Shannon v. Canadian Medical Protective Association, 2016 NBQB 4
The plaintiff, Shirley Shannon, had been sexually assaulted by
her psychiatrist Dr. Akoto. Shannon suffered emotional and
mental distress as a result of the sexual assaults and attempted
suicide resulting in extensive physical injuries. Dr. Akoto
fled the jurisdiction. Shannon obtained a default judgment
against Dr. Akoto which remained unsatisfied. Dr. Akoto had
been a member of the Canadian Medical Protective Association (CMPA)
at the time of the sexual assault and for a period of time
Shannon filed an action against the CMPA seeking to recover the
damages and costs awarded by the court in the initial action
against Dr. Akoto. Shannon maintained that Dr. Akoto was
insured by the CMPA and that the CMPA was liable to indemnify
Shannon for the injuries and resulting damages arising out of Dr.
Akoto's breaches of fiduciary duty, malpractice and
The CMPA disputed the allegations submitting that it was not an
insurer nor did it provide contracts of insurance for
physicians. The CMPA maintained that it was a mutual defence
association for physicians which provides assistance to physicians
in regard to potential liability arising out of the practice of
medicine on a purely discretionary basis.
The court held that the CMPA was not an insurer and did not owe
Dr. Akoto a contractual right to indemnification as a member of the
CMPA. The assistance offered by the CMPA to its members was
found to be discretionary. The court was of the view that the
key components which are essential to establish the existence of an
insurance contract, such as a specific undertaking to indemnify
against any particular loss, risk or peril, were not present in the
relationship which existed between the CMPA and its members.
As the CMPA was not an insurer, the court held that subsection
104(1) of the New Brunswick Insurance Act did not apply
and Shannon could not recover the damages awarded to her in the
initial action against Dr. Akoto by way of the statutory right of
action against an insurer provided for in subsection 104(1) of the
Shannon's action was dismissed. As Dr. Akoto has fled
the jurisdiction, her substantial judgment for damages resulting
from the sexual assaults remains unsatisfied.
This case dispels the widely held belief that the CMPA is the
provider of medical malpractice insurance for Canadian
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