June 28, 2018 11:30
The Court of appeal of Québec quashed the verdict of the superior Court relating to a case of benefit payments in disability insurance.
Industrial Alliance insurance and financial services will eventually need to pay to the appellant the total monthly benefits to which his disability gave him the right. By the same token, the Court of appeal maintained that its rights under its contract of insurance for the entire duration of the disability or the contract.
The Court of appeal held that the decision of first instance is vitiated by a factual error, compounded by a few factors that have been overlooked.
Supervision of the insured
Following a diagnosis of chronic fatigue syndrome, Pascale Forest has received disability benefits from his insurer, Industrial Alliance, from may 2008. In April 2011, the insurer puts an end as a spinning reveals that she seemed better and seemed to go about her usual activities. The supervision of the insured was the result of an assumption of amplification and simulation submitted by two neuropsychologists.
In January 2016, the Québec superior Court had rejected the petition of the claimant who claimed damages and requested to be restored to its disability insurance benefits. The judge, Johanne April, did not believe in the credibility of Ms. Forest. As an example, the judge cites that the plaintiff had presented at trial in a wheelchair with sunglasses on, while the video tour when spinning the watch to do his jogging, and other activities requiring a certain level of physical fitness.
Decision of the Court of appeal
According to the Court of appeal, the insurer has not acted unreasonably in respect of the legality of the surveillance, since the persistence of the state of the insured despite a program of rehabilitation and doubt about the credibility raised by two neuropsychologists in their report constituted grounds of ” serious and reasonable “.
However, the Court of appeal indicates that the ratio of spinning and the video have distorted the assessment of the evidence, thereby undermining the conclusion that the insurer be relieved of its burden of proof to demonstrate the inability of Ms. Forest to exercise a paid job. In effect, the Court indicates that the video demonstrates that the insured can go about daily activities, but there is no evidence that it is in a state to work.
In addition, the Court of appeal has demonstrated its disapproval of a about of the judge of first instance. This last would have said that no one testified to counter what appears on the surveillance video, so that three witnesses would have spoken on the subject.
It is necessary to avoid hasty conclusions, said a lawyer
Maurice Charbonneau, lawyer in Charbonneau, counsel, made it known the existence of the judgment of the insurance Journal and commented on it. According to him, ” it is necessary to avoid drawing a conclusion medical on the basis of the appearance of the insured at the trial when the question to debate and that of the persistence or cessation of a state of disability.”
It is thus referring to the comments of the court of first instance on the state of health of the insured at the trial in comparison to the video filmed without his knowledge. Robert recalls that 44 months elapsed between the two events, and a state of health can change in a long period of time.
Few objective signs
The lawyer also considers that the condition of the insured is observed by the health professionals resulted in few objective signs that can be measured empirically. “If the court of first instance considered that clarifications were needed, it would have had to offer the parties the opportunity to fill in the gaps in the proof “, he adds.
The appeal was allowed in part by the court. The moral damages caused by the dispute shall be remedied by the retroactive payment of disability benefits, interest and the payment of benefits to come.