Duncan McDuff

The respondent submitted a claim for long-term disability benefits under a group insurance policy, which was denied.

After exhausting the internal appeal process, she commenced an action.

The insurer brought a motion for summary judgment, arguing the action was statute-barred under both the contractual and statutory limitation periods.

The motion judge dismissed the motion, finding the contractual limitation period ambiguous and that the statutory period began only when the final appeal was denied.

The Court of Appeal upheld the decision, agreeing the contractual language was unclear and deferring to the motion judge's factual finding on when the claim was discovered.

The Court also clarified that a group disability policy is not a 'business agreement' under the Limitations Act, 2002.

Following dismissal of the defendant’s summary judgment motion, the court addressed the quantum of costs payable to the successful plaintiff.

The plaintiff sought over $35,000 in partial indemnity fees plus disbursements.

The court held that time spent by newly retained counsel familiarizing himself with the file should not be included in the costs award and that the motion involved a discrete issue and a relatively simple record.

The court declined to impose sanctions for disclosure of an expired settlement offer but ordered the plaintiff’s written submissions sealed.

Partial indemnity costs of $10,000 plus disbursements were awarded.

The defendant insurer moved for summary judgment dismissing an action for long-term disability benefits on the basis that it was commenced outside the applicable limitation period.

The court held the insurer failed to validly contract out of the two-year limitation period in the Limitations Act, 2002 because the limitation provisions in the policy booklet and contract were ambiguous and did not clearly describe the shortened limitation period.

The court further held that the statutory limitation period began to run only when the insured was advised that her final appeal of the benefits denial had failed.

As the action was commenced within two years of that date, the claim was timely.

The motion for summary judgment was dismissed and a declaration issued confirming the action was commenced within the limitation period.

The plaintiff appealed an order dismissing her action.

The application judge found evidence that the plaintiff lacked capacity to instruct counsel to commence the action.

The Court of Appeal held that the application judge erred in principle by failing to consider Rule 7 of the Rules of Civil Procedure.

Instead of dismissing the action, it should have been stayed under Rule 15.02 until an application for a litigation guardian could be made.

The appeal was allowed, the dismissal set aside, and the action stayed.

The plaintiff brought a show cause motion at a status hearing under Rule 48.14 to avoid dismissal of an action for delay.

The claim sought entitlement to critical illness benefits under an insurance policy after a thyroid cancer diagnosis, which the insurer denied based on alleged misrepresentations regarding depression treatment in the application.

The court applied the contextual two‑part test requiring an acceptable explanation for delay and absence of non‑compensable prejudice.

Although the explanation for portions of the delay was weak and attributed largely to solicitor inadvertence, the court held it was acceptable when considered in context, including the defendant’s delayed document disclosure and the document‑driven nature of the dispute.

The court also found no evidence of non‑compensable prejudice to the insurer and rejected speculative claims of future prejudice.

The action was permitted to proceed and the plaintiff was directed to establish a timetable for the litigation.

The defendant insurer brought a motion under Rule 15.02 of the Rules of Civil Procedure seeking dismissal of the action and costs against the plaintiff’s lawyer personally on the basis that the proceeding was commenced without the plaintiff’s authority.

Evidence revealed the plaintiff had suffered a severe brain injury and her counsel later asserted that she was under a legal disability, raising doubt about her capacity to instruct counsel at the time the claim was issued.

The court held that the plaintiff failed to provide evidence addressing her capacity to authorize commencement of the action.

Drawing a negative inference from the absence of such evidence, the court concluded that counsel lacked authority to commence the proceeding.

The action was dismissed and the plaintiff’s lawyer was ordered to pay the defendants’ costs on a partial indemnity basis.

The plaintiff brought a motion for summary judgment seeking a declaration that she was totally disabled and entitled to long term disability benefits under a group insurance policy.

The insurer argued that a prior settlement and release barred the claim and that there were unresolved factual issues concerning whether the plaintiff’s current condition was the same condition previously released.

The court held that determining whether the current condition fell within the scope of the prior release required medical expert evidence and credibility assessments not suitable for determination on a written record.

Additional issues remained regarding the plaintiff’s eligibility under the policy and whether she could perform other occupations after the initial disability period.

The court concluded that the evidentiary record did not allow a full appreciation of the issues on a summary judgment motion.

The plaintiff appealed a costs award made at a status hearing, arguing a denial of natural justice because he was not given an opportunity to make submissions.

The defendant cross-appealed the status hearing judge's refusal to dismiss the action for delay.

The Divisional Court found that the status hearing judge erred by failing to apply the proper test for dismissal for delay, specifically regarding whether the defendant suffered non-compensable prejudice.

The cross-appeal was granted, the original order was set aside, and the matter was remitted for a re-convened status hearing before a different judge.

The respondent was insured under an accidental death and dismemberment policy and submitted a claim for the loss of use of her leg.

The appellant insurer rejected the claim.

The respondent commenced an action slightly more than a year after submitting her proof of claim, but less than a year after the rejection.

The appellant moved for summary judgment, arguing the action was barred by the one-year limitation period in s. 206(1) of the Insurance Act.

The motion judge dismissed the motion, holding the period began upon unequivocal rejection.

The Court of Appeal allowed the appeal, holding that the limitation period begins to run when the insurer receives sufficient evidence to assess the claim, not upon rejection, and that the discoverability principle does not apply to this statutory provision.