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Alberta Court Decision

Action 9303-22591

In the Court of Queen's Bench of Alberta

Judicial District of Edmonton

 

Judgement March 2, 1998 Filed: March 3, 1998

Between:

K.Sharon Baillie, Plaintiff

And

 

Crown Life Insurance Company, Defendant​

 

 

Reasons for Judgment of the Honourable

Mr. Justice C. Philip Clarke

[1] In this action the Plaintiff is asking the Court to require the Defendant to pay long term disability to the Plaintiff for the period from May 1990 to the present and for the foreseeable future. The Plaintiff was employed by the Defendant from 1986 to May 1990. One of the benefits provided by the Defendant as her employer was to provide long term disability coverage in a policy which was also provided by the Defendant as the Insurer. The Plaintiff says that in late 1989 she developed a long term disability condition described as chronic fatigue syndrome ("CFS"). The Defendant resists the claim on two main grounds. Firstly, the Plaintiff has not met the claims making requirements of the policy of insurance. The Plaintiff raises a number of equitable arguments which she says entitle her to be relieved from strict compliance with those requirements. Secondly, the Defendant says that even if a proper claim has been made, the cause of the Plaintiff's long term disability is not covered by the policy. Her illness is a psychiatric illness and that illness is not covered under the terms of the policy. The Defendant also says that CFS does not exist and as such cannot be a disease as defined in the policy. The Defendant also says that if it is wrong in the first two propositions, then in any event the Plaintiff's long term disability condition arose only in May 1991 long after she left the Defendant's employ.
 

[2] The first main issue is: Has the Plaintiff met the claims making requirements of the policy?
 

[3] One of the documents the Plaintiff signed when she entered the Defendant's employ was an Enrolment Card for Employee Group Benefit Plans (Ex. 2-3) dated October 21, 1985 which amongst other things enrolled her under the group long, term disability insurance plan. It did not give any information as to the terms of the plan. At the same time, the Defendant was provided with an Employee's Information booklet (Ex. 2-17) (the "Blue Book"). This booklet said in part under the President's Message as follows: "This Employee Handbook outlines the specific benefits you are entitled to as a Crown Life employee. It also sets out the terms and conditions of your employment with the company as well as employment related management practices. It goes on to deal with many facets of the employer/employee relationship, one of which was entitled "Your Benefits" which section included various medical and dental plans available to the employees. In the preface to the handbook it said: "This handbook should be used as a guide only. The company reserves the right to amend or discontinue any policy, practice or benefit plan when deemed necessary." When you turn to the "Your Benefits" section, at the beginning of that section, it says:

"In addition to a competitive salary policy, Crown Life offers you a competitive benefits package which forms a significant part of your total compensation. These benefits provide substantial protection and security for you and your family.

The following subsections outline your group benefit plans as well as other benefits available to you such as the employee assistance program, share purchase plan, etc.

The group policy numbers for your insured group benefit plans are: "......long term disability 10101 ... You are encouraged to take full advantage of the benefits offered to you by participating in those plans which serve your specific needs."

Then follows a description of a variety of plans including one described as "Long Term Disability Insurance Plan". It says that if your total disability lasts longer than six months, you may be eligible to receive income under the Long Term Disability Plan while you remain under the regular care and treatment of a physician. After providing a definition of total disability and the information about the amount of coverage, there is a section "Long Term Disability Claim Procedure" which said as follows:

"Have your physician complete a long term disability report answering the questions that cover your claim for disability. This form should be submitted to the Human Resources department, home office. Forms are available from the Human Resources department.
Failure to submit reports as requested could result in suspension of payments under the Long Term Disability Plan."

The Blue Book also suggests some limitations where the Defendant will not pay for any disability none of which are relevant except for "psychoneurotic disorders or behavioral disorders". Finally, under the heading "Termination of Coverage" the brochure provides: "Your long term disability insurance coverage ends automatically on termination of employment, at retirement or upon attainment of age 65, whichever occurs firsts. " The Plaintiff said that she reviewed the Blue Book on her employment because she always reviewed things like that. She also said that she knew that she had to get forms from the Defendant and get a doctor's report. This employment benefit book which she described as the "Blue Book" was the only thing given to her by the Defendant with respect to benefits.

[4] The Plaintiff left the Defendant's employ in May 1990. She had been experiencing a series of health problems and found that she was unable to do her job with the Defendant. In May 1991 she was for the first time diagnosed by her doctor as having CFS. As the Plaintiff put it "her world had crashed". Her doctor encouraged her to get out and go to support groups to attempt to deal with this problem. In the early fall when attending one of these support group sessions she realized for the first time that she had had this condition since the fall of 1989 so she would have a claim against the Defendant. As a result, she called the Defendant's Human Resources Department to get the necessary forms to be completed to make a claim. She was not aware of any time requirement to make a claim. The Blue Book did not speak of such a requirement. When she spoke to people in the Human Resources Department, no one said anything to her about there being a time requirement. This all occurred in September/October 1991. She was advised that they would send the papers. Nothing happened, so finally on April 6, 1992 (Ex. 2-7) she wrote to the Human Resources Department outlining the reasons why she thought she was entitled to make a claim for long term disability. On June 23, 1992 the Defendant finally replies from its Disability Claims Services Group to state that her claim is "under review" and they would "contact her with further information in the near future". Despite a number of phone calls in the interim the Plaintiff hears nothing more so on November 3, 1992 (Ex. 2-9) she writes again. She states at the conclusion of her letter:

"My health from this disease continues to disable me from any type of employment or retraining program. Since my condition is both severe and prolonged and I have been unable to work since October 1989 I would really appreciate your (yetting back to me on this matter at your early convenience."

In the meantime, the Plaintiff has cone to see Dr. Jorundson who in addition to being a medical doctor has recognized expertise in the area of occupational health medicine. He did a thorough evaluation of the Plaintiff and on December 14, 1992 writes to the Defendant on the Plaintiff's behalf confirming that she is totally disabled and saying that that disability has been present since August 1989. He confirms the current diagnosis of CFS. Again, nothing is heard from the Defendant so on February 2, 1993 (Ex. 2-10) the Plaintiff writes again asking the Defendant to respond. Shortly thereafter Dr. Jorundson again on behalf of the Plaintiff writes to the Defendant (Ex. 2-12) expressing his concern at their delay in responding to her claim which he says is legitimate.

[5] At last, on March 31, 1993 (Ex. 2-13) the Defendant replies. In that letter they refer to a disability policy 10101 for definition of disability and asks the Plaintiff to do five things. There is no suggestion in this letter that the Plaintiff is considered by the Defendant to be out of time. The letter does say "It should be understood that this letter is without prejudice 'to, and not a waiver of, any of Crown Life's rights and defense, all of which are specifically reserved." While the Plaintiff is in the process of assembling the information they requested, she receives another letter from Crown Life dated May 28, 1993 (Ex. 2-14) which contains the extraordinary statement that since she has not replied to their March 3 1 letter they are closing their file.

[6] After the Plaintiff writes to the President of the Defendant complaining about the way in which her claim has been handled, she receives a letter from the Director of Claims services dated July 26, 1993 (Ex. 2-15) in which the Defendant says that her claim against Crown Life is not recognized. The reason they state is that they have concluded that the Plaintiff had voluntarily resigned for reasons other than health problems in May 1990 and when she resigned she voluntarily relinquished her entitlement to all of her employee benefits including long term disability benefits. The Defendant does not say that the claim is out of time or give any other reason for denying the claim. What is clear from the evidence is that the Plaintiff left the Defendant's employ because her health was such that she could no longer perform her job.

[7] At the time the Plaintiff was employed there was in existence a long term disability policy put in place in April 1985. That was policy 10101 (Ex. 2-1). The relevant portions ofthat policy provided at p. 2 as follows:

"If an employee while insured for this benefit incurs a loss of time from work as a result of becoming totally disabled ... and if prior to his attainment of 65 years of age such employee remains so disabled for a continuous period ... and provides proof satisfactory to Crown Life of his total disability, Crown Life will pay monthly income benefits ... and will continue the insurance of such employee without payment of premiums while such benefits are payable. "

And at p. 5 it provides that the employee's insurance terminates on the date that the employee ceases to be employed. At p. 9 it deals with "extension of coverage" as follows:

"If on the date an employee's insurance under this policy terminates for any reason such employee is totally disabled and is either receiving monthly income benefits or is fulfilling a required Waiting Period Crown Life will pay the amount for any loss incurred after such date and while he remains so disabled as would be payable if his insurance under this policy had not terminated.

However, Crown Life shall not be liable for a totally disabled employee when the termination of benefits occurs if "late notice" of disability was given by the employee to Crown Life.

For the purposes of this benefit "late notice" shall mean more than six months from the termination date of this benefit."

And at p. 10 buried under a heading called "Changes in Policy" is found:

"No notice of any kind shall be considered to have been given to Crown Life unless given in writing to the home office of Crown Life."

And finally under the definition section at p. 16, after stating that the incapacity must be due to sickness, it defines sickness as "an organic disease or a psychosis but does not include psychoneurotic disorders or behavioral disorders". The exclusion in this definition uses the same words as found and earlier referred to in the Blue Book. The policy also defines psychosis as "a mental disease or derangement diagnosed as a psychosis for which the employee is receiving continuous treatment from a physician who is certified in Psychiatry by the Royal College of Physicians of Canada or by the Board of the American Medical Association".

[8] After the Plaintiff left the Defendant's employ in May 1990 she moved to Vancouver, British Columbia. She intended to try and work. She did receive unemployment insurance benefits thus implying that she was ready, willing, and able to co to work during the year following her departure from the Defendant's employ. It was only in May 1991 that she received the diagnosis of CFS. At that time, she attempted to change her UIC benefits to a disability claim but was advised that she was not eligible.

[9] The Defendant takes the position that on the termination of the Plaintiff's employment on May 1990 she was no longer eligible to make a claim under the LTD pol icy. In addition, in order to obtain the extension of coverage provision under the policy the Plaintiff has to prove that again she was "totally disabled" on May 1990 and not guilty of late notice. In that regard it was their position that the Plaintiff was clearly late because she did not provide of written" notice of the alleged total disability until April 6, 1992 and therefore there was no coverage. In that regard, they refer to the notice provision in the LTD policy earlier noted.

[10] The Plaintiff by way of response submitted that firstly this argument on the part of the Defendant was irrelevant because the Plaintiff's total disability arose before her employment terminated. But in any event, the Plaintiff says that equitable principles should relieve the Plaintiff in these circumstances from compliance with any requirements of the Defendant except those set out in the Blue Book (Ex. 2-17). This issue was argued by the parties on the basis of whether she was entitled to relief from forfeiture.

[11] The Defendant submitted that she was not. The Defendant noted that long term disability policies are considered to be covered by the "life insurance" section of the Insurance Act, RSA 1980 ch. 1-5. With respect to the other parts of the Act which cover other types of insurance there are sections in the Act which relieve a claimant from the strict provisions of a policy. There are no such sections in the life insurance part (Part 6) and from that the Court should construe the Legislature's intention as not intending to provide relief from forfeiture. The Plaintiff responds that s. 10 of the Judicature Act RSA 1980 ch. J-1 applies to this type of contract and that is a statutory expression of the application of the equitable principle of relief from forfeiture. The Defendant took the position that that issue as to whether or not s. 10 equitable relief was available in these circumstances had not been decided by any binding precedent on this Court in Alberta and thus it was open to the Court to find that s. 10 did not apply. That finding would be based on the construction of the Insurance Act previously mentioned and in particular the absence of any equitable relief provisions in the life insurance section, part 6. However, the Defendant also acknowledged that it had to deal with the case of Saskatchewan River Bungalows Ltd. v. Marine Life Assurance Co. (1994) 23 C. C. L. I. (2d) 161 in the Supreme Court of Canada. One of the issues that arose in the Court of Appeal was whether or not relief from forfeiture under s. 10 of theJudicature Act could apply to a policy issued under part 6 of the Insurance Act. Mr. Justice Harradence concluded that it could, Mr. Justice McClung concluded that it could not articulating the defendant's argument in this case that general principles of equity do not apply where the field is occupied by a statutory scheme. Madam Justice Hetherington found that it was not necessary to deal with that issue. Mr. Justice Major delivered the judgment of the Supreme Court and he stated the issue at p. 174 as follows:

"The second issue on appeal is the Court's equitable jurisdiction to relieve against forfeiture. The Respondent submit that the general power to grant relief contained in s. 10 of the Judicature Act,should be exercised in this case. The Appellant contends that the Judicature Act does not apply since the field is occupied by a statutory scheme (the Insurance Act). It further submits that the Respondent's loss was not a forfeiture and argues, that, in any event this is not an appropriate case for granting relief."

[12] The Court then went on to set out the three governing principles for the application of relief against forfeiture and concluded that the first element - the reasonable conduct requirement - was not meant in that case. Nonetheless Mr. Justice Major went on at p.175 as follows:

"As the Respondents are barred by their conduct from recovering it is not necessary to determine whether a general power to relieve against forfeiture under s. 10 of the Judicature Act applies to contracts regulated by the Insurance Act. However, I would note that the existence of a statutory power to grant relief where other types of insurance are forfeited (Insurance Act ss. 201, 205, 211) does not preclude application of the Judicature Act to contracts of life insurance. The Insurance Act does not "codify" the whole law of insurance; it merely imposes minimum standards on the industry. The appellant's argument that the "field" of equitable relief is occupied by the Insurance Act must therefore be rejected.

Our Court has considered the issue in two subsequent cases referred to by counsel. The first is Troughton v. Providence Life and Accident Insurance Co. Ltd. (1996) 180 A.R. 71 where Mr. Justice Forsyth in his judgment stated that arguments had been presented to him as to whether or not relief against forfeiture under s. 10 of the Judicature Act applies to contracts regulated by the Insurance Act and in particular whether it applies to disability type of insurance. Justice Forsyth then notes that Mr. Justice Major in the Saskatchewan River case, supra, had noted that it was not necessary to determine whether the court's general power to relieve against forfeiture under s. 10 of the Judicature Act applied to the contracts regulated by the Insurance Act and he approached the issue on the basis that the question remains open. He then went on to deal with the issue of whether or not on the facts of his particular case they would support relief even if it were available and concluded that those facts were not present. The most recent decision I was referred to was Altius Centre Ltd. v. B.M.P. Energy Systems Ltd. (1996) 43 A.L.R. (3d) 209 where Mr. Justice Medhurst was required to decide the scope of the reach of s. 10 of the Judicature Act. In that case it had to do with the provision of a tenancy agreement. The court found the facts necessary to grant relief if it was available. Mr. Justice Medhurst in that case refers to the Saskatchewan River Bungalows case, supra, in the Court of Appeal and in the Supreme Court of Canada and he concluded at p. 216:

"In my view the court has jurisdiction to relieve against forfeiture in this case."

He had earlier stated at p. 215:

"Despite the English position in my view s. 10 of the Judicature Act provides for relief against forfeiture that is wider than the position taken by the House of Lords. The Judicature Act provides for relief against 'all' forfeitures and penalties."

I have concluded that given the view expressed by Mr. Justice Harradence in the Court of Appeal and Mr. Justice Major on behalf of the Supreme Court of Canada, albeit obiter, I am prepared to find that that such relief is available assuming the Plaintiff can satisfy the elements necessary to obtain such relief.

[13] The first element is: Was the conduct of the Plaintiff reasonable in the circumstances? (See Saskatchewan River Bungalows, supra, at p. 174.) The Defendant says that the Plaintiff cannot satisfy this requirement because the Plaintiff knew that she had a year or so to submit her claim and it was two years before the claim was submitted. The Plaintiff in her direct exam testified that the first time that she saw the policy (Ex. 2-1) was at the time of trial. She never saw it while she was at Crown Life. She also testified that when she left the Defendant's employ on May 25, 1990 she was aware that she would not be receiving any salary from the Defendant. She knew that there was long term disability coverage in the company's benefit package. The Plaintiff has said that she believed at that time that she was going to get well and thus was not long term disabled. While she knew again at the time she left that she was unable to hold a full-time job at least with the Defendant, she hoped that when she got well she would be able to hold a full-time job. She also testified that while she knew from the Blue Book that there was a policy governing long term disability, she never asked because so far as she was aware the terms of that policy were in the Blue Book. She was never offered a copy of the contract (Ex. 2-I) but she was never denied access to it either. She testified that she never saw anyone with the policy. She also testified that she was not aware of any time limit that might apply to making a claim. The Defendant bases its submission that she was aware of a time limit on an extract from the Plaintiff's examination for discovery. At that discovery she was referred to the first letter that she had written to Crown Life and the following exchange took place at P. 118:

So is it fair to say that this is the first time in writing that you advised Crown Life of your disability?

A. That's correct. And I remember being anxious because you had a year or something in which to do it, so I had to sit down and get it out.

There is of course no time limit of that sort referred to in the Blue Book. She has never seen the contract of insurance. Within that contract there is no time limit that is relevant to the issues in this case that would relate to "a year or so". From the evidence which I heard I do not know what time limit she was referring to. In any event, I am satisfied on all of the evidence that she was not aware of any particular notice, time or other technical requirements in making a claim as found in Ex. 1. Furthermore, when she took steps to make a claim at no time did the Defendant raise any time limit consideration or other technical requirement until the Statement of Defense was filed in this action. In those circumstances I am satisfied that the Plaintiff has met the requirements of the first principle governing this equitable relief. In particular, I find the reasoning and conclusions of Mr. Justice Foisy (as he then was) in Harris v. Robert Simpson Co. Ltd. (1985) 1 W.W.R. 319 at pp. 326-327 to be persuasive. As in this case, the particular brochure being considered in that case did not state that it does not or ought not to have contractual effect. The Blue Book can equally be characterized as was the brochure in the Harris case, supra, where Justice Foisy stated at p. 326 in part:

" ... in fact, it purports to be a 'summary of the main features of the new Simpson's Pension Plan'."

However the Plaintiff's health condition was labeled it was common ground that the Plaintiff suffered from cognitive impairment. Considering the state of her health and the shock that she experienced when she was told by her doctor that she had CFS a delay from May 1991 to September 1991 in advising the Defendant of her intention to make a claim I find to be reasonable. What is clear is that the Plaintiff was following the procedures set out in the Blue Book and as far as she knew she was doing what was required to make a proper claim. It was reasonable for the Plaintiff to have that belief.

[14] The second question to be considered is: Was the object of the right of forfeiture essentially to secure the payment of money? (Saskatchewan River Bungalows case, supra at pp. 174-175.) Here the Defendant acknowledged that there was no dispute that that element had been satisfied.

[15] The third question is: Was there a substantial disparity between the value of the property forfeited and the damage caused the vendor by the breach? (Saskatchewan River Bungalows case, supra at p. 175.) The Defendant's position on this issue was that the Plaintiff could not satisfy this requirement since while there was significant dollar loss to the Plaintiff there was also substantial prejudice to the Defendant. In that regard, they referred to some evidence elicited from Dr. Jorundson in cross-examination who said that generally speaking, it is best to perform a disability test earlier than later. Thus it was the Defendant's position that failure of the Plaintiff to make an earlier claim prejudiced the Defendant in that they could not conduct an independent medical exam presumably at an earlier time.

[16] I have already found that the Plaintiff advising the Defendant of her view of having a long term disability claim in September 1991 was reasonable. At no time did the Defendant ever suggest that it wanted to exercise any right of independent examination of the Plaintiff. Indeed, very shortly after September 1991 they received an extensive report from Dr. Jorundson, a clearly acknowledged expert in the field of occupation health medicine, with his diagnosis. Even after the receipt of that report the Defendant expressed no interest in having any other medical doctor look at that issue. The Defendant further maintained that the onus of proof was on the Plaintiff to provide that there had not been any prejudice. In that regard I was referred to the decision of His Honour Judge Stevenson as he then was in W. Schoelur Trucking Ltd. v. Markel Insurance Company of Canada (1979) 9 Alta L.R. (2d) 232. In this case, I am satisfied that the Plaintiff has satisfied that onus.

[17] As its final fall back position in this area, the Defendant submitted that since relief from forfeiture was essentially an equitable remedy the Plaintiff must come to this Court having in equitable sense "clean hands" before the Court should lend its assistance to the Plaintiff. The Defendant strongly urged the Court to find that the Plaintiff was not being truthful and candid with the Court in giving her evidence and therefore did not presumably have the necessary "clean hands" required to obtain equitable relief. I will deal with that issue in more detail later in this judgment. I am not satisfied that the Plaintiff should be disentitled to equitable relief on this basis as claimed by the Defendant.

[18] In conclusion, on this branch of the case, I am satisfied that the Plaintiff satisfied the necessary requirements to make a claim to the Defendant for long term disability benefits. I will turn next to the issue of whether or not she meets the necessary occupational and medical requirements to establish long term disability.

[19] The Defendant's Blue Book purports to define total disability as follows:

"Definition of total disability:

You will be considered to be totally disabled if you cannot perform:

  • the substantial duties of your own occupation for the first two year period in which Crown Life pays long term disability income benefits; and

  • after completion of the first two years while you are unable to work at any occupation for which you are suited by training, education or experience. "

The policy (Ex. 1) under the definition section defines total disability as follows:

"A state of incapacity due to sickness or accidental bodily injury which requires the regular and personal attendance of a physician and which prevents the employee from engaging in:

-the substantial duties of the employee's own occupation with respect to the first 24 month period in which monthly income benefits are paid by Crown Life;

-any gainful occupation for which the employee is reasonably qualified by training, education or experience, with respect to any period after the 24 month period specified above."

The Blue Book does not contain a section purporting to define terms. However, under limitations it states a set of circumstances where the Defendant will not pay for any disability including for example certain types of sickness related to a pregnancy and includes one relevant limitation "psychoneurotic disorders or behavioral disorders". The policy itself in the definition section defines sickness as being "an organic disease or a psychosis as defined under psychosis but does not include psychoneurotic disorders or behavioral disorders". For the purposes of this decision there do not appear to be material differences between the Blue Book and the Contract.

To the extent there are such differences I have already concluded that the Plaintiff is entitled to rely upon the Blue Book. Both the Blue Book and the Contract exclude as a cause of total disability a psychoneurotic disorder. The only medical evidence called on behalf of the Defendant was Dr. Pearce, a psychiatrist who has diagnosed the Plaintiff as suffering from conversion disorder which is a type of psychoneurotic disorder. Thus, if the Defendant's position is correct, the Plaintiff does not meet the requirements necessary to establish total disability. The Plaintiff's position was that the Plaintiff was suffering from a condition known as CFS, that she had been unable to engage not only in her own occupation but in fact in any occupation as that term is understood since the fall of 1989. The origin of this problem was organic and it fell within the requirements of both the Blue Book and the Contract.

[20] In order for there to be a total disability the Plaintiff must have reached the point where she was unable to perform the substantial duties of her own occupation both with respect to the Defendant and others for a period of 24 months from when the disability arose and thereafter any gainful occupation for which she is reasonably qualified. Recognizing that the words of each policy governed the interpretation of the term "total disability" I have gained some assistance from the decision of Johnston v. Alberta School Employee Benefit Plan (1995) 31 Alta. L.R. (3d) 116 where Mr. Justice Mason was dealing with the issue of long term disability benefits and in determining the meaning to be attached to "total disability" said at p. 132 in part:

"Murray, J. also considered a number of other Canadian and American authorities on this point. In essence, these authorities interpret 'any occupational total disability' to mean a disability that prevents and ensures from performing a remunerative occupation commensurate in the broad sense with his or her previous employment and income for which he or she is or can become qualified mentally or physically, having regard to age, training and experience and opportunity."

The Plaintiff prior to her employment with the Defendant in October 1985 had had a variety of jobs with the media in the area of editing and public relations and in the area of technical support in the computer field. (See Ex. 2-24.) When the job opportunity became available at the Defendant the Plaintiff concluded that she wanted to try to get out of being a technical analyst and get in the more challenging work of programming. In addition, this particular job had good benefits. She started out as a systems analyst and then progressed to being a lead technical analyst and finally a manager of computer operations where she was supervising some 35 people. She had good evaluations each year with the Defendant and her salary increased commensurately. She was a problem solving person. In her October 1989 evaluation the Defendant had this to say in part about the Plaintiff:

"Sharon is an extremely hard working, dedicated to the tasks assigned. She has taken over total support for Electronic Publishing and the environment for mainframe/9790, cleaned up years of neglect in poor maintenance, and completely procedurized it to conform to I.S. Standards for products on environments. ... She works completely unsupervised in this role. Sharon is a valuable asset to the department."

She testified that during this time her health was basically good. She had no serious complaints. She played squash three times a week, she would go on 25 to 30 km hikes, she enjoyed sailing and canoeing and lifted weights as part of her exercise program. She did volunteer work in the community and she worked within her church in an outreach program. She testified that she worked usually between 40 to 60 hours per week.

[21] In September 1989 she took a two week vacation in the form of a cruise to Florida and the Caribbean. While on the cruise she contracted what she suspected to be seafood poisoning. This started a train of events from which the Plaintiff says that she has not recovered to this day. She suffered from symptoms of diarrhea and fever, she was fatigued and her arms and legs ached. She was exhausted a good deal of the time and nauseous. It was ultimately determined by her doctor at the time, Dr. Klein, that she had contracted giardiasis. This was not discovered until November. She was given medication to treat the giardiasis. Nonetheless, headaches, muscle weakness, night sweats and exhaustion continued. In addition, she began to suffer problems with her memory. She testified that she had been an avid reader and she found herself by the time she got to p. 3 of a document not able to remember what she had read on p. 1. Of even greater significance to the Plaintiff was her inability to perform at work. When she tried to do her normal job with the Defendant she found herself totally exhausted at the end of the day. She recounted one incident where she came home so exhausted that she simply fell asleep on the couch without even taking off her coat. She spent less and less time at work. The advice that she was receiving from Dr. Klein was that once they had dealt with this viral infection, she should recover her health. As 1989 passed and the Plaintiff moved into 1990, Dr. Klein concluded that perhaps it was stress at work that was causing this problem and a change both of employment and a change of geographic location might help her.

[22] The Defendant maintained it own small medical department for employees staffed by nurses. Those nurses notes, (Ex. 4.) demonstrate graphically that prior to the onset of giardiasis the Plaintiff had attended a few times over the years to consult with the nurses. However, in the latter part of 1989 she made 16 visits and in 1990 in excess of 25 visits up to May 1990. All of these notes indicate that for reasons that the nurses certainly did not understand nor did the Plaintiff she was simply unable to perform her job notwithstanding her desire to get back working as she had. Indeed, the Defendant put her on short term disability during that period of time covering those absences. The Plaintiff herself said that when she tried to co back to work she would be exhausted by the end of the day, she could not concentrate or remember and she felt totally unproductive. Undoubtedly the most distressing thing to the Plaintiff was not knowing why in medical terms this was happening and to stop it. Dr. Klein for his part was obviously equally perplexed. At one point, he sent the Plaintiff to see a psychiatrist, Dr. Roefe. Dr. Roefe sent her for relaxation therapy for a while. The Plaintiff stopped seeing Dr. Roefe when Dr. Roefe declared that she was "too healthy and she should get out and go back to work".

[23] The Defendants in their final submissions strongly urged the Court to find that the Plaintiff was not a credible witness. I will have more to say about this submission later in this judgment. What is clear about CFS is that there is no medical "litmus test" available to point to a particular source and say that is the cause of the problem. As a result, doctors are obliged to rely upon the patients' description of the various symptoms in reaching a conclusion as to whether or not those symptoms satisfy the syndrome known as CFS. Thus for example, it was urged upon me that because Dr. Roefe had said that she was well, should get out of his office and go back to work as one of the treating physicians at the time she was employed by the Defendant I should conclude from that that she was not disabled at the time. However, the Defendant's own records support the Plaintiff's testimony that she was not able to perform her own job during that time. I have concluded that Dr. Roefe's diagnosis was correct in the sense that from a psychiatrist's point of view there was nothing wrong with the Plaintiff. She did not have any psychiatric problems and therefore that cause would not prevent her from going back to work. In addition, the Defendant pointed to the various illness reports completed by Dr. Klein and Dr. Roefe that supported her short term disability claims with the Defendant (Ex. 5). These listed a variety of descriptions of her illness of the more traditional forms of illness such as the gardiasis, depression, asthma and bronchitis and etc. That is to be expected for two reasons. One, Dr. Klein was looking for a description of an illness that the company would recognize to support the disability claim. Secondly, Dr. Klein had not yet realized that the Plaintiff's problems were much more deeply rooted than simply a viral infection. During the relevant time he concluded that the Plaintiff was suffering from a malaise but he could not find the cause. Because of her experience on her vacation, he began to investigate the possibility that a parasite had been picked up. While he treated her for that particular parasite and the condition did settle down, the Plaintiff continued to feel profoundly fatigued. She was frustrated that she could not get herself back to her former health. Dr. Klein felt that the Plaintiff was becoming depressed. For that reason he referred her to Dr. Roefe. For the period from January through to her termination of employment Dr. Klein continued to encourage her to get back to work. While she had before September 1989 complained of some fatigue after the bout with the giardiasis those complaints got exponentially worse. The Plaintiff expressed to him increasing concern about her inability to do her job. It was at that point that he concluded that he should explore with her the possibility of a less demanding job and perhaps a change of location. By May 1990 Dr. Klein had concluded that the Plaintiff could not perform in the job that she had and that it was in her best long term interest to find a job less demanding where she could set her own hours. He quite frankly did not know what the cause of her problem was but he assumed that her inability to do her job must have been caused by stress. There was no doubt from Dr. Klein's evidence that at the time the Plaintiff left the Defendant's employ that she was disabled within the definition of total disability in that she clearly was unable to perform the substantial duties of her own occupation.

[24] The Plaintiff after May 1990 relocates to Vancouver, British Columbia. At that time, she sees as her general practitioner, Dr. Martin Gerretsen. In October he treats the Plaintiff for a bladder infection but it is in March 1991 that the fatigue problems are brought to his attention. At the end of March and at the beginning of May, Dr. Gerretsen made the diagnosis that the Plaintiff had CFS. Dr. Gerretsen felt that the Plaintiff's attitude and approach to coping with that news was good. Shortly thereafter the Plaintiff returned to Dr. Gerretsen after seeing another doctor who said that that doctor did not believe there was such a thing as CFS. He counselled her further about the stressors associated with the diagnosis and had to reassure her that CFS was recognized as a disease by the medical community. The Plaintiff again expressed concerns about not being employed and able to work. Dr. Gerretsen noted that there are quite a few ups and downs with respect to CFS and there are periods of time which are described as good periods and other periods described as bad periods. For his diagnosis of CFS he understood that there are a constellation of symptoms a patient will have. He used lab tests to rule out other causes that might mimic CFS. The factors that he looked for were extreme fatigue, not waking up rested and memory impairment. He had had some opportunities to see the Plaintiff outside of his office and observed first hand the fatigue and memory impairment. He acknowledged that as to its cause it is not now known but he thought it was likely multi-factorial. It is a chronic long term illness with no cure. He did not refer the Plaintiff to a psychiatrist as the primary referral because it was not a psychiatric illness. He testified that the Plaintiff continued to struggle with this CFS. She was not employable on any consistent basis so he assisted her in making an application to UIC for a disability payment. He also assisted her in making an application to the British Columbia government for assistance in the form of a handicap benefit because of this disability. He completed the form (Ex. 7) in March 1992 in which he stated that the Plaintiff had essentially CFS and that it was prolonged and severe. In addition, he assisted the Plaintiff to make an application to the Canada Pension Plan for disability payments on the same basis and also assisted her in making an application to the company who insured her car loan again because of her disability. He said that her condition remained the same during the time that he treated her until July 1992 and it was his opinion that CFS was a physical disease. In completing these various forms he noted that for his purposes when he said that the Plaintiff was totally disabled what he meant was that she was not able to maintain a continuous, either part-time or full-time, work regime.

[25] Mr. Wilson Duward testified. He knew the Plaintiff as a result of attending a meeting of Alcoholics Anonymous in 1987. The Plaintiff had previously had an alcoholic problem. Mr. Duward became her sponsor at Alcoholics Anonymous. From 1987 to 1989 he described the Plaintiff as a very positive goal oriented person whose job was very important to her. She took it very seriously. She was very active and so far as he knew in good health. He began to see a change in the Plaintiff in the latter part of 1989. The Plaintiff was becoming more and more frustrated with being tired all the time. As a layman he attributed it to stress. Prior to this time the Plaintiff from his observations had had very high energy levels. In the business in which he was engaged, he had business in Vancouver. When he learned that the Plaintiff was in Vancouver and not employed he thought that there would be an opportunity for her to do some freelance meaningful work providing pictures for a science text. He was in charge of the production of the text. He offered her the job of doing photo research. There was an expectation of monthly meeting where she would attend with some suggested photos for the particular chapter. It was not an onerous job. To his surprise he found that the Plaintiff was not meeting these deadlines and indeed not attending the meetings. In the end, when he recognized that the job was not going to get done he finally had to terminate the Plaintiff. It was clear to him that while she was making some effort to do the job she simply could not focus on the job. The Plaintiff kept telling him that she was really trying, kept assuring him that she would be able to do it but she just did not seem to be able to get it done. Later in 1992 he spent some time in Vancouver and saw and spent a fair amount of time with the Plaintiff. He was shocked at her deterioration. It would take her all day to do a relatively straightforward and simple task. He saw the Plaintiff trying but improvement simply did not happen. He concluded that something was seriously wrong.

[26] The Plaintiff testified that when she left the Defendant's employ she did not claim for long term disability because she did not think she was disabled in the long term. Her advice from Dr. Klein was that she could do another job. There is no doubt that the Plaintiff was not then or now prepared to happily accept the suggestion that she was no longer capable of working at any job on a full time basis. She thought when she left that her condition was only temporary and by the end of the summer it would pass. When she began the process of making her claim with the Defendant and did not seem to be getting anywhere she concluded that she should seek help and accordingly saw Dr. Jorundson. Dr. Jorundson produced a report. He was recognized and qualified not only as a medical doctor but with expertise in the occupational health medicine specialty. Dr. Jorundson sees people who have health problems either physical or mental related to their work-. He estimates that to date he has interviewed at least 500 patients diagnosed with CFS and has written at least 200 reports on CFS. Recognizing that the diagnosis relies upon the patient's description of their condition and symptoms, he takes steps to evaluate the credibility of the patient. He asks about the symptoms and related functions over four to eight interviews. The questions overlap and are asked in different ways. He also uses the past history of the patient to see if it has influenced the answers. He is satisfied that this allows him to evaluate if the person is telling the truth. He concluded that the Plaintiff was being honest with him in her description of her problems. He concluded that the Plaintiff developed the condition of CFS which was triggered by the giardiasis infection. He acknowledged that the cause of CFS is unknown but in his experience infection in many cases is the last of the factors that is necessary to bring on CFS. In his opinion it is one of the factors in causation but not the causation itself.

[27] For a definition of chronic fatigue syndrome, Dr. Jorundson used the document prepared by the United States Center for Disease Control (CDC) based in Atlanta. In 1988 CDC published a document in which it established some parameter to define the condition for the purposes of encouraging doctors to do further research to see if a cause could be found. These parameters were intended to exclude other known conditions.

[28] The most recent communication from the CDC on the subject of CFS was in 1994 (E x. 2 0). I n that document under the title "Background" the Center says:

"The chronic fatigue syndrome is a clinically defined condition characterized by severe disabling fatigue and a combination of symptoms that prominently features self-reported impairments in concentration and short term memory, sleep disturbances, and musculoskeletal pain. Diagnosis of chronic fatigue syndrome can be made only after alternative medical and psychiatric causes of chronic fatiguing illness have been excluded. No pathognomonic signs or diagnostic tests for this condition have been validated in scientific studies; moreover, no definitive treatment for it exist. Recent longitudinal studies suggest that some persons affected by chronic fatigue syndrome improve with time but that most remain functionally impaired for several years."

The document goes on at p. 5 to provide a classification of chronic fatigue and indicates that a case of chronic fatigue syndrome is defined by the presence of a series of conditions set out in that document. The authors of the document and the other people identified as members of the International Chronic Fatigue Syndrome Study Group includes a very impressive array of medical personnel from well known institutions around the world. One of the principal authors of the text in this area is Dr. Fukuda. More will be said about him later.

[29] Dr. Jorundson considers CDC to be a world or at least a North American authority on this subject. Since 1990 Dr. Jorundson has been collecting articles (in the order to 800 to 1000) on this field wanting to know how the investigation of this condition was developing and what degree of disability was being experienced as a result of the condition. In his opinion, CFS is a medical organic disease injuring the body. It is not purely psychiatric. He acknowledges that you often cannot separate one from the other because in his experience a large percentage of CFS patients wind up having depression. The cause in his view is multi factorial and is the result of a number of insults over time which accumulate to produce this condition. From an occupation point of view, CFS is a major disabling condition. The patient suffers from fatigue and an inability to restore that fatigue with rest and sleep. Their ability to function on a day to day basis is interfered with such as sitting, standing, reaching and etc. Associated with it is a cognitive dysfunction, impaired memory when reading and trying to absorb information and when trying to communicate and express ideas. In addition, it is accompanied by anxiety and mood swings. It can also affect vision, hearing, balance and sense of position. To be employed you need energy to sustain your activity at work. CFS interferes with that often quite unpredictably. A person can appear normal for some periods of time. He concluded after his examination in late 1992 that the Plaintiff was totally disabled, it was likely permanent and it had started in the fall of 1989. He notes when he reviews the physicians' reports of that time that they were not looking for CFS and so their notes are not complete in this regard. He knows from his own extensive experience as well as the literature that an infection of the type that occurred to the Plaintiff in 1989 can for some reason trigger the onset of the condition. He also noted that in the early stages the patients and often times the physicians do not understand what is happening. Many patients find that they have impaired judgment and they try to push themselves when they should not. He says that it is not unusual to see doctors recommending a change of either location or work. He analyzed the medical records of the Defendant as well and it confirmed his CFS diagnosis. Those records showed to him some of the symptoms of developing CFS. In addition, he reviewed Dr. Klein's chart and that did not alter his opinion. So far as it affected her ability to work Dr. Jorundson said that, nothing could be done from 1989 on to alleviate the CFS. It is not treatable or curable. It is only manageable. I was impressed by and accept the evidence of Dr. Jorundson.

[30] Dr. Jorundson was incredulous of Dr. Pearce's opinion which was that CFS has no basis in reality. Dr. Jorundson disagreed and referred to some recent literature (Ex. 21, 22, 23) which support CFS as being an organic disease and in his opinion it is highly likely it is physically/organically based.

[3 1] Also in 1992 the Plaintiff was referred to Dr. S.C. Houston, a specialist in internal medicine and in particular in infectious disease. He found the Plaintiff with a constellation of symptoms and problems but fatigue was the dominant problem. Since he could not find any medical explanation, he concluded that her symptoms were best described as CFS. At the time he did his diagnosis the prevailing criteria was that from CDC of 1988. While devised for research purposes, he accepted the criteria as an objective criteria. He supported the Plaintiff's application for handicap assistance in Alberta and again with Canada Pension with respect to disability because what was clear to him was that the Plaintiff was disabled by the problem she was experiencing. She was simply unable to perform any strenuous physical or mental activity such as would be required to carry out the responsibility of any usual full time employment. He noted that her whole constellation of problems began specifically and suddenly in 1989 with the giardiasis and he relates the CFS back to 1989. He was originally seeing patients with this condition because it was thought that CFS might have an infectious etiology. He noted that it is not uncommon that the onset of a CFS problem seems to follow from a viral or disease infection. The common theory is that it may be provoked by an infectious disease. However, there is no hard scientific evidence as to what such an infection or viral disease does in these cases. As a result, he has lost interest in this particular area and has gone on to do other things. Dr. Houston expressed the view that he was concerned that there might be a psychological component to this condition either on a primary or secondary basis. He expressed that in his notes and in his reports that he wrote respecting this matter. Since you cannot treat CFS, helping the patient feel better may mean a psychologist might help a patient dealing with the discomfort.

[32] The last medical doctor to see the Plaintiff was Dr. Duncan Campbell. He is a recognized expert as a medical doctor with a specialty in internal medicine. Dr. Campbell frequently sees patients with CFS. He has had two to four new patients per week with this condition since about the mid-eighties. I was very impressed with the evidence of Dr. Campbell. His diagnosis was that the Plaintiff had a chronic fatiguing in the broadest sense. He says that her condition fits CFS if other causes can be excluded. The only other cause that was relevant was MS and if that is excluded then she meets the 1994 criteria established by the CDC. In terms of what might be the cause, Dr. Campbell said that it appears that if a patient is cursed with the wrong immune system and something triggers it then it can do some damage to the brain resulting in this problem. He said he is satisfied that there is very solid evidence that CFS has an organic cause that is it is an organic problem. Dr. Fukuda, one of the authors of the 1994 CDC definition, apparently originally thought that CFS was a psychiatric condition but has since changed his mind as well.

[33] I turn now to the psychiatric evidence. The only medical evidence called by the Defendant was in this area. Dr. Keith Pearce was called and qualified as an expert medical doctor and psychiatrist. From his list of publications attached to his CV it appears that since 1995 Dr. Pearce has become interested in chronic fatigue syndrome. He describes it in part in the titles of his papers as "The Resurgence of Epidemic Hysteria" or as he put it in his report, Ex. 2-42, "I am one of those physicians who believe that chronic fatigue syndrome has no basis in reality but rather is a convenient label opined on certain psychosomatic symptoms which individuals under stress develop...... He examined the Plaintiff for three hours in April 1996 in the Defendant's lawyers' office. He acknowledged freely that he approached his interview with the Plaintiff with a mind set that CFS simply does not exist. Thus there was no "independent" quality to this examination. After his interview and conducting two tests and reviewing a wide variety of medical information that had been supplied to him he concluded that the Plaintiff was suffering from a psychiatric disorder known as conversion disorder. He described it as an abnormality of the nervous system that cannot be explained by known neurological analysis and cannot be explained by other general medical conditions. It can affect all systems of the body. Essentially it converts the problem of dealing with stress into a physical form.

[34] 1 was troubled by the evidence of Dr. Pearce. My first concern is that his diagnosis of the Plaintiff was done on the basis of a preconceived notion of what that diagnosis should be. It seems from his publications that Dr. Pearce is in the process of building a career based on the idea that there is no such thing as CFS and that people who claim to have that condition really have psychiatric problems. Dr. Pearce produced a 67 page report. When those portions of the report served his purposes he was quite definite in cross-examination that he chose his words carefully. When parts of his report were put to him in cross-examination that did not serve his purposes he was quick to indicate that he had chosen the wrong word but did have an explanation for it. In addition, when he was prepared to recognize the expertise of a witness, such as Dr. Butcher, but when it appeared that Dr. Butcher might be saying something different with respect to one of Dr. Pearce's areas, his answer was that "well Dr. Butcher was not an expert in that area". In addition, one of the important tests used by Dr. Pearce was the MCMI-II and III test. This is a test which is administered to persons who are being treated for a psychiatric illness. Because the norms in the test are based on such persons the instrument is not appropriate for use with a non clinical patient. In other words, as I understood it, even a person who might otherwise be "normal" in psychiatric terms who took .this test would produce a result that showed that that person had at least some psychiatric problems.

[35] The Plaintiff called her own psychiatric evidence. Dr. Flora-Henry was qualified as a medical doctor and as a psychiatrist with a specialty in neuropsychiatry and clinical neuropsychology and in doing brain investigation with the EEG. Dr. Flora-Henry saw the Plaintiff in October 1996. He took her previous medical history, interviewed her and integrated his impressions with psychometric investigation. He concluded that she suffered from CFS and had been so since the fall of 1989. As it happened he had spent the last year and a half or so doing some EEG brain mapping, of 33 right-handed females who had been referred to him with the diagnosis of CFS without there being any indication that these patients suffered any psychiatric problems. He had a control a group of 200 "normal" right-handed women. The brain mapping that he did found an abnormal pattern for his test group of 33. This abnormality was found in the fontal portion of the left hemisphere of the brain. In the literature this is where neurology has found the likely origins of CFS. He noted with these EEG tests that he was doing that the patient cannot "fake" the results. He did a similar EEG test on the Plaintiff and he produced the mapping material as part of his report, Ex. 2-40, and a statistical analysis of where the Plaintiff fits compared his test group and his control group (Ex. 29-35). From these tests he concluded that the CFS diagnosis was confirmed because in most bands studied the Plaintiff fell within the CFS group and outside the normal group and particularly so in the fast frequencies as had his study group. The results of those brain tests he says shows a physical problem. CFS is not a psychoneurotic injury. it is organic. CFS complaints are problems finding words (cognitive) and fatigue. The immunological system is involved having been subjected to repeated infections and it is the left brain which regulates that system. Dr. Flora-Henry disagreed with the appropriateness of the particular test administered by Dr. Pearce and his interpretation of those tests. At the end of the day, Dr. Flora-Henry concluded (Ex. 2-40) at p. 5:

"The diagnostic impression is of chronic fatigue syndrome. The opinion of Dr. Pearce that such an illness does not exist is bizarre since the illness has been recognized by the Atlanta Center for Disease Control, by the American Medical Association, is recognized and is being studied in the United Kingdom and there is enormous medical literature related to it. It is a debilitating and complicated illness which involves pathological dysregulation of at least three fundamental physiological systems: the central nervous system, the hypothalamic-pituitary axis and the immunological system. A related illness is fibromyalgia. Research into that illness is currently being conducted in the department of rheumatology at the University of Alberta by Dr. Maksymowych. Although vigorously cross-examined by the Defendant Dr. Flora-Henry, did not show any of the similar predisposition to a point of view as shown by Dr. Pearce. He answered the questions put to him-forthrightly.

[36] After considering the reports, the literature and the evidence of the two psychiatrists I have concluded that I accept the opinion of Dr. Flora-Henry to the effect that the Plaintiff does not suffer from a psychiatric disorder.

[37] As previously mentioned, the principal submission made by the Defendant in approaching this case was that the case is about facts and evidence. Since CFS could not be "litmus tested" then the Plaintiff's credibility was the key issue. The Defendant submitted that the Plaintiff was not credible and therefore her claim could not be substantiated.

[38] The Defendant first referred the Court to Ex. 2-28 which was Dr. Gerretsen's file. In Dr. Gerretsen's file is an application form made by the Plaintiff to Health and Welfare Canada to their Income Security Program. As part of that application form there is a section to be completed by the applicant (in this case the Plaintiff) that describes her problems and/or limitations. She was cross-examined with respect to her description of her limitations but she generally acknowledged that what she had put in there was correct. It is significant to note that that same form contains a section completed by her doctor, Dr. Gerretsen. In referring to significant previous medical history, he notes that this matter began after a giardiasis poisoning experience and that the Plaintiff had been off work from October 1989 to May 1990 due to "fatigue". He then reports that those symptoms continued to develop to the point where he concluded that she had myalgic encephalomyelitis (otherwise known as CFS). He described it as a disabling condition which required the Plaintiff to closely monitor her energy output and noted that the Plaintiff has better and worse days. He signs this in December 1991. The Defendant next referred to a letter dated December 18, 1992 from the Plaintiff to the director of the appeals section of the income security program (Ex. 15). She had been advised that her application for disability had been denied as "she would be able to work in the foreseeable future". She states that that is not the case and that she has been unable to work since October 1989. She then encloses what she calls her "profile of an average day". She concludes towards the end of p. 2 as follows:

"I pray for the day when they can find a cure for this disease. It is very demoralising for me not to be able to work let alone build a business and continue in my career. It is very demoralising for me not to be able to even take a simple course, or to be able to do anything on a regular basis. It is very demoralising for me not to be able to even cook my meals or clean my house. I now have to depend on others' help just to get through a day at home.

[39] The Defendant next referred to an application that the Plaintiff had made for AISH assistance in Alberta in September 1992 where again she was required to describe her condition. In that document she described her loss of cognitive function, her extreme fatigue, her muscular and joint fatigue and pain and her inability to carry on even minimal tasks. Her claim was initially refused. The matter went to an appeal panel and the appeal panel reviewed the evidence of Dr. Goede, Dr. Houston and Dr. Jorundson and concluded that she was disabled and entitled to assistance. The appeal panel towards the end of their decision said:

"In view of all of the above the appeal panel has concluded that Ms. Baillie's condition can be considered to be permanent as Dr. Houston has stated it is not possible to establish a long term prognosis for this condition. She has availed herself of all the treatment that has been suggested to her that may help to lessen her symptoms somewhat. Despite this treatment her chronic fatigue syndrome has been of several years duration and continues to be severe. It does substantially limit her ability to be employed in any capacity.

[40] Notwithstanding the Plaintiff's own statement of her condition, the doctors' statement concerning her condition, the review of those doctors's statements by a variety of agencies who confirmed her condition, the Defendant nonetheless says that the fact for example that she applied for and obtained unemployment insurance from September 1990 to May 1991 and completed their card that said she was ready, willing and able to work means that she really was not disabled and that her description of her condition must be incorrect. To put the matter another way, the Defendant suggests that the Plaintiff was not telling the truth to UIC to get benefits an did not tell the truth to AISH and this Court. They submitted that there was no reasonable explanation otherwise. I do not agree. At the time the Plaintiff was getting UIC she was unaware of her diagnosis of CFS, she thought she was going to get better and there is no doubt in her own mind that she was not ready to accept that she could not hold down a normal full-time job. I have already noted that the granting of AISH assistance was done only after an appeal and after the appeal panel reviewed the medical evidence. The Defendant says that what the Plaintiff was saying in the early period from May 1990 to May 1991 was that she was disabled but simply did not know it. The suggestion was that if you were disabled you would know it and in any event if her symptoms were as bad as she says at that time how could she not know. The evidence is clear that the Plaintiff during that period of time was fighting those symptoms and was trying to regain her normal life and normal employment. She fully expected that she was going to recover from the problems that she was having and it was only in May 1991 that her world "crashed" in that regard.

[41] The Defendant next referred to a claim for disability assistance she had made to Life Investors Insurance Company of America (Ex 6) to seek their help in making car payments with respect to the loan she took out to purchase her car. She purchased a car in Vancouver in May 1990. When she became aware after May 1991 of the chronic nature of her problem she made a claim for disability payments and she completed the form saying that her disability dated from May 27, 1991. That is of course when she found out that she had CFS. Under the certificate of insurance and its eligibility it required that the Plaintiff be "physically able to perform the usual duties of her livelihood and be actively employed" at the time of taking the insurance. It was the Plaintiff's position that she was so far as she was concerned in May 1990 she was physically able to perform her usual duties because she fully expected that the change of location and change of employment would result in exactly that situation transpiring. Attached to all of that material was a statement from her physician at the time stating that she had essentially CFS and stating that it began from May 1991. That of course is when that particular doctor diagnosed her CFS condition.

[42] While in each case the Plaintiff may not have been the model of accuracy in terms of providing information, I am satisfied on all of the evidence that the Plaintiff was not dishonest. Given her lack of knowledge of what was really happening in terms of a diagnosis of her medical condition, particularly in the 1990-1991 period and the cognitive impairment that she was suffering I am satisfied that the Plaintiff was credible in her evidence before this Court.

[43] I should refer to one further matter raised by the Defendant. After Dr. Pearce had examined the Plaintiff and concluded that she had a psychiatric illness the Defendant apparently decided that they would employ a private investigator to see if they could persuade the Plaintiff to engage in activities that presumably would show that she was "faking" her condition. What this evidence did show was that to perform a relatively simple task took the Plaintiff a number of months and was never satisfactorily completed because the pictures that she took did not turn out as they should. In summary, I would apply the reasoning and conclusions of Mr. Justice Holmes in Richardson v. Great West Life Assurance Co. (1996) 41 Alta. L.R. (3d) 152 and in particular, at p. 160 par. 23-25.

[44] I also note the comments of Mr. Justice Mason in Adams v. Confederation Life Insurance Co. (1994) 18 Alta. L.R. (3d) 324 at p. 341 in par. 46. Similarly in this case, the video in question was not shown to the medial experts for assessment. I too accept that it is obvious why that was not done. In my view, it revealed nothing that would provide a useful basis for an evaluation of the Plaintiff's condition.

[45] I am satisfied on all of the evidence that the condition which causes the Plaintiff to be disabled is not a psychoneurotic disorder or behavioral disorder. I am further satisfied on all of the evidence that the Plaintiff is totally disabled as that term is used by the Defendant both in its insurance contract and the Blue Book and that that disability began prior to the time the .Plaintiff left the Defendant's employ. As a result, I have concluded that the Plaintiff is totally disabled within the meaning of both the Blue Book and the Contract and thus is entitled to disability benefits. Those benefits should have been paid from May 25, 1990. For the purpose of determining the amount of those benefits, her salary at the time she left the Defendant's employ I find to be $44,300 per annum. I will leave it to counsel for the Plaintiff and the Defendant to work out the amount of back payment owed to the Plaintiff with the appropriate pre-judgment interest as well as an arrangement for future payments. If they have any difficulty in this regard either party is free to return to the Court to seek direction.

[46] The matter of costs was not addressed during the course of argument. Once again if the parties cannot agree on the issue of costs either party may within 30 days of the date of this decision return to the Court to make submissions and obtain directions in that regard.

(Signed by Mr. Justice C. Philip Clarke)

J. C. Q. B. A.

DATED At the City of Edmonton

this 2nd day of March, A.D. 1998

Counsel:

M. E. Feehan for the Plaintiff

M. F. Feehan

Feehan & Feehan

-C.W. Ford for the Defendant

M. Mohamed

Milner Fenerty