Broker liable to insurer for losses paid on policy; Tendering the discovery evidence of an adverse party does not make the adverse party a witness in the tendering party’s case

In Fleet v. Federated Life and Bellefontaine, 2008 NSSC 231 (CanLII), an insurance broker was found liable to re-imburse the insurer for payments made on a life insurance policy, where the broker inserted misleading answers about the insured’s health in an application for life insurance, and then forged the insured’s signature.

At trial, counsel for the plaintiff entered the broker’s entire transcript from the examination for discovery.  The broker chose not to take the stand as a result, arguing that the plaintiff was bound by the evidence tendered, which denied that the broker forged the insured’s signature.

Justice G. Moir found that entering an adverse party’s discovery evidence does not make the adverse party a witness in the tendering party’s case, and therefore the tendering party is not bound by the adverse party’s discovery evidence.

His Lordship also found that the broker breached his contractual and fiduciary duties to the insurer, and was liable to reimburse the insurer for the amounts owed to the insured under the policy.

Insured has a right to independent medical examiner’s handwritten notes

In a decision handed down February 1, 2008, the Federal Court of Appeal ruled that an insured sent for an independent medical examination by his long-term disability benefits insurer is entitled to access the medical examiner’s handwritten notes in a dispute as to the insured’s continued eligibility to receive benefits.

In Rousseau v. Canada (Privacy Commissioner), 2008 FCA 39 , the insured, Jacques Rousseau, had been receiving long-term disability benefits from Maritime Life.  A dispute arose as to his continued eligibility, and Maritime Life subjected Mr. Rousseau to an independent medical examination (IME) in accordance with the terms of its policy.  Dr. Jeffrey Wyndowe performed the IME.  The purpose and nature of the IME was explained to Mr. Rousseau, and he signed a consent form permitting disclosure of the doctor’s report to Manulife.

Based on the report, Manulife terminated Mr. Rousseau’s long-term disability benefits.

Manulife provided Mr. Rousseau with a copy of the report at Mr. Rousseau’s request, however it did not have access to the doctor’s notes.  Dr. Wyndowe refused to provide a copy of the notes to Mr. Rousseau.

Mr. Rousseau eventually applied to the federal Office of the Privacy Commissioner with respect to the doctor’s refusal, and the complaint was allowed, with the Commissioner recommending the release of the notes.  Dr. Wyndowe refused.

Mr. Rousseau applied further to the Federal Court Trial Division pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.  Mr. Justice Teitelbaum granted Mr. Rousseau’s application, and Dr. Wyndowe appealed to the Federal Court of Appeal.

Decary, J.A. reasoned that notes made by a doctor in the course of an IME made at the request of an insurance company falls within the purview of “commercial activity” by the insurance company and is therefore subject to the Act.   In addition, personal health information is a subset of “personal information”.  Notes taken by a doctor in the course of an IME are clearly personal health information, and therefore subject to disclosure upon application by the person about whom they pertain.