COURT OF APPEAL FOR ONTARIO

CITATION: Gresty v. Howard Mutual Insurance Company, 2014 ONCA 845

DATE: 20141126

DOCKET: C58679

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

David Gresty

Plaintiff (Respondent)

and

Howard Mutual Insurance Company

Defendant (Appellant)

David M. Miller, for the appellant

James E.S. Allin, for the respondent

Heard and released orally: November 20, 2014

On appeal from the order/judgment of Justice Bruce Thomas of the Superior Court of Justice, dated March 24, 2014.

ENDORSEMENT

[1] Although this point was not argued below and in this court, it was raised by the panel, on appeal, the appellant concedes that the limitation period for the benefits that may be owing for the two years preceding the issuance of the respondent’s statement of claim has not expired. However, the parties disagree over when the applicable limitation period(s) commence.

[2] In our view, the motion judge failed to clearly assess this issue of whether and when the applicable limitation period(s) commenced in relation to the notices that were delivered. On the record before us, and based on the arguments advanced, we are unable to determine this issue or issues.

[3] Accordingly, the issues are more properly determined in the court below on a more fulsome evidentiary record and with the benefit of more focused submissions.

[4] In the circumstances, the appeal is allowed in part and paragraph 1 of the motion judge’s order is set aside. There will be no order as to costs of the appeal.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“M.L. Benotto J.A.”