Camilli v. Guardian Insurance, 2008 ONCA 219

DATE: 20080401

DOCKET: C46860

COURT OF APPEAL FOR ONTARIO

FELDMAN, MacFARLAND and WATT JJ.A.

BETWEEN:

NUNZIATINA CAMILLI also known as NANCY CAMILLI

Appellant (Plaintiff)

and

GUARDIAN INSURANCE

Respondents (Defendant)

Patrick Di Monte for the appellant

William J. Jesseau for the respondent

Heard: February 7, 2008

On appeal from the order of Justice Jack H. Jenkins of the Superior Court of Justice dated January 24, 2007.

ENDORSEMENT

[1] The appellant insured appeals from the order of Jenkins J. granting the respondent insurer summary judgment on the basis that the claim is barred by the passage of the applicable limitation period.

[2] The claim is for property damage caused by mould. The record shows that the plaintiff first discovered the mould at some unspecified date in 1997. She sued in 2003, hence the Limitations Act, 2002, S.O. 2002 c. 24, Sched. B which came into force on January 1, 2004, has no application. The appellant also asserts that she could not have discovered the extent of the mould until 2002. Therefore, if the limitation period is the former period of six years, there is a genuine issue for trial as to whether the claim was brought within that period.

[3] The motion judge found that the applicable limitation period is one year based on condition 14 of the statutory conditions contained in the appellant’s home insurance policy. However, the statutory conditions are found in s. 148 in Part IV of the Insurance Act, R.S.O. 1990, c. I.8 and apply statutorily only to the peril of fire. Condition 14 can, however, apply to all insured perils as a contractual provision agreed to by both parties: International Movie Conversions Ltd .v. ITT Hartford Canada (2002), 2002 23581 (ON CA), 57 O.R. (3d) 652 (Ont. C.A.).

[4] The appellant asserts that she had no knowledge of the one year limitation period contained in the insurance policy because she never received the policy, only a summary sheet. In our view, the question of whether the appellant received the policy, and if not, whether in the circumstances she is bound nevertheless by the one year limitation in condition 14 are also genuine issues for trial.

[5] In the result, the appeal is allowed and the summary judgment is set aside. Costs of the appeal to the appellant fixed at $6,000. Costs below to the appellant.

Signature: “K. Feldman J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”