Court File and Parties

Court File No.: DC-08-4

Released: 2008/10/31

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Co-operators Life Insurance Company v. Robin Thomas Smith

Before: Marshman, Aitken and Swinton JJ.

Counsel: Robert W. Dowhan for the Appellant Co-operators

No one appearing for the Respondent Robin Thomas Smith

Heard at Hamilton: October 29, 2008

ENDORSEMENT

[1] At the hearing of this appeal, the appeal was allowed with reasons to follow. These are the reasons for the decision.

[2] The Appellant, Co-operators, appeals from an order granting partial summary judgment and declaring that the Respondent Smith’s action for disability benefits was commenced within the appropriate limitation period.

[3] Although the motions judge correctly instructed herself on the law with respect to summary judgment and held that a discoverability issue must proceed to trial, she erred in holding that a clear and unequivocal denial was necessary to trigger the limitation period between the insurer and insured in this case. See Irish v. Sun Life Assurance Co. of Canada (2003), 65 O.R. (3d) 87 (C.A.) at para. 14.

[4] In this case, the applicable legislation is the Limitations Act, 2002, S.O. 2002, c. 24, ss. 4 and 5:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5.(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[5] The Respondent’s monthly benefits were terminated as of December 31, 2003. His action was commenced in September 2006. Based on a rolling limitation period, under s. 5(2), it would be presumed that the Respondent was barred from claiming benefits for the period prior to September 5, 2004, unless he established that he did not have knowledge of the existence of his cause of action for the period from January to September 2004 and could not, with reasonable diligence, have become aware of his cause of action.

[6] Discoverability issues were raised by the Respondent. That raised a genuine issue for trial. Accordingly, the motion judge should not have determined the issue on a motion for summary judgment.

[7] The appeal is allowed. The order of the motions judge is set aside. The Appellant advised us that no order of costs is required.

Marshman J.

Aitken J.

Swinton J.

Released: October 31, 2008