Court of Appeal for Ontario

Citation: Deck International Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309

Date: 20120511

Docket: C53138

Before: MacPherson, Gillese and Blair JJ.A.

Between:

Deck International Inc. and Richard Laurie Donaldson

Plaintiffs (Appellants)

and

The Manufacturers Life Insurance Company

Defendant (Respondent)

Counsel:

George Windsor, for the appellants

Gordon Jermane and Ted Shieck, for the respondents

Heard and released orally: May 9, 2012

On appeal from the judgment of Justice Hugh R. McLean of the Superior Court of Justice, dated December 2, 2010.

ENDORSEMENT

[1] The appellants commenced an action on February 1, 2005, in which they sought long term disability (LTD) benefits from the respondent, The Manufacturers Life Insurance Company, for a disability said to have arisen in 1990.

[2] In 1998 the appellants sought LTD benefits from the respondent for the same disability. The respondent refused to make the payments because the appellants had paid no premiums on the disability insurance policy since October 1, 1990. It is worthy of note that on December 11, 1990, the respondent had advised the appellants in writing that the policy had been cancelled effective October 1, 1990, and that any claims incurred prior to the date of cancellation had to be submitted no later than 90 days after October 1, 1990. Dental and healthcare claims were submitted but no claim for LTD benefits was made until 1998.

[3] The respondent brought a summary judgment motion and the appellants brought their own summary judgment cross-motion.

[4] The motion judge found that the limitation periods had long run in the action. He further determined that Mr. Donaldson, the individual plaintiff/appellant, was not saved by s. 7 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Section 7 prevents the limitation period from running during any time in which the person with the claim is incapable of commencing or proceeding in respect of the claim because of his or her physical, mental or psychological condition. The motion judge found that there was insufficient evidence to support a finding of incapacity such that s. 7 would apply. Accordingly, the motion judge granted the respondent’s motion and dismissed the appellants’ cross-motion.

[5] The appellants’ appeal. They submit that the motion judge failed to consider all of the evidence that was before the court.

[6] We do not accept this submission. There was no medical evidence to the effect that Mr. Donaldson lacked the capacity to commence the action within the meaning of s. 7. There was evidence from family members as to his disability, but that is not the same thing as medical evidence going to the issue of capacity to commence an action.

[7] Accordingly, we see no basis on which to disturb the judgment below. The appellants let the disability insurance policy lapse in 1990, leaving themselves with no insurance when they sought LTD benefits in 1998. For the reasons given by the motion judge, by the time the appellants commenced their action, the limitation periods had long expired. As a result, there was no genuine issue requiring a trial.

[8] Accordingly, the appeal is dismissed with costs to the respondent fixed at $7,000, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”