Court of Appeal for Ontario

Citation: Dicaro Estate v. Manufacturers Life Insurance Company, 2012 ONCA 14

Date: 20120111

Docket: C54122

Before: Rosenberg, Simmons and Armstrong JJ.A.

Between

The Estate of Angelo Dicaro, deceased, by his estate trustee Carmela Dicaro and Carmela Dicaro Plaintiffs (Appellants)

and

Manufacturers Life Insurance Company Defendant (Respondent)

Counsel: Christian J. Guerette and Jay Rajagopalan, for the appellants Gordon Jermane and Veronica Mohan for the respondent

Heard and released orally: January 6, 2012

On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice, dated July 7, 2011.

ENDORSEMENT

[1] We agree with the motion judge that the limitation period expired in 2005. The appellant attempts to avoid the effect of that holding on a very vague notion of equity. This argument is misconceived. The insurer was entitled to rely upon the terms of the contract. The appellant did not comply with the terms of the contract and in any event, the claim did not fall within the terms of the policy as this was not an accident. Thus, there could be no unjust enrichment.

[2] Finally, there is no other equitable doctrine that would allow any court to avoid the express terms of the contract, the Limitations Act, 2002, and the Insurance Act.

[3] Accordingly, the appeal is dismissed with costs fixed at $2,500 inclusive of disbursements and applicable taxes.

"Signed: M. Rosenberg J.A."

"Janet Simmons J.A."

"Robert Armstrong J.A."