CITATION: Benjamin v. Primerica Life Insurance Company et al, 2017 ONSC 6273
DIVISIONAL COURT FILE NO.: DC-16-0096-00ML
COURT FILE NO.: CV-11-933-00
DATE: 20171020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gordon RSJ, Pattillo and Fitzpatrick JJ.
BETWEEN:
Claudine Benjamin
Plaintiff/Respondent
– and –
Primerica Life Insurance Company of Canada, Masood Movahedi and Hooper-Holmes Canada Ltd.
Defendants/Appellants
Dahlia Bateman, counsel for the Respondent, Claudine Benjamin.
Pamela Miehls, counsel for the Appellants, Primerica Life Insurance Company and Masood Movahedi.
HEARD: October 17, 2017
Overview
[1] This is an appeal of the order of Justice Sproat dated August 26, 2016, with leave, by which he dismissed the motion of Primerica Life Insurance Company of Canada (“Primerica”) to strike the jury notice delivered by Mrs. Benjamin, and granted the motion by Mrs. Benjamin allowing late delivery of a jury notice in a companion action against Mr. Movahedi and Hooper-Holmes Canada Ltd.
Background
[2] On October 29, 2009, Mrs. Benjamin’s husband applied for a life insurance policy through Primerica’s agent, Mr. Movahedi. Mr. Benjamin passed away on March 10, 2010. On March 17, 2010, Mrs. Benjamin received a letter from Primerica dated March 8, 2010, advising that Mr. Benjamin’s life insurance policy was cancelled because he had not completed certain medical tests.
[3] On March 3, 2011, Mrs. Benjamin began an action against Primerica (the “First Action”) seeking, among other things: “A declaration that the defendant [Primerica] is required, pursuant to Policy No. 1080013708, to pay the plaintiff the principal sum of $400,000.00 by reason of the death of Kenneth Benjamin”. The Respondent served Primerica with a jury notice in this action on a timely basis. Primerica defended this action. It disputes the existence of the policy and states that due to outstanding requests concerning Mr. Benjamin’s insurability his application had been closed and no policy granted.
[4] On March 9, 2012 the Respondent began a negligence action against Mr. Movahedi and Hooper-Holmes Canada Ltd. (the “Second Action”). In this action she alleges that Mr. Movahedi was negligent in not advising Mr. Benjamin that coverage was conditional upon the completion of further medical tests, and that Hooper-Holmes Canada Ltd. was negligent in failing to follow up with Mr. Benjamin to have the medical tests completed. The Plaintiff did not initially file a jury notice in this action.
[5] As both actions have significant factual overlap the parties agreed that it would be prudent for them to be heard together and consented to an Order dated September 26, 2012 that consolidated both actions and continued them under the First Action.
[6] The consolidated action was pre-tried on September 21, 2015. The matter was noted as proceeding before a jury and scheduled for trial on May 9, 2016 on the assumption that Hooper-Holmes Canada Ltd. would be let out of the action. It was specifically noted that the matter could not proceed at that time if Hooper-Holmes Canada Ltd. remained a defendant, given that its counsel would not then be available. Leave was given to Primerica to bring a motion to strike Mrs. Benjamin’s jury notice.
[7] Primerica brought the motion on March 15, 2016. On that day, the presiding judge, granted leave to the Plaintiff to bring a motion for late delivery of a jury notice in the Second Action and he adjourned Primerica’s motion to strike the jury notice in the First Action. He struck the matter from the May 9, 2016 trial list.
[8] Primerica’s motion to strike the Plaintiff’s jury notice in the First Action, and the Plaintiff’s motion for late delivery of a jury notice in the Second Action were heard by Justice Sproat on August 24, 2016. He set aside the consolidation order. He dismissed Primerica’s motion and granted Mrs. Benjamin’s motion. The end result was that both actions are to be determined by a jury. He consolidated the actions once again. The decisions made by Justice Sproat are the subject of these appeals.
Standard of Review
[9] The Supreme Court of Canada addressed the standard of review of an appeal from the decision of a judge in Housen v. Nikolaisen 2002 SCC 33, [2002] S.C.J. No. 31. In summary:
The standard of review on a question of law is correctness.
The standard of review for findings of fact is “palpable and overriding error”.
The standard of review for findings of mixed fact and law is “palpable and overriding error”, unless there is an extricable legal principle, in which case the standard of review is correctness.
The Decision of the Motions Judge
[10] The Motions judge dealt first with the Plaintiff’s motion for late delivery of its jury notice in the Second Action. He held as follows:
[7] Counsel for the defendant in the Hooper-Holmes action did not appear because, as confirmed to me by both counsel appearing on the motions, it does not oppose the motion to serve a jury notice in its action. The jury notice could have been served until July, 2012. By September, 2012 the actions had been consolidated. Given the fact that the plaintiff’s motion is unopposed and the unusual circumstances that, as a result of the ill-conceived consent to a consolidation order, it was unclear to the parties if the consolidated action was to proceed jury or non-jury, I grant the order permitting the plaintiff to serve a jury notice in the Hooper-Holmes action.
[11] He then turned to the question of whether the jury notice for the consolidated action should be struck on the basis that the plaintiff made a claim for declaratory relief. On that issue, his finding was as follows:
[15] To paraphrase Lang J. in Harrison, the parties want to know whether the factual circumstances are such that the plaintiff is entitled to the death benefit not what the contract language means. I agree with Lang J. that s. 108(2) of the CJA declaratory relief means a declaration of the rights of a party without coercive effect or remedial entitlement. To paraphrase Boswell J., in Reid the parties do not agree on whether a constellation of facts vitiated the insurance coverage. In substance, this is not a claim for declaratory relief. I, therefore, dismiss the Primerica motion to strike the jury notice.
The Issues
[12] With respect to the motion judge’s granting of leave to Mrs. Benjamin to serve her jury notice in the Second Action, Primerica raises two arguments:
That the motions judge incorrectly determined that the motion was unopposed; and
That the motions judge failed to engage, refer to, or consider the relevant legal test for filing a late jury notice and made the order in the absence of any evidence on any aspect of the applicable test.
[13] With respect to the motion judge’s dismissal of its motion to strike Mrs. Benjamin’s jury notice, Primerica argues that the motion judge erred by holding that Mrs. Benjamin’s claim is not, in pith and substance, declaratory in nature.
Analysis
Did the Motions Judge Incorrectly Determine that the Motion was Unopposed?
[14] In our view, the motions judge did not determine that the motion was unopposed, except by Hooper-Holmes Canada Ltd.
[15] From the transcript of the argument of the motion, it is abundantly clear that the motions judge understood and appreciated that this motion was opposed by Mr. Movahedi. This was an experienced judge. He completed and released his endorsement within two days of the argument of the motion. It is virtually inconceivable that he mistakenly understood the motion to be unopposed. Much more likely is that he simply overlooked inserting the words “by Hooper-Holmes Canada Ltd.” in the fourth sentence of paragraph [7] following the words “Given the fact that the plaintiff’s motion is unopposed”.
Did the Motions Judge Fail to Address the Applicable Test
[16] As stated by this court in Nikore v. Proper 2010 ONSC 2307, there are two key factors to be taken into account in determining whether to permit service of a jury notice after the close of pleadings: (1) The circumstances of the delay; and (2) whether there is prejudice to the other side.
[17] In support of Mrs. Benjamin’s motion there was filed an affidavit of Gary Will, who outlined the history of the proceedings, including the parties’ consent to the consolidation of a non-jury proceeding into an action in which a jury notice had been served.
[18] The motion judge found that this case involved the unusual circumstance that, as a result of the ill-conceived consent to a consolidation order, it was unclear to the parties if the consolidated action was to proceed jury or non-jury. That is an inference that may be drawn from the contents of the affidavit of Mr. Will and addresses directly the circumstances of the delay.
[19] Although the motion judge did not specifically address the issue of prejudice to Primerica, a close examination of the record indicates that there was no evidence of prejudice. This court, in Nikore v. Proper, supra, held that there is no presumption of prejudice when a jury notice is served late and that the completion of discoveries prior to the jury notice being served is not a factor relevant to the issue of prejudice.
[20] Although prejudice may be inferred when late service of a jury notice has the effect of delaying the trial, it is clear from the record that the trial would not have proceeded on May 9, 2016 in any event. Holmes-Hooper Canada Ltd. was not released from the action. Its counsel was not available for those sittings. The motion by Ms. Benjamin to serve the jury notice was not the cause of the trial adjournment.
[21] There has been no other allegation of prejudice and no evidence from Primerica on the issue of prejudice. Indeed, counsel for Primerica conceded before us that there is no other prejudice alleged. In the circumstances, it was not necessary for the motion judge to make a specific finding that there was no prejudice.
[22] A fair reading of the decision of the motion judge indicates that he did, in fact, consider the evidence that was put before him relating to the factors at issue. There is no error that would warrant the intervention of this court.
Is Mrs. Benjamin’s Claim Declaratory in Nature?
[23] It is now generally accepted that the nature of a claim is not determined by the manner in which it is worded, but by discerning the pith and substance of the claim.
[24] The motions judge in this case adopted a line of reasoning set out by Lang J. (as she then was) in the case of Harrison v. Antonopoulos, [2002] O.J. No. 4890. In our view he correctly determined that Mrs. Benjamin’s claim is, in pith and substance, a claim for monetary damages rather than a claim for declaratory relief. As noted by Lang J., it is of assistance to ask: What is the Plaintiff seeking in this case? When the answer to that question is that the Plaintiff is seeking a sum of money, the nature and extent of which is made definite by the declaration sought, the Plaintiff’s claim is, in pith and substance, a claim for payment of that money. This is to be contrasted with a claim in which the Plaintiff looks to the court to determine the nature of the respective rights of the parties but seeks no immediate order requiring the Defendant to do anything. In such a case the Plaintiff seeks a true declaration so that the parties may, with the court’s determination, assess their positions, understand their respective rights, obligations and entitlements, and act accordingly.
Conclusion
[25] The Appeal is dismissed.
[26] Costs are awarded to Mrs. Benjamin in the amount of $9,500.00.
R. D. Gordon, R.S.J.
L. A. Pattillo, J.
F. B. Fitzpatrick, J.
Released: October 20, 2017
CITATION: Benjamin v. Primerica Life Insurance Company et al, 2017 ONSC 6273
DIVISIONAL COURT FILE NO.: DC-16-0096-00ML
COURT FILE NO.: CV-11-933-00
DATE: 20171020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gordon RSJ, Pattillo and Fitzpatrick JJ.
BETWEEN:
Claudine Benjamin
Plaintiff/Respondent
– and –
Primerica Life Insurance Company of Canada, Masood Movahedi and Hooper-Holmes Canada Ltd.
Defendants/Appellants
REASONS FOR JUDGMENT
Released: October 20, 2017