[52] Echelon also submits that this is merely a case about the denial of benefits and the simple denial of benefits does not amount to bad faith.
[53] I accept that a lack of good faith is not to be inferred simply because an insurer does not pay a claim. However, based on the findings of the trial judge, it cannot be said that this case was one in which Echelon simply denied benefits.
[54] The reasons of the trial judge must be read as a whole. The specific section of the judgment in which he deals with damages for bad faith and mental distress cannot be separated from the balance of the judgment in which he makes findings in relation to Echelon’s conduct. It is evident that those findings lay the foundation for his reasoning on damages.
[55] As early as para. 12 of the reasons, the trial judge refers to Fidler v. Sun Life Assurance Co. Ltd., 2006 SCC 30 (CanLII), 2006 SCC 30, [2006] 2 S.C.R. 3 (Fidler), noting that in Fidler, the Supreme Court of Canada held that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress. He returns to Fidler in paras. 51 and 52 of the reasons, stating that in a case of alleged mental distress, the court must be satisfied that:
a) an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and
b) the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.
[56] Throughout the reasons, the trial judge repeatedly notes that Echelon refused to provide benefits on the basis that they were not “reasonable and necessary” but Echelon gave no reasons for why they were not reasonable and necessary: see, for example, para. 33.
[57] It is also clear that the trial judge was critical of Echelon for relying on Dr. Kwok’s report, which was based on a “superficial examination lasting only 30 minutes” (para. 39), especially as Echelon had not given Dr. Kwok a copy of the report its own occupational therapist, which was favourable to Ms. McQueen (paras. 34 and 36).
[58] In the section of the reasons in which the trial judge concludes that damages for mental distress are warranted, he begins by pointing out a number of claims that Echelon denied, contrary to medical recommendations. He then refers to internal notes from Echelon’s files that were in evidence. He finds that the expressions in the notes connote an outmoded attitude that runs against the reasoning in Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] 1 S.C.R. 595, and Fidler. At paras. 58-9 of the reasons, he makes key findings of fact:
[58] … I find that the Echelon file notes are evidence of an adversarial approach to the Plaintiff ab initio and in behaving in this manner, the Defendant has breached its contract of insurance with the Plaintiff.
[59] … Echelon’s adversarial position poisoned the process very early on, notwithstanding that it owed the Plaintiff a duty of good faith throughout. Early on there was a negative predisposition toward the Plaintiff by the Defendant and these “notes” were the clarion call to the file going forward.
[59] The trial judge found that one object of the insurance contract was to secure the plaintiff’s peace of mind and that it was within the reasonable contemplation of the parties that breach of the peace of mind promise would bring about mental distress.
[60] The trial judge went on to find that Ms. McQueen had suffered and that the suffering was of a degree that warranted compensation. He notes that some indication of Ms. McQueen’s mental state in the period following the accident emerges from the clinical records of her treating psychiatrist, Dr. Prayaga. He said there were some two dozen reports in evidence in this regard. Between 2003 and 2007, Dr. Prayaga reported to Dr. Picketts (Ms. McQueen’s family doctor) ten times regarding her mental distress over the accident and the difficulties she was encountering with Echelon.
[61] The trial judge went on to canvas the “extensive medical evidence” during the relevant period before concluding that Echelon created an adversarial relationship with Ms. McQueen that was likely to create mental distress and that, in fact, it did cause such mental distress. He found that her distress was palpable and accepted her evidence that the change in her emotional and psychological conduct was the result of her relationship with Echelon (para. 71).
[62] The trial judge then concluded with a brief summary of instances in which Echelon had terminated or denied her benefits even though the medical evidence demonstrated that those benefits were reasonable and necessary. This included Echelon: terminating housekeeping benefits in the face of medical documentation stating that Ms. McQueen required housekeeping assistance; failing to pay transportation expenses to medical assessments and treatments in the face of clear medical evidence that she needed taxi transportation; and, repeatedly delaying access to medical treatments.