COURT OF APPEAL FOR ONTARIO

CITATION: Spiers v. The Manufacturers Life Insurance Company (Manulife Financial), 2013 ONCA 200

DATE: 20130402

DOCKET: C55861

Blair, Tulloch and Lauwers JJ.A.

BETWEEN

James Speirs

Appellant

and

The Manufacturers Life Insurance Company carrying on business as Manulife Financial and Canon Canada Inc.

Respondent

Terrence Pochmurski, for the appellant

Adrienne Boudreau, for the respondent Canon Canada Inc.

Heard and released orally: March 19, 2013

On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated June 29, 2012.

ENDORSEMENT

[1] Mr. Speirs was employed by Canon Canada Inc. for approximately 19 years. At some point in time in May 2006, he stopped coming to work and asserted a claim for disability benefits from Canon. Short term disability benefits were paid for seven and a half weeks but not thereafter.

[2] Mr. Speirs sued Canon for the balance of the short term benefits to which he says he was entitled and The Manufacturers Life for long term benefits. The action against The Manufacturers Life was settled at mediation, but the action against Canon continues.

[3] In May 2012, Mr. Speirs brought a motion to amend his statement of claim to assert a claim for wrongful dismissal. The claim is based on the position Mr. Speirs took in January 2010, and conveyed to Canon in his lawyer’s letter dated January 13, 2010, that he was able to and wished to return to work. Canon did not respond. Mr. Speirs therefore asserts that he has been constructively dismissed.

[4] On the motion to amend, Canon argued that the wrongful dismissal claim was statute barred because the motion was brought more than two years after Mr. Speirs knew or ought to have known that he had a claim for wrongful dismissal: see the Limitation Act 2002, S.O. c. 34, sch. B, s. 5. The motion judge agreed and refused to permit the amendment. He found that “by his own admission and by the clear language of the letter written to Canon on his behalf”, Mr. Speirs knew or ought to have known “no later than January 13, 2010” that he had a claim for wrongful dismissal.

[5] Respectfully, this finding is unreasonable and unsupported by the evidence. It therefore constitutes a palpable and overriding error.

[6] It is not tenable that merely by sending a letter saying he was prepared to go back to work, Mr. Spiers would know that Canon was refusing to take him back. Some response from Canon was required either expressly or by inference. Here, there is nothing on the record to make that link.

[7] Counsel for Canon concedes that some reasonable period of time would have had to elapse after the January 13, 2010 letter within which – either expressly or by silence – Canon could be taken to have responded negatively. But what is a reasonable period of time? It could not have been at the time the letter was sent, as the motion judge found, but how long after?

[8] The motion judge did not apply his mind to this question, there were no cross-examinations, and no evidence was directed to this point.

[9] In these circumstances, we think that the limitation period issue should be left for determination at trial after discoveries and on the basis of the testimony at trial as to who understood or intended what and when. Canon can raise its limitation period arguments in defence.

[10] The appeal is therefore allowed and the proposed amendment permitted.

[11] Costs to the appellant fixed at $3,013.76 inclusive of disbursements and all applicable taxes.

[12] The motion judge made no order as to costs below and, we would not alter that disposition.

“R.A. Blair J.A.”

“M.H. Tulloch J.A.”

“P. Lauwers J.A.”