DATE: 20010406

DOCKET: C34843

COURT OF APPEAL FOR ONTARIO

RE: SAWSON SHEIBAN (Appellant (Plaintiff)) - and - WELLINGTON INSURANCE COMPANY and HALIFAX INSURANCE COMPANY ING CANADA (Respondents (Defendants))

BEFORE: CATZMAN and ABELLA JJ.A. and SPENCE J. (ad hoc)

COUNSEL: Stanley C. Tessis and Jamie R. Pollack For the appellant

Chris T. Blom For the respondent

HEARD: March 29, 2001

E N D O R S E M E N T

Released orally March 29, 2001

[1] In our view, the dispute resolution mechanism commencing at s. 279 and following of the Insurance Act sets out a comprehensive code in respect of entitlement to no-fault benefits. That code sets out a two year limitation period for claiming such benefits in s. 281(5), commencing from the insurer's refusal to pay the benefits claimed.

[2] The benefits were terminated, but it is conceded that no clear and unequivocal refusal to pay was given in this case. The absence of a refusal means that the time limit has not started to run.

[3] We are not persuaded that the six year limit in s. 45(1)(g) of the Limitations Act applies. Section 45(2) states that s. 45 does not apply where the time for bringing an action is specially limited by a statute. The Insurance Act in s. 281(5) creates such a limit by specifically limiting the time for bringing an action to two years from the date of an insurer's refusal. Therefore s.45(1)(g) does not apply.

[4] The appeal is allowed. The decision of Wilkins J. is set aside and the order of Master Linton is restored. The appellant is entitled to costs of the appeal to Wilkins J. and in this court payable forthwith after their assessment. We would not disturb the costs order made by Master Linton.

Signed: M.A. Catzman J.A.

R. S. Abella J.A.

Spence J.