Thiruchelvam v. The Canada Life Assurance Company, 2015 ONSC 4084

NEWMARKET COURT FILE NO.: 68225/03

DATE: 20150624

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Stalin Thiruchelvam Plaintiff

– and –

The Canada Life Assurance Company Defendant

COUNSEL:

David S. Wilson, for the Plaintiff

Scott D. McTaggart, for the Defendant

HEARD: May 26 to 29, June 2, 2015

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The issue in this case is whether the defendant, Canada Life Assurance Company (Canada Life), waived the terms of the plaintiff, Stalin Thiruchelvam’s[^1], group Long Term Disability (LTD) insurance policy when it considered the plaintiff’s claim after his insurance had terminated and declined coverage on a basis other than the termination date of the insurance. The plaintiff alleges that Canada Life has waived its right to rely on the strict terms of the LTD insurance policy. This position is based on three main arguments:

(a) Canada Life continued to collect premiums for LTD insurance from the plaintiff’s employer on behalf of the plaintiff after his employment was terminated;

(b) Canada Life declined coverage on the basis that the plaintiff was not totally disabled, not on the basis of eligibility, and Canada Life now concedes that the plaintiff was totally disabled at the time of his accident; and,

(c) Canada Life had a policy of permitting employers to extend insurance benefits past an employee’s termination date if the employer requested such extension.

[2] The plaintiff alleges that he is therefore entitled to LTD payments from Canada Life.

[3] For the reasons given below, I conclude that Canada Life did not waive the eligibility requirements of the LTD insurance policy. Waiver must be based on full knowledge of rights that might be relied upon and the unequivocal and conscious intention to relinquish or abandon the right to rely on it[^2]. In my opinion, Canada Life was given inaccurate information when it assessed the plaintiff’s claim and, in any event, Canada Life was careful not to abandon or relinquish the right to rely on the strict terms of the insurance policy.

Background

[4] The plaintiff was a long time employee of R-Theta Inc., which is not a party to this proceeding. Canada Life issued a group insurance policy to R-Theta for its employees. That policy included LTD insurance, which covered all of the employees of R-Theta, and offered 67% of pre-disability income for a defined period to employees who suffered total disability in accordance with the terms of the policy.

[5] On January 14, 2002, Jim Butler, president of R-Theta, advised the plaintiff that his employment with R-Theta was terminated. The reason for the termination was that R-Theta was having serious financial difficulties and it was in the process of downsizing. There is no dispute that the plaintiff’s termination was permanent, not a temporary lay-off. He would never return to work at R-Theta. R-Theta’s financial position continued to deteriorate, dozens of employees were terminated and the company finally went bankrupt in 2004.

[6] On January 17, 2002, the plaintiff received a letter from Jim Butler confirming his termination of employment. The letter provided that, “in lieu of notice of termination,” the plaintiff would be provided with 21 weeks’ pay, as well as vacation pay. The letter set out the following terms with respect to the plaintiff’s coverage by the group insurance policy:

R-Theta will continue to pay premiums for the standard Company benefits package which you currently receive (except for long term disability coverage which ceases immediately) for twenty two (22) weeks, until June 17, 2002. You may convert your group life insurance to an individual policy, however you must exercise this option within thirty-one (31) days from January 14, 2002. (emphasis added).

[7] The statement that LTD coverage would cease immediately was consistent with the terms of the group insurance policy issued by Canada Life. On page 21 of the policy issued by Canada Life for R-Theta, it expressly states:

All of an Employee’s insurance under this policy will terminate at the earliest time shown below: 1. On termination of his employment. However, if his Employer has terminated his employment and is required to extend benefits to him during a prescribed notice of termination in accordance with any federal or provincial employment standards legislation, he may continue to be insured under this policy for that period provided his Employer has asked for the continuation in writing. No such continuation will be effective until approved in writing by us and in no event will it be extended beyond the date on which this policy terminates.

[8] R-Theta did not seek to extend the plaintiff’s LTD insurance at the time of his termination. The evidence of Sarah Barrett, former human resources manager of R-Theta, was that this was in keeping with R-Theta’s policy not to extend LTD insurance after an employee’s termination. Her evidence was that R-Theta did not seek such extensions for any terminated employees.

[9] Nor, however, did R-Theta ever advise Canada Life that the plaintiff’s employment had been terminated. Ms. Barrett testified that she was waiting for the plaintiff to sign a release before advising Canada Life. Due to R-Theta’s deteriorating financial condition, however, she herself was terminated not long after, in April 2002. As a result, the evidence is that Canada Life was never advised by R-Theta that the plaintiff’s employment was terminated. This failure to notify Canada Life had no effect on the plaintiff’s entitlement to insurance benefits. His entitlement was determined by the terms of the policy regardless of whether the employer notified the insurer of his changed status. I make this observation at this stage because it accounts for some of the confusion that resulted later in the chronology.

[10] On January 30, 2002, the plaintiff wrote to Jim Butler to advise him that “after consultation with professional parties” he understood that he was entitled to certain additional benefits. His letter listed six areas where he sought increases to the package outlined in Butler’s January 17 letter, including a request that the company “extend the company benefits for thirteen months”. He did not make any specific reference to LTD insurance.

[11] Jim Butler responded on the same day, offering to increase some of the benefits originally offered in his letter of January 17, 2002, and stated that “The Company benefits as described in our January 17, 2002 letter will be extended to August 19, 2002.” The plaintiff understood that the intention of this offer was to extend the benefits that were to be extended to June 17, 2002 for a further sixty days. There is no dispute that this did not include the LTD benefits, which terminated “immediately” on January 14. The plaintiff did not respond in writing to this letter but accepted the benefits as offered, and R-Theta paid all of the benefits as set in Butler’s letter of January 30.

[12] The plaintiff did obtain other employment with a different company on March 4, 2002. On March 16, 2002, he was involved in a motor vehicle accident, which he alleges left him totally disabled, and since that date has not been able to perform the essential duties of his regular occupation for any employer.

[13] The plaintiff did not make a claim under the R-Theta LTD group insurance policy because he understood that his coverage under that policy was terminated on January 14, 2002, when his employment with R-Theta was terminated.

[14] Sometime later, the plaintiff consulted with a lawyer, Mr. David Wilson. Mr. Wilson wrote to R-Theta on February 21, 2003, taking the position, inter alia, that R-Theta had not given the plaintiff sufficient notice on termination and stating that “when an employer terminates an employee in these circumstances, which results in the termination of LTD coverage, it does so at its own peril. Specifically, if the LTD carrier refuses to extend coverage in these circumstances, the employer becomes liable for all payments which otherwise would have been made.” Mr. Wilson requested that R-Theta contact Canada Life to request that that it extend LTD coverage to the plaintiff.

[15] R-Theta replied to Mr. Wilson on February 28, 2003, indicating that “it comes as somewhat of a surprise to receive correspondence from you given the departure of [the plaintiff] from the organization approximately fourteen (14) months ago.” With regard to LTD coverage, the response stated: “it is a policy of the company that this benefit cease upon termination of employment. I cannot comment on whether this policy is done at one’s own peril but I can say that in this particular case, the premiums on the long term disability portion of [the plaintiff’s] policy were inadvertently continued until August 19, 2002, as were all of his other benefits as per agreed upon with him. Given this oversight and a conversation that has taken place with our benefit provider i.e. Canada Life, I suggest that [the plaintiff] file an appropriate claim to Canada Life.” This letter is consistent with the testimony of Sarah Barrett that it was R-Theta’s policy not to extend LTD insurance after an employee’s termination. Accordingly, I find that R-Theta’s continued payment of LTD premiums for the plaintiff after January 14, 2002 was inadvertent.

[16] On March 21, 2003, R-Theta completed an “Application for Group Disability Benefits – EMPLOYER’S STATEMENT” with regard to the plaintiff. R-Theta did not forward this application directly to Canada Life, but sent it to the plaintiff’s lawyer. On page 1 of this application under the question, “Are there any other jobs in your organization which the employee is qualified to do and might now or later be able to do?” the “no” box is ticked off, and the explanation given “Employee Was Laid Off In January 14, 2002”. The same statement is made at page 2, where, under the question, “Please describe any light or modified duties that are available to this employee”, the answer given is “Employee Was Laid Off January 14, 2002.”

[17] Mr. Wilson forwarded this completed application form to Canada Life on April 4, 2003. In reviewing the application, it is clear that due to the employer’s statement, Canada Life thought that the plaintiff had been laid off rather than terminated. This is clear from the notes of the disability claims specialist who reviewed the file. Her notes of April 17, 2003, state “explanation is needed on LDW [last day worked] and laid off coverage to 17 Aug. 2002…Will call ER [employer] to confirm.” This observation was significant because the group insurance policy had different terms for temporary layoff than termination of employment. Based on the terms of that policy, the plaintiff’s coverage would have continued until February 28, 2002, rather than being immediately terminated. This still preceded the motor vehicle accident that caused the disability that gave rise to the claim.

[18] The disability claims specialist contacted the employer on April 28, 2003. Again, her note indicates that the employer stated that the plaintiff had been laid off. The note states: “14 Jan. 02 – given lay off notice that day – reason for lay off – shortage of work – (another 50 people were also laid off – as they lost a major account)”. The note also includes the following statement, “last year company policy was to continue benefits for 6 months hence – any 2002 termination date – since then policy changed to 60 days.” The note also indicated that, based on her discussion with the supervisor at R-Theta and a review of the medical information, the plaintiff had not established total disability “despite claim being submitted late.”

[19] Counsel for Canada Life points out that the information given to the claims specialist by the employer - that R-Theta had a policy to continue benefits for six months in 2002 - was not accurate. This information was inconsistent with the information given to the plaintiff by R-Theta when he was terminated in 2002, and was also inconsistent with the testimony of Sarah Barrett, the former human resources manager at R-Theta. Ms. Barrett was the human resources manager when the plaintiff’s job at R-Theta was terminated and, as indicated above, she testified that LTD benefits were not extended for any employees who were terminated. Ms. Barrett was no longer employed with R-Theta in April 2003, when the representative from Canada Life spoke to a representative of R-Theta.

[20] Canada Life’s initial response to the claim was to reject it because the claim was filed too late. In a letter to Mr. Wilson, dated April 28, 2002, Canada Life wrote “Mr. Thiruchelvam’s contract states: - Proof of a Disability under the Employee Long Term disability Income Benefit must be given to us within 90 days after the last day of the Elimination Period. Mr Thiruchelvam’s claim was received in our office on April 15, 2003, 209 days after the submission date, his claim has therefore been denied.” The letter also indicates that Mr. Thiruchelvam had the right to appeal this decision at his own expense.

[21] On May 15, 2003, Mr. Wilson wrote to Canada Life and acknowledged, “that the claim was not filed in a timely fashion…however, my client was unaware, until very recently, that his disability insurance was in effect after he was terminated by the employer. It is for that reason that no prior claim was made.” Mr. Wilson indicated that he was “not prepared to go to the trouble” of preparing the appeal unless Canada Life would consider the claim “solely on its merits.” He concluded his letter by stating: “Accordingly, without conceding that the insurer has the right to rely upon the alleged late submission of the claim, please confirm if the insurer will deal with the claim solely upon the merits of the disability issue.”

[22] In response to Mr. Wilson’s request, Canada Life replied on May 29, 2003, as follows:

The medical information on file was thoroughly reviewed and based on all the information evidence of a Total Disabling condition that would prevent Mr. Stalin from performing the essential duties of his occupation has not been established.

Information on file indicates Mr. Stalin was laid off on January 14, 2002 but your client and his treating doctor has indicated that he became disabled on March 14, 2002. We reserve the right to investigate the eligibility of benefits at the time of claim.

As outlined in our previous letters this policy has a late submission provision outlining the timelines for claims submission. Mr. Stalin’s claim was not received in our office until April 15, 2003, 209 days after the submission date as such we are unable to accept liability of your clients claim.

(emphasis added)

[23] This letter responded to Mr. Wilson’s request for a decision “on the merits of the disability issue” but also made it clear that Canada Life was not waiving the eligibility issue since it was reserving the right to investigate eligibility at the time of the claim.

[24] The plaintiff commenced this action on August 22, 2003.

Analysis

[25] The plaintiff’s claim is based on the allegation that Canada Life waived its right to rely on the termination date for LTD insurance as set out in the insurance policy. His claim is based on three factors:

(a) Canada Life continued to collect premiums for LTD insurance from R-Theta on behalf of the plaintiff until at least August, 2002, and perhaps until December 2003[^3], and did not refund the premiums until December 2003.

(b) Canada Life declined coverage on the basis that the plaintiff was not totally disabled, not on the basis of eligibility, and Canada Life now concedes that the plaintiff was totally disabled at the time of his March 16, 2002 accident; and,

(c) Canada Life had a policy of permitting employers to extend insurance benefits past the employee’s termination date if the employer requested such extension.

[26] Both sides agree that, based on the strict terms of the group insurance policy, the plaintiff’s LTD insurance coverage was terminated before the accident of March 16, 2002. The termination date is now the only ground relied upon by Canada Life for refusing the claim. If coverage ceased on the termination of his employment, it was terminated on January 14, 2002. Even if the employer was required to extend coverage for the statutory notice requirement of eight weeks, plaintiff’s counsel acknowledges that it would still have terminated on March 11, 2002. Accordingly, this claim can succeed only if the plaintiff can demonstrate that Canada Life waived the termination date in his case.

[27] The plaintiff has made it clear that he relies on the doctrine of waiver and not on estoppel, which the Courts have confirmed are “two distinct doctrines”[^4]. Estoppel arises “where a representation is made by one party and relied upon by another to that person’s detriment, the party making the representation will be estopped from following a contrary course of action”[^5]. Detrimental reliance is a central feature of estoppel. The plaintiff acknowledges that he did not rely on any statement or representation by Canada Life to his detriment.

[28] Instead he relies exclusively on “waiver”, which “comes into effect when a party knowingly acts in a manner where he waives or forgoes reliance upon some right or defect. It is important that the right or defect, as the case may be, be known, since one should not be able to waive rights of which he was not fully aware or apprised”[^6]. Waiver does not require detrimental reliance on the part of the person seeking the benefit of the waiver. The requirements for waiver have been expressed as follows: “waiver…arises where one party to a contract, with full knowledge that his obligation under the contract has not become operative by reason of the failure of the other party to comply with a condition of the contract, intentionally relinquishes his right to treat the contract obligation as at an end but rather treats the contract or obligation as subsisting. It involves knowledge and consent and the acts or conduct of the person alleged to have so elected, and thereby waived that right, must be viewed objectively and must be unequivocal”[^7]. Finally, the courts have indicated that “in considering the acts or the conduct of the person alleged to have made such an election, the crucial time is after such party has knowledge of the failure of the other party to comply with the condition”[^8].

[29] The first issue is whether the fact that Canada Life continued to collect premiums for LTD insurance from R-Theta on behalf of the plaintiff until at least August 2002, and perhaps until December 2003, qualifies as a waiver of the termination date. The inadvertent collection of premiums by the insurer is an issue that is specifically addressed in the insurance policy, which provides:

The amount of insurance with respect to an insured person will be decreased or terminated in accordance with the other terms of this policy. The payment of premiums with respect to his insurance after the date of such decreases or termination will not continue to provide insurance of the amount which was in effect with respect to him prior to such decrease or continue insurance in force with respect to him after such termination, whether or not all or part of such premium is refunded.

(emphasis added)

[30] This provision is a standard provision in group insurance policies because the insurer must rely on the employer to pay the premiums of its employees. The intention of group insurance is to insure members of the group – in this case a group of employees. The insurer does not intend to cover non-employees. If the employer, through an administrative error, continues to pay premiums for persons who are no longer employees, such administrative errors should not be visited upon the insurer.

[31] The plaintiff acknowledges that he did not rely on the continued payment of premiums to his detriment or to alter his behaviour in any way. As indicated above at para. 13, the plaintiff understood that his LTD coverage had been terminated on January 14, 2002, and was unaware that his former employer had, through inadvertence, continued to pay the premium to Canada Life.

[32] In my opinion, the inadvertent payment of these premiums and the acceptance of these payments by Canada Life did not result in a waiver of the termination date of the plaintiff’s LTD insurance by Canada Life. Firstly, it cannot be said that Canada Life accepted the premiums with “full knowledge” that the plaintiff’s employment at R-Theta had been terminated on January 14, 2002. As indicated above, R-Theta neglected to advise Canada Life that the plaintiff’s employment had been terminated, and even when R-Theta sent its “Application for Group Disability Benefits – EMPLOYER’S STATEMENT” to Canada Life it stated that the plaintiff had been laid off rather than terminated. Canada Life did not become aware that the information contained in the employer’s statement was incorrect until after this litigation had begun.

[33] Secondly, the clear wording of the policy - that the payment of premiums, whether or not refunded, does not continue the policy past the termination date in the policy - means that the acceptance of premiums cannot be considered an intentional relinquishment of Canada Life’s rights under the policy.

[34] Nor is the inadvertent collection of premiums an “unequivocal” waiver of the insurer’s rights as required by the waiver cases.

[35] Canada Life relies on the case of McCunn Estate v. Canadian Imperial Bank of Commerce (2001), 2001 CanLII 24162 (ON CA), 53 O.R. (3d) 304 (C.A.). In that case, Ms. McCunn obtained a term life insurance policy from the bank to cover her line of credit if she died with outstanding loans. The coverage provided that the policy terminated at age seventy. The premiums were automatically debited from her account. Although the coverage on her life terminated at age seventy, the bank continued to debit the monthly premiums for a further sixteen months until her death. These debits were noted in her monthly statements. After Ms. McCunn’s death, her estate sought payment under the policy. The bank rejected the claim because the policy stated that coverage would terminate at age seventy, and it refunded the premiums that it collected after that date. The evidence of the bank was that the collection of premiums after age seventy was “a result of an administrative oversight.” The estate brought a claim based on both estoppel and “extension of contract”, which was basically a claim of waiver. The trial judge decided that by accepting the premiums the bank had extended the contract.

[36] The Court of Appeal reversed this decision, concluding that the inadvertent acceptance of the premium did not extend the contract past the termination date expressly stated in the policy. The majority of the court stated (at paras. 18-24):

[18] Applying basic principles of contract law, it is my view the applications judge was incorrect in his conclusion that a new contract of insurance had resulted from the bank's debiting of monthly insurance premiums to Mrs. McCunn's credit line subsequent to the termination of the insurance policy by reason of her age. For the parties to have created a new contract of insurance it was necessary that the bank, with the requisite knowledge and intent, make an offer to provide insurance, and that Mrs. McCunn, with the requisite knowledge and intent, accept the offer. As I will explain, it cannot be said that either the bank made such an offer, or that there was an acceptance by Mrs. McCunn.

[20] To extend the insurance contract beyond its termination date, it was necessary that there be an express agreement to do so between the bank and Mrs. McCunn. … On the reasons of the applications judge, the bank was deemed to have made an offer by erroneously continuing to debit monthly premiums after the termination of the original policy…

[21] The applications judge did not reject the bank's position that the debiting of the premiums was an administrative oversight … An oversight is an inadvertent omission or error. This is precisely what occurred when the bank failed to program its computer properly. An act which is the result of an administrative oversight is not an intended act. As the bank was in error in debiting the premiums, it cannot be said that it intended to extend the contract. To act erroneously is inconsistent with acting knowingly. It follows that by inadvertently debiting the monthly premiums to Mrs. McCunn's credit line subsequent to the termination date of the contract, the bank cannot be seen to have knowingly intended to make an offer to extend the contract or, properly speaking, to enter into a new contract. Moreover, even if this could be said to amount to such an offer, there was no evidence that it was accepted by Mrs. McCunn. The applications judge made no such finding. Indeed, in considering the estate's estoppel argument he observed that there was no evidence that Mrs. McCunn "was ever aware that the policy was still in effect although the premiums remained the same

[23] What this case comes down to is a mistake by the bank which, as the applications judge found, was not relied on by Mrs. McCunn. Based on the clear language of the insurance contract, the insurer's duty to pay was discharged on her 70th birthday, a fact which was apparent on the face of the documents she signed. She must be taken to have known, or to have had reason to know, that by its terms the insurance coverage had come to an end when she reached age 70. Yet, in the face of these circumstances, the estate has attempted to take advantage of the bank's mistake to demand payment of the insurance. Where a party knows of another's mistake, or should reasonably know of it, she cannot expect that the law will permit her to take advantage of it, particularly in circumstances, as in this case, where she neither relied on it to her detriment, nor acted in the reasonable expectation that coverage had not come to an end McMaster University v. Wilchar Construction Ltd., 1971 CanLII 594 (ON SC), [1971] 3 O.R. 801, 22 D.L.R. (3d) 9 (H.C.J.), affd (1973), 1976 CanLII 757 (ON SC), 12 O.R. (2d) 512n, 69 D.L.R. (3d) 400n (C.A.).

[24] This case is analogous to the situation in which a bank has mistakenly deposited a sum of money into a customer's account. Had the bank mistakenly deposited $1,000,000, or any other sum, into her account, Mrs. McCunn would not have been entitled to keep it and would be required to make restitution to the bank.

[37] The facts of McCunn are very similar to the facts of the case at hand. In our case, R-Theta continued to pay the plaintiff’s LTD premiums in error and Canada Life continued to accept them without knowledge that the plaintiff had been terminated or that R-Theta had paid the premiums in error. When the disability claims specialist contacted the employer on April 28, 2003, she was wrongly informed that the company policy was to continue benefits for six months, even though the company policy was to terminate LTD benefits on termination of employment and the company purported to do just that when the plaintiff’s employment was terminated. Neither R-Theta nor Canada Life intended the inadvertent premium payments to alter the express terms of the policy. Like the McCunn case, this case comes down to a mistake by R-Theta and Canada Life, which was not relied upon by the plaintiff, who understood that his LTD insurance had terminated before his motor vehicle accident. Since receiving R-Theta’s letter of February 28, 2003, Mr. Wilson has been aware that the payment of LTD premiums were inadvertently continued. Canada Life had neither the knowledge nor the intent needed to extend the policy beyond the termination date set out in the express language of the policy.

[38] The next issue is whether the fact that Canada Life initially declined coverage on the basis that the plaintiff was not totally disabled, not on the basis of eligibility, has resulted in the waiver of the termination date in the policy. As indicated above, Canada Life now concedes that the plaintiff was totally disabled at the time of his March 16, 2002 accident and relies exclusively on the termination date of his employment.

[39] In my opinion, Canada Life’s initial rejection of coverage on the basis that the plaintiff was not totally disabled did not amount to an “unequivocal and conscience intention to abandon”[^9] its right to rely upon the termination date in the policy. First of all, this initial position was based, in part, on the misinformation contained in the employer’s statement. Therefore, Canada Life was not acting on the basis of full knowledge.

[40] More importantly perhaps, Mr. Wilson’s letter of May 15, 2003 asked Canada Life if it would “…confirm if the insurer will deal with the claim solely upon the merits of the disability issue.” If Mr. Wilson had received a simple “yes” to that question he might have had a good argument to support his waiver claim. Indeed, I suspect that his letter was deliberately worded that way in the hope that the answer might support a waiver claim. But Canada Life’s answer was equally deliberate; while it considered (and rejected) the claim on the disability issue as Mr. Wilson requested, it went on to state: “Information on file indicates Mr. Stalin was laid off on January 14, 2002 but your client and his treating doctor has indicated that he became disabled on March 14, 2002. We reserve the right to investigate the eligibility of benefits at the time of claim.” (emphasis added). Given this language, I conclude that Canada Life was unequivocal in its intention to not waive its right to rely on the termination date in the policy. Again, if Canada Life had been properly advised that the plaintiff was terminated on January 14 rather than “laid off”, it is possible that no such investigation of eligibility would have even been considered necessary.

[41] I note that the Ontario Court of Appeal has stated with regard to waiver that “Merely allowing a relationship to continue until legal advice is obtained is not an unequivocal act tantamount to a waiver”[^10]. Canada Life’s consideration of the disability issue while reserving the right to “investigate eligibility” is also not an “unequivocal act tantamount to waiver”.

[42] The final issue relating to waiver is the plaintiff’s reliance on Canada Life’s policy of permitting employers to extend insurance benefits past the employee’s termination date if the employer requests such extension. The evidence elicited from Canada Life’s representative during the discovery was that if a company wanted to continue a former employee as an insured person they could advise Canada Life that the person had been terminated, but indicate an intention to continue to pay the premium to extend coverage for a specified period of time. While that may have been the policy of Canada Life, there is no evidence that such an extension was ever requested by R-Theta. Based on the evidence in this case, I have found that R-Theta intended to terminate the plaintiff’s LTD benefits when he was terminated on January 14, 2002, that R-Theta did not seek an extension of his LTD benefits at that time, that R-Theta continued to pay the LTD premiums through inadvertence or error, and that Canada Life accepted the premiums in error because it was not informed by R-Theta that the plaintiff’s employment had been terminated. Accordingly, even if Canada Life had a policy of permitting employers to extend insurance benefits past the employee’s termination date if the employer requested an extension, I find that no such extension was requested by the employer or provided by Canada Life in this case.

Conclusion

[43] In the result, the defendant, Canada Life, did not waive its right to rely on the termination date set out in the group LTD insurance policy between the defendant and the plaintiff’s employer in relation to the plaintiff’s claim for LTD benefits on a date following the termination of the plaintiff’s employment with the employer.

[44] The action is therefore dismissed. If the parties cannot agree on costs the defendant may make submissions not to exceed five pages within 30 days of the release of this judgment and the plaintiff may reply within 15 days.

Justice R.E. Charney

Released: June 24, 2015

[^1]: While the plaintiff’s last name is Thiruchelvam, he is sometimes referred to in correspondence by his first name, Stalin or Mr. Stalin, because he signs his name “T. Stalin” in accordance with his Tamil cultural background. [^2]: Maritime Life v. Sask River Bungalow 1994 CanLII 100 (SCC), [1994] 2 SCR 490, at paras. 19 and 20. [^3]: The material provided in the record indicates that premiums were collected until August 2002, but Mr. Wilson advises that Canada Life sent a correction to the discovery to indicate that it continued to collect premiums until December 2003. My decision on this issue does not depend on which of those dates is correct. [^4]: Marchischuk v. Dominion Industrial Supplies Ltd. 1991 CanLII 59 (SCC), [1991] 2 S.C.R. 61, at para. 7, 12; Anguish v. Maritime Life Assurance Co., 1987 ABCA 77, [1987] 4 W.W.R. 261 (Alb.C.A.); Canadian Newspaper Co. Ltd. v. Kansa General Insurance Co. Ltd., (1996), 1996 CanLII 2482 (ON CA), 30 O.R. (3d) 257 (C.A.). [^5]: Marchischuk, supra, at para. 7; Anguish, supra; Canadian Newspaper Co. Ltd., supra. [^6]: Marchischuk, supra, at para. 7, 15; Anguish, supra.; Canadian Newspaper supra; Maritime Life, supra. [^7]: Anguish, supra; Canadian Newspaper Co. Ltd., supra; Maritime Life, supra. [^8]: Mitchell & Jewell Ltd. v. Canadian Pacific Express Co., (1974), 1974 ALTASCAD 18, 44 D.L.R.(3d) 603, at para. 31 (Alb. C.A.). [^9]: Maritime Life, supra, at para. 19. [^10]: Canadian Newspaper, supra.