Mattson v. TD General Insurance Company, 2025 NBCA 114
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By: Hayley Gardner (Articled Clerk)
This action arose out of a motor vehicle accident in which the appellant, Ms. Mattson, suffered serious injuries to her upper body, neck, and back, including a major blow to the head. Following the accident, Ms. Mattson began receiving weekly income replacement benefits from her Section B insurer, TD Insurance.
In the first two years following the accident, Ms. Mattson was eligible for benefits by virtue of being disabled from her regular pre-accident occupation. After two years of receiving benefits, Ms. Mattson was required to be disabled from performing the duties of any occupation for which she was reasonably suited by education, training or experience to maintain entitlement. Ms. Mattson had provided a high volume of medical records to TD which contained the findings and opinions from her treating medical professionals in support of her disability.
Shortly before the two-year mark following the accident, TD retained the services of a physiatrist and a neurologist to examine Ms. Mattson. The conclusions of these exams were that Ms. Mattson was malingering and that she did not suffer a brain injury in the accident and was not prevented by any injury from returning to work. Despite this, TD continued to pay Ms. Mattson her weekly income replacement benefits for an additional three years. Her benefits were eventually terminated by TD more than five years after the accident.
After the termination, Ms. Mattson made a claim through the Small Claims Court for the value of her lost benefits. The adjudicator denied the claim and Ms. Mattson appealed to the Court of King’s Bench. At the Court of King’s Bench, the trial judge had identified what she called a “serious problem” with the evidentiary basis of the case, which contained duelling expert opinions. She declined to decide the case based solely on the documentary record filed by the parties and indicated that she would need to hear oral testimony from TD’s medical experts.
TD requested and was granted an adjournment to consider calling two of its medical experts whose affidavits were already in evidence. However, TD later advised, at the last moment, that it would not be calling either of the experts to give oral evidence. The trial judge ultimately found that Ms. Mattson had not established entitlement to the benefits and dismissed the action.
The question on appeal was whether the judge had erred in law by not drawing an adverse inference against TD for failing to call its experts and instead criticizing Ms. Mattson for failing to cross-examine TD’s experts. The Court of Appeal discussed the fact that one of the experts identified by TD but not called, Dr. King, was the neurologist who first suggested that Ms. Mattson was malingering. This was a fact that TD’s defence had relied heavily upon at the hearing.
The Court of Appeal noted that Dr. King was clearly a material witness on the issue of malingering. Given the fact that Ms. Mattson’s neurologist had testified that she was not malingering, TD’s failure to call Dr. King to dispute this finding was a significant omission which should have led the judge to draw an adverse inference against TD. Further to this, the Court of Appeal also clarified that Ms. Mattson was not under any obligation to call TD’s experts as part of her case. TD’s experts were not cross-examined by Ms. Mattson simply because TD had decided against calling them. No adverse inference could be drawn against Ms. Mattson for this fact.
The Court of Appeal granted judgement in favour of Ms. Mattson for the sum of $20,000 in income replacement benefits, plus interest.
