Court File and Parties

COURT FILE NO.: CV-15-537869 DATE: 20170413 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BHARAT PARMAR Plaintiff – and – TEACHERS LIFE Defendant

Bharat Parmar, acting in person S. Tint, for the defendant

HEARD: March 23, 2017

M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The plaintiff commenced this action for the payment of disability benefits under his insurance policy with the defendant. The defendant, Teachers Life, is a federally incorporated company properly named as Teachers Life Insurance Society (Fraternal), is licensed as a fraternal society, and is an independent corporation owned and controlled by its members under Part X of the Insurance Act, R.S.O. 1990, c. I-8. Its primary activity is the issuance of insurance policies for life, sickness and accident coverage for those actively involved in or retired from teaching, among other education-related work.

[2] The defendant brings this motion for summary judgment on the ground that the action is barred by provisions of the Policy and/or the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”). This motion was heard based on the following evidence: (1) the affidavit of Kim Read, the Director of Risk Management, Teachers Life Insurance Society (Fraternal), sworn November 14, 2016; (2) the affidavit of Helen Sava, counsel for the defendant, sworn March 10, 2017; and (3) the affidavits of Bharat Parmar, sworn March 15, 2017 and March 21, 2017.

[3] For reasons described below, I grant the defendant’s motion for summary judgment.

Background

[4] The plaintiff was a high school teacher for 23 years. On February 5, 2010, an incident occurred at his school as a result of which the plaintiff sustained an injury to his left shoulder after being punched. He was 54 years old at the time. The incident had a profound effect on the plaintiff, and he never returned to work. He was diagnosed with post-traumatic stress disorder, depression and anxiety. The plaintiff was on sick leave from his position with the school board until December 31, 2011. He received loss of earnings benefits from the Workplace Safety and Insurance Board (“WSIB”) from the date of the incident until November 25, 2011.

[5] The plaintiff was also insured under the defendant’s “Educators Income Protection Plan and Policy” (the “Policy”). The policy provides the following definitions of disability:

(a) Own Occupation/Short Term Period (the first 24 months)

An Insured individual is Totally Disabled if the Insured is in a continuous state of incapacity beyond the Waiting Period due to sickness or accident preventing the Insured from performing the essential duties of his or her regular occupation.

(b) Any Occupation/Long Term Period (after the first 24 months)

An Insured individual is Totally and Permanently Disabled if an individual is in a continuous state of incapacity due to a physical or mental impairment;

• which prevents an individual from engaging in any employment for which an individual is reasonably suited by reason of education, training or experience; and
• the individual is not capable of earning at any occupation, more than seventy-five percent (75%) of his or her pre-disability Gross Monthly Earnings that existed immediately prior to the date of disability.

Such a disability can reasonably be expected to last for the remainder of the Insured’s lifetime.

[6] After the waiting period passed, the plaintiff was eligible for replacement benefits based on 50% of his gross annual earnings with certain offsets, such as benefits received from WSIB. In this case, the waiting period ended once the plaintiff’s sick leave benefits ended; the plaintiff was eligible to receive disability benefits starting on January 1, 2012, provided he satisfied the terms of the Policy. The Policy also required the defendant to make payments in an amount ordered by the plaintiff’s approved pension plan in order to maintain full contribution to the plaintiff’s pension, as well as to pay the Policy premiums.

[7] In addition to setting out eligibility and other requirements, the Policy contains provisions regarding overpayments, appeals, arbitration, and limitations of actions. The following provisions are relevant to the matter before me:

B. Appeals

Any appeal of a denial of a disability claim, in whole or in part, must be filed within a period of one (1) year after the date the insurance benefit became payable or would have become payable if it had been a valid claim. An appeal must be in writing and must include the Insured’s reasons for believing the denial to be incorrect and supported by medical evidence.

E. Legal Action and Limitations

1. No legal action to recover benefits under this Policy can be introduced where a matter in dispute has been appealed and subsequently submitted to binding arbitration.
2. In the case where benefits have not been paid or have been paid on a without prejudice basis, a legal proceeding shall not be commenced in respect to a claim under this policy after the second anniversary of the day the claim was discovered. Discovery of a claim shall be defined as the earlier of the date a claim was first filed with Teachers Life, or the day a reasonable person ought to have known that a claim for benefits should have been filed with Teachers Life. … [Emphasis added.]

[8] The plaintiff submitted an application for short-term disability benefits on January 30, 2012.

[9] The defendant now submits that the plaintiff would not have been entitled to receive earnings replacement benefits given that the amount of WSIB benefits he was receiving exceeded the amount of his entitlement under the Policy. In any event, this point was not the focus of the proceeding before me.

[10] By letter dated February 9, 2012, a senior claims examiner for the defendant advised the plaintiff that she awaited further information from him. Her letter states:

Thank you for sending the Attending Physician’s Statement and other documents in support of your claim for disability benefits.

We have written today to your physicians, Drs. Jesin and Joglekar for further information. We are still waiting for the report from CID Consulting as well as information from your employer and Ontario Teachers’ Pension Plan and Workplace Safety and Insurance Board.

Once the outstanding information is received your file will be reviewed, and if any further information is required we will contact you at that time.…

[11] A claims examiner for the defendant sent the following letter, dated February 29, 2012, to the WSIB:

In order for us to make a decision regarding our insured’s current condition, it would be appreciated if you would provide a copy of your file. Please confirm the amount of any benefits paid and the time frame covered.

A copy of our insured’s authorization permitting the release of this information is enclosed. If there is a charge for this service, please provide your invoice for prompt attention….

[12] The WSIB did not provide these records to the defendant.

[13] The plaintiff retained a paralegal, Stanley Saich, of the firm Saich & Badrinarayan. Mr. Saich’s letter to the defendant, dated April 23, 2012, states:

Please be advised that our firm is retained to assist Mr. Parmar in all matters relating to his Workplace Safety and Insurance Board (“WSIB”) file and also to reply to your letter, dated April 13, 2012, which requested, inter alia:

• Access to WSIB Claim [number omitted];
• Medical information from CAMH; and
• Medical form completed by Dr. Jogelkar [sic].

Accordingly, please be advised that our client has gladly provided you with Dr. Joglekar’s medical report, which you should have recently received, plus full access to the medical reporting from the Centre for Addiction and Mental Health (“CAMH”).…

However, with respect to your request for a complete copy of the noted WSIB file, we are of the collective view that this is not warranted, as it appears your request amounts to nothing more than a fishing expedition.

Accordingly our client shall not provide your firm with the requested WSIB disclosure authority, due to including, but not limited to, the potential disclosure of private and confidential information without his consent, et al. and we maintain the CAMH medical reports should be more than adequate to determine including, but not limited to, whether or not Mr. Parmar meets the policy definition of disability and/or total disability.…

We also confirm that Mr. Parmar is currently receiving full loss of earnings benefits from the WSIB. …

Please also be advised that we hereby respectfully request that all future communications are filtered through our office for the proper handling of same.… [Emphasis added.]

[14] The above letter indicates that a copy was sent to the plaintiff.

[15] Counsel for the defendant responded to Mr. Saich by letter dated April 25, 2012:

Under the terms of Mr. Parmar’s policy, he has the onus to provide medical information which is sufficient to prove his entitlement to benefits. Sufficiency is determined by Teachers Life.

In an effort to assist in the provision of information which Teachers Life considers material to support sufficiency, it has requested Mr. Parmar to provide such additional information as may be required in this regard. Should Mr. Parmar fail to do so within the specific time parameters set out in the policy, his claim will not be considered any further.

The refusal to produce the WSIB file and to provide Mr. Parmar’s family physician’s clinic notes and records constitutes a breach of the policy. He has a positive duty to respond to such requests.

We repeat the information that was provided to you that a failure to comply with a request for information places your clients in breach of the policy conditions for determining eligibility for benefits. Until the information as demanded is provided by the claimant, no further consideration can be given to your client’s claim. [Underlining in original. Bold emphasis added.]

[16] This letter was met by a reply from Mr. Badrinarayan, Mr. Saich’s partner, by letter dated April 30, 2012. Amongst other things, this letter states:

Mr. Parmar has directed our firm to confirm that he shall not provide access to his WSIB file, for reasons already outlined in our previous correspondence to your client and he has provided full access to CAMH and we will provide access to Dr. Joglekar, Psychiatrist, upon request.… [Bold in original. Underlined emphasis added.]

[17] The above letter indicates that a copy was sent to the plaintiff.

[18] Counsel for the defendant responded to the above correspondence by letter dated May 9, 2012. Amongst other things, counsel’s reply states:

Specific information was requested from Dr. Jesin, your client’s GP by specific request made February 9th, 2012. The request was made for clinical notes and records maintained by Dr. Jesin with respect to this claimant. This has not been received. A further request was made on February 10th, 2012.

The claimant was advised again verbally on February 14th, 2012 and again on April 13th, 2012 that the requested material had not been provided.

Under the TL Policy, the WSIB payments are a deduction from any payment obligations of TL. The medical history is a component as is the amount of the benefit.

Specific requests for production have been made. If compliance is not effected within 14 days for both requested items, the claim will not receive further consideration. [Emphasis added.]

[19] There is no dispute that the requested documents were never given to the defendant within the above-noted 14-day period.

[20] On or shortly before November 12, 2012, the plaintiff contacted the defendant’s claims examiner, who refused to provide him with an update on the status of his application. The claims examiner’s letter, of the same date, states:

I am writing to confirm your recent telephone inquiry to the undersigned with respect to the progress on your claim.

This letter will also confirm our advice to you that since you have made your claim through your legal counsel and we are now each represented by legal counsel, you should address your communications to us through your legal representative and we will properly respond through ours.

We regret that we are not able to do otherwise….

[21] The above letter indicates that a copy was sent to Mr. Saich. There is no evidence of what steps the plaintiff or Mr. Saich took following the receipt of this letter.

[22] Almost two years passed before the plaintiff contacted Teachers Life again. On September 12, 2014, the plaintiff called the defendant to ask about the status of his claim. The plaintiff advised that he was no longer represented by Saich & Badrinarayan. The defendant’s claims examiner sent the following letter, dated September 15, 2014, to the plaintiff:

I am writing further to our telephone conversation of today’s date.

On September 12, 2014 you called and advised that you had a pending claim, you requested a status update. At that time I could not find an active claim for either benefits or waiver of premium in our records. I advised you I would look into the matter and get back to you.

As I explained during our telephone call today, I reviewed your member file and determined that you do not have an active claim with Teachers Life, nor do you have active coverage as coverage under Policy [number omitted] was lapsed due to non-payment of premiums.

We did receive a Statement of Claim on January 30, 2012, a pending claim file was opened and the claim number assigned was [number omitted].

Processing of this claim was suspended May 2012 as you did not fulfill your contractual obligation to furnish the remainder of the documents required to make a decision on your eligibility for either disability benefits or waiver of premium.…

Saich & Badrinarayan were advised that if the outstanding information was not provided within fourteen days (14) of the May 9, 2014 [sic – should be May 9, 2012] letter your claim would no longer been [sic] under consideration.…

As neither I nor our legal representative … received any further communication from yourself or your legal representative and as the information required for consideration of your claim was not provided, your pending claim was closed.

This letter is addressed directly to you [sic] advised me today, that Saich & Badrinarayan are no longer your legal representatives.… [Emphasis added.]

[23] The plaintiff states that he became aware that his application for benefits had been denied on September 15, 2014.

[24] The plaintiff states that he asked the defendant’s claims examiner, by letter dated October 17, 2014, to re-open his application and that he indicated that he would provide her with the documents that had been requested. There is no evidence of the defendant’s response. In any event, there is no dispute that the requested documents have not been delivered to the defendant.

[25] This action was commenced on October 6, 2015.

Issue #1: Is a Motion for Summary Judgment Appropriate?

[26] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[27] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[28] Rule 20.04(2.1) provides that in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and 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 trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[29] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: see Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: see Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96, 98 O.R. (3d) 641, at paras. 17-19.

[30] As noted earlier, this motion proceeded on the basis of affidavit evidence filed by both parties. There is no suggestion by the plaintiff that the determination of whether this action was commenced after the expiry of the limitation period should not be heard by way of motion for summary judgment.

[31] I find that I am able to make a “fair and just” determination of the merits of the motion for summary judgment.

Issue #2: Is the Plaintiff’s Claim Barred by the Limitation Period Found in the Policy?

[32] The defendant submits that this action is barred by the two-year limitation period found in Policy. The relevant provision, at p. 50 of the Policy, states:

In the case where benefits have not been paid or have been paid on a without prejudice basis, a legal proceeding shall not be commenced in respect to a claim under this policy after the second anniversary of the day the claim was discovered. Discovery of a claim shall be defined as the earlier of the date a claim was first filed with Teachers Life, or the day a reasonable person ought to have known that a claim for benefits should have been filed with Teachers Life. [Emphasis added.]

[33] However, the Act provides that a limitation period under the Act applies despite any agreement to vary or exclude it unless (1) such agreement was made before January 1, 2004; or (2) it is a “business agreement”, among other exceptions: see s. 22 of the Act. I find that neither exception applies.

[34] First, the Policy states that it was revised September 1, 2009 and “replaces all previous polices issued for Plan holders who are not currently receiving Disability Benefits”: see Policy, at p. 2. Accordingly, I find that the Policy was not made before January 1, 2004.

[35] Second, the Policy names (1) the defendant as the insurer; (2) the Ontario Secondary School Teachers’ Federation, District 12, as the Plan Sponsor; and (3) the individual member as the Policyholder. I find that the Policy is not a “business agreement” because (1) the plaintiff is a party to the Policy; and (2) the Policy was made for “personal, family or household purposes”: see Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, at paras. 58-61. Accordingly, the limitation period provision found in the Policy, including the trigger for the discovery of a claim, has no effect.

[36] Therefore, whether the plaintiff’s claim is statute-barred turns on the application of the Act.

Issue #3: Is the Plaintiff’s Claim Barred by the Act?

[37] The relevant provisions of the Act are as follows:

Definitions

1. In this Act …

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission…

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

   (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). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).

Presumptive Date of Discovery: On what date is the plaintiff presumed to have known of the matters referred to in clause 5(1)(a) of the Act?

[38] The defendant submits that the “act or omission” on which the claim is based is the denial of the plaintiff’s application for benefits. It alleges that this occurred on May 23, 2012 – 14 days after the defendant’s May 9, 2012 letter to Mr. Saich, which stated that “…the claim will not receive further consideration…” if certain medical records were not received within 14 days.

[39] The knowledge of a person’s solicitor is imputed to that person: Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516, at para. 62. In my view, this principle also applies in the analogous relationship of paralegal/client. As articulated in Pepper, ‘[i]n determining whether a plaintiff knew or ought to have known of the facts giving rise to a claim, the knowledge of his or her solicitors is imputed to the plaintiff.’ In this case, the paralegal had written to the defendant (presumably with the knowledge of his client, the plaintiff) and asked the defendant to direct all communication to the paralegal. As a result, it is appropriate to impute the paralegal’s knowledge of the correspondence with the defendant to the plaintiff.

[40] I find that the May 9, 2012 letter constitutes a denial of the plaintiff’s application in that it provided the plaintiff 14 days to comply with requests for production before the claim would not be further considered. Although the defendant’s letter might have more plainly communicated a denial of the plaintiff’s application by simply using those words and describing the appeal rights under the Policy, I find that the language used reasonably communicated a clear and unequivocal denial of the application: Kassburg, at para. 42. While a clear and unequivocal denial is not always a prerequisite for a limitation period to start running, I find that it is sufficient to establish the presumption under s. 5(2) of the Act in this case: see Pepper, at para. 87.

Subjective Date of Discovery: When did the plaintiff first know of the matters referred to in clause 5(1)(a) of the Act?

[41] The plaintiff submits that he was unaware that his application for disability benefits had been denied until he received a letter from the defendant’s claims examiner on September 15, 2014. This is not disputed by the defendant. The plaintiff’s submission regarding the status of his application is reflected in the defendant’s letter dated September 15, 2014, where the claims examiner described how the plaintiff asked for a status update on what he then thought was a pending claim. Accordingly, I find that the plaintiff first knew of the matters referred to in clause 5(1)(a) of the Act on September 15, 2014.

Modified Objective Date of Discovery: On what date would a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known of the matters referred to in clause 5(1)(a) of the Act?

[42] The defendant’s letter of May 9, 2012 was sent to the paralegal that represented the plaintiff. As noted, it is reasonable to impute the paralegal’s knowledge of the contents of the May 9, 2012 letter to the plaintiff. Accordingly, the plaintiff ought to have known that his application for benefits would be denied effective May 23, 2012 (14 days from the date of the May 9, 2012 letter), unless he delivered the requisite documents before that date. This addresses the requirements of s. 5(1)(a)(i), (ii) and (iii) of the Act.

[43] However, resort to litigation may not be “appropriate” for purposes of s. 5(1)(a)(iv) of the Act until other dispute resolution mechanisms have been exhausted: Pepper, at para. 70. There is no evidence that the plaintiff, directly or through his paralegal, availed himself of the right to appeal under the Policy. Had an appeal been commenced during the two-year limitation period, then it might not have been appropriate to commence a proceeding until that dispute resolution mechanism was completed.

[44] I find that a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known of the matters referred to in clause 5(1)(a) of the Act on May 23, 2012, which is the date the 14-day window for submitting medical documents closed, as indicated in the defendant’s letter to the plaintiff’s paralegal, dated May 9, 2012.

Conclusions

[45] I grant the defendant’s motion for summary judgment.

[46] I encourage the parties to resolve the issue of costs failing which the defendant shall deliver its submissions by April 21, 2017 and the plaintiff shall deliver his responding costs submission by April 28, 2017. Costs submissions shall be no more than five pages in length, exclusive of an outline of costs.

Mr. Justice M. D. Faieta Released: April 13, 2017