Ruling says judge should have drawn inference against insurer who chose not to make witness testify
The New Brunswick Court of Appeal found error in the judge’s failure to infer that an insurer did not call a material witness to give testimony because it would have negatively impacted its malingering theory in a vehicular injury case.
In Mattson v. TD General Insurance Company, 2025 NBCA 114, the appellant had a motor vehicle liability policy with TD General Insurance Company. On Aug. 5, 2016, at an intersection, a truck drove through a stop sign at a somewhat high speed and violently collided with her vehicle.
The accident caused bruises to the appellant’s upper body, soft tissue injuries to her neck and back, a blow to her head, unconsciousness for at least two minutes, and amnesia relating to the accident’s circumstances.
The appellant’s treating medical professionals, including two neurologists, diagnosed her with an accident-related brain injury, along with disabling headaches, dizziness, and cognitive issues. She initially received income replacement benefits under section B of the insurance policy.
On Oct. 14, 2021, TD terminated the benefits. The insurer claimed that the appellant was malingering and could resume working in any occupation reasonably matching her education, training, or experience.
Before the court, the appellant provided voluminous medical data, supporting findings, and opinions from her treating medical professionals.
Dr. Renju Kuriakose, one of the appellant’s treating neurologists, gave testimony to support that she was not malingering and had disabling symptoms like headaches, dizziness, and cognitive challenges associated with her brain injury during the accident.
TD was able to adjourn the hearing while it considered calling two medical experts – Dr. David King, a neurologist, and Dr. Scott Theriault, a psychiatrist – to oppose Dr. Kuriakose’s oral evidence on malingering and address the judge’s stated need to hear from “dueling experts.”
Shortly before the date set for the two experts’ testimonies and after the appellant had closed her case, TD stated that it would not be asking them to testify. TD offered affidavits and reports from non-treating medical experts.
On Sept. 26, 2023, a judge denied the requested benefits upon determining, on a balance of probabilities, that the appellant failed to prove her entitlement. The judge did not infer from TD’s failure to call the two experts that the oral evidence would likely have compromised the defence. The judge noted that the appellant had not cross-examined TD’s experts.
The appellant appealed the dismissal of her claim for benefits.
Benefits awarded
The Court of Appeal of New Brunswick allowed the appeal, set aside the decision based on the judge’s legal errors, and awarded the appellant judgment amounting to $20,000 in income replacement benefits under section B of the motor vehicle liability policy, plus interest, costs, and allowable disbursements.
The appeal court noted that the appellant’s claim exceeded the maximum amount of $20,000 recoverable for damages under New Brunswick’s Small Claims Act, 2012.
First, the appeal court saw legal error in the judge’s decision to fault the appellant for her lack of cross-examination of TD’s experts. The appeal court pointed out that the appellant had no obligation to call those experts and only learned that TD would not be calling them to give oral evidence after the close of her case.
Second, the appeal court found legal error in the judge’s failure to draw an inference that TD decided not to ask Dr. King, a material witness, to provide oral evidence because it would have jeopardized its malingering theory. The appeal court added that the judge thus failed to rule on the merits of the case or reach a just determination.
The appeal court highlighted the following exceptional circumstances:
- the judge’s confirmation that she needed to hear “dueling experts” to determine the case
- the acknowledgment of TD’s counsel of the need to call Dr. King to rebut Dr. Kuriakose’s testimony negating the malingering theory
The appeal court concluded that the appellant established her claim on a balance of probabilities, given the cumulative effect of the following factors:
- the inference that TD did not call Dr. King because his oral evidence would likely weaken the malingering argument
- the voluminous record from the appellant’s treating medical professionals, which overwhelmingly supported her entitlement to benefits
- Dr. Kuriakose’s supporting testimony, which was not weakened by cross-examination
