In a significant victory for our injured client, Derek Ballard recently obtained an Order at the Ontario Court of Appeal setting aside a lower court decision which granted summary judgment to the Hospitals of Ontario Pension Plan ("HOOPP") and dismissed our client’s action against it.

Our client was a Registered Nurse since 1973 and suffered serious injuries to her knee in a fall. After many failed surgeries she required total knee replacement. She applied for a Disability Retirement Pension through her pension plan, HOOPP, claiming she is "Totally and Permanently Disabled" under the Plan definition.

HOOPP’s Physician found that she was Totally Disabled but indicated he could not be certain as to whether her condition was Permanent. Therefore, her application was denied. The Plan provided for an Appeal Process which involved the appointment of an Independent Medical Examiner tasked with resolving the dispute between the Plan Physician and the Member’s Physician.

Ultimately, HOOPP interpreted the report of the Independent Medical Examiner as concluding that our client was not Totally Disabled. We commenced an action for breach of contract on her behalf. Justice Kelly of the Superior Court of Justice granted summary judgment to HOOPP finding that:

The provisions... of the Plan are clear and unambiguous. They expressly provide a complete mechanism through which medical doctors determine whether a member is "Totally and Permanently Disabled" and should therefore receive a disability retirement pension.

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There was no fraud or collusion involved in the application or appeal process for the benefits. All avenues of appeal have been exhausted. There are no material facts in dispute and no additional facts would be adduced at trial that could have an impact on the outcome of this action. Accordingly, I am granting summary judgment to HOOPP."

In its implementation of the Appeal Process, HOOPP did not advise the Independent Medical Examiner that HOOPP’s own Physician had already determined she was, in fact, Totally Disabled. It was therefore argued that the Independent Medical Examiner ought to have been instructed, pursuant to the terms of the Plan, that our client was already found to be Totally Disabled and the only issue in dispute between the parties was the permanence of the condition.

In setting aside the Order which granted summary judgment to HOOPP, the Court of Appeal found:

"...the dispute between the two was whether the appellant's total disability was permanent. Whether she was totally disabled was not in dispute.

Because the plan administrator did not ask the independent medical referee to provide an opinion in accordance with the relevant contractual provision, there is a genuine issue for trial as to the consequence of that failure and the remedy available for the member."

Significantly, the Independent Medical Examiner did find that our client’s condition was not going to improve, i.e., it was permanent.

The Court of Appeal’s reasons are available at: http://www.canlii.org/en/on/onca/doc/2009/2009onca583/2009onca583.html