Date: 20180416 Dockets: CI 13-01-86371

and CI 15-01-96664 (Winnipeg Centre)

Indexed as: Kinnarath v. Delta Air Lines, Inc. et. al. Cited as: 2018 MBQB 58

COURT OF QUEEN’S BENCH OF MANITOBA B E T W E E N:

CI 13-01-86371

YASMIN KINNARATH, ) plaintiff, ) Counsel:

- and - ) ) The Plaintiff DELTA AIR LINES, INC. AND ) On her own behalf DESJARDINS FINANCIAL SECURITY INC., )

) Lorene A. Novakowski defendants, ) for the defendant,

) Delta Air Lines, Inc.

A N D B E T W E E N: )

) Brent C. Ross and

CI 15-01-96664 ) Jennifer G. Litchfield

) for the defendant, YASMIN KINNARATH, ) Desjardins Financial

plaintiff, ) Security Inc. - and - ) ) DELTA AIR LINES, INC., ) JUDGMENT DELIVERED:

defendant. ) April 16, 2018

ABRA, J.

Introduction

[1] Pursuant to Queen’s Bench Rule 6.01(1), on February 25, 2016, it was

ordered that these two actions be either consolidated or heard at the same time.

2

[2] Queen’s Bench File No. CI 13-01-86371 (“first action”) is between the

plaintiff and both defendants, Delta Air Lines, Inc. (“Delta”) and Desjardins

Financial Security Inc. (“Desjardins”). Queen’s Bench File No. CI 15-01-96664

(“second action”) initially was also between the plaintiff, Delta and Desjardins.

However, by the same order of February 25, 2016, it was ordered that the

statement of claim against Desjardins be struck out in its entirety.

[3] The parties did not take the requisite steps to consolidate the two actions.

As a result they were tried together.

[4] In the first action, the plaintiff claims:

(a) damages in the sum of $250,000 in lieu of an optional excess group

life insurance policy that she had with the defendants while the

plaintiff was employed by Delta in Montréal, Québec;

(b) damages in the sum of $187,500 which was the maximum amount

of the living benefit under the basic group life insurance that the

plaintiff had with the defendants in Montréal;

(c) damages in the sum of $15,000 in lieu of two group life insurance

policies that the plaintiff alleges that she had with the defendants for

each of her two children in the sum of $7,500 respectively;

(d) damages in the sum of $45,000 that the plaintiff alleges that she

suffered when she had to withdraw money from her pension plan to

care for herself and her two children;

3

(e) aggravated damages of $2.5 million dollars for pain and suffering,

emotional and mental distress, depression and financial hardship

that the plaintiff alleges she suffered as a result of misconduct by

the defendants, including fraud. The plaintiff alleges that all of these

factors exacerbated the terminal cancer from which she suffered;

(f) punitive and exemplary damages in the sum of $20 million dollars

for the fraudulent, callous and high-handed manner in which the

defendants allegedly conducted themselves when dealing with the

plaintiff, especially when the defendants knew that she was suffering

from terminal cancer; and

(g) interest and costs.

[5] With respect to the first action, during the trial the plaintiff abandoned the

claim for the living benefit under the basic group life insurance policy described in

paragraph 4(b). Furthermore, the plaintiff did not lead any evidence whatsoever

in support of the claims in paragraphs 4(c) and 4(d). I am therefore peremptorily

dismissing them.

[6] In the second action the plaintiff claims from Delta damages, interest and

costs for its failure and/or refusal to transfer her from Montréal to Winnipeg.

Furthermore, the plaintiff again claims punitive and exemplary damages of $20

million dollars.

[7] The plaintiff testified on her own behalf. No other witnesses testified for

the plaintiff, notwithstanding that at one of the case management conferences

4

before trial, she had indicated that she would have at least 14 and up to 16

witnesses testify.

[8] Delta had two witnesses testify. They were:

Gary Bunce, Delta’s assistant general counsel in Atlanta, Georgia;

and

Kieran Walsh, presently Delta’s manager of human resources in

Atlanta, Georgia, but formerly a member of that department.

[9] Desjardins had two witnesses testify. They were:

Isabelle Bouhier, a senior insurance contract advisor with Desjardins

in Montréal; and

Hélène Bélanger, formerly a group insurance service representative

with Desjardins in Montréal.

Background and Facts

[10] The plaintiff commenced employment with Delta at its international

reservations centre in Montréal in or about January 2001.

[11] In 2008, Delta bought another international airline, Northwest Airlines Inc.

(“Northwest”). Between 2008 and December 31, 2009, the two airlines continued

to operate as separate entities because the purchase of Northwest was a very

complex commercial transaction. It took significant time and effort to resolve and

document many issues.

5

[12] These included the integration of Northwest employees into Delta and

numerous international regulatory requirements. On January 1, 2010, both airlines

formally merged and continued to operate as Delta.

[13] None of Delta’s employees in Canada belonged to unions. There were no

collective agreements (“CBAs”) in place between Delta and any of its employees.

They were referred to as “non-contract employees.”

[14] Prior to the merger date of January 1, 2010, Delta’s employees in Canada,

including the plaintiff, had a group life insurance policy which provided basic group

life insurance of $50,000, the premiums for which were paid by Delta. In addition,

each employee had the option of purchasing excess group life insurance up to a

maximum of $250,000. The payment of the premium was the responsibility of the

individual employees.

[15] Unlike Delta, some of the Northwest employees in Canada belonged to the

United Steelworkers (“union”). After the merger, Delta assumed responsibility for

all of the CBAs with the former Northwest employees. As a result there was a CBA

between Delta and the union. The union members were referred to as “contract

employees.”

[16] After the merger, Delta and Desjardins entered into a new policy of

insurance which described group insurance benefits for both contract and non-

contract employees of Delta. The written policy was not actually finalized and

signed by representatives of both Delta and Desjardins until November 9, 2011

(“policy”). In addition to the policy, Delta and Desjardins together issued a

6

handbook to all Delta employees which described all of the group insurance

benefits. The handbook was entitled Your Group Insurance Plan (“group insurance

handbook”).

[17] In view of the fact that Delta had not previously been party to any CBAs in

Canada, it and Desjardins had to establish a new class of group insurance for

contract employees. It was referred to as Class 004. Each employee in Class 004

had basic group life insurance in the sum of $35,000, the premiums for which were

paid by Delta. When Delta assumed the CBA, it also offered to Class 004

employees the option of purchasing excess group life insurance up to a maximum

of $200,000. The employees were responsible for paying the premiums.

[18] On November 23, 2009, just prior to the actual merger date of January 1,

2010, Delta announced that it would be closing the call centre at which the plaintiff

was employed in Montréal. By letter to the plaintiff dated December 8, 2009, Delta

advised her that her employment would end on March 31, 2010.

[19] In the letter Delta described in detail the termination package that would

be provided to the plaintiff, if she did not resign her employment with Delta before

March 31, 2010. The termination package included the following:

a severance payment in the amount of $11,650;

flight privileges whereby the plaintiff and her children could travel

free or at a reduced rate on Delta and three of its subsidiaries for a

total of five years. This was based upon the plaintiff’s years of

service and her seniority;

7

medical and dental care paid by Delta for a period of three months;

career transition services paid by Delta, including re-employment

workshop; and

vacation pay for any unused and accrued vacation up to the plaintiff’s

last day of employment.

[20] Attached to the letter was a document of acceptance (“Acceptance”). The

plaintiff was advised that, if she wished to accept the severance offer, she had to

sign the Acceptance and return it by December 31, 2009. The plaintiff was

encouraged to seek financial advice before deciding whether to accept or reject

the severance offer.

[21] The letter also advised the plaintiff that, if she did not accept the severance

offer, she would receive only the amount of termination severance to which she

was entitled pursuant to the provisions of the Canada Labour Code (two days per

year of service). She would also receive the medical and/or dental services, flight

privileges and career transition services outlined in the letter.

[22] The Acceptance read:

I ACCEPT the offer set out in the letter in full and final satisfaction of any claims I have or will have arising out of my employment with Delta Air Lines, Inc. or the termination of my employment by Delta Air Lines, Inc.

[23] On December 20, 2009, the plaintiff signed the Acceptance and returned it

to Delta. Thereafter she received the severance package described in the letter

and received the flight privileges for a full five years.

8

[24] According to the plaintiff, in addition to reviewing the December 8, 2009

letter, she read a document prepared by Delta dated November 23, 2009, which

provided answers to frequently asked questions (“FAQs”). One of the sections in

the document was entitled “Transfers/Bidding Q & A.” One FAQ read:

Q5. Will there be positions available in other departments within Canada?

A. Delta Sales and Northwest ACS are the two other divisions with a

presence in Canada. Should these divisions have openings between now and the closure of the call center, these positions will be posted in the normal manner. Employees will be eligible to bid on openings. Any transfers to frontline Northwest ACS positions will be subject to the terms of the collective agreement between United Steelworkers and Northwest.

[emphasis added]

[25] The plaintiff had grown up in Winnipeg and testified that she wanted to

return to Winnipeg to live. She testified that in December 2009 she went onto the

Delta website and saw that there was an opening for a customer service agent

(“CSA”) in Winnipeg. She therefore submitted a bid for that position.

[26] The plaintiff testified that she spoke to a Delta employee who told her that

she would be eligible for the position. Nevertheless, according to the plaintiff, her

bid for the position was denied.

[27] The plaintiff also alleged that she spoke about transferring to Winnipeg with

Marcel Hebert, who was the Delta station manager in Winnipeg, and Linda Marra,

who was with Delta’s human resources department for Canada. The plaintiff

alleged that Marcel Hebert and Linda Marra both told her that there would not be

9

a problem in her transferring from Montréal to Winnipeg. She alleged that Marcel

Hebert even offered her a job if she moved to Winnipeg.

[28] The plaintiff’s last day of work with Delta in Montréal was March 31, 2010.

Thereafter, she moved to Winnipeg and, by written application dated June 25,

2010, applied for a position in Winnipeg as a part-time CSA at a salary rate of

$11.20 per hour. By letter dated June 28, 2010, Marcel Hebert offered the CSA

position to the plaintiff. She accepted and her first day of work was June 28, 2010.

[29] CSAs were contract employees and were subject to the provisions of the

CBA. Although the plaintiff was a probationary employee for the first six months,

from her first day of work on June 28, 2010, she was a contract employee.

[30] The CBA had specific provisions for filling vacant positions. If an employee

who was a contract employee wanted to transfer positions, and a position that

was a unionized position became available, that contract employee could put in a

bid for the open position. But a non-contract employee could not submit a bid for

that open position. If there were no applicants from contract employees for a

position through the bid system, applications could then be accepted from non-

contract Delta employees and/or outsiders.

[31] According to Kieran Walsh, the CSA position that the plaintiff allegedly

applied for in Winnipeg was a contract employee position. When the plaintiff

supposedly submitted her bid on the Delta website for the CSA position in Winnipeg

in December 2009, she was not a contract employee. The plaintiff only became a

10

contract employee when she started her employment in Winnipeg on June 28,

2010. Therefore her bid would have been refused automatically.

[32] Kieran Walsh further testified that:

if the plaintiff had applied for the position in Winnipeg through Marcel

Hebert within 30 days of her March 31, 2010 termination in Montréal

as she alleged, she would not have been eligible for the severance

package that she accepted. If the severance package had already

been paid, Delta would have clawed it back and the plaintiff would

have only been eligible for mandatory severance. The mandatory

severance was considerably less than the severance package that

the plaintiff accepted;

since the plaintiff applied for the position in Winnipeg more than 30

days after her termination in Montréal, the plaintiff was not entitled

to any relocation allowance from Montréal to Winnipeg;

when the plaintiff was hired for the CSA position in Winnipeg in June

2010, she was classified as an external rehire. She did not keep her

former seniority. Her rate of pay was at the bottom of the pay scale

in the CBA;

the circumstances surrounding the hiring of the plaintiff in Winnipeg

were all pursuant to the CBA. As hereinbefore indicated in

paragraph 24, the FAQ stipulated that any transfer to a former

Northwest position was subject to the terms of the CBA; and

11

the CSA position for which the plaintiff alleged that she did apply in

December 2009 was, in fact, filled by a contract employee who had

bid for the position.

[33] On September 24, 2010, less than three months after she commenced

employment in Winnipeg, the plaintiff took a leave of absence due to illness. She

subsequently was diagnosed with Stage 4 ovarian cancer. A series of medical

reports, authored by some of the plaintiff’s treating physicians, including

Dr. Robert J. Lotocki, Dr. David Peterson, and Dr. Erin C. Dean, were filed as

exhibits. Dr. Lotocki’s final report is dated June 16, 2017. The last paragraph

reads:

Yasmin Kinnarath was last seen in the Gynecology Oncology clinic at CancerCare Manitoba March 17, 2014. Assessment demonstrated no evidence of her malignancy. According to CancerCare records she has not continued any further follow-up assessments.

[emphasis added]

[34] Notwithstanding the plaintiff’s illness, Kieran Walsh testified that in 2011

the plaintiff applied for a managerial position with Delta in Edmonton. In 2012

and again in 2013, the plaintiff applied for managerial positions in Singapore. But

the plaintiff never asked to return to her position in Winnipeg.

[35] According to Kieran Walsh, in February 2011 he received a telephone call

from the plaintiff who was very concerned about numerous mistakes and errors

that had been and continued to be made by Delta in its documentation of her

12

group insurance benefits. The plaintiff was understandably concerned about her

group life insurance benefits in particular because of her cancer.

[36] When Kieran Walsh reviewed Delta’s records pertaining to the plaintiff’s

benefits, he confirmed that there were numerous mistakes. These included:

benefits to which the plaintiff was entitled had been discontinued;

many of the deductions that Delta had made from the plaintiff’s

salary to pay for benefits were wrong; and

some of the monthly confirmation statements that had been sent to

the plaintiff between July 2010 and October 2011, which described

her group life insurance benefits, were incorrect.

[37] These errors were usually the result of computer glitches. For example,

Delta’s records continued to show the plaintiff as a non-contract employee, when

in fact she became a contract employee after she joined the Winnipeg office.

[38] As a result of the mistakes, Kieran Walsh, along with Lisa Rozelle and Anne

Sullivan, who were also in Delta’s human resources department, had numerous

exchanges of telephone calls and emails with the plaintiff in an attempt to resolve

the problems. The plaintiff also had numerous exchanges of telephone calls and

emails with representatives of Desjardins, usually Hélène Bélanger.

[39] According to Kieran Walsh, the plaintiff was primarily concerned about her

optional excess group life insurance in the amount of $200,000. Both the policy

and the group insurance handbook described that the optional excess group life

13

insurance of $200,000 for a contract employee expired at the end of the month

that an employee left employment with Delta. Since the plaintiff’s last day of work

was September 24, 2010, the optional excess group life insurance terminated on

September 30, 2010.

[40] The plaintiff was given this information in a letter from Hélène Bélanger of

Desjardins dated October 4, 2011. By email dated October 17, 2011, Hélène

Bélanger also advised the plaintiff that, if she returned to work at Delta, her

optional excess group life insurance coverage would be reinstated.

[41] During her various exchanges of emails and telephone conversations with

Kieran Walsh and Lisa Rozelle of Delta and Hélène Bélanger of Desjardins, the

plaintiff had continued to request a copy of the group insurance handbook that

described all of the group insurance benefits for Class 004 employees. Initially,

neither Delta nor Desjardins were able to provide the group insurance handbook

because it was still being written.

[42] By email dated October 19, 2011, Hélène Bélanger advised the plaintiff that,

although the group insurance handbook was not yet finished, the plaintiff’s basic

group life insurance of $35,000 was in place. The email went on to advise the

plaintiff that, although the policy itself and the group insurance handbook had not

been finalized, any claim arising from the death of any Delta employee would be

processed and paid.

[43] The group insurance handbook was subsequently finished. On or about

November 10, 2011, Hélène Bélanger sent a copy to the plaintiff.

14

[44] In the meantime, the plaintiff began to consult with Tracey Epp, a lawyer

with Pitblado LLP in Winnipeg who specializes in labour relations. Between

October 18, 2011 and October 20, 2011, there was an exchange of emails between

Tracey Epp and Mike Piché, who was a staff representative with the union in

Winnipeg. As a result of that exchange of correspondence, Mike Piché agreed to

file a grievance against Delta on behalf of the plaintiff with respect to her optional

excess group life insurance.

[45] It was Delta’s position that there was no authority for the union to file this

grievance on the plaintiff’s behalf. Since individual employees decided whether to

get the optional excess group life insurance up to $200,000 and pay the premiums

for it, it was not a union benefit. It was not even mentioned in the CBA. Obviously,

however, the union did not agree with that position because on February 6, 2012,

a formal grievance was filed against Delta by the union on behalf of the plaintiff.

[46] The nature of the grievance and the settlement request provided as follows:

NATURE OF GRIEVANCE: Ms. Kinnarath has applied and paid for extended life insurance and is now being denied the benefits.

. . . . .

SETTLEMENT REQUEST: That Ms. Kinnarath is given the extended life insurance benefits and that she is made whole regarding her benefits.

[47] Unlike the optional excess group life insurance, the basic group life

insurance for employees continued for 18 months after an employee left

15

employment. The plaintiff’s basic group life insurance was due to expire March 25,

2012, which was 18 months after her leave of absence. However, prior to that

date, Kieran Walsh, on his own initiative, instructed Desjardins not to terminate

the plaintiff’s basic group life insurance until all of the problems with the plaintiff’s

group insurance had been resolved.

[48] The basic group life insurance included a living benefit provision whereby a

terminally ill employee could apply for the living benefit in advance of death. The

maximum amount that could be claimed was $187,500, but that only applied to

employees who had basic group life insurance of $250,000. In the plaintiff’s

situation, with the basic group life insurance of $35,000, she would have been

entitled to claim a living benefit of approximately $26,250.

[49] The plaintiff was aware of this situation. In a telephone conversation of

May 1, 2012, the plaintiff advised Anne Sullivan of Desjardins that she was not

interested in continuing her basic group life insurance, or converting it to another

life insurance policy. This included the living benefit. In other words, she could

have renewed the basic group life insurance, but chose not to do so.

[50] In May 2012, Gary Bunce decided to involve himself in the plaintiff’s

situation. According to Gary Bunce, Kieran Walsh had rectified many of the

problems for the plaintiff. But in Gary Bunce’s opinion the situation was still a

“mess.” He therefore wanted to put the plaintiff back in the situation that she

should have been when she went on her leave of absence in September 2010.

16

[51] Once Gary Bunce had familiarized himself with the plaintiff’s group

insurance coverage, he had a telephone conversation with the plaintiff on July 18,

2012. He proposed a resolution of the situation as follows:

(a) Delta would reinstate the $200,000 optional excess group life

insurance coverage that had expired on September 30, 2010. The

plaintiff was not an active employee of Delta because she was on a

leave of absence. The optional excess group life insurance was

supposed to be restricted to active employees. Nevertheless, Delta

and Desjardins were prepared to make an exception for the plaintiff

in that regard;

(b) Delta would pay past premiums that were owed by the plaintiff. The

plaintiff would only have to pay future semi-monthly premiums of

$14.10 ($28.20 per month); and

(c) the coverage was not tied to the plaintiff’s employment with Delta.

It was portable. If the plaintiff terminated her employment with

Delta, she could continue her coverage by paying Desjardins the

applicable monthly premiums for the coverage.

[52] According to Gary Bunce, this portability clause was well beyond coverage

that was available to any other Class 004 Delta contract employees.

[53] As a result of Delta’s offer, on September 4, 2012, Mike Piché of the union

wrote to the plaintiff and advised her that it was not proceeding with the grievance.

Included in the letter was the following:

17

On February 6, 2012, a Step 2 grievance was filed on your behalf. After numerous discussions with the Company the Union met with them at a Joint Conference to discuss your file. The meeting was held on August 17, 2012 at which time the company was prepared to offer the supplemental benefits that you were seeking. They also agreed to offer the benefits without having to pay for any past premiums at a discounted rate.

[54] In the letter the plaintiff was advised that she had the right to appeal the

union decision. The appeal had to be filed within 30 days of the plaintiff’s receipt

of the letter. The plaintiff did appeal the union’s decision in a letter dated

October 2, 2012. By letter to the plaintiff dated November 26, 2012, the Executive

Council of the union upheld the decision to close the grievance.

[55] On September 18, 2012, Gary Bunce had another telephone conversation

with the plaintiff. A draft letter to the plaintiff had been prepared in advance of

the telephone conversation to be utilized for talking points. It set out formally in

writing the offer that had been made orally to the plaintiff in July 2012.

[56] According to Gary Bunce, numerous apologies had already been made to

the plaintiff about the mistakes that Delta had made. That apology was reiterated

in the September 18, 2012 conversation and in the draft letter. He told the plaintiff

that Delta wanted to rectify the situation.

[57] In the draft letter there was no mention of reinstituting the plaintiff’s basic

group life insurance coverage of $35,000. As hereinbefore described in

paragraph 49, the plaintiff already had advised Anne Sullivan of Desjardins that

she was not interested in continuing her basic group life insurance or converting

it to another life insurance policy. This included the living benefit.

18

[58] The draft letter concluded with a request that the plaintiff provide her

answer to the offer by October 1, 2012. Gary Bunce testified that this was not a

“drop dead” date. It was merely an attempt to set a date by which the plaintiff’s

issues could be resolved.

[59] It was Gary Bunce’s recollection that the date of October 1, 2012, was

actually suggested by the plaintiff because she had to decide whether to appeal

the union’s decision to withdraw the grievance. Gary Bunce testified that Delta

would have extended the offer beyond October 1, 2012, if the plaintiff had

requested.

[60] During the conversation, the plaintiff requested a copy of the policy. The

plaintiff said that she wanted to give Delta’s written offer, a copy of the group

insurance handbook and a copy of the policy to Tracey Epp to get her advice on

the settlement offer.

[61] Generally Delta does not provide copies of the policy to employees.

Nevertheless Gary Bunce decided that a copy of the policy would be provided to

the plaintiff and he so advised the plaintiff.

[62] After the telephone conversation, the draft letter to the plaintiff explaining

the proposed settlement was put into final form. It was emailed to the plaintiff on

September 19, 2012.

[63] On September 28, 2012, another telephone conversation took place

between Gary Bunce and the plaintiff. The plaintiff rejected Delta’s offer to

reinstitute the optional excess group life insurance coverage. The plaintiff made

19

a counter-offer wherein she demanded that Delta and Desjardins each pay to her

the sum of $12 million dollars. The plaintiff also demanded retiree travel

privileges.

[64] The plaintiff went on to threaten that, if Delta and/or Desjardins did not

accept her demands, she would sue both and would also bring a complaint to the

Canadian Human Rights Commission.

[65] As a result of the plaintiff’s demands, which Gary Bunce considered to be

totally unreasonable, he decided not to send a copy of the policy to the plaintiff.

Furthermore, by email to the plaintiff dated October 16, 2012, Gary Bunce:

rejected the plaintiff’s demands;

indicated that, given the amount of the plaintiff’s demands, he had

decided that it was not in Delta’s best interest to make a counter-

offer because it would probably insult the plaintiff; and

urged the plaintiff to reconsider her position and propose a

settlement in the range of what the plaintiff could conceivably be

entitled to if she was successful in any law suit that she launched.

Analysis

[66] There is no merit to the plaintiff’s claims against Delta and Desjardins either

in the first action or the second action. To the contrary, I am satisfied that the

only reason that the plaintiff commenced these actions and proceeded to trial is

her obstinance and greed. I reiterate that she has no legitimate claim against

either of the defendants.

20

[67] I have no hesitation in finding that the plaintiff was not a credible witness.

The only evidence of the plaintiff that I do believe, or accept, is that which is

corroborated by other testimony or documentary evidence.

[68] There were numerous inconsistencies and contradictions in the plaintiff’s

own testimony. Furthermore, in cross-examination she avoided answering

questions, was evasive and consistently changed her testimony.

[69] I am reinforced in this finding by the plaintiff’s failure to have witnesses

testify whom allegedly had provided information to her. All of that evidence was

hearsay, was not corroborated and I am not placing any weight on it.

[70] For example, the plaintiff alleged that Marcel Hebert and Linda Marra of

Delta had told her that she could apply for the CSA position in Winnipeg. According

to Kieran Walsh, that information was incorrect because the CSA position was

restricted to contract employees. Marcel Hebert would have been well aware of

that situation. Kieran Walsh was emphatic that it was highly unlikely that Marcel

Hebert would have offered the CSA position to the plaintiff in advance of moving

to Winnipeg because she was not yet a contract employee.

[71] Marcel Hebert did not testify, nor did Linda Marra. I totally reject the

plaintiff’s evidence that both Marcel Hebert and Linda Marra led the plaintiff to

believe that she could transfer to Winnipeg and that she was eligible for the CSA

position in December 2009. She was not a contract employee.

[72] With respect to the first action, firstly, the plaintiff has claimed as damages

the full amount of the optional excess group life insurance. But rather than claim

21

$200,000, which was the amount of the optional excess group life insurance while

she was employed in Winnipeg, she has claimed $250,000 which was the optional

excess group life insurance while she was employed in Montréal. That amount of

group life insurance ended when the plaintiff’s employment in Montréal ended on

March 31, 2010.

[73] During the course of the trial, the plaintiff gave no explanation for this

obvious inconsistency. But I draw the inference that the plaintiff is relying upon

the Montréal optional excess group life insurance, rather than the Winnipeg

optional excess group life insurance, in order to attempt to extract an extra

$50,000 from the defendants.

[74] On the other hand, the plaintiff was prepared to take advantage of her

Winnipeg employment situation when it came to her reliance upon the CBA. The

plaintiff’s lawyer persuaded the union to file against Delta the the grievance with

respect to the optional excess group life insurance coverage.

[75] Secondly, the evidence is clear that, although both Delta and Desjardins

made some mistakes and committed some errors in administering the plaintiff’s

basic group life insurance and optional excess group life insurance, they rectified

those errors. I am satisfied that both defendants took extraordinary steps in an

attempt to satisfy the plaintiff. Nevertheless, she was totally unreasonable in her

demands.

[76] Thirdly, with respect to the basic group life insurance of $35,000 and the

living benefit, they both remained in place for more than 18 months after the

22

plaintiff took her leave of absence from Delta. It was the plaintiff who decided not

to renew the basic group life insurance. Furthermore, as I indicated previously,

during the course of the trial, the plaintiff abandoned her claim with respect to the

basic group life insurance.

[77] With respect to the optional excess group life insurance of $200,000,

pursuant to the terms of the policy, it expired on September 30, 2010. That was

the last day of the month that the plaintiff took her leave of absence.

[78] Notwithstanding all of this evidence, in view of the fact that Delta and

Desjardins had made mistakes and errors in administering the plaintiff’s policies,

it was decided collectively, by both Delta and Desjardins, to offer to the plaintiff

reinstatement of her optional excess group life insurance of $200,000.

[79] Clearly the union was satisfied that the offer was reasonable because it

withdrew the grievance. But the plaintiff rejected the offer and brazenly

threatened to sue each defendant for $12 million dollars.

[80] The plaintiff testified that she made this threat to Gary Bunce on the

telephone in a fit of anger. Nevertheless, when she started the first action and

then the second action, she continued to claim absurd sums as aggravated and

punitive damages.

[81] The plaintiff has provided virtually no cogent evidence of damage that she

suffered as a result of the errors and mistakes made by Delta and Desjardins.

Firstly, life insurance benefits, whether in individual or group life policies, generally

are only payable upon the death of the policyholder or the member of the group

23

respectively. The basic group life insurance offered by Delta and Desjardins did

have an exception in that the living benefit provision stipulated that a terminally ill

employee could apply for the living benefit in advance of death.

[82] The plaintiff never claimed that living benefit, later decided not to renew

the basic group life insurance, and abandoned the claim during the trial.

Therefore, since the living benefit exception does not apply, neither the basic

group life insurance nor the optional excess group life insurance benefits have ever

been payable because the plaintiff has not died.

[83] Secondly, the plaintiff alleged that the errors and mistakes of Delta and

Desjardins exacerbated her mental distress and depression because she was

suffering from terminal cancer. With respect to the allegation of terminal cancer,

there is very little medical evidence to support the plaintiff’s claim in that regard.

The plaintiff did not have any doctors, nurses or other such professionals, testify

on her behalf at trial.

[84] The medical reports from treating physicians, Dr. Lotocki, Dr. Peterson and

Dr. Dean, are not helpful to the plaintiff. The only mention of possible terminal

cancer is in a report dated October 22, 2012, from Dr. Lotocki wherein he wrote

that, when the plaintiff was first diagnosed with advanced ovarian cancer in

October 2010, she was quoted a 25 percent, five-year survival at that point. None

of the medical reports make any mention of the plaintiff’s allegation that her

medical condition was terminal or was exacerbated by her supposed mental

distress and depression.

24

[85] The only finding that that I can make, based upon the medical evidence

before me, is that the plaintiff may have died if she did not receive treatment. But

her cancer was treated and by March 2014, there was no more sign of it.

[86] I am not downplaying the seriousness of the plaintiff’s former illness. But

in my view it does not excuse her behaviour. It does not justify the bringing of

these two actions.

[87] It was the plaintiff’s decision not to call any evidence in that regard. Based

upon her failure to do so, I infer that the plaintiff knew that the physicians would

not support her testimony that she had terminal cancer or that she was clinically

depressed to such a degree that it affected her cancer.

[88] Leaving aside the lack of evidence to support the plaintiff’s allegation that

her cancer treatment was affected by her mental distress and depression, there is

also a total lack of evidence that the plaintiff suffered mental distress, depression

and financial hardship at all. I do not believe the plaintiff’s testimony in that

regard. There is no other evidence to support such a finding.

[89] The plaintiff did not provide any expert reports, or have any expert

witnesses testify that she ever had psychiatric, psychological or any other such

counselling. She did not have any relatives, friends, or other such people testify

to support her evidence that she was suffering from depression, emotional

distress, or any other such condition.

[90] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114,

McLachlin C.J.C. wrote (at para. 9):

25

This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith [[1996] 1 A.C. 155], at p. 189; Linden and Feldthusen [Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis Butterworths, 2006.], at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.

[emphasis added]

[91] I reiterate that it was the plaintiff’s decision to cancel the basic group life

insurance coverage and not to accept the offer to reinstitute the optional excess

group life insurance coverage. Even if she had suffered any damages as she

alleges, it was as a result of her own actions.

[92] Furthermore, if there was evidence that the plaintiff had suffered damage,

there is no evidence to support a finding that she attempted to mitigate that

damage. To the contrary, she failed to take any steps to mitigate. For example:

in 2011 and thereafter the plaintiff must have believed that she was

able to go back to work because she applied for other jobs with Delta

in Edmonton and Singapore. But she made no attempt to go back

to work with Delta in Winnipeg;

if the plaintiff had gone back to work in Winnipeg, her optional excess

group life insurance would have been reinstated;

26

the plaintiff did not take any steps to convert her basic group life

insurance, including the living benefit, to an individual policy of life

insurance. She was entitled to do so pursuant to the policy; and

she did not make any effort to apply for individual life insurance with

another insurer.

[93] For the foregoing reasons I am dismissing the plaintiff’s claim for general

damages.

[94] With respect to the claims for punitive and aggravated damages, I reject

totally the plaintiff’s assertion that Delta and Desjardins respectively were

fraudulent and caused her to suffer emotional and mental distress, depression and

financial hardship, as alleged.

[95] Apparently the fraud upon which the plaintiff relies is that she had no life

insurance coverage with Delta and Desjardins, notwithstanding that they told her

that she did. Although the policy and the group insurance handbook were not

actually available until November 2011, it is clear that the plaintiff was continually

told, and was well aware of the fact, that she did have the basic group life

insurance coverage until at least March 2012. Furthermore, before its expiration,

Kieran Walsh instructed that it remain in effect after March 2012.

[96] With respect to the optional excess group life insurance, the plaintiff would

have had it, if she had accepted Gary Bunce’s offer.

[97] In essence, it is the plaintiff’s argument that, since she did not get a copy

of the group insurance handbook describing the insurance benefits until November

27

2011, there was no insurance in place in the interim. Similarly, since the policy

was not actually signed by both Delta and Desjardins until November 9, 2011, it

was of no force and effect.

[98] That argument is ridiculous. I am satisfied that if the plaintiff had died, her

beneficiaries, or her estate, would have been paid the full amounts to which they

were entitled under the terms of the policy, if she had not cancelled the basic

group life insurance, or had accepted Gary Bunce’s offer, with respect to the

optional excess group life insurance. It is the unchallenged evidence of Delta and

Desjardins that other claims of insured employees were paid well before the policy

and the group insurance handbook were issued.

[99] According to the plaintiff’s evidence, the reason that she wanted copies of

the group insurance handbook and the policy was in order to have her lawyer,

Tracey Epp, review them. She also wanted Gary Bunce’s offer to reinstitute the

optional excess group life insurance put into writing so that she could consult with

Tracey Epp about it.

[100] Notwithstanding the plaintiff’s testimony in that regard, she did not testify

that she did consult with Tracey Epp about this issue. If indeed she did consult

with Tracey Epp, she apparently did not instruct Tracey Epp to contact Gary Bunce,

Kieran Walsh and/or Hélène Bélanger directly to discuss the issue.

[101] I am satisfied that, if Tracey Epp had spoken to or corresponded with any

of the representatives of Delta or Desjardins about the group life insurance

28

coverage, she would have been told what life insurance coverage was in place and

what options were available to the plaintiff.

[102] I have concluded that the plaintiff did not instruct Tracey Epp accordingly

because the plaintiff wanted to pretend that neither Delta nor Desjardins were

offering or providing clarification to her of her group life insurance coverage. It is

likely that she had already decided to commence legal proceedings. It was for

that reason that she threatened Gary Bunce that she would sue for millions of

dollars.

[103] Based upon the lack of evidence before me, I also reject the plaintiff’s

argument that she suffered any depression or mental distress that should be

compensated in damages. To the contrary, I am satisfied that the plaintiff

fabricated or exaggerated her allegations of depression and mental distress in an

attempt to support her claim for damages and, more significantly, aggravated and

punitive damages.

[104] With respect to the first action, I reiterate that Delta and Desjardins took

exceptional steps in an attempt to satisfy the plaintiff in view of the errors and

mistakes that had been made in the handling of her group life insurance. Delta

and Desjardins did not even request a release from the plaintiff in the event that

she accepted Gary Bunce’s offer of settlement. Instead the plaintiff rejected the

offer.

[105] Eventually Delta could see no point in attempting to satisfy the plaintiff’s

demands because they were so unreasonable. Quite frankly, I am satisfied that

29

the plaintiff’s behaviour throughout the negotiations with Delta and Desjardins was

not just unreasonable. It was disgraceful.

[106] With respect to the second action, I am satisfied that, when the plaintiff

accepted the severance package offered by Delta and signed the Acceptance, any

claim that she may have had for the loss of her employment in Montréal ended.

There was both accord and satisfaction. See Goddard v. Blackwood Hodge

Equipment Ltd., 1983 CarswellSask 228 (SKQB), [1983] S.J. No.1151 (QL) and

Sapieha v. Intercontinental Packers Ltd. (1985), 42 Sask.R. 96 (QB), [1985] S.J.

No. 66 (QL).

[107] Since the plaintiff had no position in Montréal after March 31, 2010, she

had no position from which she could transfer to Winnipeg.

[108] Furthermore, the plaintiff knew from the FAQ, hereinbefore referred to in

paragraph 24, that any application that she made for a position in a Delta office

that was unionized, such as in Winnipeg, was subject to the CBA. Since she was

not a member of the union while in Montréal, she could not transfer to the CSA

position in Winnipeg.

[109] I reiterate that I do not believe the plaintiff’s testimony that she was told

by representatives of Delta that she could transfer from Montréal to Winnipeg.

Not only was such a transfer contrary to the CBA, but the plaintiff did not submit

any independent evidence or evidence from representatives of Delta to support

her testimony in that regard.

30

[110] I am satisfied that the plaintiff accepted the severance package because

she knew that it was an attractive one. She wanted the financial incentive that

was being offered and she wanted the flight privileges.

[111] The plaintiff accepted the severance package in December 2010. She did

not even commence the second action until July 2015, whereas the first action

was commenced in November 2013. I received no explanation from the plaintiff

as to a reason for the significant delay in commencing the second action, if indeed

she believed that she had a legitimate claim.

[112] I can only conclude that she started the second action in a further attempt

to extract more money from Delta. I repeat that it is a frivolous claim.

Conclusion

[113] For the foregoing reasons I dismiss in their entirety the plaintiff’s claims

against Delta and Desjardins in the first action and against Delta in the second

action.

[114] There is no reason to believe that the parties can agree upon costs between

themselves. The parties should arrange a date for me to hear argument on the

issue of costs.

Abra J.