Garry Brian Sansome Plaintiff And: Mark Rubens Defendant, 2020 NLSC 157

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Sansome v. Rubens , 2020 NLSC 157 Date : December 16, 2020 Docket : 201304G0059 Between: Garry Brian Sansome Plaintiff And: Mark Rubens Defendant Before: Justice David F. Hurley Judgment : Justice Carl R. Thompson Place of Hearing: Corner Brook and St. John’s, Newfoundland and Labrador Dates of Hearing: April 30, 2019 May 1 and 2, 2019 July 11, 2019

Summary:

While the Defendant breached a duty of care to the Plaintiff by a misstatement in an independent medical report to a long term disabilityinsurer, the emotional and financial losses suffered by the Plaintiff had taken place and were continuing prior to that breach and nocompensable loss could be causally attributed to it. Appearances: Garry Brian Sansome Appearing on his own behalf Irene Muzychka, Q.C. James Molony Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Rubens v. Sansome, 2017 NLCA 32; Clements (Litigation Guardian of) v. Clements, 2012 SCC 32; Benhaimv.

St-Germain, 2016 SCC 48; Aristorenas v. Comcare Health Services, (ON CA), 2006 CarswellOnt 6155, 216O.A.C. 161; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458; Mustapaha v. Culligan of Canada Ltd., 2008 SCC 27 STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4 REASONS FOR JUDGMENT Thompson, J.: INTRODUCTION [1] This action was taken by Mr. Garry Sansome against Dr. Mark Rubens in relation to a medical report prepared by Dr. Rubensfor Mr. Sansome’s disability insurer. Mr. Sansome claimed the medical report was carried out without his consent, containeddefamatory remarks, and was negligently prepared. [2] Dr.

Rubens applied for

Summary Trial seeking dismissal of the Statement of Claim. The claims in relation to consent anddefamation were dismissed. The claim in negligence was allowed with damages to be assessed. The

Summary Trial Judge found thatDr. Rubens owed a duty to Mr. Sansome to prepare the report based on current, up-to-date, and accepted medical knowledge and that hisinterpretation of elevated Gamma-GT readings was negligent. [3] Dr. Rubens appealed the

Summary Trial decision on the finding of negligence. In Rubens v. Sansome, 2017 NLCA 32 filedMay 18, 2017 the Court of Appeal affirmed that Dr. Rubens owed a duty of care to Mr. Sansome in preparing the medical report and thatDr. Rubens breached the applicable standard of care, but vacated the finding of negligence on the basis that damage and causation,essential elements of negligence, were not determined. The matter was remitted back to the Trial Division for a continuation of the trialto determine the issues of damage and causation. [4] These issues were tried before Justice Hurley and concluded July 11, 2019.

Justice Hurley passed away before rendering hisdecision. [5] The parties appeared before Justice Boone on September 3, 2020. Pursuant to s. 32(1)(

a) of the Judicature Act, R.S.N.L.1990, c. J-4, Justice Boone ordered that the decision be rendered by another judge. Under s. 32(2), I am authorized to make the decisionrelying on new evidence, on the transcript, or on the transcript supplemented by new or additional evidence. Both Mr. Sansome and Ms.Muzychka, for Dr. Rubens, indicated to Justice Boone a strong preference for the decision to be based on the transcript. This decision isso based. background (

i) Mr. Sansome’s Financial Service Contracts and his Long Term Disability Policy [6] Since April 11, 1991, Mr. Sansome has worked in the insurance industry as a self-employed insurance salesperson andfinancial advisor. His operating company is Financial Consultants Ltd. On January 15, 1998, he contracted with Alliance FinancialGroup Limited (“Alliance”) to sell insurance and investments for Alliance. The agency contract between Mr. Sansome and Alliance was

subject to termination in the event of fraud, dishonesty, serious error, or bankruptcy. On April 23, 2007, Mr. Sansome also contracted with The Manufacturer’s Life Insurance Company (“Manulife”) to promote, sell, and service Manulife insurance products. The broker contract between Mr. Sansome and Manulife was subject to termination upon certain events including fraud, dishonesty, or bankruptcy. [ 7 ] On June 1, 2001 Mr.

Sansome became insured under a policy of group insurance issued to Alliance by Desjardins Financial Security Life Assurance Company (“Desjardins”) bearing group policy number 170 and certificate number 44801 05575 (“the Alliance Policy”). (ii) Mr. Sansome’s Bankruptcy and Financial Service Contract Terminations [ 8 ] On September 15, 2009, Mr. Sansome made an assignment in bankruptcy. He reported total liabilities of $1,073,204 and total assets of $346,403. This was Mr. Sansome’s second personal bankruptcy having previously filed for bankruptcy on February 3, 1994. On April 30, 2010, Alliance sent a letter to Mr.

Sansome terminating their agent contract upon being informed of Mr. Sansome’s bankruptcy. On May 4, 2010, the office manager for Alliance, Diane Burns, advised Mr. Sansome that his group coverage under the Alliance Policy was also terminated. On July 27, 2010, Manulife advised Mr. Sansome that the broker contract had terminated in accordance with the terms of their contract upon his assignment into bankruptcy. (iii) Mr. Sansome’s Claim for Long Term Disability [ 9 ] In August 2010, Mr.

Sansome submitted a claim to Desjardins seeking long-term disability benefits pursuant to the Alliance Policy on the basis that he was totally disabled and had been unable to work since June of 2009. Desjardins concluded that Mr. Sansome was not totally disabled as defined by the Alliance Policy and denied his claim. Between August of 2010 and February of 2011, Mr. Sansome submitted appeals to Desjardins seeking long-term disability. Desjardins advised Mr. Sansome that he had not provided sufficient medical evidence to support his claim. In this process Dr.

Rubens was contacted by Desjardins on February 24, 2011, to conduct an independent medical examination (“IME”) of Mr. Sansome. Mr. Sansome did not attend a requested IME. Dr. Rubens completed a paper review of the medical records. [ 10 ] On April 1, 2011, Dr. Rubens provided a report to Desjardins. [ 11 ] Separately, but by way of chronology, on April 4, 2011, Manulife terminated the life insurance licenses of Mr. Sansome and his operating company, Financial Consultants Ltd. [ 12 ] Following Dr. Rubens’ report to Desjardins, on May 6, 2011, Desjardins advised Mr.

Sansome that the medical documentation on the file failed to establish a medical condition that rendered him totally and continuously disabled from performing the duties of his then, or any other, occupation as defined in the policy. (iv) Court Action Following Long Term Disability Claim Denial [ 13 ] On July 12, 2011, Mr. Sansome commenced an action against Desjardins in the Provincial Court of Newfoundland and Labrador, Small Claims Division following the long term disability denial.

On June 5, 2012 that action was subsequently transferred to this Court by order of Goodridge, J. as he then was. [ 14 ] On May 16, 2013 Mr.

Sansome amended the Statement of Claim against Desjardins claiming damages for loss of a monthly long-term disability benefit in the amount of $1,450; loss of an additional long-term disability benefit in the amount of $3,550 for it failing to have updated his benefit coverage; loss of his summer home; loss of privacy; violation of human rights; loss of life insurance in the amount of $25,000; and loss of accidental death and disfigurement benefits in the amount of $25,000. [ 15 ] On September 4, 2014 Mr.

Sansome executed a release acknowledging to have received $121,000 from Desjardins for the purpose of making a full and final compromise, adjustment and settlement of all claims for losses and damages in any way resulting from Mr. Sansome’s claim against Desjardins. (

v) Summary Trial [ 16 ] The

Summary Trial took place on June 6, 2014. The

Summary Trial Judge, Justice Hurley, determined that Dr. Rubens owed Mr. Sansome a duty of care and that his

interpretation of the elevated Gamma-GT readings breached the standard of care. In his decision filed April 27, 2015 Justice Hurley noted the portions of Dr. Rubens’ IME Report to have breached the applicable standard of care. He wrote: : [18] …On page 12, paragraph 11 of his report Rubens states; “I would also draw attention to the possibility, I would say in fact the high likelihood, that alcohol abuse has been a probable aggravating factor.” [19] Rubens goes on to state that this opinion was based on “some elevation” of Sansome’s Gamma-GT level.

Rubens then concludes: “I am not aware of any commonly encountered medical condition which would produce this liver function profile other than the ingestion of some type of large quantities of alcohol.” [20] The evidence at the hearing confirmed that this conclusion is incorrect. …

[28] As previously stated, Rubens was negligent in the

interpretation of the elevated Gamma-GT readings and then later used that

interpretation to refute the opinion of two specialists that Sansome was unable to work. Rubens states in his Report on page 13, paragraph 13: In

summary, there is no clear documentation in the material I reviewed that this patient was suffering from a primary disorder of mood (such as Major Depression) of sufficient severity to be occupationally or otherwise incapacitating. Instead, the documentation indicates generally dysfunctional coping, possible ( I would say probable) substance abuse , emotional disruption as a reflection of dysfunctional coping and non-compliance with treatment and treatment recommendations, and obviously highly adverse circumstances (apparently at times in fact catastrophically so) as a consequence of dysfunctional coping and behaviours. [emphasis added] [ 17 ] Justice Hurley as

Summary Trial Judge allowed the claim in negligence with damages to be assessed. He did note that damages must relate to the portions of the medical report found to be negligently prepared. (vi) Court of Appeal [ 18 ] The Court of Appeal affirmed the

Summary Trial Judge’s finding that there was a duty of care and that the impugned portions of Dr. Rubens’ report breached the standard of care, but vacated the

Summary Trial Judge’s finding of negligence and remitted the matter back to the Trial Division for a continuation of trial to determine if causation could be established, and if so, to assess damages. issues for continued trial [ 19 ] The issues for the continued trial then are whether Mr. Sansome suffered any compensable injury or loss as a result of the impugned portions of Dr. Rubens’ report found to have breached the standard of care and if so, the quantum of damages associated with that injury or loss. [ 20 ] As the Court of Appeal noted, unless Mr.

Sansome can establish at trial that he suffered injury caused by Dr. Rubens’ breach, there can be no finding of negligence ( Rubens , paragraph 94 ). The Court of Appeal as well noted that Mr. Sansome, at trial at that stage, could not point to anything to support injury to him different than the loss of his disability benefits ( Rubens , paragraph 95 ). the parties’ positions [ 21 ] Mr. Sansome’s claim as against Dr.

Rubens includes loss of long-term disability benefits and future entitlements under the Alliance Policy; loss of insurability; diminished future earnings; and damages for psychological injury. [ 22 ] Dr. Rubens first position is that Mr. Sansome’s claims are barred by the Final Release executed by Mr. Sansome with Desjardins. [ 23 ] Dr. Rubens second, alternate position is that:

a) As to loss of benefits and future entitlements under the Alliance Policy, Mr. Sansome did not qualify for long-term disability benefits under the Alliance policy;

b) As to loss of insurability, Mr. Sansome was not in any event insurable prior to Dr. Rubens’ report due to his medical history;

c) As to Diminished Future Earnings, Mr. Sansome was not working and had been declared permanently impaired by his treating physician prior to Dr. Rubens’ report; and

d) As to psychological injury, Mr. Sansome has not suffered psychological injury as a result of the impugned portions of Dr.

Rubens’ report in that the health issues documented in his medical records represent effects of pre-existing conditions, and as such, the alleged psychological injury would not have been reasonably foreseeable in a person of ordinary fortitude. what is referred back to this court [ 24 ] Based upon the referral by the Court of Appeal to this Court, this Court must determine whether the Plaintiff can demonstrate on the balance of probabilities that he suffered a compensable injury as a result of the Defendant’s previously determined breach of duty to him. [ 25 ] Notably, the Court of Appeal concluded that, while the Plaintiff argued that he did suffer injury other than the loss of his disability benefits, he could not establish any evidence to support such an injury at trial ( Rubens , paragraph 95 ).

That omission was the reference here allowing Mr. Sansome this opportunity to prove such an injury. [ 26 ] As well, the Court of Appeal was given to understand on its hearing of the matter that the suit against Desjardins had been resolved ( Rubens , paragraph 7 ). Guidance from the court of appeal [ 27 ] While aware that the claim against Desjardins had been resolved as noted, the Court of Appeal opined that if the insured is made whole pursuant to the contract of insurance, there would be no claim against the IME physician.

If not made whole, the balance would be subject to proof of causation which could be difficult; if causation were proved, the value of the unpaid benefit ought to be paid

(Rubens, paragraph 60). [28] Importantly, the Court of Appeal noted that a negligently performed IME may cause distinct damages. By way of example, itnoted Mr. Sansome’s proposal that incorrect conclusions in that IME could make it difficult and/or more expensive to purchase futureinsurance coverage (Rubens, paragraph 61). Again, the Court of Appeal offered that, while a tall order to prove, it would be a separateloss. caselaw: causation [29] The test for factual causation is the “but for” test.

In exceptional circumstances, a plaintiff may succeed by showing thedefendant materially contributed to the risk of the injury sustained. The Supreme Court of Canada noted the approach to assessingfactual causation in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at paragraph 46, in part, as follows: …

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for"the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff hasestablished that the defendant's negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury,where (

a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, eachpossibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possibletortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" causeof the injury, defeating a finding of causation on a balance of probabilities against anyone. [30] The evidentiary burden of proving causation is on a balance of probabilities, but not necessarily to the extent of scientificprecision. The Supreme Court of Canada further noted this evidentiary burden in Benhaim v.

St-Germain, 2016 SCC 48, at paragraph54, in part, as follows: … The trier of fact may draw an inference of causation even without "positive or scientific proof", if the defendant does not leadsufficient evidence to the contrary. If the defendant does adduce evidence to the contrary, then, in weighing that evidence, the trier offact may take into account the relative ability of each party to produce evidence: Ediger, at para. 36. [31] As noted by the Ontario Court of Appeal in Aristorenas v.

Comcare Health Services, (ON CA), 2006CarswellOnt 6155, 216 O.A.C. 161 the “robust and pragmatic” approach as mandated in Clements in determining causation was not as asubstitute for evidence of causation. The Court stated at paragraph 54: The "robust and pragmatic" approach is not a distinct test for causation but rather an approach to the analysis of the evidence said todemonstrate the necessary causal connection between the conduct and the injury.

Importantly, a robust and pragmatic approach must beapplied to evidence; it is not a substitute for evidence to show that the defendant's negligent conduct caused the injury. [32] A defendant is not liable to the plaintiff for any debilitating effects of pre-existing conditions that the plaintiff would haveexperienced absent the defendant’s negligent act or omission. Known as the “crumbling skull” doctrine, the Supreme Court of Canada inAthey v.

Leonati, (SCC), [1996] 3 S.C.R. 458 stated at paragraph 35: The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position".The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuriescaused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which theplaintiff would have experienced anyway… [33] The test for remoteness of damage, or legal causation, is set out in Mustapaha v.

Culligan of Canada Ltd., 2008 SCC 27. Inestablishing a duty of care, standard of care breach, damage, and causation the plaintiff must also show it was reasonably foreseeable;that is, that a person of ordinary fortitude would suffer personal injury from the defendant’s conduct. The Court stated at paragraph 16,in part, as follows: … the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The lawof negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful.

In this quest, it draws theline for compensability of damage, not at perfection, but at reasonable foreseeability… the evidence of THE plaintiff to support causation for damages (

i) Mr. Garry Sansome [34] Mr. Sansome testified that his bankruptcy was not for financial reasons. He did that for the sake of his spouse and her dealingwith his admission to intensive care. Additionally, his disability claim had nothing to do with his depression but with a heart condition

and what he termed “minor tribulations”. He later testified that he had minor flutterations of the heart that will not affect death. He testified that if depression were a problem, one cannot be declined coverage for it. As to obesity, he agreed that at one time he was over 340 pounds. [ 35 ] Mr. Sansome believes that the reason why his contracts were cancelled with Industrial and Manufacturer’s was due to a hostile takeover of his business and clients by a Mr. Hancock. In his view, when he got sick and went to intensive care, Mr. Hancock got Mr. Sheppard, whom Mr.

Sansome was planning to have succeed him, to link up with Mr. Hancock and take Mr. Sansome’s business. He testified that Mr. Hancock through Industrial Alliance filed a complaint against him with the superintendent of insurance. He noted how in the investigation the superintendent told him how highly his clients thought of Mr. Sansome. Mr. Sansome testified that he believes that Dr. Rubens’ report was made available widely and should not have been. [ 36 ] Mr. Sansome testified then in the end he could have secured some major business with major clients in the Corner Brook area.

In his view, he should have been allowed to secure this business. His disability at the time was significant congestive heart failure and his disability was not through depression. [ 37 ] Mr. Sansome testified that he had no other pre conditions prior to Dr. Rubens’ report. It was the report of Dr. Rubens that stimulated the downward trend in his medical condition. He testified that this report was exposed to the public through medical records, court records, the internet and public opinion. He testified that in a small community rumors move at a very fast pace.

The damage to him is through the report being made available to the public. [ 38 ] Mr. Sansome testified that he has the right to recover $5,000 per month for long term disability for 84 months to age 65 with possible extension to age 75. He appears to blame Mr. Hancock for this failure to have secured this benefit for him. With that increased amount he would have been able to recover his home. He also should have had the benefit of a waiver of premiums once his disability was established. Mr.

Sansome confirmed that there was a separate court action taken in respect of this claim which ended because he accepted the lesser amount and signed the release. [ 39 ] In general, Mr. Sansome testified that when he was in intensive care and ultimately diagnosed with congestive heart failure, he took it as the end of his life and he gave up on life, started spending money like crazy, tripped over a gambling site on the computer and tried it when the site invited him in, which he did for five months. [ 40 ] Mr.

Sansome testified that, prior to the matters he complains of, the only pre-existing condition he had was congestive heart failure. It was the insurance companies, because of Mr. Hancock that ruined his career and took his clients. Due to Dr. Rubens’ report he ended up with kidney problems caused by stress and related to his diabetes. [ 41 ] Mr. Sansome testified that Dr. Rubens’ report put him over the edge; that he lost it; that it hit his pride; that he was ready to commit suicide and attempted it. (ii) Dr. Jan Ernst Van Wijk [ 42 ] Dr. Jan Ernst Van Wijk testified. He testified that he first saw Mr.

Sansome as a patient in 2006, in the summer, when he presented with a rapid, irregular heartbeat and he was under his care in the intensive care unit. Dr. Van Wijk treated him. The condition rectified itself. At that time, it was noticed that he was suffering from Perthes Disease, a hip problem that was diagnosed in childhood years requiring a bilateral hip replacement. The most common finding that he found at that stage was that he was also, in the early stages of diabetes, what is called in medical terms, pre-diabetic. Dr. Van Wijk admitted him again a year later for a similar problem.

Again, he presented with a rapid heartbeat, a very irregular heartbeat, and various investigations were done. The exact cause for the irregularity was never determined. Again, he was treated successfully, was discharged and was kept under his care for follow-up at his office. He was admitted for a third time to the hospital in 2008. Again, with a similar fast and rapid heartbeat. At this stage, it was thought it was precipitated by a flu-like infection. His medical status was again confirmed and he decided to follow him up. At that stage, however, Mr.

Sansome developed a condition called cardiac failure, fluid on the lungs, which was thought to be related to his rapid irregular heartbeat, but also maybe an underlying cardiac condition. He was subjected to several heart investigations, including a cardio angiogram, which was done in St. John’s which was completely normal. An echocardiogram showed that the heart function was weak and explained why he went into heart failure. He treated him aggressively as best as he could at that time and over the next year or so his condition did improve to such an extent that Dr.

Van Wijk thought that his physical condition was under control. He was earlier diagnosed to be a Type 2 diabetic, and treatment started. But, he also appeared to Dr. Van Wijk to be in emotional distress and showed signs, in his opinion, of anxiety and also possible depression. He did inquire of him about the cause of this and he did explain that he was experiencing a lot of emotional stress related to his business situation. Dr. Van Wijk followed up on a regular basis, and although physically, he did stabilize, Dr.

Van Wijk was becoming increasingly concerned about his emotional state and recommended that he should see a psychiatrist for a more proper assessment. At that time in Corner Brook, psychiatric services were very stretched and it was extremely difficult to get an appointment for Mr. Sansome to see a psychiatrist and Dr. Van Wijk actually initiated antidepressant treatment at that time. [ 43 ] Dr. Van Wijk testified that this was in February of 2010. Dr. Van Wijk noticed that his emotional state did start to concern him and he started him on an antidepressant drug. Dr.

Van Wijk followed him on a regular basis; up to about 10, 20 times a year, mostly on an outpatient basis. Sometime in 2011, he saw him in his office and he noticed that his emotional state had significantly deteriorated. He did mention to Dr. Van Wijk that he was applying for medical disability and that he was turned down and that Dr. Rubens in Halifax, did an assessment on him and recommended his medical disability claim be declined. Dr. Van Wijk testified that this caused Mr. Sansome a lot of distress and he felt it was very urgent that he should get a second opinion from a psychiatrist.

He eventually got a psychiatrist in Gander to see Mr. Sansome. Dr. Van Wijk testified that at that stage, Mr. Sansome stopped taking his medication on a regular basis basically because of the affordability of the drugs, as well as side effects that some of the drugs had on him. Dr. Van Wijk testified that it became increasingly more difficult for him to manage his medical problem, further complicated by severe distress and anxiety with his depression. He understood Mr. Sansome saw Dr. Maritz in Gander on two or three occasions in 2011 and 2012. At one stage Dr.

Van Wijk was concerned that he may have been a suicide risk. Dr. Maritz in Gander wanted to admit him, but Mr. Sansome didn’t feel he was comfortable in being admitted. Over that period of time and seeing Mr. Sansome on a regular basis, Dr. Van Wijk testified his

cardiac condition had always been compromised and he was increasingly concerned that his heart condition would deteriorate because of the new development of diabetes and his ongoing stress situation; his diabetes had been poorly controlled now for the last two years; mainly because he was not getting the correct treatment and he had great difficulty in affording the treatment that he prescribed. He did provide Mr. Sansome with samples out of his office which he acknowledged was not effective treatment for him. Mr. Sansome has been Dr. Van Wijk’s patient since then up until the time of his evidence. [ 44 ] Dr.

Van Wijk testified that the extreme stress that Mr. Sansome, and any other patient with that type of medical condition is subjected to, makes it virtually impossible for these conditions to respond to the treatment. He did not think, at that time, that Mr. Sansome was medically fit to return to work as a financial advisor or counsellor or insurance agent, and he made it very clear to Mr. Sansome at that stage. This was around 2010 and 2011, approximately. [ 45 ] Dr. Van Wijk testified that after the first three admissions to hospital, there was a time when he saw Mr.

Sansome in his office when he thought his physical condition did improve and this was actually supported with tests done on his heart. However, emotionally, Mr. Sansome did not improve. He was very concerned about Mr. Sansome’s emotional state. [ 46 ] The following is more specifically the relevant evidence from Dr. Van Wijk on questioning from Mr. Sansome: Q. But what was caused by that emotional state? A.

Well what you had told me at that stage is that you had experienced extreme stress from work, the work situation you were in, particularly related to your application for a disability grant from the insurance company. Q. Did I specifically mention the turn-down of the disability and the Rubens’ report? A. You did mention the Rubens’ report and at that time I didn’t have insight to it. But you did briefly tell me about the gist of the Rubens’ report was and I was surprised. And, you subsequently did supply me with the report, yes. Q. Did it upset me to that extent that when I left your office, what did you do? A.

I was very concerned about your emotional state. I was concerned that you may be a suicide risk. Against your wishes, I took it on myself to speak to your wife about your emotional state and I said that you should see a psychiatrist as a matter of urgency and that I’ve arranged for you to see one. Q. Did you call the patient’s wife? A. Yes, I did. Q. In fear that I might do something? A. Yes, I was concerned that you, that you were a risk for your own life. Q. So I -- so the patient was that upset about the report, about being turned down and about being called an alcoholic, he was that close to breakdown. A.

I thought so. Q. So, basically, in my terms, it pushed the patient over the edge. A. It’s difficult to define over the edge. What it means to me as a physician, it made it extremely difficult to manage your medical problems, virtually impossible, and put you at risk for further complications because your medical conditions were not well controlled. [ 47 ] On cross-examination Dr. Van Wijk testified that he did not opine on any psychiatric or psychological condition of Mr.

Sansome. He confirmed that on September 3, 2008 he had noted a series of medical problems for Mr. Sansome: proximal atrial fibrillation, obesity, hypertension, Perthes disease, chronic prostatitis, and a recent hip replacement. In addition, at that time he also confirmed Mr. Sansome as having a pre-diabetic condition. He was also later additionally diagnosed with obstructive sleep apnea which was being treated in August 2008.

Effectively, his heart is weak, not curable, managed by medication, potentially requiring transplantation and with diabetes, type 2, can lead to cardiac failure. [ 48 ] He testified that chronic emotional stress can present an independent risk factor in the development and deterioration of heart disease, generally. (iii) Ms. Valerie Dyke [ 49 ] Ms. Dyke testified for the Plaintiff. She was not qualified as an expert.

The evidence confirms that she worked in the financial services industry in 2000 as an advisor until 2004 when she moved from Industrial Alliance to Desjardins where she worked as a trainer and recruiter until the time of her testifying on April 30, 2019. [ 50 ] She had attempted to recruit Mr. Sansome in 2009. However, in 2010 and 2011 after he had left the industry, she had changed her mind.

Her evidence was that he was an emotional wreck concurrent with her knowledge of his hospitalizations. [ 51 ] She testified on cross-examination that, based on her interactions with him and from her observances, that his employment in the insurance industry was not then an option. She also agreed that in 2009, when Mr. Sansome had filed for bankruptcy, she thought it would have been a concern for insurance companies with whom he was contracting. She agreed it would be a significant concern. She noted that termination for bankruptcy was discretionary under such engagement contracts.

She knew of four cases where it did not occur but agreed that Manulife had the right to terminate Mr. Sansome as they did. [ 52 ] Ms. Dyke testified that she would have had difficulty hiring Mr. Sansome with these financial circumstances and with his gambling. [ 53 ] Ms. Dyke also testified that she would not confirm that she would not hire Mr. Sansome due solely to alcohol abuse claims. She testified that for her she would not hire him for a combination of reasons. She testified that, notwithstanding her previous affidavit swearing she would recruit Mr.

Sansome back into the industry, except for his reputation and good morals being destroyed by Dr. Rubens’ report, that it was a combination of things, not only that report that left her in a whole different place in the context of his employability. [ 54 ] Ms. Dyke confirmed that by 2011 Mr. Sansome would have been precluded from getting an insurance sponsor. [ 55 ] On the conclusion of her cross-examination her response generally to the overall evidence relevant to Mr. Sansome’s employability discloses: Q. Okay. Just to sort of summarize, you know, what we’ve discussed.

You know, the screening process, if the screening process revealed significant conflict with past employers, a history of termination for ethical issues, problem gambling leading to the accumulation of unpaid debt, including more than $600,000 in unpaid CRA debt, multiple assignments into bankruptcy and numerous legal actions commenced by the perspective advisor against past sponsors, employers, colleagues, bankruptcy advisors, lawyers and an employer’s insurer, there’s just no way that he would have been sponsored by any insurance company. A. At that particular time, no.

But it doesn’t preclude him forever from being, going back into the industry. [ 56 ] Finally, on cross-examination as to her affidavit, her response generally to the overall evidence relevant to Mr. Sansome’s health pre-conditions to insurability proposed hypothetically to Ms. Dyke discloses: Q. Well, hypothetically, if an individual had Type 2 diabetes, obesity, hypertension, atrial fibrillation, severe depression, severe obstructive sleep apnea, they were -- they had made a recent disability claim, would -- A. He wouldn’t qualify for, for regular insurance. considerations and conclusions on evidence (

i) Valerie Dyke [ 57 ] Ms. Dyke’s evidence confirms that by the time of Dr. Rubens’ report Mr. Sansome would not have secured an insurance sponsor and based upon his diagnosis of Type 2 diabetes, obesity, hypertension, atrial fibrillation, and severe depression he would not qualify for regular insurance. [ 58 ] Ms. Dyke is clear that Mr. Sansome’s overall health condition after 2009 was such that she would not hire him. (ii) Dr. Van Wijk [ 59 ] Dr. Van Wijk confirmed that Mr.

Sansome was hospitalized on September 3, 2008 with fast atrial fibrillation, hypertension and obesity and during that hospitalization presented with paroxysmal nocturnal dyspnea requiring his head to be elevated in bed overnight due to the fluid buildup on his lungs. These combined symptoms presented a condition of cardiac failure requiring treatment by way of lifestyle changes which Mr. Sansome did attempt but he appeared not to be interested in continuing physical activity and exercise due to stress and financial limitations.

[ 60 ] Dr. Van Wijk also confirmed that Mr. Sansome on October 7, 2008 was emotionally extremely labile, probably then suffering from acute anxiety due to his medical problems and the general financial market failure in which he worked in 2008. He was of the view that the business component of finances at that time played a major role in the emotional stress that Mr. Sansome experienced. He knew that Mr. Sansome was a financial counsellor and advisor. [ 61 ] By December 4, 2008 Dr. Van Wijk added depression to the list of Mr.

Sansome’s symptoms and, not being a psychiatrist, could not be sure if it was really depression or just anxiety. But by this time, by noting it as depression, he was pretty sure there was present an element of depression. [ 62 ] By June 18, 2009 Dr. Van Wijk confirmed that Mr. Sansome is liable emotionally (sometimes feels good, sometimes bad, like a roller coaster) and was continuing with medication. Dr. Van Wijk noted in July 2009 that Mr. Sansome’s main problem was anxiety, noting Mr. Sansome’s father’s illness and prescribed additional medication.

By September 1, 2009 he notes dyslipidemia, being abnormal cholesterol, directly related to diabetes and to the metabolic syndrome having a cascading effect going to anxiety and depression; left ventricular failure; atrial fibrillation; hypertension dyslipidemia; and sleep apnea. Dr. Van Wijk is again recommending management of his emotional state at this time by seeing a psychiatrist or psychologist but Mr. Sansome did not want to do that, which is not necessarily uncommon for a person with acute anxiety and depression to make irrational decisions. He then considered Mr.

Sansome to have had major psycho social psychological issues for years but resisted consultation with a psychologist or psychiatrist. In his view, without a doubt, these issues, untreated, impeded his recovery from his other physical issues. [ 63 ] It is at this time, by September 29, 2009 that Mr. Sansome is applying for long term disability. Dr. Van Wijk included these symptoms in his medical report then supporting that application. At that time, Dr. Van Wijk was aware that Mr. Sansome had personal financial problems and had declared bankruptcy.

He believed that this contributed to his emotional distress. [ 64 ] In the September 29, 2009 referral for long term disability Dr. Van Wijk confirmed his view of the working impairments: personality changes; inability to concentrate; short term amnesia; inability to make rational decisions and suicidal tendencies. He confirmed that he listed depression first at this time as he then considered it to be the most prominent of a combination of complex problems. [ 65 ] By October 13, 2009 Dr. Van Wijk had become very concerned about the lack of treatment for the emotional aspects of Mr. Sansome’s condition.

By November of 2009 Mr. Sansome is admitted to hospital. At this time Dr. Van Wijk was aware of a gambling problem of Mr. Sansome. [ 66 ] Dr. Van Wijk notes in January and February 2010 that Mr. Sansome’s condition is improving though he still considered his condition as warranting long term disability. [ 67 ] By March of 2010, Dr. Van Wijk has confirmation from Dr. Maritz, psychiatrist, that as of March 1, 2010 Mr. Sansome’s depression was significant noting a suicide attempt four months earlier. [ 68 ] On April 15, 2010 Dr. Van Wijk wrote Dr. O’Driscoll, Mr. Sansome’s family doctor that Mr.

Sansome had self-discharged from the services of a psychiatrist and wanted to stop his diabetic treatment. Dr. Van Wijk felt Mr. Sansome had no insight into his emotional and psychological state. By April 29, 2010 Dr. Van Wijk notes that he is in an unstable state, both emotionally and physically, and considered that he was headed for a crisis, probably needing admission to a psychiatric institution. By May 18, 2010, Dr. Van Wijk writes to Dr. O’Driscoll that Mr. Sansome’s business and personal problems are escalating at a tremendous rate. [ 69 ] On February 1, 2011 Dr. Van Wijk notes that Ms.

Sansome’s medical condition has deteriorated and his diabetic control was not satisfactory and he remained severely depressed. [ 70 ] Dr. Van Wijk confirmed in his letter of November 14, 2012 a significant improvement in Mr. Sansome’s conditions over the last couple of years, specifically two years, though in court his condition could deteriorate under prolonged emotional stress. He confirmed this improvement was physically, as well as emotionally. He confirmed that by November of 2012 there is no extreme or prolonged stress presenting. [ 71 ] Dr. Van Wijk confirmed then that from September of 2008 Mr.

Sansome presented a series of medical problems as noted. His condition was exacerbated by the general economic market conditions in which Mr. Sansome worked. His condition continued through 2009. Mr. Sansome did not obtain psychiatric or psychological treatment which was necessary. He was of the view that Mr. Sansome had required this treatment for some years prior to this time. [ 72 ] This evidence confirms that by the time of his application for long term disability in 2009, Mr. Sansome’s mental and physical condition had presented at least for the preceding full year and supported his inability to work.

In 2010 Dr. Van Wijk notes the lack of insight of Mr. Sansome into his own emotional and psychological state. This is not inconsistent with my conclusion respecting Mr. Sansome’s evidence. [ 73 ] Dr. Van Wijk’s evidence confirms that by the time of Dr. Rubens’ report of April 1, 2011, being made known on May 6, 2011, Mr. Sansome was severely depressed and ill and incapable of work. This disability presented for some time prior to Dr. Rubens’ letter. Dr. Van Wijk’s view of Mr.

Sansome’s failure to recognize the extent of his ongoing physical and psychological impairments, that is his lack of insight into his poor health condition, is consistent with my view of the unfocused choices Mr. Sansome made by his own evidence as to the insignificance he gave to those proposed impairments. [ 74 ] His evidence then does not assist in identifying the breach of duty by Dr. Rubens in his report of April 1, 2011 as being causally, the event which, “but for” its occurrence, Mr. Sansome would not have suffered the losses he has claimed. [ 75 ] By November 2012 Dr.

Van Wijk confirms a significant improvement. (iii) Mr. Sansome

[ 76 ] The evidence of Mr. Sansome discloses the profound loss and the sorrow he experienced generally in his life. His career and his health intersected. The collision of the two were irreconcilable in the cascading results that ensued. It appears that the history of long developing and compromising health met the economic crisis in the investment market upon which his income and career depended. The fallout for Mr. Sansome was significant.

The crisis of physical health evoked major stress; his own personal financial circumstances appeared to impact his lifestyle; personal debt burdened his life with its developing health weaknesses. [ 77 ] In the circumstance, the clarity of his evidence to effect causal connection specifically at the report of Dr. Rubens, while understandable in the person suffering, is, at best, unfocused. In his own evidence it is apparent that Mr. Sansome continues to minimize any medical views of his psychological and physical impairments, identifying congestive heart failure as the only predominant impairment prior to Dr.

Rubens’ report. FURTHER CONCLUSIONS [ 78 ] I note that on September 15, 2009 Mr. Sansome made an assignment into bankruptcy. It was his second bankruptcy. Based upon this, Alliance Financial Group Limited terminated its agency contract with Mr. Sansome on April 30, 2010. Manufacturer’s Life Insurance Company terminated its agency contract with Mr. Sansome on July 27, 2010 for the same reason. [ 79 ] I note as well that in August 2010 Mr. Sansome claimed for long term disability with Desjardins based on total disability since June 2009. Between August 2010 and February 2011 Mr.

Sansome’s appeals of that decision were denied by Desjardins. There were three denials in all to February of 2011. [ 80 ] By this time, Mr. Sansome had presented with severe depression for quite some time. He is severely depressed. He suffers depression combined with poor diabetic control. He is not able to adhere to medical advice and medications. [ 81 ] The final denial by Desjardins on May 6, 2011 followed Dr. Rubens’ report of April 1, 2011. By this time Mr. Sansome was more than two years into the unfortunate cascading events of his deteriorating health and the loss of work. Dr.

Van Wijk had been treating him when hospitalized in September of 2008. Despite his cardiac condition, hypertension and obesity, Mr. Sansome did not appear interested in physical activity and exercise, in Dr. Van Wijk’s opinion, due to his stress and his financial situation. A month later Mr. Sansome is noted by Dr. Van Wijk to be emotionally extremely liable. On October 7, 2008 Dr. Van Wijk notes Mr. Sansome’s acute anxiety caused by the financial market failure. This situation appears to have continued through 2009 and 2010, as I noted in Dr.

Van Wijk’s evidence, with further deterioration through to February of 2011. Ms. Dyke found him unemployable in 2009. Again, by this time Desjardins had denied the claim three times prior to Dr. Rubens’ involvement. [ 82 ] It appears on the evidence that before Dr. Rubens’ report Mr. Sansome no longer held a license to practice in the financial advisory business. Additionally, Mr. Sansome, as he complained of, had by then, in his own view, lost his business to Mr. Hancock.

In cross-examination he expressed the view himself that the barrier to his ability to work was not physical impairment as he always fought back, but Mr. Hancock was there taking the business in the timeframe of his hospitalization. It was Mr. Hancock’s actions and not his bankruptcy which resulted in his loss of the ability to continue under his contracts, that is, Mr. Hancock was trying a forcible takeover. Again, I have to conclude that unfortunately Mr. Sansome does not on the evidence have a recognition of his medical diagnoses. I have noted at paragraph [46] the exchange between Mr. Sansome and Dr. Van Wijk.

This presents Mr. Sansome’s view that Dr. Rubens’ letter and his reference to alcohol was the feature that left him most upset to the point of considering suicide. Dr. Van Wijk recalled the reference to Dr. Rubens’ report and, while very concerned for Mr. Sansome’s state at the time, would not frame it as an event putting his patient over the edge but as making it extremely difficult to manage his existing medical problems because his medical conditions were not well controlled.

I make these observations as well noting these circumstances as following in time much later than the occurrence of losses as I have noted. Loss of higher disability benefit [ 83 ] Mr. Sansome claims that he could have had disability insurance coverage at a higher amount than the $1,450 per month certified benefit based upon his having an income level at the relevant time that would have allowed him to qualify for a greater face amount coverage. [ 84 ] On the evidence, it appears that Mr. Sansome believes that had Mr.

Dion Hancock representing Desjardins been in receipt of that information, the amount could have been increased. [ 85 ] In my view, by itself that failure does not rest with Dr. Rubens. If there was a failure, it rested with whomever Mr. Sansome could establish had the obligation to him to effect automatic increases assuming Mr. Sansome would have established his acceptance of a payment for such additional coverage as might be required. [ 86 ] Nevertheless, Mr. Sansome also is of the view that Dr.

Rubens’ breach of a duty of care to him precluded his ability to correct this underinsurance level to the higher amount following his denial of insurance. Ms. Dyke’s evidence would not support his ability to obtain such additional coverage at that time due to his then medical conditions. loss of summer residence [ 87 ] There is a claim for the loss of Mr. Sansome’s summer residence. Such claim is not causally connected for the reasons outlined. I note that on the evidence this occurred in March of 2011 prior to Dr. Rubens’ report. release [ 88 ] Dr. Rubens claims that Mr.

Sansome’s claims are barred by the release Dr. Sansome executed in favour of Desjardins. [ 89 ] It appears that the release was executed September 4, 2014 approximately three months after the

Summary Trial before Justice Hurley on June 6, 2014 and more than seven months before the filing of Justice Hurley’s decision on April 27, 2015.

[ 90 ] As noted, the Defendant’s position is that the release bars this claim. [ 91 ] I do not see it referenced by the Court of Appeal except to the extent that the Court of Appeal was given to understand that the action against Desjardins had been resolved, as I have noted. While the Court of Appeal was not asked by Dr. Rubens to opine on the applicability of that final release as a full defence to this claim, notwithstanding the Desjardins release was likely then in place, the Court of Appeal offered that if Mr. Sansome was not made whole by the payment from Desjardins, any proven additional loss caused by Dr.

Rubens’ negligence ought to be paid ( Rubens , paragraphs 60 and 61 as earlier noted). [ 92 ] It not having been raised otherwise, the referral from the Court of Appeal to this Court, by which this Court continues to exercise jurisdiction has to be of those matters in issue and then as specifically circumscribed by the Court of Appeal for my determination.

I am of the view that I ought not entertain this aspect of the Defendant’s denial had it been necessary for me so to do as the reference back as circumscribed does not include it. [ 93 ] That said, I offer that the release does not seek to specifically address this cause of action then in progress and outstanding. Had the Defendant considered this a bar to the action, that was not raised in the time after the

Summary Trial and prior to the filing of the decision. I would have expected that to have occurred. final conclusion [ 94 ] While Dr. Ruben’s report in

part contained a misstatement giving rise to a breach of a duty of care to Mr. Sansome as noted by Justice Hurley and confirmed by the Court of Appeal, the emotional and financial losses suffered by Mr. Sansome had occurred and were continuing prior to that breach. No compensable monetary loss or damage has been shown on the balance of probabilities to be causally attributable to that breach. [ 95 ] Based upon the evidence tendered, I conclude that on the balance of probabilities Mr. Sansome has not established that the breach by Dr.

Rubens of his duty of care in his report has caused or contributed to any monetary loss or damages. [ 96 ] It appears to continue to be the case that, as noted in the Court of Appeal, while it could be argued that injury to Mr. Sansome’s sensibilities is present ( Rubens , paragraph 95 ), compensable loss, as the third element necessary to a finding of negligence is not established. [ 97 ] The Plaintiff’s claim is dismissed. costs [ 98 ] The Defendant is entitled to costs to be taxed at Level 3 of the Scale of Costs. _____________________________ Carl R. Thompson Justice