The Court found that the Insured was entitled to recover LTD payments from his insurer despite the fact his employment as Regional Director was terminated the day before he applied for benefits because his employment was in transition

Foff v. TransAmerica Life Canada, [2006] A.J. No. 330 Alberta Court of Queen’s Bench

This was an action brought by the Plaintiff Insured against TransAmerica Life Canada (“TransAmerica”) to recover long term disability (“LTD”) payments. On August 23, 2001, Insured’s employment as Regional Director with Great West Life Assurance Company was terminated. The next day, he obtained a certificate from his physician stating he was suffering from anxiety and depression. He subsequently made a claim for LTD benefits pursuant to his policy with TransAmerica. The claim was denied on the basis that the Insured was not employed at the time of the claim.

The LTD policy required the Insured to be unable to perform the substantial and material duties of their “regular occupation.” “Regular occupation” was defined as the occupation which the Insured was most recently engaged in at the start of the disability.

There were two issues to be determined. First, the Court was asked to determine what the Insured’s “regular employment” was as of August 24, 2001. The Court found that on August 23, 2001, the Insured was employed by Great West Life and his job was Regional Director. While he was relieved of his duties as Regional Director that same day, he was still employed by Great West Life. Accordingly, as of August 24, 2001, the Insured’s “most recent” regular employment was that of Regional Director.

The second issue to be determined was whether the Insured was totally disabled from performing the substantial and material duties of his employment, and if so, for how long. The Court found that in 2002 until December 2005, the Insured continued to suffer the same memory and concentration problems. The substantial and material duties of a Regional Manager included being a leader, which required a good memory and the ability to concentrate. The Insured did not possess those abilities at least up until December 2005 because of the depressive symptoms. On that basis, the Insured was entitled to payment pursuant to the TransAmerica policy from the qualification date to the end of 2005.

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