COURT OF APPEAL FOR ONTARIO

2015 ONCA 162

DATE: 20150312

DOCKET: C59477

Cronk, Gillese and Brown JJ.A.

BETWEEN

Patricia Thompson

Appellant

and

Sun Life Assurance Company of Canada

Respondent

Andrew R. Kerr, for the appellant

Dina Konduros, for the respondent

Heard: March 10, 2015

On appeal from the judgment of Justice David Salmers of the Superior Court of Justice, dated September 9, 2014.

ENDORSEMENT

[1] The appellant, Patricia Thompson, appeals from the judgment of D. Salmers J. dated September 9, 2014 which granted summary judgment dismissing her action. The only evidence on the summary judgment motion was that filed by the respondent, Sun Life Assurance Company of Canada (“Sun Life”); Ms. Thompson did not file any evidence.

[2] Ms. Thompson was employed by Casino Rama Services Inc. (“Casino Rama”) from June, 1996 until September 19, 2008. Sun Life had issued a group policy of insurance to Casino Rama (the “Policy”) which was in force during that period of time, and Ms. Thompson was an eligible employee of Casino Rama for the purposes of long-term disability benefits under the Policy.

[3] Casino Rama terminated Ms. Thompson’s employment on September 19, 2008. Ms. Thompson commenced her action on September 17, 2010. In her statement of claim, Ms. Thompson claims payment of long-term disability benefits from September 20, 2008, for the duration of her disability.

[4] Prior to issuing her statement of claim, Ms. Thompson had not submitted any proof of claim under the Policy seeking disability benefits.

[5] The primary ground of appeal advanced by Ms. Thompson is that the motion judge erred in concluding that her action was barred by reason of a contractual one-year limitation provision contained in the Policy. We agree that the motion judge erred in reaching that conclusion.

[6] The January 1, 2006, Group Benefits Handbook for the Policy described the limitation period for long-term disability benefit claims as follows: “No legal action may be brought by you more than one year after the date we must receive your claim forms or more than one year after we stop paying Long-Term Disability benefits.”

[7] In his reasons, the motion judge simply wrote in respect of this issue: “The plaintiff’s claim in this action is barred by the contractual one-year limitation provision of the policy.” The reasons of the motion judge do not explain how he reached that conclusion. Section 22 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, permits the variation of the general two-year limitation period set out in s. 4 in two circumstances. First, s. 22(2) provides that a limitation period under the Act may be varied or excluded by an agreement made before January 1, 2004. Second, s. 22(5) provides that the s. 4 limitation period may be varied or excluded by a business agreement made on or after October 19, 2006.

[8] The motion judge made no finding whether the Policy was made before January 1, 2004. Nor did the motion judge make any finding as to whether the Policy was a “business agreement” within the meaning of s. 22(5) of the Act. In the absence of such findings, the conclusion by the motion judge that Ms. Thompson’s action was barred by the contractual one-year limitation provision of the Policy is not supportable.

[9] Moreover, in light of this court’s decision in Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, which was released after the motion judge had granted summary judgment in this case, there is strong reason to doubt that the Policy would fall within the “business agreement” exception contained in s. 22(5) of the Act.

[10] Notwithstanding that the motion judge erred in dismissing Ms. Thompson’s action on the basis of the contractual limitation period, other findings he made supported the action’s dismissal.

[11] First, the motion judge held that Ms. Thompson had not met qualifying conditions of the Policy, stating:

Under the policy, the plaintiff’s coverage for disability benefits ended when her employment terminated on September 19, 2008. The plaintiff made no claim while she was an employee. The plaintiff did not make a claim for benefits within the 60 day period after disability that is required pursuant to the policy.

[12] These conclusions were based upon the uncontroverted evidence filed by Sun Life, and there is no reason to interfere with them.

[13] Second, the motion judge also concluded that Ms. Thompson’s action was barred by the statutory two-year limitation period in s. 4 of the Act. In para. 7 of her statement of claim, Ms. Thompson had pleaded:

In August of 2008, while the aforesaid policy was in full force and effect, the Plaintiff…became totally disabled from her employment as a result of severe pain in her foot, leg, hip, groin and back.

[14] The pleading thus indicates that Ms. Thompson discovered her total disability in August, 2008. However, she did not commence this action until more than two years later, on September 17, 2010, making her action statute-barred.

[15] We see no error in these additional reasons given by the motion judge for dismissing Ms. Thompson’s action. Indeed, we agree with them.

[16] The appeal, therefore, is dismissed. Sun Life is entitled to its costs of the appeal, fixed in the sum of $2,700, inclusive of disbursements and HST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“David Brown J.A.”