CITATION: Black v. The Dominion of Canada General Insurance Co., 2007 ONCA 719

DATE: 20071018

DOCKET: C45967

COURT OF APPEAL FOR ONTARIO

MOLDAVER, LANG and LAFORME JJ.A.

BETWEEN:

MAUREEN BLACK

Plaintiff (Respondent)

and

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY

Defendant (Appellant)

Lee Samis and Louise Kanary for the appellant

Stanley C. Tessis and Courtney Toomath-West for the respondent

Heard and endorsed: October 17, 2007

On appeal from the judgment of Justice G. Patrick Smith of the Superior Court of Justice dated August 22, 2006.

APPEAL BOOK ENDORSEMENT

[1] This was a summary judgment motion. At para. 28 of his reasons, the motion judge stated that:

The essential question before the Court is whether the Defendant, at any time, has fully complied with the requirements of Section 64 of the Schedule and the applicable Guidelines to allow it to terminate the Plaintiff’s benefits.

[2] On our review of the record, we are satisfied that the motion judge correctly defined the issue as it was presented by the appellant. We are further of the view that he properly assessed that issue and that he made no error in his analysis or conclusion.

[3] While the appellant has attempted before us, to raise an argument about the status of the respondent’s disability during the period prior to rescission, that issue was not raised before the motion judge and it lacks an evidentiary base. As indicated, the only issue raised was the question of the appellant’s compliance with s. 64(14) of the Schedule. In the circumstances, it does not lie with the appellant to raise this issue for the first time on appeal.

[4] With respect to the s. 68 compound interest issue, we are of the view that Mascitti v. Gore Mutual Insurance Co., [2005] O.J. No. 3668 (Ont. Sup. Ct.) and Attavar v. Allstate Insurance Co. of Canada (2003), 63 O.R. (3d) 199 (Ont. C.A.), provide a complete answer in favour of the respondent. In particular, there are no unusual circumstances present in this case that might have justified a different conclusion (see Attavar at para. 42).

[5] In the result, the appeal is dismissed.

[6] Costs to the respondent fixed at $24,591.25 inclusive of G.S.T. and disbursements.