Life reiterated to Ms. Nicholas that she would not qualify for benefits beyond August 28, 1998. [ 24 ] An appeal of this decision was filed on her behalf by the Union on July 30, 1998. [ 25 ] During the winter and spring of 1998, Ms.

Nicholas prepared her home in order to establish a Bed and Breakfast business. She had considerable expenditures as she had to renovate her home, plus purchase additional bedding, dishes and advertise. She found she was exhausted as a result of the preparation for the Bed and Breakfast. She found running the business during the summer debilitating. She went to Indonesia for her son’s wedding in early September, and spent four weeks resting. [ 26 ] She also attempted a home based business of selling clothing through house parties.

She found that she did not have the energy to pursue this business. [ 27 ] On November 25, 1998, the Union sent a letter to Met-Life, enclosing updated medical information, and advising that Ms. Nicholas had been diagnosed as suffering from Chronic Fatigue Syndrome. The opinion of Dr. Wickert, that Ms. Nicholas remains “totally incapacitated and unable to return to any level of employment”, was highlighted in this letter. [ 28 ] Dr. McIntosh had been Ms. Nicholas’ family physician since August 11, 1997. He submitted a lengthy and thorough report to Met-Life on October 27, 1998. He had seen Ms.

Nicholas many times over the past year. He indicated that when he first saw her he suspected that she was suffering from Chronic Fatigue Syndrome. He said the following: My feeling at the time was that she had a variant of Chronic Fatigue Syndrome with the sensitivity to electro magnetic waves. Chronic Fatigue Syndrome is a well recognized diagnostic entity whereas Electro Magnetic Sensitivity and its study is still in its infancy and the diagnostic criteria are only starting to be explored.

This fact causes some physicians to throw out the diagnosis out right and for others of us having to struggle through that diagnostic maze knowing only that our patients are telling us the truth… Whatever the exact biochemistry of her problem is, the bottom line is that she is chronically fatigued. Her symptoms get worse with exposure to electro magnetic radiation, stress or over working and as such she is not capable of working in any occupation. She is not capable of doing any further retraining because of exposure to electro magnetic rays which seems to aggravate her symptoms.

She is not capable of going back to her former employment as it is a plethora of electro magnetic waves. She is not able to do any other activity because exertion aggravates her fatigue. Therefore I feel that she is completely disabled and should be eligible for long term disability. [ 29 ] Dr. Wickert, who had identified chronic fatigue a year earlier opined in his report of November 9, 1998: Ms. Nicholas presents with chronic fatigue syndrome following a bout of mononucleosis in 1995, which has left her incapacitated.

She has had no appreciable improvement in symptoms and in fact, a worsening of symptoms over the last three years. As such, I would deem her totally incapacitated and unable to return to any level of employment. [ 30 ] Met-Life did not have an independent medical examination of Ms. Nicholas. [ 31 ] On December 22, 1998, Judy Dubois, Supervisor of Group Life and Disability for Met-Life wrote the Union advising that Ms. Nicholas’ appeal had been turned down. Ms. Dubois reviewed the initial decision made by Denise Ross. Ms. Dubois has no medical background. Ms.

Dubois acknowledged receipt of the additional medical reports. As this is the decision from which judicial review is sought, I will set out portions of her letter: The letter by Dr. David J. Novak states that sensory testing revealed no abnormalities and there are no signs of neuropathy nor of any definite underlying neurological problem. Dr. A.W. McIntyre states that Ms. Nicholas is only focused on the electro-magnetic fields, and not accepting opinions that differ from her perception. No treatment or testing is being pursued at this time. Dr.

McIntyre gives a primary diagnosis of delusional disorder with a secondary diagnosis of major depressive episode. Dr. Wayne Wickert states that Ms. Nicholas is pursuing employment options with limited exposure to fluorescent lighting and EMF. Interestingly, he also states that mainstream medicine is not able to help her, other than pursuing other employment opportunities. He also mentions that depression is the current diagnosis.

Section 2.07(

a) of the Administrative Agreement states that no benefits are payable for a disability unless the Employee is receiving appropriate treatment. The information provided contains statements from numerous physicians that Ms. Nicholas has a psychological condition and refused to seek appropriate treatment, choosing to remain fixated on the alleged effects of EMF. Furthermore, by her own admission, Ms. Nicholas is seeking alternate employment.

Ms. Nicholas cannot be considered totally disabled for any occupation, and no further benefits are payable. [ 32 ] In evidence, Ms. Dubois acknowledged that she rejected both of the opinions of Dr. McIntosh and the recent opinion of Dr. Wickert. Instead she relied on a two year old psychiatric opinion of Dr. McIntyre, who had seen Ms. Nicholas once and who rejected, out of hand, her concern for electromagnetic sensitivity, instead diagnosing her as delusional. [ 33 ] Further, Ms. Dubois acknowledged that she overlooked the fact that Ms. Nicholas was obtaining treatment. Ms.

Nicholas was seeking treatment from physicians regularly, taking Zoloft and receiving physiotherapy. Ms. Nicholas had only refused to be further treated by Dr. McIntyre, and had not generally refused treatment. [ 34 ] Ms. Dubois’ reason for placing no weight on the opinion of Dr. Wickert was she felt he had changed his opinion because in 1997 he supported Ms. Nicholas’ efforts to try to return to work and in 1998 found that she was completely disabled. She rejected Dr. McIntosh’s opinion because it was the first time he mentioned chronic fatigue syndrome as a diagnosis (even thought Dr.

Wickert made this diagnosis a year earlier). [ 35 ] The standard of judicial review of the decision of Ms. Dubois is whether it was reasonable. I have reviewed all of the medical reports available to Ms. Dubois. After considering these reports and her evidence for the basis for rejecting the long term disability benefit, I can come to no other conclusion than her decision was unreasonable. [ 36 ] No doctor disputed the symptoms experienced by Ms. Nicholas. Dr. McIntyre dismissed her complaints about electromagnetic sensitivity as “delusional”. However, Dr.

Hilliard, a disability evaluating physician, provided a report in April, 1998, outlining the studies done on electromagnetic sensitivity, concluding that there was insufficient scientific evidence from which to draw a causal connection between electromagnetic frequencies and symptoms of skin burning, headaches and fatigue. She went on to opine (and this opinion was in the hands of Ms. Dubois): Nevertheless, there appears to be a small portion of the population who have reported these symptoms. Your experience is similar to those recorded in the literature.

Your personal experience has been documented where your symptoms developed after an acute illness, worsened over time with exposure and has slowly regressed with removal from exposure… [ 37 ] Ms. Dubois’ reasons for rejecting the opinions of two doctors who had been treating Ms. Nicholas for sometime are unsustainable. She had no recent contrary opinion, although she could have had an independent examination done if she had any concerns about the claim. [ 38 ] The defendants have asked that rather than send the matter back to the Trustees for evaluation, that I make the decision whether Ms.

Nicholas was and is totally disabled. [ 39 ] The definition of total disability is found in Paul Revere Life Insurance Company v.Sucharov , 1983 CanLII 168 (SCC) , [1983] 2 S.C.R. 541 , at p. 546 : In Couch on Insurance (1983), 2d (Rev. ed.) 53:118, there is the following relevant paragraph: The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so.

In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease work, he is totally disabled within the meaning of health and accident insurance policies. [ 40 ] Based on the medical evidence up to November 1998, it is patently clear that Ms.

Nicholas was totally disabled in the fall of 1998. The defendant submitted that I should consider the fact that she operated a Bed and Breakfast in the summer of 1998 and a clothing sales business. I do consider these matters, however, the evidence is uncontradicted that the Bed and Breakfast business exhausted Ms. Nicholas well beyond what might be considered normal fatigue arising from operating that type of business. She was not successful at the clothing business as she was too tired to put much effort into it. I do not think Ms.

Nicholas should be penalized for making every effort to work, especially when her efforts were unsuccessful. [ 41 ] I am also asked to declare whether Ms. Nicholas continues to be totally disabled to the time of trial. Many more doctors were consulted as Ms. Nicholas had requested a medical review panel to re-examine the decision of Ms. Dubois, including experts in Chronic Fatigue Syndrome. All of the opinions agree with the diagnosis of chronic fatigue syndrome. [ 42 ] For example, Dr.

Reed, a psychiatrist, opined in a report of April 28, 2000: …I feel that Judy Nicholas is psychologically healthy, and she suffers from symptoms of chronic fatigue syndrome, which I believe are caused by her condition of electrical hypersensitivity. I think that her developing infections mono lowered her resistance to developing symptoms due to electrical hypersensitivity. I do not see her as needing psychotherapy.

[ 43 ] Dr. Hershler, a specialist in physical medicine and rehabilitation, saw Ms. Nicholas a number of times. He opined, in a report dated January 21, 2003: Judith remains with the severe long term sequelae of Chronic Fatigue Syndrome. One of these sequelae are myalgic pains. She is one of the small subset of patients that has electrical hypersensitivity of her nervous system. She is disabled from any type of work, including part-time or full-time jobs, due to this debilitating condition. [ 44 ] Dr. McIntosh continues as Ms. Nicholas’ family physician.

In a report of March 5, 2003, he said this: The diagnosis from when I first saw her and clearly through the last six years and all her various consultations is that of chronic fatigue syndrome. Initially this was overshadowed by a sensitivity to Electro-magnetic radiation and as such, I questioned the diagnosis of chemical sensitivity initially, but over time she has clearly evolved into a fairly classic case of chronic fatigue syndrome. Her symptoms have been consistent for the last six years. They have never varied, except for minimal amounts of waxing and waning.

Prognostically as her symptoms have been consistent for the last six years, I do not believe that she is going to have any significant improvement in the foreseeable future. At the present time, she is not employable, she has dabbled in Bed and Breakfast in her house, but even this increase in activity has significant increases in her fatigue. [ 45 ] Ms. Nicholas tried again at the Bed and Breakfast in the summer of 1999, but found that she was totally exhausted again by the end of the season.

She did not pursue this business after 1999, but accepted the occasional client who had stayed with her on prior occasions. [ 46 ] Ms. Nicholas also teaches yoga two to three times per week. Her net annual income from teaching yoga is under $2000. Dr. Stiver opined that her ability to teach yoga indicated considerable function, but he maintained his opinion that she was disabled. [ 47 ] Ms. Nicholas testified that teaching yoga was therapeutic for her as she does yoga along with the students in the class.

Applying the definition of total disability, I do not think that her ability to teach yoga to a small group two or three times per week indicates that she is not totally disabled from working. [ 48 ] The evidence overwhelmingly supports a finding that Ms. Nicholas was and is totally disabled. She can function and she is not relegated to her bed. However, every day living takes a significant toll on her. She cannot, at this time, work at any occupation. [ 49 ] Counsel agreed that if I made a finding of total disability, they would calculate the amount owing to Ms. Nicholas.

If they cannot agree on an amount, they will return to court for assistance. [ 50 ] Ms. Nicholas also seeks aggravated and punitive damages based on the anxiety she suffered as a result of the decision of Met- Life. As indicated, Ms. Dubois denied the claim and Ms. Nicholas has been without disability payments since August 1998. [ 51 ] Awards for aggravated damages have been granted in these types of cases as part of the damages for breach of contract based on mental distress: See Warrington v. Great West Assurance Co. (1996), 1996 CanLII 1443 (BC CA) , 24 B.C.L.R. (3d) 1 ( C.A. ) .

I have earlier found that there is no contract between Ms. Nicholas and the Trustees; rather it is a trust relationship. [ 52 ] I have not been provided any authority for awarding aggravated damages arising from a claim for long term disability from a trust. In all of the cases ( Warrington v. Great-West Life Assurance , supra , D.E. v. Unum Life Insurance Co. of America (1998), 1998 CanLII 4294 (BC SC) , 52 B.C.L.R. (3d) 69 (B.C.S.C.) upheld (1999), 1999 BCCA 507 (CanLII) , 66 B.C.L.R. (3d) 1 (C.A.) , Fidler v. Sun Life Assurance Company of Canada (2002), 6 B.C.L.R. (4 th ) 390 , 2002 BCSC 1336 , and McIsaac v.

Sun Life Assurance Co. of Canada , [1997] B.C.J. No. 2164 (B.C.S.C.) , upheld (1999), 1999 BCCA 299 (CanLII) , 65 B.C.L.R. (3d) 60 (C.A.) , the award was founded on a breach of contract. [ 53 ] Ms. Nichols has not been entirely without income as she received employment insurance, some income from the Bed and Breakfast business and she eventually qualified for a disability pension from Canada Pension.

However, she was not able to meet her financial obligations and spent her Registered Retirement Savings Plan savings as well as borrowed money from friends and relatives. [ 54 ] There is no doubt that the lack of income has caused her some stress. [ 55 ] Ms. Nicholas received benefits for disability from Met-Life for a number of months. Ms. Nicholas was advised by Met-Life that she would not receive benefits beyond August 28, 1998, eight months before the expiration of benefits, but waited until July to file her appeal.

This delay may be the fault of the Union, but it cannot be attributable to the Trustees or Met-Life. The initial denial by Ms. Ross was appropriate as there was no evidence that Ms. Nicholas was totally disabled in “any occupation”. Met-Life made its decision on her appeal in approximately six weeks from when Ms. Nicholas’ documents were submitted. [ 56 ] The review of Met-Life’s decision was delayed as the request for a medical review panel was either not transmitted to Met-Life or lost by Met-Life. I have a letter indicating that the Union requested a review panel on behalf of Ms. Nicholas on January 21, 1999.

Ms. Dubois testified that she had no recollection of working on a medical review of the claim. Met-Life was bought by Clarica and Ms. Dubois and her entire department were terminated in March or April, 1999. [ 57 ] At some point Great West Life Assurance Company (Great West Life) took over administering the long term disability plan for the Trust.

[ 58 ] It is reasonable to infer that Ms. Nicholas’ claim fell through the cracks as a result of the buy-out of Met-Life by Clarica. [ 59 ] Ms. Nicholas did not take any steps to find out what was happening to her claim for some time. She called the Union in November and wrote to them in December. [ 60 ] In November, 1999, Ms. Nicholas drew the Union’s attention to the fact that her claim had not been dealt with and as a result Great West Life took immediate action on her claim and a panel was established in May, 2000. [ 61 ] Ms. Nicholas decided not to proceed with the medical review and instead to go to court.

This was her decision and one that cannot be left at the door of the Trustees. [ 62 ] The Trustees point to the following passage in the Trust Agreement between the trustees and the union:

Article 7 LIMITATIONS OF TRUSTEE LIABILITY 7.3 Advice of Professionals The Trustees may, in their sole discretion, engage legal counsel or other applicable professional consultants and obtain an opinion from these professional consultants.

The Trustee shall not be liable for any error of judgment or for any loss arising out of any act or omission in the execution of their duties providing, however, that they have acted upon the advice of applicable professional consultants whenever there is any reasonable doubt in such matters. [ 63 ] The defendant submits that this clause prevents any award against the Trustees founded on the conduct of Met-Life. [ 64 ] I have my doubts whether this clause prevents the claim by the plaintiff.

However, when considering the merits of the claim, I conclude that this is not a case to award aggravated damages in any event. [ 65 ] In Warrington v.

Great West Assurance , supra , the Court held that $10,000 was an appropriate award for aggravated damages and upheld the denial of an award for punitive damages. [ 66 ] In that case, at para. 34 of the trial decision, found at (1995), 1995 CanLII 16126 (BC SC) , 7 B.C.L.R. (3d) 43 , Josephson J. found that the plaintiff suffered “great distress and humiliation”, as a result of a breach by the defendant of its duty of good faith and fair dealings and awarded $10,000.00. [ 67 ] Unlike other litigants, Ms. Nichols has managed financially.

She has not lost her home, nor has she had to rely on welfare. [ 68 ] Further, any mental distress would be primarily generated by the delay from 1998, much of which lies at the feet of Ms. Nicholas. [ 69 ] I am aware of the award in McIsaac v. Sun Life , supra , and the comments of the Court of Appeal regarding the award. However, each case of mental distress must be decided on its own merits. The facts in this case do not attract an award for aggravated damages. [ 70 ] Ms. Nicholas also claims punitive damages. The test for imposing punitive damages is set out in Whiten v.

Pilot Insurance Co. (2002), 2002 SCC 18 (CanLII) , 209 D.L.R. (4 th ) 257 (S.C.C.) at para. 36 : Punitive damages are awarded against a defendant in exceptional cases for "malicious, oppressive and high-handed" misconduct that "offends the court's sense of decency": Hill v. Church of Scientology of Toronto , 1995 CanLII 59 (SCC) , [1995] 2 S.C.R. 1130 , 126 D.L.R. (4th) 129 , at para. 196 . The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour.

Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will already have been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment). [ 71 ] There is no conduct on the part of the defendant which attracts an award for punitive damages, even if the privitive clause did not apply. This claim is dismissed. [ 72 ] The plaintiff is entitled to:

1. A declaration that she is totally disabled from August 28, 1998 until today. The amount of the award is to be decided at a later date. 2. Interest on the award pursuant to the Court Order Interest Act , R.S.B.C. 1996, c. 79 . 3. Costs on Scale 3. [ 73 ] The claims for aggravated and punitive damages are dismissed. “E.A. Bennett, J.” The Honourable Madam Justice E.A. Bennett