Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240109 DOCKET: COA-23-CV-0418

Hourigan, Trotter and Copeland JJ.A.

BETWEEN

Nadezda Jakubov Plaintiff (Appellant)

and

Sun Life Assurance Company of Canada Defendant (Respondent)

Counsel: Greg Roberts, for the appellant Brendan Wong and Nick Hollard, for the respondent

Heard and released orally: January 8, 2024

On appeal from the order of Justice Michael Dineen of the Superior Court of Justice, dated February 10, 2023.

Reasons for Decision

[1] The appellant is a speech language pathologist. Many of her clients claimed reimbursement for her services under the benefits plans administered by Sun Life Assurance Company of Canada (“Sun Life”), the respondent.

[2] Sun Life became suspicious that the appellant was billing for services that she had not provided and sought to audit her administrative practices. It also filed a complaint to the College of Audiologists and Speech Language Pathologists (the “College”) on November 12, 2018. A dispute arose between the parties about whether the audit could be conducted without authorization of the appellant’s clients to release their files. The appellant relied on ss. 18 and 29 of the Personal Health Information Protection Act, S.O. 2004 (“PHIPA”) to argue that they should not be released to Sun Life for the purpose of the audit without signed consent from her clients.

[3] On January 17, 2019, Sun Life wrote to the appellant notifying her that it would no longer reimburse its plan members for the cost of her services. On March 5, 2019, a lawyer representing the appellant wrote to the respondent threatening legal action for losses she had suffered as a result of the delisting. The letter indicated that a proceeding would be commenced if Sun Life did not provide an acceptable response by March 20, 2019.

[4] The College finished its investigation on December 4, 2020. It concluded, among other things, that the appellant was expected to provide Sun Life with the requested information and that such disclosure was permitted under s. 39(1)(a) of the PHIPA.

[5] On April 21, 2022, the appellant commenced her action. In her statement of claim, she sought damages for intentional infliction of economic harm and interference with economic relations, retaliation under the PHIPA, and damages for conspiracy.

[6] Sun Life moved for summary judgment, seeking to dismiss the claim as statute-barred by the Limitations Act, S.O. 2002, c. 24. The motion judge ruled that the claim was statute-barred. He dismissed the appellant’s submission that a rolling limitation period applied because Sun Life had not engaged in new acts that would give rise to new claims to ground such a limitation period. The fact that the appellant may have continued to suffer damages from the original delisting decision did not mean that she could delay bringing an action for an indeterminate period.

[7] The motion judge also rejected the appellant’s submission that she did not discover her claim until the resolution of the College’s investigation. He found that there was no indication on the record that the respondent made its delisting contingent on the findings of the College. Further, the March 5, 2019 letter did not refer to the outstanding complaint to the regulatory body as dictating whether an action would be appropriate. The motion judge distinguished this case from Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, as, in this case, there is no basis to conclude that the regulatory proceeding would be determinative of any tort claim, or that it was an alternative mechanism to resolve the dispute.

[8] The motion judge also dismissed the appellant’s invitation to reserve the issue of the applicable limitation period for resolution at trial.

[9] We see no basis to interfere with the motion judge’s decision. Indeed, we agree with his legal analysis on the rolling limitation period and the impact of the College investigation on the limitation period. Further, the motion judge correctly determined that this was an appropriate case for summary judgment motion. The appeal is dismissed.

[10] Pursuant to the agreement of the parties, the appellant shall pay the respondent its costs of the appeal in the all-inclusive amount of $20,000.

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“J. Copeland J.A.”