View cases - Stewart McKelvey

Page: 4[13] Canac consciously chose not to make alternative arrangements to provide its loyal, longserviceemployee with replacement disability coverage. Rather, it chose to go the “bareminimum” route. It provided only the statutory minimums in pay and benefits and then gambledthat he would get another job and stay well. When it lost that gamble, it chose to litigate thismatter for over five years. When confronted with its potential significant exposure, it raised theargument that Mr. Luis Romero Olguin failed to mitigate his potential damages by purchasing areplacement disability policy.[14] I reject that argument. The onus is upon Canac to establish the Plaintiff’s failure tomitigate. Canac has failed to do so in this instance. Insufficient evidence was led to show thatcomparable coverage would have been available and would have provided Mr. Luis RomeroOlguin with comparable coverage. While Mr. McKechnie conceded that in this setting, the lawtransforms the employee into a “notional employee”, he argued that Mr. Luis Romero Olguinfailed to satisfy the “actively at work” requirement contained in the policy wording. I reject thisargument and find it to be circular logic to argue that, if the Plaintiff was to be deemed a“notional employee”, then how can it be asserted that he was “not actively at work”?2011 ONSC 1011 (CanLII)[15] Canac then conceded that if those defences failed, then Mr. Luis Romero Olguin iseligible for STD coverage. The parties have agreed that these entitlements total: $9,078.94.[16] After the 17 weeks of STD coverage expired, the question then arises: Is Mr. LuisRomero Olguin entitled to receive damages as a result of loss of LTD coverage. Again, Canacadvanced a number of policy defences, none of which succeed in this instance. The plaintiff hasdischarged his evidentiary burden that he is, “totally disabled” by both viva voce evidence andmedical evidence. It then urged that the insurance policy contractually prohibited recovery. Idisagree. As the costs of the Canac disability coverage were contributed to by Mr. Luis RomeroOlguin, the Supreme Court of Canada has previously decided this issue in Sylvester v. BritishColumbia [1997] S.C.J. No. 58. In addition, Pattillo J. has previously ruled on this very issuevis-à-vis Canac in Contreras v. Canac [2010] O.J. No. 528 (S.C.). I agree. I therefore awardMr. Luis Romero Olguin compensation at the rate of $5,916.67 for the period from November 6,2004 to May 15, 2005, plus LTD benefits of an agreed-upon monthly amount of $2,096.04 fromMarch 4, 2005 to March 5, 2007, in addition to the STD benefits referenced previously inparagraph 15 of $9,078.94.[17] Finally, Canac has urged that the “any occupation” requirement should end its liability (ifany) to Mr. Luis Romero Olguin for benefits from March 6, 2005 to age 65. Again, it has failedto discharge its evidentiary burden. I fix and award the sum of $146,723.00 for damages to Mr.Luis Romero Olguin for loss of LTD benefits from March 6, 2005 to the outset of trial. Thepresent value of the remainder of Mr. Luis Romero Olguin’s LTD entitlements to his 65 thbirthday is a further $47,941.00.VII.ANCILLARY DAMAGES: