Olfman v. RBC Life Insurance Co., 2014 MBCA 26

Citation: Olfman v. RBC Life Insurance Co., 2014 MBCA 26 Date: 20140306 Docket: AI 13-30-07999 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella BETWEEN : ) S. D. Olfman SHAWN DAVID OLFMAN ) on his own behalf ) (Plaintiff) Appellant ) T. E. Bock and ) G. L. Mackwood - and - ) for the Respondent ) ) Appeal heard and RBC LIFE INSURANCE COMPANY ) Decision pronounced: ) March 3, 2014 (Defendant) Respondent ) ) Written reasons: ) March 6, 2014 MAINELLA J.A. Introduction and Issues [ 1 ] This appeal raises issues of contractual

interpretation in relation to an insurance policy and the fairness of the appellant’s trial. [ 2 ] The appellant, a practicing lawyer, appeals the dismissal of his action for payment of benefits under an accident and sickness insurance policy. He also moves to adduce fresh evidence on appeal.

His motion has two aspects: the alleged breach of pre- trial agreements by the respondent (concerning the appellant’s health for the purpose of interpreting the policy and the witnesses the respondent intended to call at trial); and, the completeness of the respondent’s affidavit of documents. [ 3 ] At the hearing of the appeal, the application to adduce fresh evidence and the appeal were dismissed with reasons to follow. These are those reasons.

Background [ 4 ] The appellant purchased an accident and sickness insurance policy from The Paul Revere Life Insurance Company (the predecessor insurer to the respondent) on January 26, 1989 (the policy). The definition of “total disability” in the policy for the payment of full benefits was as follows: “ Total Disability ” means that because of Injury or Sickness: a. You are unable to perform the important duties of Your Occupation; and b. You are under the regular and personal care of a Physician. [ 5 ] The appellant suffered a heart attack on July 17, 2009, and did not return to work until September 1, 2009.

[6] The judge dismissed the appellant’s claim that a letter dated September 13, 1989, from Mr. Sterling Rempel, anemployee at the local office of The Paul Revere Life Insurance Company in Winnipeg, amended the definition of “total disability” in thepolicy such that benefits were payable as long as the appellant remained under the care of a doctor, even if he could work as a lawyer. The letter read in part as follows: …. As you have correctly noted in your letter this rider extends benefits for Total Disability benefits only not Residual or Partialbenefits.

It should be noted, however, that Total Disability benefits are payable while you are enable to perform the important duties ofyour occupation, and are under the care of a physician, even though you may be engaged in another occupation and earning an incomefrom it. [emphasis added] [7] The judge accepted the evidence of Mr. Rempel that he did not intend to amend the policy’s definition of “totaldisability” in his letter, nor did he have the authority to make such a change according to the wording of the policy.

Rather, the judgefound the letter contained an obvious “spelling or typographical error” (at para. 29) when read in its proper context. The judge alsofound that the appellant’s

interpretation of the letter as having legal consequences to amend the terms of the policy was unreasonable, aswas any reliance on it for the purposes of establishing negligent misstatement. The judge also rejected the appellant’s alternativearguments as to the respondent’s liability based on claims of error in substantialibus, collateral contract and breach of a warranty unders. 58(1)(

h) of The Consumer Protection Act, C.C.S.M., c. C200. Analysis and Decision [8] The appellant’s motion to adduce fresh evidence on appeal does not meet the test for admission (Palmer et al. v. TheQueen, (SCC), [1980] 1 S.C.R. 759) and we are not satisfied that it is in the interests of justice to admit the fresh evidenceon appeal. The respondent did not contest the condition of the appellant’s health for any purpose at the trial.

The appellant failed toraise with the judge at trial his concerns about the respondent’s decision to not call a witness on its witness list, or the initialcompleteness of the respondent’s affidavit of documents (which was rectified over two years prior to the trial). We see no reason toaddress these concerns on appeal for the first time.

Finally, there is also a total absence on the record of any evidence to support theappellant’s argument that counsel for the respondent breached an undertaking or engaged in any questionable conduct during the trial. [9] The appellant argues that the judge erred in her determination of what constituted a total disability under the policy andthat the trial was unfair because of various erroneous evidentiary rulings and the display of bias by the judge in favour of the respondentas she allegedly intervened too much in the trial. [10] Deference is owed to the judge’s

interpretation of the policy on questions of fact and mixed fact and law. The standardof review is palpable and overriding error in the absence of there being an extricable legal question (King v. Operating EngineersTraining Institute of Manitoba Inc., 2011 MBCA 80 at paras. 21-28, 270 Man.R. (2d) 63). [11] The definition of “total disability” in the policy is clear that the appellant was not entitled to benefits once he returned towork as a lawyer after his heart attack, even if still under the care of a doctor.

We are not satisfied the judge made any error, let alone apalpable and overriding one, that anyone from the insurer with the requisite authority intended to, or actually did, later alter the definitionof “total disability” in the policy as the appellant claims.

The alternate arguments of the appellant also fail as there is no reason tointerfere with the judge’s conclusion that there was no evidence that a promise with legal consequences was made to the appellant thatthe terms of policy would be varied as he claimed after he had purchased the policy. [12] We do not need to address the appellant’s arguments based on The Consumer Protection Act; even if applicable, thepolicy was fit for its intended purposes. [13] We are also satisfied that the appellant received a fair trial.

A judge is responsible for managing the trial process,making sure he or she understands the evidence, and that evidence adduced is relevant to the issues in dispute (see Metis Child, Familyand Community Services v. A.J.M. et al., 2008 MBCA 30 at paras. 50-60, 225 Man.R. (2d) 261, leave to appeal to S.C.C. dismissed,[2008] S.C.C.A. No. 259 (QL)). In our view, the judge’s interventions in the trial were appropriate. The record does not support theappellant’s claim of a reasonable apprehension of bias in any way.

We are also satisfied that the judge did not make any reversible errorsin her evidentiary rulings, let alone a substantial error that would justify ordering a new trial (s. 27(1) of The Court of Appeal Act,C.C.S.M., c. C240). Conclusion [14] The appeal is dismissed with costs. J.A. I agree: J.A.

I agree: J.A.