COURT OF APPEAL
FOR BRITISH COLUMBIA

Citation:

Wright v.
  Sun Life Assurance Company of Canada,

2019 BCCA 18

Date: 20190116

Docket: CA42856

Between:

Dr. Robert S. Wright

Appellant

Respondent on Cross Appeal

(Plaintiff)

And

Sun Life Assurance Company of Canada and
The Prudential Group Assurance Company of England (Canada)

Respondents

Appellants on Cross Appeal

(Defendants)

Corrected Judgment:  The judgment was
corrected
on the front page
on January
18, 2019.

Before:

The
  Honourable Mr. Justice Willcock

The
  Honourable Mr. Justice Goepel

The
  Honourable Madam Justice Dickson

On appeal from:  Orders of the Supreme Court of British
Columbia, dated
May 13, 2015 (
Wright v. Sun Life Assurance Company of Canada
, 2015 BCSC
776,
Vancouver Registry C983515); and dated September 28, 2015 (
Wright v. Sun
Life
Assurance Company of Canada,
2015 BCSC 1899, Vancouver Registry C983515).

Counsel for
  the Appellant:

T. Dickson

Counsel for
  the Respondents:

A.M. Gunn, Q.C.
A.K. Foord

Place and
  Date of Hearing:

Vancouver, British Columbia

November 8 and 9, 2018

Place and
  Date of Judgment:

Vancouver, British Columbia

January 16, 2019

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Dickson

Summary:

The appellant was injured in a ski accident and he
commenced a claim against the respondents, seeking damages for breach of his
group disability insurance policy. In their defence, the respondents said they
ended the appellants disability payments because he was practicing his
profession and was not under the regular care of a physician. The respondents,
by counterclaim, sought to recover monies paid on the policy for a period when
the appellant was not disabled. The claim and counterclaim were dismissed. On
appeal, the appellant seeks a re‑trial on the ground that cumulative
effect of several rulings made the trial unfair. The appellant further says the
judge erred in her consideration of the respondents offer to settle in her
costs order. On cross appeal, the respondents claim the judge erroneously found
the counterclaim to be founded only on the appellants misrepresentation of his
capacity to work. Held: appeal and cross appeal dismissed. Errors in addressing
evidentiary questions were not material to the outcome. None of the excluded
evidence would have established that the appellant was under the regular care
of a physician. On the counterclaim, the trial judge made no errors in her
reading of the pleadings. On the costs order, the judge made no errors in
principle in her assessment of the costs and the costs order is not plainly
wrong.

Reasons for Judgment of the Honourable Mr. Justice
Willcock:

Background

[1]

The appellant, a
dentist, commenced a claim in July 1998 seeking damages from the respondents
for breach of a group disability insurance policy. The relevant policy of
insurance, issued by Prudential Group Assurance Company of England (Canada)
(Prudential), was in effect from January 1, 1992 to January 1,
1996. Prudentials liability under the policy was later assumed by Sun Life Assurance
Company of Canada (Sun Life). The policy provided income replacement benefits
for periods during which insureds became disabled as defined by the policy.

[2]

From 1978 until
March 1995 the appellant practised dentistry. He suffered injuries on December 18,
1993 while skiing, including a concussion, a fracture of his left humerus; hyperextension
injury to his cervical spine; and exacerbation of pre‑existing lower back
pain. He alleged his injuries caused chronic pain that progressively worsened
to the extent that, by March 24, 1995, he was unable to perform the
essential duties of his occupation as a dentist and remained disabled
thereafter.

[3]

He purported to exercise
an option under the insurance policy that permitted him to increase the amount
of coverage in force by 25% on November 27, 1996. The respondents have refused
to give effect to the election.

[4]

In January 1998, the
appellant was advised the respondents approved his application for income replacement
benefits, effective July 24, 1996, and they considered him to be partially
disabled from December 18, 1993 to March 24, 1995, and totally
disabled thereafter. Despite those admissions, the appellant claimed the
respondents had not paid him the full benefits to which he was entitled.

[5]

Over the course of
the years between the commencement of the action and its dismissal in May 2015,
the pleadings were periodically amended as benefit payments were made by the
respondents, the appellant modified his work, and the nature of the dispute
evolved.

[6]

By an amended
statement of claim filed in March 2004, the appellant acknowledged he had been
paid some of the benefits sought in the initial pleadings but alleged he had
not yet been paid interest on late payments, increases in the benefits pursuant
to the option he had exercised, and incremental increases thereafter. He
further alleged he was entitled to, but had not received credit for, a waiver
of premiums under the policy during periods for which he was totally disabled.

[7]

In their defence,
filed in 2005, the respondents acknowledged the existence of the policies and
the assumption of Prudentials liability by Sun Life. They asserted Sun Life
had paid long-term disability benefits to the plaintiff under the policy from
December 18, 1993 to September 30, 2001, but argued the appellant was
not entitled to the payment of any further long-term disability benefits after
September 30, 2001.

[8]

The respondents
alleged the appellant had misrepresented his condition to his physicians and to
Sun Life and the misrepresentation vitiated coverage under the policy.

[9]

Further, the respondents
denied the appellant was entitled to benefits, arguing he was neither Totally
Disabled nor Residually Disabled, as defined by the Policy. In particular, the
respondents submit the appellant was not under the regular care of a physician
during the applicable time period.

[10]

The policy provided:

TOTAL
DISABILITY PAYMENTS

If a Participant
becomes Totally Disabled, the Company will make income replacement payments in
accordance with the following conditions and provisions:

(a)  Total Disability must commence
while insurance  is in force ;

(b)  Total Disability must exist for not
less than the applicable Elimination Period ...; and

(c)  during
the Total Disability the participant must be under the continuing care of a
Physician.

And

RESIDUAL
DISABILITY PAYMENTS

If
immediately following an applicable Elimination Period during which a
Participant is Totally and/or Residually Disabled, or immediately following a
period during which a Participant receives Total Disability benefits, the
Participant continues to be Residually Disabled, is under the continuing care
of a Physician and as a result suffers a loss of Earned Income of at least 20%
of his/her Average Monthly Earned Income, the Company will make monthly
payments

[11]

The Policy defined
Total Disability as follows:

A
Participant whose regular occupation is the Practice of Dentistry  is Totally
Disabled for the purposes of this policy when, as a result of Sickness or
Injury, he is unable to perform substantially the whole of the duties of his
Regular Occupation, is under the regular care of a physician and is not engaged
in any other gainful occupation.

[12]

The policy provides
Residual Disability and Residually Disabled mean:

the Participant is not Totally Disabled but that as a result of Sickness or
Injury he/she is under the regular care of a Physician and has a loss of Earned
Income of at least 20% of his/her Average Monthly Earned Income

[13]

In the alternative,
the respondents argued the appellant had failed to mitigate his damages by
failing to rehabilitate himself.

[14]

The respondents
argued the appellant was ineligible to apply for the future insurance guarantee
option which he purported to exercise. They denied the appellant was entitled
to interest on past benefits paid or recalculation of benefits, because delay
in payment was a result of delay on the appellants part in providing financial
and other information.

[15]

The respondents commenced
a counterclaim in 2005 seeking repayment of all long-term disability benefits
paid from March 1, 2000 to September 30, 2001, on the basis the
appellant was not entitled to benefits as he did not have a total disability
during that time and those payments were made because he actively concealed his
employment activities from them.

[16]

By amended statement
of defence and counterclaim filed on January 31, 2014, the respondents alleged
that from December 18, 1993 to March 23, 1995, the plaintiff had not
provided sufficient materials to quantify any amount of residual benefits that
might be payable and he was carrying on the duties of a general dentist and was
practising dentistry from on or about March 1, 2000 onward.

[17]

The case was tried
over the course of three weeks in March 2015. The appellants claim and the respondents
counterclaim were both dismissed.

[18]

On September 28,
2015, for reasons indexed as 2015 BCSC 1899, the judge ordered the appellant to
pay the respondents costs and disbursements incurred in the action until
November 13, 2014, and double costs thereafter. She ordered the
respondents to pay the appellants costs and disbursements incurred in the
counterclaim until November 14, 2014, and no costs thereafter.

Procedural
History

[19]

To address the
issues raised by the appellant in this Court, we must review the complicated
history of these proceedings.

Appellants
Counsel and Adjournments

[20]

There was a lengthy
delay in initially setting the case down for trial. A trial date was first set
for December 7, 2009. The trial was adjourned by consent because the
respondents counsel was undergoing surgery. A second trial date was then set
for April 23, 2012. The appellant applied for an adjournment from that
date, and the trial was adjourned because he was without counsel. It was set
for trial the third time, for September 9, 2013, but was again adjourned
by consent because the appellants second counsel had withdrawn from the record
on May 10, 2013.

[21]

Madam Justice Adair
was appointed as case management judge in June 2013. At a case management
conference on September 17, 2013, she set the fourth trial date for July 28,
2014.

[22]

The appellants
third counsel was retained in the fall of 2013 but withdrew from the record on
January 29, 2014.

[23]

On July 9,
2014, the case management judge heard the appellants application to adjourn
the trial again. The appellant sought additional time to retain counsel and
obtain expert reports. Counsel, Thomas Harding, appeared and advised the judge
he was willing to undertake the appellants case but was not available for the
July 28 trial date.

[24]

The trial management
judge indicated she was available to hear the trial for 15 days beginning
January 5, 2015. However, the respondents lead trial counsel was not
speaking to the application so the matter was stood down until later that day
after counsel could be consulted.

[25]

When the court
reconvened in the afternoon, the judge began by saying she wished to confirm Mr. Harding
was available for a 15‑day trial beginning March 9, 2015, having
received confirmation the respondents trial counsel was available. Mr. Harding
advised he was
not
available. The judge nevertheless set the case for
trial on March 9, 2015, on a peremptory basis, for reasons indexed as 2014
BCSC 2621.

[26]

The appellant did
not retain Mr. Harding because he was not available on the date peremptorily
set for trial. The appellant was unrepresented until January 8, 2015. He
retained counsel briefly at that time but that counsel withdrew from the
retainer on January 29, 2015.

Expert
Reports

[27]

On July 11,
2014, the trial management judge ordered the appellant to deliver his expert
witness reports 114 days before trial, rather than the usual 84 days.
This was intended to avoid late delivery of reports by the appellant and to
avoid a further adjournment of the trial.

[28]

On November 10,
2014, four days before the appellants deadline to deliver expert reports, Dr. Vanhegan,
an orthopaedic surgeon, advised the appellant he had suffered an injury and could
not provide a report. The appellant contacted Dr. Frobb, a physician at a
chronic back pain clinic, on November 11, 2014. Dr. Frobb examined
the appellant and prepared an expert report. The report was delivered to the respondents
on December 12, 2014, 86 days before trial. This was after the early
deadline the trial management judge had set but earlier than the deadline
established in the
Supreme Court Rules
.

[29]

The respondents objected
to the report on the basis it was served out of time and on the basis it did
not meet form and content requirements. The respondents nevertheless obtained
and served two rebuttal reports.

[30]

The appellant sought
leave to file an expert report from Dr. Larsen. This report was
essentially a medical report which had been served on the respondents in February
2014, modified to meet the requirements of Rule 11‑6 of the
Supreme
Court Civil Rules
. The appellant also applied for an extension of the time
within which to serve Dr. Frobbs report to the date it had been delivered.
At a pretrial conference on February 2 and 5, 2015, the trial
management judge denied both applications.

[31]

In support of his
application to extend the time for service, the appellant relied on two
affidavits, his 14th and 15th in the proceedings. The appellant deposed counsel
he had previously retained had not instructed or retained expert witnesses. He
deposed he had retained Dr. Vanhegan as an expert consultant and Dr. Vanhegan
had agreed to provide him with a report by November 12, 2014. He appended
a copy of an email from Dr. Vanhegan dated November 10, 2014,
describing his November 2 injury, acknowledging the November 14
deadline and advising the appellant I am unable to complete the report you
require within the time scale.

[32]

The appellant
further deposed he had earlier spoken with Dr. Frobb about obtaining an
expert report and he contacted Dr. Frobb again on November 11, the
day after he learned of Dr. Vanhegans injury.

[33]

The appellant
deposed Dr. Frobbs report was delivered to the respondents on December 12,
2014 and the respondents had obtained two expert reports in response, one from Dr. Keith
Christian and one from Dr. Ian Connell.

[34]

In reasons indexed
as
2015 BCSC 1191
, the case management judge
concluded the evidence before her on the application was insufficient to
justify extending the deadline from November 14, 2014 to December 12,
2014. She held:

[10]      Dr. Wright
attempts to justify the need for an extension on the basis that his expert, Dr. Vanhegan,
had been involved in an unfortunate accident which meant that he could not
deliver a report by the deadline, and Dr. Wright was left scrambling at
the last minute. However, and critically, Dr. Wright does not say when he
approached Dr. Vanhegan to provide the report, and Dr. Vanhegans e‑mail
message (and there is a copy of it attached as exhibit 4 to Dr. Wrights
affidavit number 14, the e‑mail is dated November 10, 2014),
implies that it was not until early November 2014 that he was contacted.

[11]      This issue
about when Dr. Wright contacted Dr. Vanhegan for the purpose of
providing an expert report in view of the November 14, 2014 deadline was
raised as a gap in the evidence in the defendants application response. But,
notwithstanding that Dr. Wright swore a lengthy further affidavit (his
affidavit number 15), he does not deal with that particular gap in the
evidence at all. So I am still left without any evidence to tell me when Dr. Wright
gave the instructions to Dr. Vanhegan to prepare the report and told him
about the November 14th deadline. If it was not until November, Dr. Vanhegans
unfortunate accident may have had no impact on his inability to provide a
report.

[12]      Dr. Wright,
in his two affidavits, also does not explain why he let the November 14
deadline pass without informing defence counsel of the state of affairs, and
defence counsel, I say quite naturally, assumed that any expert reports on
which Dr. Wright intended to rely had been delivered by the deadline of
November 14, 2014. Dr. Wright did nothing to advise them that, in
fact, as far as he was concerned, that was not the case.

[13]      In my
opinion, the defendants are prejudiced by the delivery of Dr. Frobbs
report in December, after the November 14 deadline, and by the contents of
the report (for example, the broad scope of the diagnoses and Dr. Frobbs
reliance on documents that were not disclosed apparently until last week).
Since there is a peremptory trial date, that prejudice to the defendants cannot
be remedied by a further adjournment of the trial.

[14]      The
courts discretion under Rule 11‑7(6) is to be exercised sparingly.
The court also has a discretion with respect to the extension of time under
Rule 22‑4(2). But, in my view, based on the evidence that he has
provided me, Dr. Wright has not made out a basis for me to exercise my
discretion in his favour, and the application is therefore dismissed.

[35]

At the same case
management conference the judge considered amended pleadings drafted by the
appellant. These included a claim of bad faith and punitive damages. Because no
application had been brought to amend pleadings, the trial judge indicated the
trial would proceed on the basis of the existing pleadings.

[36]

The appellant was
self-represented at trial. He had no medical legal opinions, other than
assessments written in 2000 or earlier, upon which to rely in support of his
claim.

Medical
Records

[37]

An issue arose at
trial with respect to the use the appellant could make of medical records.
After testifying in chief with respect to his treatment, the appellant advised
the court he had seen an extensive number of doctors since his injury, and he
had obtained their records and wished to have them admitted into evidence to show
how much medical care he had had over the 20 years preceding the trial. When
advised that was what the appellant intended to do, the trial judge said: You
wish to rely on the records to prove the truth of facts stated in the records,
and theyre not admissible for that purpose through you.

[38]

The appellant
responded: This trial would take months if I had to bring every doctor here
whos ever examined me over the course of 20 years, and just the cost and
the time involved in doing this, but I have   I have seen all these doctors.
And this is not a complete set of records.

[39]

In response, the
judge said: Well, you have given oral testimony, though, about your visits to
doctors. The discussion concluded with the following ruling by the trial
judge:

The Court:  So
[the respondents counsel] has made an objection. There is a blanket objection
at the moment to the stack of documents that youve got in front of you, which
I understand are   theyre medical and clinical records?

[Mr. Wright]:
Yes

The Court:  All right. Im sustaining her objection. You
havent provided me with a proper legal basis to have them admitted into
evidence for the reason that you wish to have them admitted into evidence.

Judgment
at Trial

The
Claim

[40]

After describing the
terms of the income replacement benefit provisions of the policy cited above,
the trial judge set out in detail the long chronology of the appellants
December 18, 1993 injury, his treatment and his claim. From the time of
his injury until mid‑1995 the appellant lived in Abbotsford. He then sold
his dental practice and moved to Thousand Oaks, California, where he lived
until 2003. He then moved to England and lived in the London area until 2011,
when he moved to Sacramento, California. Finally, in 2013 he moved to Saskatoon
to join the faculty of the University of Saskatchewan College Of Dentistry.

[41]

The appellants record
of medical treatment over this extended period was of particular relevance. In
summary, he saw the following health practitioners over the years:

British Columbia

December 22, 29 and 30,
  1993:

March 1994 and December1994:

his G.P., Dr. Henderson

a chiropractor, Dr. Turner

California

1995:

1995-2001:

June-August1996:

December 12, 2000:

a G.P., Dr. Napolitano;

an orthopaedic surgeon, Dr. Gross

a chiropractor, Dr. Cassar

an orthopaedic surgeon, Dr. Larsen

Dr. Larsen

England

2003-2011:

medical clinics;

an orthopaedic surgeon, Dr. Vanhegan

Saskatchewan

2013-date:

a G.P., Dr. Helfrich

[42]

The appellant obtained
limited medical evidence in support of his claim. Dr. Henderson provided a
report for provision to the insurers, entered into evidence, describing his
observations as follows:

The above
patient attended me at my office . . . December 22, 1993 with a history of
having been involved in a skiing accident four days previously in which he
collided with another skier, landing on his left side follow[ing] which he had
a lot of discomfort around his left shoulder and arm.

Examination showed
a lot of bruising to be present.  He was tender over the left lateral clavicle
as well as shoulder.  X‑rays showed longitudinal fracture through the
base of the greater tuberosity.  The patient was encouraged to use [a] sling
and take some time off work and use analgesics that he had available.  However,
the patient indicated that he had decided to try [to] continue working with the
sling.  He was advised to return in one week with follow up x‑rays.

The patient
returned December 29, 1993 with x‑rays showing no change in position
and he was advised to start attending [physiotherapy] in five days time and to
return in after a further two to three weeks.  The patient returned the
following day concerned about excessive bruising tracking down the arm but also
had become aware of tender area in the left elbow.  An x‑ray was carried
out to make sure he had no injury to radial head.  The x‑ray was reported
as normal.

. . .

At
the time of his last visit as above this patient should be considered as having
a partial disability from his skiing accident with subsequent difficulties
performing his normal duties as an operative dentist.

[43]

Dr. Larsen
completed an Attending Physicians Statement of Continuing Disability in
December 2000, after seeing the appellant for the first time in three years. The
trial judge found if Sun Life had not requested a Supplementary Statement of
Disability from the appellant in 2000, he would not have gone to see Dr. Larsen
at all. She described Dr. Larsens opinion contained in this report as
follows:

[96]

Dr. Larsens stated diagnosis was the same as in the
Attending Physicians Statement of Continued Disability, namely C5‑6
and C6‑7 disc herniation and thoracolumbar strain.  Dr. Larsen
expressed his opinion that Dr. Wright would not be able to practice
dentistry in a private setting because he did not believe Dr. Wright would
be able to be productive enough to meet his overhead.  However, Sun Life took
particular note of a statement in Dr. Larsens more complete report that Dr. Wright
was working approximately one day per week.  Such information could only have
come from Dr. Wright, and I find that this statement was Sun Lifes first
indication that Dr. Wright had returned to work practicing dentistry.  Sun
Life considered the statement in Dr. Larsens report inconsistent with
what Dr. Wright had stated in the Supplementary Statement of Disability,
that he had been unable to do any work since April 1995.

[44]

The trial judges
assessment of the appellants credibility began with the following passage
:

[119]

The Accident occurred over 20 years ago.  With respect
to Dr. Wrights injuries from the Accident, there is very little objective
evidence.  The medical evidence (from Dr. Henderson and Dr. Keith
Christian, one of Sun Lifes experts) strongly suggests that Dr. Wright
ought to have recovered from the fracture to his left humerus within a period
of months.  The medical opinions (for example, Dr. Larsens reports to Sun
Life) on which claims decisions were made were based at least in part on Dr. Wrights
subjective reporting of pain and discomfort.  With respect to Dr. Wrights
pre‑Accident income (an important issue in relation to his claim for
Residual Disability benefits), there is no reliable, contemporaneous,
independent evidence: no income tax returns, no notices of assessment.  From
the time Dr. Wright submitted the Preliminary Statement of Claim, Sun Life
asked for this information.  It was never produced.  The Hedden Chong income
statements sent to Sun Life under cover of Mr. McFees July 10, 1998
letter were unaudited and based on information from Dr. Wright.  Dr. Wright
is the only person who testified about what he was doing at Crown, the Newport
Centre and American Dentistry in London, and the only person who testified
about why the Newport Centre and the London clinic were not successful.  Dr. Wright
firmly believes the reason lies in the injuries he suffered in the Accident.

[45]

It ended with the trial
judge concluding, at para. 123, that Dr. Wright is neither a
credible nor a reliable witness. That conclusion caused the trial judge to
treat the appellants evidence of his medical treatment and his medical records
with caution.

[46]

She turned to the
relevant provisions of the policy, particularly the definition of Total
Disability and Totally Disabled. As noted above, the policy provides for the
payment of a benefit where the insured is unable to perform substantially the
whole of the duties of his regular occupation and is under the regular care of
a physician. She referred to
the leading authorities in this province in relation to this type of policy
wording,
Rose v. Paul Revere Life Insurance Co.
(1991), 62 B.C.L.R. (2d)
48 (C.A.), and
Andreychuk v. RBC Life Insurance Company
, 2008 BCCA 492,
and adopted Taylor J.A.s description of the effect of the similar wording
at issue at paras. 8 and 11 of his judgment in
Rose:

[8]        The
case is one which turns, in my view, very much on the wording of the policy.  It
is not, in my view, a disability policy in the broadest sense of the term, but
one which protects the insured from income loss during the treatment phase of a
sickness causing total disability and in the event the insured suffers one of
four forms of permanent disability.

[11]      So
the policy protects the insured against income loss due to disability caused by
sickness for so long only as the insured is under the regular and personal
attendance of a Physician ... and provided that the sickness
requires
the regular and personal attendance of a licensed physician ... (my emphasis),
unless the sickness results in the loss of speech, hearing, sight or the use of
two limbs, in which case benefits are payable without continuing attendance of
a physician.  It is of obvious importance in this case that the policy does not
cover loss of income due to inability to work resulting from sickness not under
regular treatment by a physician except when it results in loss of speech,
hearing, sight or the use of two limbs.  Except in those defined cases,
benefits cease when the treatment phase of a sickness ends.

[47]

She concluded:

[166]

In my opinion, Mr. Justice Taylors
comments apply here.  The Policy is one that protects the insured from income
loss during the treatment phase of an Injury causing Total Disability (as
defined), and in the event the insured suffers from one of five forms of
permanent disability (described in the Policy as Presumed Total Disability).  In
the latter case, the insured is not required to be under the regular care of a
physician.  However, other than in cases of Presumed Total Disability, the
Policy does not cover loss of income due to inability to perform the essential
duties of [the insureds] Regular Occupation resulting from Injury that is not
under the regular care of a physician.

[48]

She rejected the
appellants submission his disability was not amenable to treatment, he should
not be obliged to comply with an unnecessary requirement and the policy should
be liberally interpreted so as to afford benefits in the circumstances. She
considered that argument to have been rejected by this Court in
Andreychuk:

[177]    In my
opinion, the analysis and conclusions in
Andreychuk
must apply here,
given the similarity in the policy wording.

[178]    As
in
Andreychuk
, the definition of Total Disability and Totally
Disabled in the Own Occupation Option section of the Policy contains a
provision concerning regular care of a physician.  As in
Andreychuk
,
the provision therefore defines the reach or scope of coverage and the risk
accepted by the insurer.  It is not concerned with obligations imposed on the
insured.  The language of the Policy is not ambiguous.  Rather, the words are
plain and unambiguous in their ordinary meaning.  Unless the insured can show
that as a result of ... Injury, he or she is under the regular care of a
physician, the insured will not satisfy the burden on him to prove Total
Disability and Totally Disabled under the Policy and will have failed to
prove he is entitled to coverage under the Policy.

[49]

The decision that
followed turned on the inadequacies in the appellants evidence of his
treatment:

[179]

After Sun Life terminated benefits in
October 2001, was Dr. Wright as a result of any Injury suffered in the
Accident under the regular care of a physician?  Dr. Wright has the onus
of proof to show this, on a balance of probabilities.  In my opinion, the
evidence does not support the conclusion that Dr. Wright was under the
regular care of a physician, as required for coverage under the Policy.

[180]

While still in California (until 2003), Dr. Wright
attended the Student medical clinic occasionally.  But, accepting Dr. Wrights
evidence at face value, the visits were not as a result of any Injury
suffered in the Accident.

[181]

After moving to the U.K. in 2003, his
visits to medical doctors and clinics were, generally speaking, of the same
type, to deal with occasional conditions or for routine matters (for example,
immunizations).  He was not there seeking treatment for any Injury suffered in
the Accident.  Between 2003 and 2011 (when he moved back to California), Dr. Wright
saw an orthopaedic surgeon, Dr. John Vanhegan, twice, once in 2006 and
again in 2009.  (Whether Dr. Wright saw Dr. Vanhegan a third time,
and if so for what, is quite unclear on the evidence.)  Dr. Wright made
one of the visits because he thought he might be developing carpal tunnel
syndrome.   In my opinion, the evidence is inconclusive concerning whether Dr. Vanhegan
provided any treatment to Dr. Wright on any visit, and also inconclusive
(at best) concerning whether the purpose of a visit was as a result of any
Injury suffered in the Accident.  In any event, two (or even three) visits over
this period cannot qualify as regular care, and I find that Dr. Wright
was not under the regular care of Dr. Vanhegan.

[182]

Dr. Wright testified that he
consulted with Dr. Vanhegan in 2013 about having him prepare a report in
connection with an earlier trial date in this action.  However, such a
consultation cannot qualify as regular care of a physician as set out in the
Policy.

[183]

After he returned to the U.S. in 2011, Dr. Wrights
sporadic visits to medical practitioners cannot qualify as regular care of a
physician, as required by the Policy.  Once Dr. Wright moved to
Saskatchewan, according to his evidence, he again had a regular doctor (which
he appears not to have had since leaving B.C. in 1995).  However, in view of my
concerns (described above) about Dr. Wrights credibility and reliability,
I am not prepared to draw conclusions favourable to Dr. Wright based on
his evidence alone.  I have no independent evidence about whether, during Dr. Wrights
time in Saskatchewan, he has been receiving medical care from a physician in
relation to any Injury that he suffered as a result of the Accident.  Dr. Wrights
firm belief that his current problems have their origins in the Accident is
insufficient without some independent corroboration, which is altogether
lacking.  The reason is because Dr. Wright is not a credible or reliable
witness.

[184]

I find, therefore, that Dr. Wright
has not met his burden to show that, since October 2001, he has been under the
regular care of a physician as a result of an Injury suffered in the Accident.
 Rather, the evidence supports the conclusion that Dr. Wright has
not
been under the regular care of a physician.  As a result, Dr. Wright
has failed to meet the burden on him to prove that he is Totally Disabled as
that term is defined in the Policy, and therefore he has failed to prove that
he is entitled to coverage under the Policy for income replacement benefits for
the period beginning November 2001 to date.

[185]

My conclusion that Dr. Wright has
not met his burden to show that he has been under the regular care of a
physician is sufficient to dispose of Dr. Wrights claim for benefits for
the period beginning November 2001, on the basis that he has failed to show
that he was Totally Disabled within the terms of the Policy.

[50]

The trial judge went
on to consider whether the appellant could prove he was unable to perform the
essential duties of his regular occupation as a result of injury, the second
aspect of the definition of Total Disability in the policy. That analysis,
focused on the appellants apparent ability to practice as a prosthodontist and
the nature of the skills required to engage in that practice, is irrelevant for
our purposes.

The
Counterclaim

[51]

The trial judge
addressed the respondents counterclaim on the basis it was founded solely upon
the allegation that, from March 1, 2000 to October 31, 2001, the
appellant was practicing general dentistry but had concealed his activities and
knowingly misrepresented facts to Sun Life. She noted:

[236]

Sun Life does not rely on other grounds
(for example, that Dr. Wright was not under the regular care of a
physician) to say that, during this period, Dr. Wright was not entitled to
any benefits because he was not Totally Disabled.  Rather, its position is that
Dr. Wright was not, as a result of Injury, unable to perform the essential
duties of his Regular Occupation.  Or, to put it another way, Sun Lifes position
is that, from March 2000 to October 2001, Dr. Wright was able to perform
the essential duties of his Regular Occupation, was in fact doing so, and was
deliberately concealing his activities so that he could continue to receive
benefits.  In this context, Sun Life has the onus of proof.

[52]

She carefully
considered the evidence to this effect and found it wanting. The finding such a
misrepresentation was not established at trial is not challenged on appeal.

Costs
Decision

[53]

Following the
judgment on the merits, the trial judge was advised the respondents had made
offers to settle the appellants claims before trial. The first was made on
November 4, 2014. It provided if the appellant would consent to dismiss
the action, the respondents would pay him $75,000 plus costs to the date of
acceptance of the offer and would abandon the counterclaim and waive any costs
associated with it. The trial judge found the appellant ought reasonably to
have accepted this offer, given the substantial risks he should have recognized
in proceeding to trial. The judge found the terms of the offer were better than
the results the appellant achieved at trial. She concluded the respondents did
not use their financial resources in a way that distorted the litigation
process or created unnecessary costs. She found the financial circumstances of
the parties was a neutral factor. Finally, she found the appellant did not act
in a way that recognized the cost consequences of his conduct. She held:

[26]

In my opinion, having regard to the
factors under Rule 9‑1(6), it is appropriate to give effect to the
November 4, 2014 offer to settle, by ordering double costs to the defendants
(pursuant to Rule 9‑1(5)(b)) and depriving Dr. Wright of the
costs and disbursements on the counterclaim pursuant to (Rule 9‑1(5)(a))
from and after November 13, 2014.  Had the November 2014 offer been
accepted, a great deal of additional and mostly unproductive procedural
wrangling would have been avoided.  Additional discoveries would have been
avoided.  Court time, including two trial management conferences and the
application to extend the November 14 deadline [for expert reports], not
to mention proceedings in the B.C. Court of Appeal, would have been saved, in
addition to the three weeks of trial.

Grounds
of Appeal

[54]

The appellant says
the trial judge erred:

a)

by setting the action for trial on a peremptory
date when the appellant would not be represented and thereafter denying a request
for an adjournment to permit the appellant to retain counsel;

b)

by ordering the appellant to serve
expert reports 114 days before trial, rather than 84 days, and
thereafter denying his application to extend the deadline to permit a report to
be filed 84 days before trial; and

c)

by denying an
application to amend the statement of claim to include a claim for punitive
damages.

[55]

The appellant says the
collective effect of these errors was to deny him a fair trial.

[56]

Further, the
appellant says the trial judge erred in law by ruling the appellants medical
records were inadmissible hearsay for all purposes, including for the purpose
of demonstrating the dates of the appellants attendance for medical care.

[57]

Finally, the
appellant appeals the costs order on the ground the judge erred in considering
the settlement offer in light of information not known to the appellant when
the offer was made.

Grounds
of Cross Appeal

[58]

The respondents say
the trial judge erred in misapprehending the basis for the counterclaim. They
argue the judge analyzed the claim on the premise it was founded on a single,
narrow argument: that Dr. Wright concealed his activities and knowingly
misrepresented facts to Sun Life.

Analysis:
The Claim

Appellate
Review of Discretionary and Trial Management Orders

[59]

This appeal requires
us to consider the trial judges decisions with respect to trial management,
admission of evidence, and allocation of costs. All of these are discretionary
decisions. We will not interfere with the exercise of such discretion except
where there has been an error in principle in identifying appropriate criteria,
a failure to consider evidence, or a clear misapprehension of the evidence.

[60]

The respondents
point out that discretionary orders are entitled to significant deference on
appeal. In
Burnaby (City) v. Oh
, 2011 BCCA 222, Groberman J.A.
wrote:

[
31
]

Whether to grant an adjournment
is a discretionary decision with which this Court will only interfere when the
refusal of the adjournment would result in a miscarriage of justice.  In this
case, the appellant has not shown that any miscarriage of justice was
occasioned by the refusal of her application to adjourn.

[61]

Concerning trial
fairness, the respondents say the question is whether a reasonable observer,
fully informed of what took place in the court below, would be apprehensive
that the appellant did not receive a fair hearing:
Mazur v. Lucas
, 2014
BCCA 19 at para. 85. Here, they say, the trial judge treated the self-represented
litigant fairly, attempting to accommodate his unfamiliarity with the process
while at the same time respecting the respondents rights. This is the
balancing of interests reflected in
Burnaby (City)
:

[
35
]

What has been said in the case authorities
on trial fairness and the obligations placed on trial judges when there is an
unrepresented litigant is of assistance in considering the appellants
arguments.  In
Davids v. Davids,
[1999] O.J. No. 3930
,
125 O.A.C. 375
at para. 36
, the Ontario Court of Appeal said
the following under the heading Was the trial so unfair as to result in a
miscarriage of justice?:

[
36
]      ... The fairness of this trial
is not measured by comparing the appellants conduct of his own case with the
conduct of that case by a competent lawyer. If that were the measure of
fairness, trial judges could only require persons to proceed to trial without
counsel in those rare cases where an unrepresented person could present his or
her case as effectively as counsel. Fairness does not demand that the
unrepresented litigant be able to present his case as effectively as a
competent lawyer. Rather, it demands that he have a fair opportunity to present
his case to the best of his ability. Nor does fairness dictate that the
unrepresented litigant have a lawyers familiarity with procedures and forensic
tactics. It does require that the trial judge treat the litigant fairly and
attempt to accommodate unrepresented litigants unfamiliarity with the process
so as to permit them to present their case. In doing so, the trial judge must,
of course, respect the rights of the other party.

[36]

In
Ridout v. Ridout
,
2006 MBCA 59
, leave to appeal refd [2007] 1 S.C.R.
xiv, the Manitoba Court of Appeal noted, at para. 12, that
self-represented litigants do not have some kind of special status.  At para. 13,
the Court said:

The
trial judge cannot become the advocate for the unrepresented litigant, nor can
the judge provide legal advice. However, the judges challenge is to take pains
to ensure that a partys lack of legal training does not unduly prejudice his
or her ability to participate meaningfully in the proceeding.

[62]

Insofar as the trial
management generally is concerned, we must ask the question posed in these
cases:
Was the
trial so unfair as to result in a miscarriage of justice?

The
Amendment of Pleadings

[63]

The appellant
claims, but did not press in argument before us, that the trial judge erred by
not allowing him to amend the pleadings to include a claim for punitive damages
during the February 2015 pretrial conference. The appellant contends this
prejudiced his ability to put forward his full case on the merits as his
submissions and the evidence he sought to elicit through cross-examination at
trial went toward his argument Sun Life had acted in bad faith.

[64]

In my view, there is
no merit to this complaint. The trial management judge cannot be faulted for
insisting the case proceed on the basis of existing pleadings, particularly in
the absence of a motion to amend, the very long delay in getting the case to
trial, and the imminence of the March 2015 trial date.

[65]

I agree with the
respondents that, even if the appellant had successfully amended his pleadings
to seek punitive damages, they would likely have obtained an order to sever
those claims and the amendment would not have allowed a broader version of the
case to be brought forward at trial.

The
Adjournment Order

[66]

The appellant says
the case management judges decision to set the peremptory trial date to a time
counsel willing to represent the appellant, Mr. Harding, was not available
denied him choice of counsel without good cause. He says this was the only
reason he did not have counsel at trial. The appellant argues the judge should
have been as concerned about the availability of his counsel as the
availability of counsel for the respondents when adjourning the trial in 2014.

[67]

The appellant says a
litigant should not be deprived of counsel of their choice without good cause:
MacDonald
Estate v. Martin
, [1990] 3 S.C.R. 1235. He points to
Westcoast Landfill
Diversion Corp. v. Cowichan Valley Regional District et al.
, 2006 BCSC
273, as an instance where it was recognized setting a case for trial when
counsel was not available might result in the issues not being fairly tried
or the merits not being adequately determined (para. 11). He argues,
citing
New Brunswick (Minister of Health and Community Services) v. G. (J.)
,
[1999] 3 S.C.R. 46, the court should keep in mind the seriousness of the
interests at stake, the complexity of the proceedings, and the capacities of
the litigant when considering whether a litigant will achieve a fair hearing
without counsel.

[68]

The respondents say
the trial judge properly exercised her discretion when setting the trial date.
The appellant had been represented by counsel for all but two of the 17 years
in the interval between his injury and his trial, he had retained many counsel,
and, more than once, he had sought an adjournment of the trial after dismissing
his counsel. The respondents say:

In
the circumstances, it was not unreasonable to expect that within nine months Mr. Hardings
schedule could change or Dr. Wright could find alternative representation.
Indeed Dr. Wright did find and retain alternative counsel but they parted
ways before trial.

[69]

In my view, the
trial should not have been adjourned from the July 28, 2014 trial date to
March 9, 2015, when Mr. Harding, whom the appellant wished to retain,
was not available. There appears to have been no attempt to accommodate Mr. Hardings
schedule. Doing so may have assisted the appellant in retaining counsel for
trial without prejudicing the respondents.

[70]

However, I am not
prepared to say setting the peremptory trial date to March 9, 2015 worked
an injustice upon the appellant. The adjournment was sought, in part, to permit
the appellant to retain experts and properly prepare for trial, and it had that
effect. The appellant had not yet retained Mr. Harding. He was not thereby
deprived of counsel of record who had invested time and effort in the case. Nor
was he deprived of the opportunity to retain counsel because he had more than
seven months from the date of the adjournment to the start of the trial to find
and retain counsel. As the respondents note, the appellant was able to and did
retain other counsel, yet ultimately represented himself when that retainer
fell apart.

Service
of Expert Reports

[71]

Regarding the
application for leave to serve and rely upon Dr. Frobbs report, the
appellants counsel says:

a)

the failures on the part of the
appellants prior lawyers to take appropriate or timely steps to retain experts
should not have been visited upon the appellant;

b)

there would be no prejudice to the
defendants if Dr. Frobbs report were admitted; and

c)

the exclusion of Dr. Frobbs
report caused very significant prejudice to the appellant, no attempt was made
by the trial judge to ensure the appellant was on an equal footing with the
respondents.

[72]

The respondents say
the trial judge exercised her discretion on this issue judicially because,
given the peremptory trial date and the concerns she expressed with respect to
the timing and content of Dr. Frobbs report, the respondents would suffer
non‑compensable prejudice as a result of the late service.

[73]

The judge appears to
have based her decision to refuse to extend the time to serve Dr. Frobbs expert
report on: the appellants delay in retaining Dr. Vanhegan, questions with
respect to the admissibility of Dr. Frobbs report, and concerns about
prejudice to the respondents.

[74]

The appellants
affidavit evidence speaks to his submission that, but for injury, Dr. Vanhegan
would have been able to prepare a report in time to permit the appellant to
meet the early, court-imposed deadline. There is no suggestion to the contrary
in Dr. Vanhegans correspondence. His email indicates he had the medical
records in his possession and was aware of the deadline. We now know, from
disclosure of correspondence between the appellant and Dr. Vanhegan in the
course of the assessment of costs, Dr. Vanhegan was corresponding with the
appellant for some time before his fall. Even in the absence of that
later-disclosed evidence, I can see no basis in the material before the case
management judge which justifies the inference the expert was retained at the
last minute or after his injury.

[75]

In any event, that
question appears to play a disproportionate role in the trial judges
assessment of the merits of the application. Whether or not the appellant had
been slow to retain an expert, the undisputed evidence was he had retained an
expert and would have been in a position to deliver a report if the expert had
not been injured.

[76]

The initial order
had been made to ensure the trial would not be adjourned. Even after the delay
occasioned by the injury to the appellants expert, by the time the application
was heard the appellant had retained Dr. Frobb, been examined by him, and
served a report on the respondents counsel. Further, the respondents had
retained experts and served response reports upon the appellant.

[77]

The issue before the
trial management judge was whether leave should be granted to extend the period
within which an expert report could be served. Granting leave would not have precluded
the respondents from raising any objection to the form or content of the report
on grounds that would be open to them had the report been served in a timely
way. In her decision on the application, the case management judge does not
appear to have considered the substance of the respondents objections to the
content of Dr. Frobbs report.

[78]

It is difficult to
see in the circumstances how the respondents can be said to have been
prejudiced. These reports had been exchanged on a schedule at least as favourable
to the respondents as the default schedule established by the
Supreme Court
Civil Rules
.

[79]

On the other hand,
as the trial judge later indicated when she dealt with the merits of the case,
expert reports are vital in a case such as this. The appellants case was bound
to fail without the support of expert opinion and the effect of the trial
managements decision was to deprive the appellant of any expert opinion
evidence at trial.

[80]

I cannot see how,
balancing the interests of the effective management of the trial and fairness
to the parties, it can be said it was a reasonable exercise of the trial
judges discretion in this case to refuse to extend the time within which the
appellant could serve Dr. Frobbs report. In the words of
Davids
v. Davids,
[1999]
O.J. No. 3930
,
cited by this Court with approval in
Burnaby (City)
,
the order sought would have
permitted
the appellant to present his case while respecting the respondents rights. The
trial judge should have engaged in that balancing of interests.

Exclusion
of Medical Records

[81]

The appellants
counsel says the medical records could have been admitted into evidence as
business records in the manner and for the purpose described by the Supreme
Court of Canada in
Ares v. Venner
, [1970] S.C.R. 608. He says the
records were not admitted simply because the appellant was unfamiliar with the
manner in which he might have been able to prove the authenticity of the
records without calling the author of each note in the records. Further, he
says the trial judge did not appreciate the limited purpose for which he sought
to have the records admitted: to prove he attended at physicians with a view
toward receiving treatment for his ongoing disability.

[82]

The respondents say
if the appellant had tendered the records as business records at common law or
under statute they would have had very limited use and the respondents would
have sought to exclude any opinions recorded in the records.

[83]

When advised the
appellant wished to prove facts recorded in his medical records by putting his
records into evidence, the trial judge advised him:  they are not admissible
for that purpose through you.

[84]

She later said: You
havent provided me with the proper legal basis to have them admitted into
evidence for the reason that you wish to have them admitted into evidence.

[85]

In my view, the
trial judges ruling on the admissibility of the records is unclear and might
have misled an unrepresented litigant. As the Supreme Court of Canada concluded
in
Ares v. Venner
, the business records exception to the hearsay rule
permits a party to introduce medical records into evidence as
prima facie
proof of the truth of the facts recorded by the maker of the record. In order
to introduce that document into evidence it is only necessary to call a witness
to testify to the authenticity of the record, the manner in which it is made,
and the duty to record the facts set out therein. The trial judge appears to
have excluded the appellants medical records because of concerns with respect
to the manner in which the appellant intended to introduce them. But the
exchange that occurred appeared to relate to the use that might be made of the
record once admitted, rather than the means of proving the record.

[86]

In my view, the
trial judge should have advised the appellant if he wished to have medical
records admitted into evidence he would have to call someone to testify with
respect to the manner in which the record was created or produce an affidavit
from the record keeper. He should also have been advised once the record was
entered into evidence it could stand as some proof of the facts recorded therein.
He appears to have been under a misapprehension, which was not dispelled, as to
how the records might be admitted into evidence when he stated the trial would
take months if he had to bring every doctor who had examined him over the
course of 20 years to testify in order to adduce evidence of his
treatment. That misapprehension does not appear to have been dispelled. When it
was clear he might have been labouring under the misapprehension he would have
to call the author of each note in the records, he should have been advised the
records could be admitted into evidence by calling some evidence with respect
to the manner in which the records were made and kept.

[87]

He may also have
been under a misapprehension with respect to whether the records, once proven,
could stand as proof of the facts recorded. To this extent, in my view,
the trial judge was obliged to
ensure the appellants lack of legal training did not unduly prejudice his
ability to participate meaningfully in the proceeding.

[88]

However, three facts
mitigate the effect of any misapprehension. First, the appellant did testify
about the nature and extent of the treatment he had received from physicians
over the years. The admission of medical records in this case would have added
little to his testimony. Second, while the medical records would have been
admissible for the truth of the facts recorded, they could not be used to prove
the opinions recorded. The records alone, without more, could not be used to
establish a relationship between the symptoms recorded and the appellants 1993
ski accident. Last, we were advised by counsel the respondents were concerned
with respect to the completeness and accuracy of the copy of the records
produced by the appellant; it is unlikely the medical records he produced would
have been introduced by consent or as a result of an admission, as their
authenticity was in dispute.

[89]

As the trial judge noted,
the appellant testified to his medical care and described the full course of
the treatment he had received. The introduction of medical records would have
buttressed the appellants evidence but there would nevertheless have remained
a critical gap in the appellants treatment. The admission of his complete
medical records would not have been any assistance in bridging that gap, which
is addressed in the reasons that follow.

Effect
of the Errors Established

[90]

The appellants
counsel says the cumulative effect of the pretrial and trial decisions in this
case made it impossible for the appellant to put his case forward properly or
adequately.

[91]

The respondents say
none of the alleged errors relate to the central factual issue on which the
appellants case foundered: his failure to be under the regular care of a
physician during the claim period. The respondents say:

Given
the strength of the Defendants regular care of a physician defence and given
that Dr. Wright tendered no evidence at trial or fresh evidence on appeal
to cast doubt on Adair Js disposition of that defence, Dr. Wright has not
established any substantial injustice from any errors alleged. In the
circumstances it would be contrary to the interests of justice to order a new
trial.

[92]

In my view, the
respondents are correct and this case turns upon the fact none of the errors
made out by the appellant assist him in overcoming this fundamental weakness in
his case.

[93]

The appellant does
not allege, nor, in my view, could he establish, any error by the trial judge
when she concluded the appellants policy protected him from income loss
resulting either from severe injuries causing permanent disability (defined in
the policy as presumed total disability) or from income loss during the
treatment
phase
 of an injury causing total disability. The appellant does not allege
a presumed total disability. That being the case, to demonstrate he was totally
disabled under the policy, the appellant had to establish not only that he
continued to suffer from injury which precluded him from engaging in the
essential duties of his regular occupation but also that he was under the regular
care of a physician for the injury.

[94]

It is important to
note despite her rejection of the appellants evidence generally, the trial
judge addressed the question of whether the appellant was under the regular
care of a physician by considering whether, on his own evidence, the appellant
could meet the test established by the policy of insurance. None of the
evidence the appellant sought to adduce at trial would have assisted in
overcoming the trial judges finding the appellants own evidence of his medical
treatment only showed his visits to medical doctors and clinics were,
generally speaking,  to deal with occasional conditions or for routine matters,
and two (or even three) visits over [a period of years] cannot qualify as
regular care (para. 181). The appellants own evidence established he
made two or three visits to an orthopaedic surgeon between 2003 and 2011.

[95]

Even if the judge
had permitted the appellant to introduce Dr. Frobbs report into evidence
and relied upon the opinion set out in it and permitted him to introduce the
medical records to substantiate his evidence with respect to his attendance at
physicians offices, the appellant would still not establish he was under the
regular care of a physician.

[96]

The trial judge
considered the appellants evidence with respect to the nature and extent of
the medical assistance he sought while he lived in California and while he
lived in England to be insufficient to meet the burden upon him. For that
reason I am of the view neither admission of the report of Dr. Frobb nor
admission and appropriate reliance upon the medical records would have affected
the outcome.

[97]

For those reasons I
would dismiss the appeal.

Analysis:
The Counterclaim

[98]

On cross appeal, the
respondents do not pursue the claim they advanced in the Supreme Court for
punitive damages. They do say it was an error to consider the counterclaim to
be based solely upon their allegation of misrepresentation as to his employment
activities. The counterclaim should equally have succeeded, in their
submission, on the basis the appellant was not under the regular care of a
physician between March 1, 2000 and October 31, 2001 and was
therefore not entitled to receive benefits during that period. They say their
plea, in support of their counterclaim, that the appellant was not disabled
within the meaning of the policy during the relevant period should be read
together with their statement of defence (to which the counterclaim refers),
which makes it clear their allegation regarding regular care of a physician was
a basis for the counterclaim as well.

[99]

In response to the
cross appeal, the appellant says the trial judge did not err in characterizing
the counterclaim. He says Sun Lifes communications with him, its trial briefs,
its pleadings, and the arguments at trial do not support the respondents
position the counterclaim was founded on any allegation other than the bad
faith misrepresentation proposition which the trial judge rejected and from
which Sun Life does not appeal.

[100]

I would not
interfere with the trial judges conclusion in this regard. I accept the
appellants submission careful review of the documents in this case substantiates
the trial judges conclusion the respondents concern in the relevant period was
always about whether the appellant was functionally capable of and was in fact
practising dentistry. The trial judge in this case was keenly aware of the
nature of the dispute and the evidence adduced in relation to the dispute at
trial.

[101]

The appellant further
responds to the counterclaim by arguing the respondents are estopped from
relying on the regular care of a physician provision as a basis for
recovering benefits already paid. While I would not accede to that submission
on the record on appeal, it is my view this defence may have been made out by
the appellant at trial if the pleadings had more clearly described the basis of
the counterclaim. For that reason, the trial judge correctly placed some
emphasis upon the manner in which the counterclaim was pleaded and argued. The
trial judges dismissal of the counterclaim was not founded upon a technical
defect in the pleading but, rather, on an assessment of the manner in which the
pleadings affected the way in which the case was presented at trial.

[102]

For these reasons, I
would dismiss the cross appeal from the dismissal of the counterclaim.

Analysis:
Costs

[103]

I would adopt the
respondents description of the standard of review of a costs order. The order
should be set aside only if the trial judge has made an error in principle or
if the costs award is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
,
2004 SCC 9 at para. 27.

[104]

The appellant says
the trial judge erred in addressing the claim for costs by looking at the
respondents settlement offer retrospectively, rather than considering the
position of the parties on the date the offer was served. On the date of the
offer, the appellant did not know and might not have foreseen he would not be
permitted to adduce expert opinion evidence or rely on medical records at the
trial. The appellant further says his conduct of the case was inextricably tied
to his lack of legal counsel and, therefore, it was an error for the judge to
find this conduct weighed against him both by making the financial disparity
between the parties a neutral factor and as an independent factor weighing
against him. Finally, the appellant says there was no basis for refusing to
award him costs in relation to the counterclaim up to and including the trial.

[105]

While it is correct
to say, in describing the factors that led to the costs order, the trial judge
placed some weight upon the fact the appellant was unable to obtain expert
evidence in support of his claim and that fact was not known to him at the time
a settlement offer was made, there was still a persuasive case the appellant
ought to have accepted the settlement offer when it was made. In my view, the
trial judge did not err in principle in concluding the settlement offer key to
the costs award ought to have been accepted. I cannot say the costs order was
plainly wrong. I would dismiss the appeal from the costs order.

Conclusion

[106]

The appeal from the
order on the main claim is dismissed. Although the trial management judge
should not have adjourned the trial to a date that the appellants choice of
counsel was not available, should have extended the time for the appellant to
submit expert reports, and should have made the process for admittance and use
of medical records more clear to the self-represented appellant, the effect of
these errors did not change the outcome at trial because none of the excluded
evidence would have established the appellant was under the regular care of a
physician during the applicable time period.

[107]

The appeal from the
order on the counterclaim is dismissed. The trial judge made no errors in her
reading of the pleadings on the counterclaim.

[108]

The appeal from the
order on costs is dismissed. The trial judge made no errors in principle in her
assessment of the costs and the costs order is not plainly wrong.

The
Honourable Mr. Justice Willcock

I
agree:

The
Honourable Mr. Justice Goepel

I
agree:

The
Honourable Madam Justice Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Baryla v. Baryla,

2019 BCCA 22

Date: 20190118

Docket:
CA44857

Between:

Lorraine Marie
Baryla

Respondent

(Claimant)

And

Gordon Paul Baryla

Appellant

(Respondent)

Before:

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 29, 2017 (
Baryla v. Baryla
, 2017 BCSC 1759, Vernon Registry
51304).

Counsel for the Appellant:

N. Davies

Counsel for the Respondent:

R.S. Tretiak, Q.C.
B.D. Hastings

Place and Date of Hearing:

Vancouver, British
  Columbia

October 29, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 18, 2019

Written Reasons by:

The Honourable Mr. Justice Savage

Concurred in by:

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Butler

Summary:

The appellant challenged the
amount of a compensation payment, the failure to deal with distributive taxes,
and the awarding of spousal support after an equal division of assets. Held,
appeal allowed, new trial ordered. It was necessary for the court below to
determine whether the registration of title in joint tenancy was an inter vivos
gift to the husband, and to account for distributive taxes upon division of the
assets. The question of spousal support after an equal division of assets must
consider whether an award would amount to double dipping.

Reasons
for Judgment of the Honourable Mr. Justice Savage:

[1]

This appeal arises out of a family proceeding in which the appellant,
Gordon Paul Baryla, was ordered to pay a compensation payment and spousal
support to the respondent, Lorraine Marie Baryla.

[2]

Mr. Baryla challenges the amount of the compensation payment and
the order for spousal support. He says the compensation payment should be
reduced by the value of his mothers interest in a property that he received by
right of survivorship. He also says the trial judge erred by failing to
consider the tax consequences of disposing of certain family assets. After the family
assets were divided equally, Mr. Baryla says there was no basis for the
judges order that he pay spousal support, or for the particular quantum
ordered by the judge. Ms. Baryla supports the trial judgment.

[3]

For the reasons that follow, I would allow the appeal in part, and
direct a new trial.

I.         Background

[4]

In December 2014 the parties agreed to end their marriage of nearly 40
years. The parties were financially successful, having been able to retire in
their mid-40s and thereafter live off their investments, which were managed by Mr. Baryla.

[5]

On January 1, 2015, the parties entered into a letter of intent agreement
to dissolve their marriage and split their assets (the Letter Agreement).
Among other things, Mr. Baryla agreed to transfer a house (the 1513
Property) into Ms. Barylas name. The 1513 Property had originally
belonged to Mr. Baryla and his late mother in joint tenancy, but Mr. Baryla
had acquired full title through the right of survivorship upon her death.

[6]

The parties only partially performed the Letter Agreement. On June 29,
2015, Ms. Baryla brought the underlying action, claiming,
inter alia
,
spousal support and an equal division of family property. The matter proceeded
to trial in September 2016. During closing argument, the parties raised several
technical tax issues.

A.       1513 Property

[7]

The basic facts concerning the 1513 Property are not in dispute. In 2004
Mr. Barylas mother, Helen Baryla, sold her home and purchased, as joint
tenants with Mr. Baryla, the 1513 Property for $242,000. The 1513 Property
was next door to the parties family home (the 1511 Property).

[8]

Mr. Baryla says the judge misapprehended one aspect of the evidence.
The judge held that Mr. and Ms. Baryla contributed $169,605 of their
own funds towards the purchase price of the 1513 Property since Helen Baryla
had insufficient funds from the sale of her home. Mr. Baryla says the
opposite is true: that most of the purchase price ($169,605) came from the sale
of Helen Barylas former home and the balance came from the parties funds.

[9]

Helen Baryla died in 2013. Upon her death, Mr. Baryla became the
sole owner on title of the 1513 Property by right of survivorship. After
signing the Letter Agreement in January 2015, Mr. Baryla transferred title
to the 1513 Property into Ms. Barylas name. The parties also agreed that Ms. Baryla
would retain a cabin at Mabel Lake (the Mabel Lake Property).

[10]

As I have said, the Letter Agreement was never fully implemented. Mr. Baryla
claims, as he did at trial, that part of the 1513 Property should be excluded
from property division.

B.       Tax Issues at Trial

[11]

During submissions at trial, the mechanics of property division and the
tax issues relating to property division were raised by counsel and the judge.

[12]

The judge requested that the parties retain a joint expert to address
tax issues. Although the parties duly retained an expert (Cheryl Schmidt of
KPMG) who prepared seven reports dated February 6, March 3, 13, 24, April 5, 17
and May 23, 2017, the experts reports were not formally entered as exhibits at
trial.

[13]

On September 18, 2017, the judge ordered the parties to disclose their
2016 tax returns and notices of assessment.

[14]

The judge released her reasons, indexed as 2017 BCSC 1759 (RFJ), on
September 29, 2017. The reasons were released before the parties had submitted
their 2016 tax information. The judge received and reviewed the seven expert
reports, which were not formally entered into evidence, but rejected them all
because they did not comply with the requirements of the
Supreme Court
Family Rules
, they went beyond the scope of an expert report, and they included
some unproven assumptions.

[15]

The judge ordered an equal division of family property to be effected by
a compensation payment from Mr. Baryla to Ms. Baryla. Having rejected
the expert reports, the judge said, I confess not to know the answer to the
tax issues that the parties raised in closing argument (RFJ at para. 106).
Apart from two exceptions, she found that she was not in a position to make
any allowances for taxes (RFJ at para. 114).

[16]

The exceptions were for the sale of the 1511 Property (the family home) and
the sale of the Mabel Lake Property. The judge ordered that the parties
equally share in the tax cost of each of them disposing of, or selling their
respective interest in [the 1511 Property] and the cabin at Mabel Lake (RFJ at
para. 112).

[17]

The 1511 Property was the parties principal residence and its sale
would not attract tax. Ms. Baryla sought and received the Mabel Lake Property
in the division of family assets and does not intend to sell it. On the other
hand, the 1513 Property was not the parties principal residence and it would attract
tax consequences on disposition. The same applies to a property the parties
acquired in Arizona (the Arizona Property), which Mr. Baryla retained in
the property division.

C.       Property Division and Spousal Support

[18]

The judge ordered an equal division of family property with a total net
value of $5,015,728.44 and a compensation payment of $641,772.54 (increased to
$828,829.38 after correction of a calculation error) to accomplish equal
division. Ms. Baryla also sought spousal support.

[19]

Neither party has had employment for many years. The parties retired in
1999 when Mr. Baryla was 46 years old and thereafter lived off income from
their investments. Mr. Baryla managed the financial assets during the
parties marriage. At the time of trial Mr. Baryla was 63 years old and Ms. Baryla
was 62.

[20]

After ordering the equal division of family property, the judge noted
that Mr. Baryla will continue to have the income earning capacity to make
investments and profit from his capacity to do so (RFJ at para. 101). On
the other hand, she found that Ms. Baryla does not have that capacity.

[21]

The judge ordered that Mr. Baryla pay spousal support to Ms. Baryla
at $2,650 per month for ten years, after which there would be a review.

II.        Issues

[22]

The parties raise the following issues on appeal:

(1)

Did the judge err in law in calculating the compensation payment by:

(a)

failing to find that a portion of Mr. Barylas interest in the 1513
Property was excluded property; and

(b)

failing to consider the tax implications of disposing of family
property?

(2)

Did the judge err in law in ordering Mr. Baryla to pay spousal
support, or alternatively in ordering the particular quantum of spousal support,
by:

(a)

failing to provide adequate reasons;

(b)

failing to consider the respective incomes of the parties after property
division; and

(c)

failing to consider the current income of the parties, especially after
ordering disclosure of their 2016 incomes?

III.       Discussion and Analysis

A.

Did the Judge Err in Determining the Compensation Payment?

[23]

The two issues concerning the compensation payment are whether the judge
erred in her treatment of the 1513 Property and whether tax implications beyond
those addressed by the judge should have been considered. With respect to the
treatment of the 1513 Property, Mr. Baryla says the judge erred in failing
to find that part of the property was excluded property as a gift or
inheritance. He says the judge also erred in her alternative findings that the
1513 Property ceased to be excluded property when Mr. Baryla transferred
it to Ms. Baryla and that its exclusion from property division would be
significantly unfair.

i.         1513 Property

[24]

Mr. Baryla agrees that Ms. Baryla has a part interest in the
1513 Property, since family funds contributed to the purchase. Mr. Baryla
says, however, that his mothers half-interest, which he obtained by right of
survivorship, is excluded property under s. 85 of the
Family Law Act
,
S.B.C. 2011, c. 25 [
FLA
]

as a gift or inheritance.

[25]

Section 85 reads as follows:

85 (1) The following is excluded from family property:

(a)
property acquired by a spouse before the relationship
between the spouses began;

(b)
inheritances to a spouse;

(b.1)
gifts to a spouse from a third party;

(c)
a settlement or an award of damages to a spouse as
compensation for injury or loss, unless the settlement or award represents
compensation for

(i)
loss to both spouses, or

(ii)
lost income of a spouse;

(d)
money paid or payable under an insurance policy, other
than a policy respecting property, except any portion that represents
compensation for

(i)
loss to both spouses, or

(ii)
lost income of a spouse;

(e)
property referred to in any of paragraphs (a) to (d)
that is held in trust for the benefit of a spouse;

(f)
a spouse's beneficial interest in property held in a
discretionary trust

(i)
to which the spouse did not contribute, and

(ii)
that is settled by a person other than the spouse;

(g)
property derived from property or the disposition of
property referred to in any of paragraphs (a) to (f).

(2)
A spouse claiming that property is excluded property
is responsible for demonstrating that the property is excluded property.

[Emphasis added.]

[26]

Joint tenancy and tenancy in common constitute the main forms of
co-ownership in Canadian law. A defining characteristic of joint tenancy is the
right of
survivorship
,
whereby when a joint tenant dies, his or her interest in the property is
extinguished, and the surviving joint tenant obtains the full interest to the
property:
Zeligs v. Janes
, 2016 BCCA 280 at para. 41.

[27]

The right of survivorship in a joint tenancy is discussed in D.W.M.
Waters, M.R. Gillen & L.D. Smith, eds.,
Waters Law of Trusts in Canada
,

4th ed. (Toronto: Carswell, 2012) at 404405:

When property is bought by one
person and title taken in joint names, a joint tenancy will arise, which
confers upon each party an equal entitlement to the property, which includes a
so-called right of
survivorship
. This right, which
is not a separate right but merely an incident of joint tenancy, will cause the
whole property to vest in the survivor. The reason is that
in a joint
tenancy, if one joint tenant dies, his interest simply disappears and nothing
passes to his estate. The result is that the interest of the surviving joint
tenant is effectively converted into sole ownership. It is this effect which is
often described as a right of
survivorship
.
If A supplies the purchase money and conveyance is taken in the joint names of
A and B, B during the joint lives will hold his interest for A; B will also
hold his right of
survivorship
 again by way
of a resulting trust  for A's estate, because that right is merely one aspect
of B's interest. In other words, the starting point is that B holds all of his
interest on resulting trust for A, or A's estate. However, evidence may show
that, while A intended B to hold his interest for A during the joint lives, it
was also A's intention that, should he (A) predecease, B should take the
benefit of the property. The presumption of resulting trust would then be
partially rebutted, in relation to the situation that has arisen, so that B
would not hold his interest (now a sole interest and not a joint tenancy) on
resulting trust. He would hold it for his own benefit.

[Emphasis added.]

[28]

In
Pecore v. Pecore,
2007
SCC 17, the Supreme Court of Canada considered the nature of rights of
survivorship in the context of joint bank accounts. The Court concluded that
since the right of survivorship vests when a joint account is opened, the right
of survivorship is an
inter vivos
gift, rather than a testamentary gift.
Justice Rothstein explained:

48         the rights of survivorship, both legal and
equitable, vest when the joint account is opened and the gift of those rights
is therefore
inter
vivos
in nature. This has also been the conclusion of the
weight of judicial opinion in recent times: see e.g.
Mordo v. Nitting
, [2006] B.C.J. No. 3081
(QL), 2006 BCSC 1761
, at paras. 233-38;
Shaw v. MacKenzie
Estate
(1994),
4 E.T.R. (2d) 306
(N.S.S.C.), at para. 49; and
Reber v. Reber
(1988), 48 D.L.R.
(4th) 376
(B.C.S.C.); see also
Waters' Law of Trusts
, at
p. 406.

50        Some judges have found
that a gift of survivorship cannot be a complete and perfect
inter vivos
gift because of the ability of the transferor to drain a joint account prior to
his or her death: see e.g. Hodgins J.A.s dissent in
Re Reid
. Like the
Ontario Court of Appeal in
Re Reid
, at p. 608, and
Edwards v.
Bradley
, at p. 234, I would reject this view. The nature of a joint
account is that the balance will fluctuate over time. The gift in these
circumstances is the transferees survivorship interest in the account balance
 whatever it may be  at the time of the transferors death, not to any
particular amount.

[29]

This Court
reviewed
Pecore
and the earlier authorities on the characterization of the right of
survivorship in
Bergen v. Bergen
, 2013 BCCA 492. Madam Justice Newbury summarized
that all of these cases in my view turned on the donor's
intention
to
make a gift of the right of survivorship  which I understand to mean an
immediate gift of a joint interest consisting of whatever balance exists in the
account on the transferor's death, assuming he or she dies first (at para. 37,
emphasis in original).

[30]

The Court in
Bergen
endorses the proposition that:

[41]       The gift of a joint
interest in real property is an
inter vivos
rather than a
testamentary gift and cannot be retracted by the donor. It is a 'complete and
perfect
inter
vivos
gift' ..." [citation omitted].

The Court explained, however, that [a]t the same time,
in cases where the property was provided by the transferor, the transferee must
still prove that a gift was intended − i.e., he or she must rebut the
presumption of resulting trust (at para. 41).

[31]

Applying this reasoning to the 1513 Property, by registering the
property in the joint names of Mr. Baryla and Helen Baryla, Helen Baryla
gifted the right of survivorshipbut to whom? If Helen Baryla made the gift to Mr. Baryla,
then on its face it would qualify as excluded property under s. 85(1)(b.1)
of the
FLA
as gifts to a spouse from a third party. However, arguably it
is not clear to whom Helen Baryla gifted the right of survivorship. Was the
gift to Mr. Baryla alone, or to both Mr. Baryla and Ms. Baryla
as both had contributed to the purchase price? The judge did not undertake the
analysis necessary to dispose of this issue.

[32]

The next question that arises is whether the transfer of the 1513
Property to Ms. Baryla extinguished Mr. Barylas excluded property
claim. If it did then the question of to whom the
inter vivos
gift was
made would be academic. In my view, it did not.

[33]

The
FLA
does not eliminate common law and equitable concepts
relating to property but rather builds on those principles, preserving concepts
such as gifts and trusts, and evidentiary presumptions such as the presumption
of advancement. Thus, excluded property, or the proceeds thereof, that is gratuitously
transferred between spouses during the course of a relationship may lose
excluded status unless the presumption of advancement is rebutted:
V.J.F. v.
S.K.W.
, 2016 BCCA 186 at para. 74.

[34]

The trial judge relied on
V.J.F.
and held that the 1513 Property
was not excluded property because Mr. Baryla had voluntarily transferred
it to Ms. Baryla (RFJ at para. 63). In my view, however, the
presumption of advancement does not apply in this case. The parties were
separated at the time of the transfer. The transfer of the 1513 Property to Ms. Baryla
by Mr. Baryla was not a gift between spouses; it was in partial fulfillment
of the terms of the Letter Agreement. That said, after the fact conduct may be
relevant to the parties understanding of the intent behind Helen Barylas gift.

[35]

Mr. Baryla also challenges the judges alternative holding that it
would be significantly unfair to exclude the value of the 1513 Property from property
division since a significant portion of the purchase price came from the
parties joint funds. In my view, this argument cannot be considered until the parties
actual contributions to the purchase price are ascertained.

ii.        Tax Costs of the Disposition of Assets

[36]

The parties brought tax information to the judge by filing with the
court seven tax opinions of an accountant, which sought to address questions
raised by the parties and the judge. The judge found that information unhelpful
for various reasons, as mentioned, and inadmissible for technical reasons.

[37]

The judge then made an order limiting the sharing of tax burdens to an
asset not subject to tax on disposition (the 1511 Property, the parties principal
residence) and an asset that was not intended to be sold (the Mabel Lake Property,
a recreational property). The judge did not determine the tax issues on which professional
opinions had been sought. There is no explanation for the judges failure to
consider tax implications associated with the 1513 Property, the Arizona
Property or the parties investment accounts.

[38]

This Court has held that corporate and distributive taxes can and should
be taken into account where there is appropriate evidence:
Maguire v.
Maguire
, 2016 BCCA 431 at paras. 3839;
Sinai v. Mahmoud
, 2017
BCCA 155 at paras. 3135. Simply put, if some assets have inherent tax liabilities
and others do not, it could be unfair to allocate the assets equally, without
taking into account the tax liabilities.

[39]

In this case the parties made significant efforts to bring before the
judge the necessary information to take tax considerations into account. While the
judge may have had justification for rejecting some of the opinions before her,
in my view there was not justification for substantially abandoning the effort
to take tax consequences into account, on which both parties made submissions.

[40]

Although Mr. Baryla would have this Court make orders to facilitate
property division by asset class to address some of these concerns, those are
matters for the trial court to determine on receipt of appropriate evidence. The
same would apply to his related submission that the court place a temporal
limit on any obligation to share in the tax consequences of the disposition of
property.  That too is a matter for the trial court.

B.       Did the Judge Err in Ordering Spousal Support?

[41]

The judge ordered that Mr. Baryla pay Ms. Baryla spousal
support of $2,650 per month for ten years. She also made the order for spousal
support retroactive to January 1, 2015.

[42]

As mentioned, the order for spousal support was in addition to the order
for a substantial compensation payment to effect equal property division. The
family assets included typical things a family acquires: a home, chattels and
investments. Investments formed a large part of their asset base. In this case
the family had lived for many years on their investment income.

[43]

I would not interfere with the order for spousal support pending the new
trial. I have agreed with Mr. Baryla that the judge was obliged to
consider the tax implications of property division. Determining whether spousal
support is payable does not only involve determining whether there is a
significant disparity in income but also: (1) whether in principle, having
divided assets equally, there should be an order for spousal support at all, and
(2) how the fact that Mr. Baryla has the capacity to manage financial
assets himself should impact the amount, if any, of spousal support payable.

[44]

That would comport with this Courts decision in
Puiu v. Puiu
,
2011 BCCA 480, where Mr. Justice Groberman cautioned against awarding
spousal support pursuant to the
Spousal Support Advisory Guidelines
in
cases where the parties income was derived from assets, and those assets had already
been divided. The Court held that such a practice would improperly facilitate double
dipping on family assets. Groberman J.A. explained:

[15]

Neither
of the parties, then, has any income other than from their accumulated assets.
Those assets were divided by consent in a manner fully consistent with the
provisions of the
Family Relations Act
, R.S.B.C. 1996, c. 128.

[16]

Ms. Puiu
has received her share of family assets. To allow her now to seek a share of
the income from Mr. Puius assets would be to allow the sort of double
dipping that was found to be improper in
Boston v. Boston,
2001 SCC 43.
In the circumstances, allowing Ms. Puius claim for ongoing support would
be tantamount to re-dividing assets that have already been divided.

[17]

Caution
must be exercised in applying the formulas set out in the
Spousal Support
Advisory Guidelines
to a case such as the present, where the sole source of
income for the parties is income from assets that have been divided under the
Family
Relations Act
. Section 12.6.3 of the
Guidelines
provides as follows:

12.6.3
Boston v. Boston

... [T]he
Advisory Guidelines on amount and duration do not change the law from
Boston
v. Boston
governing double-dipping, mostly from pensions. That law remains
in place, as a possible constraint upon the amount of support, determining if
some portion of income should be excluded from the formula because it has been
previously shared under property division.

[Bold in original.]

[45]

In
Boston v. Boston
, 2001 SCC 43, Justice Major described double
dipping as follows:

1          "Double
recovery" or "double dipping" are terms that have come to
describe the situation where, after an equal division of assets on marriage
breakdown, one spouse claims continued support from the previously divided or
equalized assets of the other spouse.

[46]

In my view, in this case, it was incumbent on the trial judge to address
the issue of double dipping, which she failed to do. The judge noted that Mr. Baryla
had skill in managing financial assets whereas Ms. Baryla did not. However,
it does not follow from that observation that ten years of spousal support is
payable, rather than, say, an allowance for a management fee. By that, however,
I am not suggesting any particular outcome to this issue.

[47]

As I have found that the judge erred in failing to consider the effect
of property division on Ms. Barylas claim for spousal support, I find it
unnecessary to consider Mr. Barylas remaining two arguments that the
judge erred in providing inadequate reasons and in failing to consider the
parties current income in awarding spousal support.

[48]

I would vary the order for spousal support to make spousal support in
the amount determined by the judge payable until the new trial.

IV.      Conclusion

[49]

In my view, the judge erred in her analysis of whether the 1513 Property
was excluded property, in failing to properly consider and apply the tax
implications of property division, and in ordering ongoing spousal support, for
the reasons I have given. I would allow the appeal in part and direct a new
trial.

[50]

I would not interfere with the order that family property be divided
equally or that spousal support as determined be payable from January 1, 2015,
but only until the new trial.

The Honourable Mr. Justice Savage

I agree:

The Honourable Madam Justice
Bennett

I agree:

The Honourable Mr. Justice Butler