Court of Appeal for Ontario

Docket: C63568

Panel: Hoy A.C.J.O., MacFarland and Huscroft JJ.A.

Between

Kevin Pepper Plaintiff (Respondent)

and

Sanmina-Sci Systems (Canada) Inc. and The Standard Life Assurance Company of Canada Defendants (Appellant)

Counsel

Elizabeth Bennett-Martin and Stephen Simpson, for the appellant

Brian A. Pickard, for the respondent

Heard

September 12, 2017

On Appeal

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 6, 2017, with reasons reported at 2017 ONSC 1516.

Reasons for Decision

[1] On the facts of this case, the insurer appellant stopped paying long-term disability benefits to the respondent claimant on November 1, 2007. At that point, the respondent had a cause of action against the appellant – and ought to have been aware that he did. Indeed he retained litigation counsel in early January, 2008 to deal with his claim for disability benefits. This fact belies any suggestion of a lack of awareness of the appropriateness of commencing a lawsuit at that point in time.

[2] As the motion judge noted, this policy of insurance provides no formal appeal process for when a claim is denied, and there is no alternate statutory appeal process as there was in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709.

[3] There is no obligation on an insurer to advise its insured about statutes of limitation and, in this case, the dealings between the appellant and the respondent in attempting to resolve the claim do not give rise to an estoppel argument.

[4] The motion judge in his reasons noted that it would have been "prudent" for the solicitor retained by the respondent to treat November 1, 2007 as the commencement date for the running of the limitation and he ought to have stopped his analysis right there. It was not just a matter of prudence but of legal correctness. The failure on the part of legal counsel and the motion judge to recognize November 1, 2007 as the date on which the limitation period commenced is an error in law.

[5] On that date, the respondent had, in the language of the Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 – a "fully ripened claim." That was the "appropriate" time to commence litigation. As Sharpe J.A. noted in Markel:

…the word "appropriate" must mean legally appropriate. To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened…would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

[6] The motion judge recognized that the respondent had a "fully ripened" claim as of November 1, 2007 (see para. 71-72 of the Reasons). His further analysis is, in our view, no more than an "evaluative gloss" on the word "appropriate" and introduces the uncertainty Markel cautions against.

Conclusion

[7] The appeal is allowed. The order below is set aside, and, in its place, issue an order dismissing the action with costs.

[8] Costs of the appeal and of the motion below are to the appellant and are each fixed in the agreed upon sum of $15,000 for a total of $30,000, inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"J. MacFarland J.A."

"Grant Huscroft J.A."