Western Life Assurance Company of Canada v. Penttila
[Indexed as: Western Life Assurance Co. of Canada v. Penttila]
Ontario Reports
Ontario Superior Court of Justice
Divisional Court, Morawetz R.S.J., Aitken and Thorburn JJ.
January 7, 2019
144 O.R. (3d) 198 | 2019 ONSC 14
Case Summary
Limitations — Discoverability — Insurer informing insured in February 2013 that her long-term disability benefits would be discontinued in March 2013 and that she had right of appeal — Insured appealing — Two-year limitation period not starting to run until insurer finally communicated to insured in either October 2014 or June 2015 that her appeal had been rejected — Insured not knowing that proceeding would be appropriate means to seek to remedy her loss until October 2014 at earliest — Action commenced within two years of that date — Motion judge properly dismissing insurer's motion to dismiss action as statute-barred.
The insurer informed the insured by letter dated February 19, 2013 that her long-term disability benefits would be denied as of March 7, 2013 and that she had the right to appeal. The insured appealed, and provided further medical information. On October 21, 2014, the insurer wrote to the insured to advise her that the file had been reviewed and that its position remained unchanged. The insured claimed not to have received that letter. On June 18, 2015, the insurer sent the insured a letter advising that her LTD benefits beyond March 6, 2013 remained declined. The insured commenced an action against the insurer on June 6, 2016. The insurer brought a motion for summary judgment dismissing the action as statute-barred. The motion was dismissed. The insurer appealed.
Held, the appeal should be dismissed.
The triggering event for the commencement of the two-year limitation period was the date upon which it would have been legally appropriate for the insured to commence legal proceedings to seek payment of long-term disability benefits that the insurer refused to pay. It was the insured's uncontradicted sworn evidence that she believed that, from the time the initial benefits were denied in the letter dated February 19, 2013 to the time she received the final decision on appeal, the insurer was considering her appeal. The insured did not know that a proceeding would be an appropriate means to seek to remedy her loss until either October 21, 2014 or June 18, 2015, when she was informed that her appeal had been rejected. The motion judge made no palpable and overriding error in determining that the insurer had not satisfied him that there was no genuine issue for trial.
Markel Insurance Co. of Canada v. ING Insurance Co. of Canada (2012), 109 O.R. (3d) 652, [2012] O.J. No. 1505, 2012 ONCA 218, 348 D.L.R. (4th) 744, 290 O.A.C. 75, 8 C.C.L.I. (5th) 210, [2012] I.L.R. I-5264, 214 A.C.W.S. (3d) 249; Nasr Hospitality Services Inc. v. Intact Insurance (2018), 142 O.R. (3d) 561, [2018] O.J. No. 4514, 2018 ONCA 725, [2017] I.L.R. 1-5984; Pepper v. Sanmina-Sci Systems (Canada) Inc., [2017] O.J. No. 4870, 2017 ONCA 730, [2018] I.L.R. ÂI-5996, 74 C.C.L.I. (5th) 171, 283 A.C.W.S. (3d) 405, distd
Other cases referred to
407 ETR Concession Co. v. Day (2016), 133 O.R. (3d) 762, [2016] O.J. No. 5006, 2016 ONCA 709, 403 D.L.R. (4th) 385, 1 M.V.R. (7th) 175, 270 A.C.W.S. (3d) 624; Gillham v. Lake of Bays (Township), [2018] O.J. No. 3982, 2018 ONCA 667, 79 C.L.R. (4th) 12, 425 D.L.R. (4th) 178, 294 A.C.W.S. (3d) 739; MacDonald v. Chicago Title Insurance Co. of Canada (2015), 127 O.R. (3d) 663, [2015] O.J. No. 6350, 2015 ONCA 842, 392 D.L.R. (4th) 463, 341 O.A.C. 299, 52 B.L.R. (5th) 26, 56 C.C.L.I. (5th) 267, [2016] I.L.R. I-5826, 61 R.P.R. (5th) 1, 260 A.C.W.S. (3d) 402; Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43, 80 D.L.R. (4th) 652, 125 N.R. 294, J.E. 91-959, 47 O.A.C. 333, 3 C.C.L.I. (2d) 186, 50 C.P.C. (2d) 213, [1991] I.L.R. Â1-2728 at 1284, 27 A.C.W.S. (3d) 70; Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61, [1991] S.C.J. No. 44; Penttila v. Western Life Assurance Co., [2017] O.J. No. 6162, 2017 ONSC 6733, 286 A.C.W.S. (3d) 159, 73 C.C.L.I. (5th) 210 (S.C.J.); Presidential MSH Corp. v. Marr, Foster & Co. LLP (2017), 135 O.R. (3d) 321, [2017] O.J. No. 2059, 2017 ONCA 325, 413 D.L.R. (4th) 391, [2017] 6 C.T.C. 93, 2017 D.T.C. 5049, 277 A.C.W.S. (3d) 852; Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 355 D.L.R. (4th) 518, 295 O.A.C. 164, 220 A.C.W.S. (3d) 240, 40 Admin. L.R. (5th) 307
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19 [as am.]
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1), (a)(i), (ii), (iii), (iv)
APPEAL from the order of the motion judge.
Elizabeth Bennett-Martin and Charlotte Watson, for appellant/defendant Western Life Assurance Company of Canada.
William G. Scott, for respondent/plaintiff Ms. Penttila.
The judgment of the court was delivered by
THORBURN J.: —
Overview
[1] Western Life Assurance Company of Canada ("Western") brought a motion for summary judgment before Lederer J. (the "motion judge"). On the motion for summary judgment, Western argued that there was no genuine issue requiring a trial as Karen Penttila's claim for long-term disability benefits was statute-barred. The motion judge refused to grant summary judgment. Western appeals the motion judge's decision to dismiss the motion for summary judgment.
Background Evidence
[2] Ms. Penttila was a residential support worker insured through a policy with Western.
[3] She received long-term disability benefits from Western for back problems beginning on May 16, 2012. By December 21, 2012, Western advised her that there was to be a change to the definition of long-term disability as it applied to her, which change would come into effect on March 7, 2013.
[4] On February 19, 2013, Western advised her that,
. . . in light of this definition change . . . your claim for LTD benefits will be denied as of March 7, 2013.
If you disagree with our determination, you may appeal this claim decision by sending your written request for review to our office within 60 days from the date of this letter. This request should include any medical documentation that you feel would assist you in your appeal, in addition to a written status of your CPP tribunal. The cost of obtaining additional medical documentation would not be covered by Western.
In offering to review additional evidence, we are not waiving our right to rely on any statutory or policy provision including any time limitations.
[5] On April 8, 2013, Ms. Penttila wrote to Western to advise that "I have received your letter of February 19, 2013. I wish to appeal this claim decision."
[6] Ms. Penttila provided further medical information. On November 13, 2013, Western asked Ms. Penttila to provide two doctors' reports and advised that, "[u]pon receipt of all the above requested information, we will complete our review of your appeal and advise you of the decision". There was no statement (as there was in earlier letters) that Western was not waiving any right to rely on any time limitations.
[7] Further documentation was again provided by Ms. Penttila. On October 21, 2014, Western wrote to Ms. Penttila to advise that the file had been reviewed and that Western's position "remains unchanged".
[8] Thereafter, Ms. Penttila was asked to return income received from CPP disability benefits to be set off against any long-term disability benefits to be paid by Western pursuant to the policy. Ms. Penttila repaid $27,397.84.
[9] On May 25, 2015, Ms. Penttila advised that,
I asked if you reviewed my file and you stated you did and LTD entitlement was denied. From this conversation I was led to believe you sent a letter with your decision after you reviewed new information + existing file. To this date, I did not receive a letter with your decision from your review. May you please check into this for me and resend a copy of this decision.
[10] On June 18, 2015, Western sent Ms. Penttila a letter advising that they could not conclude on the basis of the information available that she was unable to perform any occupation for which she was qualified and therefore "further disability benefits beyond March 6, 2013 remain declined".
[11] Ms. Penttila issued her statement of claim on June 6, 2016.
[12] On May 16, 2017, Ms. Penttila swore an affidavit. In it she stated that she at all times believed that Western was considering her appeal from the time the initial benefits were denied (in the letter dated February 19, 2013) to the time she received the final decision by way of Western's letter of June 18, 2015. She was not cross-examined on her affidavit.
[13] Western brought a motion for summary judgment alleging that the claim issued on June 6, 2016 was statute-barred.
[14] The motion judge dismissed Western's motion for summary judgment.
The Relevant Provision in the Limitations Act, 2002
[15] It is agreed that the limitation period is two years. The limitation period commences when the claim is "discovered". A claim is discovered when all of the requirements in s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B have been met.
[16] Section 5(1) provides that a claim is discovered and the limitation period begins to run on the earlier of
5(1)(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[17] It is agreed that as of March 7, 2013, the requirements of s. 5(1)(a)(i), (ii) and (iii) were met as Ms. Penttila knew that
(a) a decision was made based on a change in the applicable definition of total disability (s. 5(1)(a)(i));
(b) a denial of continuing LTD benefits was based on Western's determination that Ms. Penttila would be able to perform the duties of more sedentary work (s. 5(1) (a)(ii)); and
(c) Western was no longer paying Ms. Penttila LTD benefits because it no longer recognized Ms. Penttila as entitled to receive LTD benefits (s. 5(1)(a)(iii)).
[18] The only issue in dispute on the motion for summary judgment was whether Western could establish that there was no genuine issue requiring a trial as to "when it would be appropriate [for Ms. Penttila] to seek a remedy" within the meaning of s. 5(1)(a)(iv) of the Limitations Act, 2002.
The Motion Judge's Decision
[19] The motion judge ruled that the claim was not statute-barred and that a trial was necessary to determine, among other issues, the date the claim was discovered. The motion judge held that neither February 19, 2013, nor March 7, 2013, were the dates on which the limitation clock started. Instead, he determined that October 21, 2014, or June 18, 2015, were the applicable dates, and as a result, the statement of claim was issued in time.
[20] He did not accept that the words "[i]n offering to review additional evidence, we are not waiving our right to rely on any statutory or policy provision including any time limitations" found in all of the letters but one, constitute notice that the limitation period was running. On the contrary, he found that the letters did not articulate when an action was an appropriate means of seeking a remedy. Instead, "all these letters did was confirm that whatever limitation applied continued": Pentilla v. Western Life Assurance Co., [2017] O.J. No. 6162, 2017 ONSC 6733, 286 A.C.W.S. (3d) 159 (S.C.J.), at para. 38.
[21] The motion judge found that "either June 15, 2015, or October 21, 2014" was the date on which a reasonable person in Ms. Penttila's shoes would have understood that a proceeding was an appropriate means to seek a remedy. This is because the process did not end until the letter of June 18, 2015 when the final decision was rendered or October 21, 2014 when it may have been intended that the final decision was rendered: Pentilla, at para. 40.
The Positions of the Parties on this Appeal
[22] Western takes the position that Ms. Penttila should have known that an action would be [at para. 40] "an appropriate means to seek a remedy" by March 7, 2013 as she was advised by Western that she no longer met the definition of total disability and would no longer be entitled to benefits after that date. She received no further benefits after that date.
[23] Western claims that an insurer always maintains a statutory obligation to consider any new information provided to it.
[24] Ms. Penttila takes the position that it was not appropriate for her to file a claim as of March 7, 2013, as her appeal had not yet been finally determined by Western because
(a) she was told she had a right to appeal provided she took certain steps which she did. It was therefore not clear that the process had run its course;
(b) there was no denial of the appeal or any reason to believe that the matter would not be amicably resolved;
(c) she was not represented by legal counsel;
(d) there was no clear reference to the fact that the limitation period was running in the communications from the insurer. The insurer said only that "the limit", whatever it was, was not being waived;
(e) she made concessions and repaid moneys paid pursuant to her CPP disability setoff, believing that she was engaging in an attempt at dispute resolution. This was done at the request of the insurer;
(f) there was no reason for her to do this except to attempt to resolve the claim instead of litigating; and
(g) there is no suggestion that the delay was a tactical decision to delay the proceeding.
[25] Moreover, the courts have recognized that there is a clear policy objective to encourage parties to resolve matters instead of going directly to litigation. Waiting for the appeal to be determined is consistent with that important policy objective.
Jurisdiction and Standard of Review
[26] The court has the jurisdiction to address this issue pursuant to s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[27] The standard of review to be applied to the meaning of a term in a standard form insurance policy is correctness (MacDonald v. Chicago Title Insurance Co. of Canada (2015), 127 O.R. (3d) 663, [2015] O.J. No. 6350, 2015 ONCA 842, at para. 41).
[28] However, the issue of whether the limitation period expired prior to the issuance of a statement of claim on the facts of a given case is a question of mixed fact and law for which the standard of review is that of palpable and overriding error (Presidential MSH Corp. v. Marr, Foster & Co. LLP (2017), 135 O.R. (3d) 321, [2017] O.J. No. 2059, 2017 ONCA 325).
[29] Whether an action is appropriate depends on the specific factual or statutory setting of each individual case (Laskin J.A. in 407 ETR Concession Co. v. Day (2016), 133 O.R. (3d) 762, [2016] O.J. No. 5006, 2016 ONCA 709, at para. 34).
[30] The legal question is, when is it legally appropriate to commence legal proceedings against the insurer? The factual question is, when did this insured know or ought to have known that she had a claim and that it was legally appropriate to issue a statement of claim?
Analysis and Conclusion
A. Contracts of insurance
[31] In this contract of insurance, Western agreed to reimburse Ms. Penttila for losses covered by the contract.
[32] Where an insured suffers a loss caused by an act or omission of an insurer (such as the failure to pay benefits), the insured must advise the insurer of the loss and seek indemnification.
[33] Thereafter, there must be a determination as to whether the insured knew or ought to have known they had a claim and that it would be appropriate to commence an action to seek a remedy. The court must look at the evidence in the particular case (Gillham v. Lake of Bays (Township), [2018] O.J. No. 3982, 2018 ONCA 667, 294 A.C.W.S. (3d) 739, at para. 38).
[34] It is an error, to equate knowledge that a loss was occasioned with a conclusion that a proceeding would be an appropriate means to seek a remedy from the insurer for the loss (Presidential, at para. 49).
B. The meaning of "appropriate means" in s. 5(1)(a)(iv) of the Limitations Act, 2002
[35] In assessing when it is legally "appropriate" to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act, 2002, the courts have articulated the following guidelines:
(a) The determination of whether legal action is "legally appropriate" takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known: Presidential, at para. 18.
(b) Parties should be discouraged from rushing to litigation or arbitration. Rather, they should be encouraged to resolve claims as courts take a dim view of unnecessary litigation: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada (2018), 109 O.R. (3d) 652, [2012] O.J. No. 1505, 2012 ONCA 218, at para. 34; and 407 ETR, at para. 48.
(c) It is premature for a party to bring a court proceeding to seek a remedy if a statutory dispute resolution process offers an adequate alternative remedy and that process has not fully run its course or been exhaustive: Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, at paras. 61-70.
(d) However, where the insurer has been clear that it intends to rely on the limitation period, and the claim has "ripened", the court should be wary of getting involved in assessing the "tone and tenor of communications" to determine where and when there was a denial of the claim by the insurer as this would inject an undesirable element of uncertainty into the law of limitation of actions: Markel, at para. 34.
(e) The courts should also be wary of allowing a party to delay the commencement of proceedings simply for tactical reasons: 407 ETR, at para. 47; and Markel, at para. 34.
(f) It is appropriate for the court to consider what was communicated to the insured and whether the claim was clearly and unequivocally denied: Kassburg v. Sun Life Assurance Co. of Canada (2014), 124 O.R. (3d) 171, [2014] O.J. No. 6222, 2014 ONCA 922, at para. 42.
(g) The courts have specifically recognized two circumstances in which the issue of "appropriate means" may delay the date on which a claim was discovered:
-- first, where the insured relies on the superior knowledge and expertise of the insurer, especially where the insurer made efforts to ameliorate the loss;
-- second, where other proceedings remain ongoing (such as criminal proceedings or arbitration): Presidential, at paras. 28-48.
(h) Where an insured seeks to preclude an insurer from relying on a limitations defence on the basis of promissory estoppel, the insurer's conduct must amount to a promise on which the insured acted to its detriment: Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43; and Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61, [1991] S.C.J. No. 44.
C. Key cases cited by the parties
[36] In Markel, the issue was which of two insurance companies was responsible for the loss. In that case, a legally valid claim was asserted by the first party insurer, who was seeking indemnification, and the second party insurer was under a legal obligation to indemnify the first party insurer for the loss. The situation had crystallized into a valid legal claim that was immediately enforceable against the second party insurer. The court and the parties had all the information they needed to determine when the second insurer's obligation to indemnify arose and was breached.
[37] In Markel, unlike the case before us, there was no reason to defer the initiation of a claim because all of the material facts were known. Thus, there was no basis to conclude that an action was not appropriate.
[38] The decision in Pepper v. Sanmina-Sci Systems (Canada) Inc., [2017] O.J. No. 4870, 2017 ONCA 730, 283 A.C.W.S. (3d) 405 was delivered after the motion judge's decision in this matter was heard but prior to the release of the motion judge's reasons. It was not considered by the motion judge.
[39] In Pepper, at para. 1, the court relied on the fact that the insured seeking long-term disability benefits "had a cause of action against [the insurer] . . . and . . . retained litigation counsel [at the outset] 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."
[40] The court went on to hold that the fact that there was no "formal appeal process" meant it would have been prudent to treat the time the insurer stopped paying disability benefits as the commencement date for the running of the limitation period as, in their words, there was a fully ripened claim: paras. 2 and 4-6.
[41] Pepper is distinguishable from the case before us as, unlike the claimant in Pepper, Ms. Penttila did not retain litigation counsel at the outset to deal with her claim for disability benefits. Retaining a lawyer may be material to the determination of when a claim is discovered.
[42] In Nasr Hospitality Services Inc. v. Intact Insurance (2018), 142 O.R. (3d) 561, [2018] O.J. No. 4514, 2018 ONCA 725, [2017] I.L.R. 1-5984, the court addressed the issue of the application of the "appropriate means" element of the discoverability test pursuant to s. 5(1)(a)(iv) of the Limitations Act, 2002.
[43] On January 31, 2013, the plaintiff Nasr's business was flooded and Nasr sought coverage for losses caused by the water damage. Cheques were written to cover damages for business interruption, rent and hydro. Thereafter the parties engaged in settlement discussions. On July 22, 2013, Intact told Nasr that it would not pay the property damage claim. Nasr commenced an action for indemnification under the policy on April 22, 2015.
[44] Brown J.A. for the majority held that, in order for an insurer's conduct to give rise to a promissory estoppel preventing the insurer from relying on a limitations defence, the insurer had to have made a promise to the insured which the insured acted on to its detriment: Nasr, at para. 54; and Maracle, at para. 57.
[45] During the litigation which ensued, Nasr admitted that the insurer's conduct following notice of the claim, in which the insurer engaged in settlement discussions with the insured and paid part of its claim, did not amount to the type of conduct contemplated in Maracle.
[46] Brown J.A. for the majority [in Nasr], at para. 44, noted therefore that, "there was no issue of a promissory estoppel precluding Intact from relying on the Act". Therefore, Nasr ought to have known an action was an appropriate means to remedy the loss on the day the flood happened.
[47] Nasr is distinguishable from the case before us as Ms. Penttila never admitted that the insurer did not make a promise to her that she relied on to her detriment. On the contrary, she swore that "I believed that at all times the defendant was considering my appeal from its initial denial of benefits by letter dated February 19, 2013. A final decision with respect to my appeal was not communicated to me by the defendant until its letter of June 18, 2015." No evidence was adduced to suggest otherwise.
[48] The case of Kassburg, cited by Western, is, however, similar to the facts in the case before us.
[49] In Kassburg, a police officer was denied long-term disability benefits by her insurer but was offered the opportunity to appeal provided she deliver new material. She did so and, on being told that the material she provided was insufficient, provided more. The final decision refusing the claim on appeal was delivered on February 24, 2011. The Court of Appeal determined that February 24, 2011 was the date on which the limitation period began to run. The court held, at para. 42, that
it was appropriate for the motion judge to consider what was in fact communicated to the respondent at that time, and whether the claim had been clearly and unequivocally denied, as asserted by the appellant. His conclusion that the denial was not clear was open to him on the evidence, which included the contract wording and the communications between the parties.
D. Analysis and conclusion
[50] For the reasons set out herein, we find that the motion judge was correct to hold that the triggering event for the commencement of the two-year limitation period was the date upon which it would be legally appropriate to commence legal proceedings to seek payment of long-term disability benefits that the insurer refused to pay.
[51] We further find that the motion judge made no palpable and overriding error in dismissing the motion for summary judgment on the basis that Western had not established that the claim was statute-barred. We come to this conclusion for the following reasons.
(i) Right of appeal
[52] Before March 7, 2013, Ms. Penttila was advised that as of March 7, her benefits would no longer be paid by the insurer but that "you may appeal this claim decision by sending your written request for review to our office within 60 days from the date of this letter".
[53] On April 8, 2013, Ms. Penttila advised that "I wish to appeal this claim."
[54] On November 13, 2013, Western wrote her to advise that, "[u]pon receipt of all the above requested information, we will complete our review of your appeal and advise you of the decision".
[55] Ms. Penttila thereby accepted a clear offer to allow her to appeal the denial of her claim for benefits. A process was established, and her appeal was determined by the insurer. She was advised by letter dated October 21, 2014, of the decision that her appeal had been rejected. (Ms. Penttila says she did not receive written confirmation until June 15, 2015.)
[56] The right to appeal was not simply part of an insurer's general obligation to accept any material; it was a specific and agreed right of appeal, a clear articulation of the process to be followed, and a specific decision in respect of the appeal.
[57] A reasonable person in Ms. Penttila's position would have pursued her right of appeal. Until that process ran its course, it would be premature to commence legal proceedings against the insurer.
(ii) No need to review the tone and tenor of discussions
[58] The court was not required to assess the "tone and tenor" of communications between the parties as there was a clear beginning and end to the process. Western told Ms. Penttila that she had a right to appeal and that a decision would be rendered, and it was.
(iii) No litigation counsel engaged
[59] Ms. Penttila did not retain counsel while the appeal was ongoing. This fact does not "[belie] any suggestion of a lack of awareness of the appropriateness of commencing a lawsuit at that point in time": Pepper, at para. 1.
[60] The words "in offering to review additional evidence we are not waiving our right to rely on any statutory or policy provisions including any time limitations", in this factual context, were not sufficiently clear to demonstrate to Ms. Penttila that the insurer intended to rely on the fact that the limitation period was running before the appeal had been decided.
(iv) Ms. Penttila's evidence as to her belief
[61] On the contrary, Ms. Penttila's uncontradicted sworn evidence was that she at all times believed that, from the time the initial benefits were denied (in the letter dated February 19, 2013), to the time she received the final decision on appeal, Western was considering her appeal.
[62] This belief is supported by the fact that, on November 13, 2013, Western advised that, "[u]pon receipt of all the above requested information, we will complete our review of your appeal and advise you of the decision". There was no statement in respect of time limitations.
[63] Lastly, unlike Nasr, Ms. Penttila never conceded that the insurer never told her that it would not be relying on a limitations defence.
(v) No tactical delay
[64] Ms. Penttila made good faith efforts to avoid unnecessary litigation believing Western was considering her appeal. There is no suggestion that Ms. Penttila engaged in a tactical delay of the proceeding.
(vi) Meets the policy objectives
[65] The motion judge's decision is consistent with the policy objective of avoiding unnecessary litigation and discouraging parties from rushing to litigation, provided there is no tactical delay.
(vii) Conclusion
[66] The motion judge held that Western had not satisfied its onus to prove all of the elements of its limitation claim, including the date when the cause of action arose, and it was legally appropriate to issue a claim such that the limitation period began to run.
[67] For the above reasons, we find the motion judge made no palpable and overriding error in determining that Western had not satisfied him that there was no genuine issue for trial. As held by the motion judge, Western is free to argue the limitation issue at trial.
[68] On the agreement of both parties, costs are payable to the successful party, Ms. Penttila, in the amount of $10,000.
Appeal dismissed.