The prediction by the World Health Organization is that in less than twenty years, depression will be the second leading cause of disability in the world. In general, recognized symptoms of depression include, anhedonia "“ inability to experience pleasure or loss of capacity for pleasure, appetite disturbance with associated weight loss or gain, sleep disturbance (insomnia or oversleeping), psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or guilt, impaired concentration or indecisiveness, preoccupation with death or suicide. 1

A diagnosis of depression does not necessarily connote disability. For some, depression can be managed effectively with antidepressant medications and psychotherapy. For those who do not respond or respond only superficially to these treatment modalities, however, depression can be severely debilitating, affecting activities of daily living, social functioning and functioning in the workplace.

Disability carriers are increasingly being faced with claimants seeking disability benefits on the basis of mental illness. These types of claims pose their own unique challenges. The potentially subjective nature of the symptoms associated with mental illnesses such as depression can lead to disputes as to functional limitations and these types of disabilities are often approached with skepticism by insurers.

Disability insurance policies usually categorize disability into two subsets. "Own occupation" classifications, where the test applied is whether the insured is unable to perform his or her own occupation (the occupation in which he or she was engaged in at the time of commencement of disability) and "any occupation" classifications, where the scope is broadened and the insured must satisfy the insurer that he or she is disabled from performing any occupation. 2

Generally the "own occupation" test is time limited, often restricted to a two-year period. The "any occupation" test does not encompass any possible occupation but rather, has commonly been interpreted to mean an occupation for which an insured would be "reasonably suited" by means of his or her "training, education and experience".

The application of the "any occupation" test is subjective in that it is tailored to the individual's idiosyncratic "training, education and experience". As such, the determination, although a legal one, is largely based on the specific factual matrix including, the insured's education or lack thereof, age, work experience and medical condition . The interpretation of "total disability" by our courts has further circumscribed the "own occupation" and "any occupation" tests.

In Sucharov v. Paul Revere Life Insurance Co. 3 the court rejected the interpretation that being able to perform each employment task individually, amounted to a determination that the insured was not completely unable to engage in his regular occupation. Instead, the court adopted a more holistic interpretation and looked at whether the insured was unable to perform "substantially all" of his employment duties.

In Foden v. Co-Operative Insurance Association 4, Reid J. held that a person who was unable to perform a "substantial portion" of his or her employment, or an essential or material aspect of it, or, in general was unable to perform tasks to the standard of a reasonable employer, was totally disabled.

In considering whether an insured is totally disabled from "any occupation", our courts have held that the test is not, whether there is a job within the insured's capability but whether there is a full time job for which the insured is reasonably fitted by what he or she has done before. Thus, issues such as reasonably comparable remuneration and status and, whether the proposed alternative employment is of a similar nature to the insured's previous employment, are taken into consideration. 5

A determination by the insurer that an insured is "totally disabled" from his or her "own occupation" or from "any occupation" and therefore entitled to benefits, does not mean that an insured is automatically entitled to continue receiving benefits indefinitely. There is an obligation on the insured to make reasonable efforts to rehabilitate. A failure to do so could result in a termination of benefits by the insurer and may result in a reduction in the benefits awarded by a court based on mitigation of damages principles.

The law on mitigation of damages is set out in the Supreme Court of Canada decision of Janiak v. Ippolito 6 as follows:

"Every plaintiff has a duty to minimize losses from personal injury by surgery or other medical treatment. The general rule of mitigation of damage applicable to both breach of contract and tort is that the aggrieved party must take all reasonable steps to mitigate the loss and cannot claim for avoidable loss"¦Failure to mitigate, however, does not mean that the total claim of the plaintiff is barred or has disappeared. It is merely reduced in the case of contract and tortious damage to property, to the loss the plaintiff would have suffered if he had acted reasonably. There is no reason in principle why the same rule should not apply in personal injury cases." (My emphasis)

With respect to the burden of proof, Madam Justice Wilson states in Janiak v. Ippolito 7 that:

"While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss".

Although mitigation of damages is an accepted principle in our law, many disability insurance policies now specifically incorporate rehabilitation clauses. These clauses may require the insured to undergo therapy, treatment, rehabilitation programs or retraining aimed at reintegrating the insured into the workforce.

In considering whether a plaintiff has failed to mitigate damages, our courts generally consider the steps that the plaintiff would have been required to take to prevent or minimize the loss, the reasonableness of those measures and the extent to which pursuing those measures would have minimized or prevented the loss 8.

Thus a defendant alleging that a plaintiff has failed to mitigate his or her damages has the burden of proving these elements.

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