DATE: 20031003

DOCKET: C38731

COURT OF APPEAL FOR ONTARIO

RE: RACHEL DESJARDINS (Plaintiff/Appellant) –and– THE PAUL REVERE LIFE INSURANCE COMPANY and LUC BLAIS (Defendants/Respondents)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL: Jeffrey William Strype for the plaintiff/appellant

Sally Gomery for the defendant/respondent The Paul Revere Life Insurance Company

Peter F. Yaniszewski for the defendant/respondent Luc Blais

HEARD: September 29, 2003

On appeal from the order of Justice V. Jennifer MacKinnon of the Superior Court of Justice dated July 26, 2002.

E N D O R S E M E N T

[1] On this appeal from the order of MacKinnon J., the appellant raised for the first time, and the respondents replied to, a question that was not raised or argued on the hearing of the original motion: whether the appellant’s claim against either or both of the respondents is barred by the expiration of applicable limitation periods under the law of the province of Quebec.

[2] Although loss of juridical advantage is but one of the factors for consideration on such a motion, it became clear in argument that the resolution of this question might have a significant bearing on the disposition of this appeal. There was no material filed on this question before MacKinnon J., nor, assuming that it could properly have been adduced, before us. The difficulty with which the lack of any such material presented this court is that we did not feel that we could, or indeed should, appropriately resolve the issue of juridical advantage in the absence of any evidence.

[3] Accordingly, we direct that the order of MacKinnon J. be amended to provide for a conditional stay of the Ontario action pending the final determination, under the law of the province of Quebec, of the question whether there is a limitation period or periods applicable in respect of the appellant’s claim against either or both of the respondents. Following the final determination of that question, it will be open to any of the parties to move in this action in the Superior Court of Justice to remove the conditional stay or, conversely, to move to make the stay final and binding, and the parties may advance any and all arguments they consider appropriate to the determination of the motion.

[4] The appellant will pay the costs of the respondent Luc Blais in connection with this appeal in the amount of $2,500. We make no order for costs in favour of the respondent Paul Revere Life Insurance Company.

Signed: “D. O’Connor A.C.J.O.”

“M.A. Catzman J.A.”

“M.J. Moldaver J.A.”