COURT FILE NO.: CV-12-121-0000

DATE: 2013/07/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY GEORGE PAUL HUNT

Plaintiff

– and –

RBC LIFE INSURANCE COMPANY

Defendant

Self represented

Mark Cavanaugh, for the Defendant

HEARD: June 21, 2013 (Napanee)

Motion for Summary Judgment

KERSHMAN J.

INTRODUCTION

[1] The Defendant brings a motion for summary judgment against the Plaintiff on the basis that there is no genuine issue requiring a trial.

FACTUAL BACKGROUND

[2] The Plaintiff was a holder of an individual disability Policy #0209090248 (“the Policy”) originally issued by the Paul Revere Life Insurance Company (“Paul Revere”). On or about May 10^th, 2001, the Plaintiff commenced an action against Paul Revere’s successor, Provident Life and Accident Insurance company (“Provident”) being court file number 13461/00 (“First Legal Action”) claiming damages and entitlement to benefits under the Policy.

[3] The Plaintiff was represented by Angus J. MacLeod in the action.

[4] On or about October 16, 2001 the Plaintiff and Provident settled the First Legal Action and executed Minutes of Settlement which provided for an all-inclusive payment of $325,000 by Provident. The Plaintiff was required to surrender his policy, agree to a dismissal of the First Legal Action on a without costs basis and execute release in a form satisfactory to Provident.

[5] The Plaintiff surrendered the Policy and acknowledged that he had no right to assert any claim against Provident under the Policy.

[6] On or about October 26, 2001, the Plaintiff executed a full and final Release. Under the terms of the release, the Plaintiff agreed to release Provident and any related or successor companies from any and all claims, past, present or future, arising out of or in any way connected with the Policy.

[7] The release provided that the Plaintiff understood among other things, its terms and that he has had an opportunity to obtain legal advice. He was provided with legal advice by Angus MacLeod.

[8] Almost 11 years later, on or about September 18, 2012 the Plaintiff commenced the within action (“Second Legal Action”) against the Defendant seeking to rescind the settlement in the First Legal Action and to assert a new claim under the surrendered policy.

Defendant’s Position

[9] The Defendant argues that this is an appropriate case for summary judgment because:

1. both parties were represented by counsel;

2. that counsel came to an agreement on settlement of the action;

3. Minutes of Settlement were entered into; and

4. a full and final Release was signed by the Plaintiff and his counsel.

[10] The Defendant argues that both parties are bound by the terms of settlement reflected in the Minutes of Settlement and the Release. Furthermore, the Defendant argues that there is no genuine issue requiring a trial with respect to the validity of this settlement.

[11] In the alternative, the Defendant argues that the Plaintiff did not commence the Second Legal Action within the contractual period contained in the policy and/or the statutory limitation period contained in the Limitations Act, 2002, S.O. 2002 c. 24, Schedule B.

Plaintiff’s Position

[12] The Plaintiff argues the onus is on the Defendant to establish that there is no genuine issue for trial, Hi-Tech Group Inc. v. Sears Canada Inc., 2001 CanLII 24049 (ON CA), 2001 52 O.R. (3d) 97 (C.A.). He argues that the two major issues of fraud inclusion have not been adjudicated previously by the Court in this case.

[13] The Plaintiff argues that based on legal actions commenced by him in or around 2010 against other insurers that he now has a claim against the Defendant.

ISSUES

1. Should the Defendant be granted summary judgment against the Plaintiff?

Analysis

[14] Rule 20.04 of the Rules of Civil Procedures provides in part that:

20.04

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

(2.2) A judge may, for the purposes of exercising any of the powers set out in sub rule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

[15] In deciding whether to grant summary judgment, the Court is required to be guided by the “full appreciation test” which is more particularly set out in the Combined Air Mechanical Services Inc. v. Flesh 2011 ONCA 764, [2011] O.J. No. 5431 (CA) at para. 50: “…Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? “

[16] Pursuant to para. 56 of the Combined Air case, each party must “put their best foot forward with respect to the existence or non-existence of material issues to be tried”. The responding party may not solely rest on allegations or denials in the party’s pleadings but must set out an affidavit material or other evidence specific facts showing that there is no genuine issue requiring a trial.

[17] Furthermore, a party opposing a motion for summary judgment must show “a real chance of success”, Rozin v. Ilitchev 2003 CanLII 21313 (ON CA), [2003] OJ No. 3158 (CA) at para. 8.

ANALYSIS

[18] The evidence before the Court is that the Plaintiff has commenced a number of actions against various parties between 2006 and 2012 in the Ontario Superior Court of Justice in Belleville and Napanee. These actions are as follows:

1. Action against Lise M. Allin. Action commenced on June 22, 2006 the Plaintiff commenced an action for contractual losses in the amount of $1,800,000 and punitive, exemplary damages in the amount of $2,000,000 claiming that Ms. Allin sold the Plaintiff a flawed insurance policy;

2. Action against Lawrie Reznek and Sunnybrook & Women’s College Health Sciences Centre. On July 21, 2006 the Plaintiff commenced an action seeking a declaration that he was totally and permanently disabled for any other occupation as defined in his insurance policy. He sought general damages in the amount of $1,500,000 and punitive, exemplary and aggravated damages in the amount of $3,200,000;

3. Action against Philip E. Klassen and Clarke Institute of Psychiatry. On July 21, 2006 the Plaintiff commenced an action seeking a declaration that he was totally and permanently disabled as defined by his insurance policy, general damages in the amount of $2,400,000 and punitive, exemplary and aggravated damages in the amount of $4,400,000;

4. Action against Colin M. Shapiro and the Toronto Western Hospital. On July 21, 2006, the Plaintiff commenced an action against these parties seeking a declaration that he was totally and permanently disabled as defined by his insurance policy, general damages in the amount of $3,400,000 and punitive, exemplary and aggravated damages in the amount of $4,800,000;

5. Action against Angus J. MacLeod. On December 18, 2006 the Plaintiff commenced an action against his former counsel, Angus J. MacLeod, seeking damages in the amount of $2,900,000 for personal injury to his family as a result of Mr. MacLeod’s incompetence, professional misconduct, breach of contract, breach of fiduciary duty and bad faith dealings. The Plaintiff claimed damages in the amount of $2,900,000 together with punitive, exemplary and aggravated damages in the amount of $3,900,000.

On November 16, 2007, upon application of the Defendant, the Plaintiff’s action was dismissed without costs, on consent of the parties.

6. Steven William Hudson. On September 29, 2010 the Plaintiff commenced an action against Mr. Hudson seeking damages for pain and suffering in the amount of $98,000 together with punitive, exemplary and aggravated damages in an unclaimed amount;

7. Canada Life Assurance Company. On November 12, 2010, the Plaintiff commenced an action against Canada Life seeking general damages in the amount of $494,000, bad faith damages in the amount of $2,000,000, punitive, exemplary and aggravated damages in the amount of $29,000,000;

8. Sun Life Assurance Company of Canada. On February 14, 2011 the Plaintiff commenced an action against Sun Life Assurance Company of Canada seeking damages of $494,000. The Plaintiff alleges that a settlement he reached in or around 2002 was the result of negligence, fraud and conspiracy. The Plaintiff further alleges he had incompetent legal representation who at the time was Mr. MacLeod.

In that action Sun Life brought a motion pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure seeking an order dismissing the action on the grounds that it was statute barred, and in the further alternative an order dismissing the action on the grounds that it was frivolous or vexatious or otherwise, an abuse of the process of the Court and, in the alternative an order dismissing the action on the ground that it contravenes the common law doctrine of Res Judicata. In that case, Dr. Hunt submitted a disability claim under group policy insurance and was approved for benefits for a certain period of time. Sun Life terminated the payments to the Plaintiff on October 31, 1999. On October 17, 2000 Dr. Hunt issued a statement of claim against Sun Life. On August 8, 2002 the Defendant served an offer to settle on the Plaintiff’s then counsel, Mr. MacLeod. Mr. MacLeod advised Sun Life that Dr. Hunt had approved the settlement by letter to defense counsel on February 20, 2003. Settlement funds were subsequently advanced and the settlement was concluded. A release was signed by the Plaintiff and a Dismissal Order was taken out.

On February 12, 2011 Dr. Hunt issued a new statement of claim alleging the settlement in 2002 was “null and void”.

[19] In Hunt v. Sun Life Assurance Co. of Canada, 2012 ONSC 1635, 220 A.C.W.S. (3d) 617 Johnson J. at para. 19 says:

I find that the issues raised in both 2011 actions by the Plaintiff Dr. Hunt were known to him and could have been raised in the action commenced earlier in 2000. The Plaintiff acknowledges in his Statement of Claim to settling his claim for disability benefits in or about 2002 and that he was represented by counsel at the time. The Plaintiff signed a full and final release discharging Sun Life from all liability at that time. The Plaintiff now takes issue with the quality of representation he had at the time of the final settlement. I find that there is insufficient ground to admit or allow the original settlement to be set aside. If the Plaintiff felt that he had inadequate representation there are other avenues at his disposal. I find that the pith and substance of the 2011 actions by the Plaintiff are an attempt to re-litigate issues that gave rise to the original claim.

[20] The case before the Court today, involves an action for which the Plaintiff signed a full and final release discharging Provident and its predecessor from all liability at that time in relation to a disability insurance policy. As in the Sun Life case, the Plaintiff now takes issue with the quality of representation that he had at the time of the final settlement.

[21] Dr. Hunt sued Mr. MacLeod in 2006 claiming incompetence, professional misconduct, breach of fiduciary duty and bad dealings. That claim was dismissed without costs on the consent of both parties in 2007.

[22] A review of the 2006 allegations made against Mr. MacLeod specifically relate to the allegations against the Provident predecessor Paul Revere Insurance.

[23] The Court agrees with Johnson J. in the Hunt v. Sun Life case that Dr. Hunt is attempting to re-litigate issues which gave rise to his original claim. Furthermore, he had sued Mr. MacLeod in 2006 and that action was dismissed on consent. Dr. Hunt knew as far back as December 18, 2006 when he commenced the action against Mr. MacLeod that there might be a potential claim against Provident. The Plaintiff did not commence any action against the Defendant until 2012 approximately six years later.

[24] The Plaintiff argued that the Defendant was not in compliance with Rule 49 in relation to Offer to Settle. The Court does not understand the logic of this argument. There is no evidence that Provident provided an Offer to Settle in relation to the 2001 settlement. Rather, there was an examination for discovery, at which negotiations took place. Minutes of the Settlement were entered into by the parties which provided for a number of things including a surrender of the policy, payment of funds and execution of a release in a form satisfactory to the insurance company’s counsel. In the Court’s view, those steps have nothing to do with the Rule 49 Offer to Settle.

[25] The Court finds the Plaintiff has not shown that he has a real chance of success in this action. The Plaintiff’s affidavit while lengthy does not provide any credible or documentary evidence that he has a real chance of succeeding in this action. He previously sued the Defendant in 2000 and settled the matter. In 2006 he sued his legal counsel related in part to the current litigation and consented to a dismissal of the action. The Court finds that the Plaintiff has not shown “a real chance of success”. Re Rozin v. Ilitchev.

DURESS

[26] The Plaintiff alleges that when he entered into the October 16, 2001 settlement with the Defendant he did so under circumstances of duress.

[27] The Plaintiff has not provided any credible evidence of duress at the time that he entered into the settlement agreement in 2001. He had his own counsel, a settlement was negotiated, Minutes of Settlement were entered into, several days later he surrendered the insurance policy. Approximately 10 days later he signed a full and final release. No evidence was provided to the Court from the time that he agreed to the settlement at the discovery and the time that he surrendered the policy and the time that he executed the full and final release that he was under duress.

[28] It may well have been that the Plaintiff was stressed in the litigation. However, stress does not equal duress. In Davis v. Cooper, [2010] ONSC 4230 at para. 13 B.A. Allen J. said:

[13] The Court of Appeal has spoken on this in a similar circumstance. In a case where, among other assertions, the respondent alleged his lawyer advised he would not continue representing the respondent if he did not accept the settlement, the court declined to set aside the settlement. The court held a settlement will not be set aside unless it is shown the other parties to the agreement had knowledge of the duress. The court also made a distinction between “stress” and “duress” saying that stress is not a ground to decline to enforce a contract. [Dos Santos v. Waite, 1995 CarswellOnt 3384 (Ont. Ct. Gen. Div.), at paras. 4 and 5; affirmed 1996 CarswellOnt 3554 (Ont. C.A.)]. Stress is a very common reaction during settlement negotiations which cannot alone be a sufficient basis to void an agreement.

[29] In Dos Santos v. Waite, [1995] O.J. 1803 at para. 6 Mandel J. says:

6. Mr. Waite was under stress and did not wish to sign the minutes but his then lawyer stated that if he didn't sign the minutes, he could not represent him anymore and he thereupon, under extreme pressure as to time and as to a full and candid disclosure of the terms of the minutes, signed the minutes. In that regard, there is no evidence whatsoever that the other parties had knowledge of or were aware of what was going on between Mr. Waite and his solicitor. In addition, the stress is not duress and is no basis for refusing to enforce the settlement. See Stutchbury v. Stutchbury (1985), 1985 CanLII 4961 (ON SC), 47 R.F.L. (2d) 429.

[30] While the Plaintiff may have been stressed in the negotiations, stress is not duress within the legal meaning of the word.

UNILATERAL MISTAKE/AMBIGUITY

[31] The Plaintiff alleges that he did not know or understand that as a term of the settlement that he would be barred from presenting a new claim to Provident with new medical evidence. Furthermore, he alleges that he did not understand that surrendering his policy meant that Provident would cancel it.

[32] For there to be a unilateral mistake, the mistake must be so fundamental that it must be known to the other party, otherwise the party’s misapprehension as to the consequences of a settlement is solely a matter between that party and/or his lawyer and that is again Dos Santos v. Waite at paras. 7 & 8:

7. Mr. Waite was under a mistake in that he believed he could proceed against all of the other parties on his claim and not just on an accounting against Mr. Steer. The minutes of settlement are clear in that regard and Mr. Waite signed them personally and was represented by counsel. As was stated in Director of Assessment v. Begg (1988), 1986 CanLII 3930 (NS SC), 33 D.L.R. (4th) 239 at 246, if there was a mistake, it was between Mr. Waite and his own solicitor and not between the parties in question. Furthermore, for minutes of settlement to be set aside for a unilateral mistake, it is fundamental that such mistake must be known to the other party. As stated in Cheshire, Fifoot and Furmston Law of Contract, 12th ed., (1991) at p. 259:

In the case of unilateral mistake, it is clear that if one party to the knowledge of the other is mistaken as to the fundamental character of the offer - if he did not intend, as the other well knew, to make the apparent contract - the apparent contract is a nullity and there is no need indeed no room for equitable relief. However, although equity follows the law in this respect and admits that the contract is a nullity, it is prepared to clinch the matter by formally setting the contract aside or by refusing a decree for its specific performance.

8. The element of knowledge on the part of the other parties is missing in the case before me and is fatal to the submissions of Mr. Waite.

[33] A review of the Minutes of Settlement and the Release are clear and unambiguous and were reviewed by him with counsel. The Court does not find that there is any ambiguity or mistake in relation to the settlement, the Minutes of Settlement or the Release.

INADEQUATE LEGAL REPRESENTATION

[34] The Plaintiff has made various allegations against his former counsel Mr. MacLeod. He argues that the settlement should be rescinded as it was entered into as a result of Mr. MacLeod’s incompetence and/or inadequate legal advice.

[35] The Court notes that the Plaintiff did sue Mr. MacLeod into 2006 and subsequently on consent that action was dismissed.

[36] The Court further notes that in the Sun Life Insurance action, in 2011 the Plaintiff made numerous allegations against his former counsel, the same Mr. MacLeod.

[37] The Court finds many similarities between the Sun Life case and the case before the Court today in that:

1. both were claims for disability benefits;

2. the Plaintiff was represented by the same counsel, Mr. MacLeod;

3. the Plaintiff signed a full and final releases discharging Sun Life and Provident from liability;

4. that the Plaintiff sued Mr. MacLeod in 2006 and that action was dismissed on consent.

[38] The Court finds that there are not sufficient grounds to set aside the original settlement. No valid legal reason as been shown by the Plaintiff as to why the settlement should be set aside.

[39] As stated by Johnson J. in the Sun Life if the Plaintiff felt that he had inadequate representation, there were other avenues at his disposal. The Court finds that for the purpose of this litigation that the argument of inadequate legal representation does not succeed.

LIMITATIONS ISSUE

[40] The Defendant argues that the Plaintiff’s claims are barred by reason of the failure to commence this action within the appropriate time.

[41] The Plaintiff relies on the case of Belay v. Saskatchewan Government Insurance (1992), 1992 CanLII 7406 (ON SC), 10 O.R. (3d) 371. The Court notes that no copy of the case has been produced, however, a small excerpt from an unidentified source has been provided which reads: “—Issue of commencement of limitation period (date of accident or date of breach of insurance contract by denial of coverage) best determined at trial when all potentially relevant facts are found, as it was not plain and obvious that the plaintiff could not succeed on this issue.”

[42] Having reviewed the Belay case, the Court finds the case does not appear to say what the aforesaid excerpt says. Accordingly the Belay case does not apply to this case.

[43] The Settlement Agreement was reached on October 16, 2001.

[44] The Court finds that the applicable limitation period would either be one of six years pursuant to the former Limitations Act being six years from October 16, 2001 bringing the timeline to October 16, 2007.

[45] No action started until 2012. Therefore, in accordance with the former Limitations Act, the action is statute barred.

[46] In the event that the Plaintiff did not discover his claim until after January 1, 2004 then under the new Limitations Act, 2002 his action would have a two year limitation period. As such, the claim would have to be issued on or before January 1, 2006 when clearly it was not.

[47] Furthermore, the Plaintiff commenced an action against Mr. MacLeod on December 18, 2006. That claim dealt in part with Provident settlement. Therefore, in the Court’s view, the Plaintiff should have started his claim on or before December 18, 2008, which clearly he did not. Therefore, the Court finds that the Plaintiff’s action is dismissed based on his failure to commence this action within the appropriate time.

CONCLUSION

[48] The Court finds that the Defendant has met the onus to show that there is no genuine issue for trial.

[49] In the Court’s view, the Defendant has not put his best foot forward. There is no evidence to show that he was under duress when he entered into and signed the Minutes of Settlement or signed the Release. Furthermore, there is no evidence of inadequate or negligent representation by Mr. MacLeod. Lastly, there is no evidence of fraudulent non-disclosure by the Defendant.

[50] Based on the aforesaid reasons the Defendant is granted to summary judgment against the Plaintiff and the action is dismissed.

COSTS

[51] The Defendant shall have 14 days to submit written costs submissions together with a Costs Outline. The Plaintiff shall have a further 14 days thereafter to submit his costs submissions together with a Costs Outline. The Defendant shall have a further 14 days to reply. Costs submissions shall be no longer than three pages. All costs submissions shall comply with Rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[52] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: 2013/07/05

COURT FILE NO.: CV-12-121-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY GEORGE PAUL HUNT

Plaintiff

– and –

RBC LIFE INSURANCE COMPANY

Defendant

Motion for summary judgment

Kershman J.

Released: 2013/07/05