COURT FILE NO.: 334/11 DATE: 20180926

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ian Ferguson Plaintiff – and – The Corporation of the Regional Municipality of Halton, Mervyn F. White, and Carters Professional Corporation Defendants

Counsel: Brian Pickard, for the Plaintiff’s lawyer, Michael Smitiuch Ian Dick and Amy Tibble, for the Defendant Corporation of the Regional Municipality of Halton John Campbell, for the Defendants Mervyn White and Carters Professional Corporation

HEARD: April 17 and 18, 2018

REASONS FOR JUDGMENT

PETERSEN J.

OVERVIEW

Introduction

[1] There are two motions for summary judgment before me, both brought by defendants, each seeking to have the plaintiff’s claims dismissed as against them.

The Parties and the Underlying Action

[2] The plaintiff, Ian Ferguson, is a former employee of the defendant Regional Municipality of Halton. On June 14, 2005, he took a leave of absence from work, claiming to be disabled due to medical conditions. He never returned to work. Halton terminated his employment on April 3, 2007.

[3] During Mr. Ferguson’s period of employment, his compensation package included short-term disability (“STD”) and long-term disability (“LTD”) benefits. The LTD benefits were provided pursuant to a self-funded plan that was administered by Sun Life Assurance Company of Canada. Sun Life provided Halton with actuarial services, investigated and adjusted LTD claims, and advised Halton as to the entitlement of employees to receive LTD benefits. Sun Life was neither an insurer nor an underwriter of Halton’s LTD Plan. It administered the plan in accordance with the terms of an Administrative Services Only (“ASO”) agreement with Halton. Pursuant to the ASO agreement, Sun Life had no responsibility for payment of LTD benefits to eligible employees.

[4] When Mr. Ferguson commenced his leave from work in June 2005, he initially received STD benefits, but Halton ceased paying those benefits after the first two weeks of his leave. His application for LTD benefits was denied because it was filed beyond the timelines stipulated in Halton’s LTD Plan. Halton does not admit that, had Mr. Ferguson’s application been timely, he would have been entitled to receive LTD benefits. His claimed disability is disputed and will need to be determined if this action proceeds to trial.

[5] Only the denial of LTD benefits is at issue in this action. Mr. Ferguson’s entitlement to STD benefits is the subject of a separate court proceeding that was commenced by statement of claim against Halton on July 11, 2007.

[6] At the time that the STD action was commenced, Mr. Ferguson was represented by the defendant Carters Professional Corporation. The defendant Mervyn White was the senior counsel overseeing the file; two associate lawyers at Carters PC had primary carriage of the file.

[7] In September 2008, Mr. White informed Mr. Ferguson that Carters PC had failed to advance a claim for LTD benefits when the statement of claim for STD benefits was issued. Upon Mr. White’s recommendation, Mr. Ferguson promptly retained another lawyer to represent him in respect of his claims against Halton and a potential negligence claim against Mr. White and Carters PC.

[8] Mr. Ferguson retained his current counsel, Michael Smitiuch, on or about September 16, 2008. [1] On July 12, 2009, Mr. Smitiuch issued a statement of claim on Mr. Ferguson’s behalf, claiming damages for the denial of both STD and LTD benefits. The July 2009 statement of claim named Maritime Life, Manulife Financial, Sun Life, Mr. White and Carters PC as defendants. Halton was not named as a defendant. The pleadings included allegations that Sun Life had engaged in bad faith and breach of contract by denying Mr. Ferguson LTD benefits and that Mr. White and Carters PC had been negligent in their handling of his file. The claims against Sun Life in the 2009 action were later withdrawn, but the solicitors’ negligence claims were not discontinued.

[9] Mr. Smitiuch issued the statement of claim in this action on November 10, 2011, naming Halton, Mr. White and Carters PC as defendants. The claims against Halton include allegations of bad faith and breach of contract in respect of the denial of LTD benefits. Mr. Ferguson pleads that Halton failed to advise him of his rights and failed to provide him with the necessary LTD application forms. He pleads that he should be granted equitable relief from forfeiture in respect of his late application for LTD benefits. In the event that the Court finds he is disentitled from LTD benefits, he pleads that Mr. White and Carters PC are liable for his losses because they were negligent and breached their contractual obligations and fiduciary duty by failing to submit a timely LTD application on his behalf.

Motions before the Court

[10] In its motion, Halton submits that Mr. Ferguson is not entitled to LTD benefits because he missed the contractual application deadline and also because his employment was terminated before he filed his application, so he was no longer covered by the LTD Plan in any event. Halton also argues that Mr. Ferguson’s action is barred by a one-year contractual limitation period set out in the LTD Plan or, in the alternative, by the two-year statutory limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Halton argues that Mr. Ferguson is not entitled to relief from forfeiture or to any other equitable relief. Based on all of these grounds, Halton seeks an order dismissing Mr. Ferguson’s claims as against Halton.

[11] Mr. White and Carters PC support Mr. Ferguson’s request for relief from forfeiture. Their motion is brought in the event that equitable relief is not granted and the Court finds that Mr. Ferguson’s claims against Halton are barred by the expiry of a limitation period. They submit that the earliest any limitation period relating to LTD benefits could have expired was six months after their retainer was terminated. They assert that Mr. Ferguson therefore could not have suffered any losses caused by them. On that basis, they seek an order dismissing Mr. Ferguson’s claims as against them.

Issues to be Determined

[12] The issues raised by the motions are as follows:

a) Is this an appropriate case for summary judgement? If so, b) Did Mr. Ferguson file his application for LTD benefits beyond the timelines specified in Halton’s LTD Plan? If so, c) Is he disentitled from LTD benefits as a result of his late application or should he be granted relief from forfeiture? d) Did he cease to be eligible for LTD benefits by reason of the termination of his employment prior to submitting his application for benefits? e) Does the two-year limitation period in the Limitations Act, 2002 apply to Mr. Ferguson’s claims against Halton or is it varied by the one-year contractual limitation period in Halton’s LTD Plan? f) Are Mr. Ferguson’s claims against Halton barred by the expiry of the applicable limitation period? If so, g) Is Halton precluded from relying on the limitation period based on the doctrine of fraudulent concealment? If not, h) Did the applicable limitation period expire while Mr. White and Carters PC had carriage of the file or after Mr. Ferguson changed counsel?

ANALYSIS OF ISSUES

A. Is this an appropriate case for summary judgment?

[13] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, stipulates that summary judgment must be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or if the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[14] The issues raised by the defendants’ motions do not require a trial. There are few credibility issues in dispute. Affidavits have been sworn by key witnesses and transcripts of cross-examinations are in the record, but findings of fact will primarily be based on the documentary evidence because all of the witnesses have limited recall beyond that which is recorded in the documents. In these circumstances, I am confident that the motion record allows me to make the necessary findings of fact, apply the relevant legal principles to those facts, and arrive at a just result through a fair process: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 4.

[15] Moreover, the parties agree that the motions should be determined by way of summary judgement and I am satisfied that the summary judgement process is appropriate. Both motions raise threshold issues. If the motions are successful, they will dispose of all of the claims in the action and there will be no need for a trial.

[16] I have considered the possibility that only Halton’s motion may succeed. In that event, only partial summary judgement would be granted, but all claims against Halton would be resolved and Halton would not be required to participate in the trial against Mr. White and Carters PC. Given the threshold nature of the issues raised in Halton’s motion, there is no risk of duplicative or inconsistent findings at such a trial. The motion issues can be readily bifurcated from the remaining issues to be determined in the main action if a trial proceeds against Mr. White and Carters PC: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34.

[17] Even if both motions are unsuccessful, their resolutions will shorten and reduce the expense of the trial by narrowing the issues that remain to be decided.

[18] The efficiency and cost-effectiveness promoted by the motions are consistent with the access-to-justice objectives of the summary judgment rule: Hryniak, at paras. 34 and 60.

[19] For all of the above reasons, I have concluded that the summary judgment process is appropriate and is advisable in the context of this litigation as a whole: Butera, at para. 34.

B. Did Mr. Ferguson file his application for LTD benefits beyond the timelines stipulated in Halton’s LTD Plan?

[20] For the reasons that follow, I have concluded that Mr. Ferguson submitted his application for LTD benefits to Sun Life after the deadline prescribed by Halton’s LTD Plan (excerpts of the Plan Specifications in effect as of September 1, 2005 are attached at Appendix A to these reasons for judgement).

[21] According to Halton’s LTD Plan, benefits only become payable after the completion of an “elimination period”. Eligible employees are not entitled to receive LTD benefits during the first 182 days of their period of total disability. Employees on medical leave may access up to 26 weeks of STD benefits during the LTD elimination period, but they are not required to do so in order to qualify for LTD benefits.

[22] Halton’s LTD Plan requires an employee to give written notice to Sun Life of any pending LTD claim as soon as possible after the onset of a period of disability. It also requires that “proof of claim” be submitted to Sun Life in writing, no later than 90 days after completion of the elimination period, “or in no event later than 1 year after the end of the 90 day period”.

[23] The phrase “proof of claim” is not defined in the LTD Plan but the parties agree that it refers to a written application for LTD benefits, using forms provided by Sun Life. “Proof of claim” and “LTD application” are therefore used interchangeably throughout these Reasons for Judgment.

[24] If Mr. Ferguson was totally disabled from work when he took a leave on June 14, 2005 (an issue upon which I express no opinion), then his 182 day elimination period would have been completed on December 13, 2005. December 14, 2005 was therefore the earliest date on which he could have been entitled to receive LTD benefits. March 13, 2006 would mark the 90th day after the completion of his elimination period. He was therefore required by the terms of the LTD Plan to submit his application for LTD benefits to Sun Life by no later than March 13, 2007 (i.e., one year after the 90 day period).

[25] Mr. Ferguson did not submit his application for LTD benefits to Sun Life until June 3, 2010.

C. Is Mr. Ferguson disentitled from LTD benefits as a result of his late application or should he be granted relief from forfeiture of the benefits?

Summary of Parties’ Positions on this Issue

[26] Mr. Ferguson asks the court to grant him relief from forfeiture of LTD benefits. He argues that Halton is primarily to blame for the delay in filing his application. He alleges that Halton failed in its duty to assist him with the LTD application process, did not provide him or his lawyers with the application forms, and withheld relevant documentation from them. He argues that Halton also gave them misleading information about the application process, which resulted in confusion about what was required. He asserts that he cooperated with Halton by submitting relevant medical documentation on an ongoing basis and that he submitted his LTD application as expeditiously as possible after finally obtaining the necessary information and forms.

[27] Halton argues that Mr. Ferguson has not established entitlement to relief from forfeiture. It relies on the undisputed facts that, despite being represented by two separate law firms, both of which had prior experience with STD and LTD cases, Mr. Ferguson failed to submit an application for LTD benefits until approximately five years after the onset of his alleged disability and more than three years after the application deadline set out in the LTD Plan. Halton argues that the delay was caused by the oversight of Mr. Ferguson’s lawyers. It further argues that there is no reasonable justification for the lawyers’ failure to submit a timely application on Mr. Ferguson’s behalf. Mr. Ferguson was aware of his LTD coverage from the date of his hire. Both he and his lawyers were aware of his alleged disability and potential entitlement to LTD benefits at least as early as November 2005. He had access to a benefits summary on Halton’s internal computer system and a copy of the benefits summary was also provided to his lawyers. The benefits summary advised him of the requirement to submit proof of loss within 90 days. In these circumstances, Halton argues, it would not be appropriate to award him an equitable remedy.

Relief from Forfeiture Jurisprudence

[28] Mr. Ferguson asks this Court to make an order pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), to relieve him from the consequences of failing to comply with the timelines in Halton’s LTD Plan. Section 98 of the CJA states: “A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.”

[29] This section of the CJA is remedial in nature and therefore must be interpreted in a large and liberal fashion: Kozel v. Personal Insurance Co., 2014 ONCA 130, 119 O.R. (3d) 55, at paras. 54-55. The Courts have interpreted s.98 to allow for equitable relief in cases involving either statutory breaches or contractual breaches. However, relief from forfeiture can only be granted in contractual cases when a claimant’s breach of a contract amounts to “imperfect compliance” with a contractual provision, as opposed to “non-compliance”: Kozel, at paras. 33-34 and 40.

[30] In the insurance context, a claimant’s failure to give notice of claim and to submit proof of claim to an insurer within the time limits set out in an insurance policy constitutes imperfect compliance with the provisions of the applicable insurance contract: Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, at paras. 13-14 and 18. Relief from forfeiture pursuant to s. 98 of the CJA may be available in such cases: Dube v. RBC Life Insurance Co., 2015 ONCA 641, 127 O.R. (3d) 16. Mr. Ferguson’s failure to comply with the timelines in Halton’s self-funded LTD Plan is analogous to these insurance cases. The Court therefore has jurisdiction to grant relief from forfeiture.

[31] As the Ontario Court of Appeal has explained on more than one occasion, the Court’s exercise of its discretionary power to relieve against forfeiture consequent to a breach of contract is “predicated on the existence of circumstances in which enforcing a contractual right of forfeiture, although consistent with the terms of the contract, visits an inequitable consequence on the party that breached the contract”: Ontario (A.G.) v. 8477 Darlington Crescent, 2011 ONCA 363, 333 D.L.R. (4th) 326, at para. 87 and Kozel, at para. 29. In insurance cases, the purpose of the remedial relief is to prevent hardship to beneficiaries where there has been a failure to comply with a condition for receipt of insurance proceeds and where leniency in respect of strict compliance will not result in prejudice to the insurer: Elance Steel Fabricating Co. v. Falk Brothers Industries Ltd., [1989] 2 S.C.R. 778, at para. 15; and Kozel, at para. 30. This purpose applies equally to the analogous context of Halton’s self-funded LTD Plan for its employees.

[32] Relief from forfeiture is a purely discretionary remedy: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, at para. 32 and Kozel, at para. 29. It is granted sparingly and the party seeking an order for relief bears the onus of making a case for it: Ontario (Attorney General) v. McDougall, 2011 ONCA 363, 333 D.L.R. (4th) 326, at para. 87; and Buurman v. Dominion of Canada General Insurance Company, 2015 ONSC 6444, 55 C.C.L.I. (5th) 185, at para. 27.

[33] The following three factors must be taken into consideration in deciding whether to grant a claimant’s request for relief from forfeiture: (i) the reasonableness of the claimant’s conduct, (ii) the gravity of the claimant’s contractual breach, and (iii) the disparity between the value of what would be forfeited and the damage caused by the breach: Dube at para. 6; Kozel at para. 59; and Scicluna v. Solstice Two Ltd., 2018 ONCA 176, 421 D.L.R. (4th) 675, at paras. 28-30.

(i) Reasonableness of Mr. Ferguson’s Conduct

[34] The first step in the relief from forfeiture analysis requires an examination of the reasonableness of Mr. Ferguson’s conduct. This inquiry “relates to all facets of the contractual relationship, including the breach in issue and the aftermath of the breach”: 8477 Darlington Crescent, at para. 89; and Kozel at para. 61. In cases of breach involving a missed deadline, the Court ought not to grant relief from forfeiture where the breaching party has not acted in an expeditious manner after discovering the deadline or the party has not provided a compelling explanation for the failure to do so: Pilotte v. Zurich North America Canada (2006), 80 O.R. (3d) 62 (ONSC), at para. 66.

[35] The Ontario Court of Appeal has emphasized that the reasonableness inquiry entails a broad analysis: Kozel at para. 60. Per Williams Estate v. Paul Revere Life Insurance Co. (1997), 34 O.R. (3d) 161 (ONCA), at p. 175, in the insurance context (which is analogous to the case at hand):

The reasonableness test requires consideration of the nature of the breach, what caused it and what, if anything, the insured attempted to do about it. All of the circumstances, including those that go to explain the act or omission that caused the [breach] should be taken into account. It is only by considering the relevant background that the reasonableness of the [breaching party’s] conduct can be realistically considered.

[36] In this case, the parties agree that the nature of the breach is Mr. Ferguson’s failure to provide Sun Life early notice of his claim and failure to submit his application for LTD benefits to Sun Life by the deadline set out in Halton’s LTD Plan. The parties disagree about the circumstances that gave rise to the breach, Mr. Ferguson’s and his lawyers’ roles in the breach, and what they did about it once the missed deadline was discovered. Upon review of all of the evidence, I have made the following findings with respect to these issues.

[37] When Mr. Ferguson was hired, he was advised that his compensation package included STD and LTD benefits. He was not provided a copy of the LTD Plan Specifications or of the ASO agreement with Sun Life. A benefits summary (referred to later in these Reasons as the “Core Info” document) was available to him as an employee on Halton’s intranet.

[38] On June 14, 2005, the day that Mr. Ferguson commenced his leave from work, he spoke to Terri Foltarz, Halton’s WSIB/Disability Claims Management Coordinator, and advised her that he would be taking a sick leave. She reminded him that Halton requires a doctor’s certificate to support a sick leave of more than two consecutive days. He advised her that this was a continuation of an earlier illness, for which he had taken paid sick leave from January 10, 2005 to April 20, 2005. He told her that a doctor’s note would be forthcoming to confirm that.

[39] Mr. Ferguson had been paid STD benefits during his previous sick leave, but he had not previously applied for nor had he received LTD benefits.

[40] During the second week of Mr. Ferguson’s absence from work, Ms. Foltarz called and left him voicemail messages, reminding him to submit a doctor’s note. They spoke on the telephone on June 21, 2005 and discussed, among other things, a possible return-to-work meeting and the need for him to provide a medical certificate. Either during that telephone discussion, or during their prior conversation on June 14, 2005, Mr. Ferguson told Ms. Foltarz that she could use a signed Medical Release that he had provided her during his previous sick leave because his current absence was for the same medical conditions. The Release authorized his treating physician to discuss his medical conditions with Ms. Foltarz. The Release was valid for six months and had not yet expired.

[41] Ms. Foltarz decided that the existing Medical Release could not be used because it was for a different ailment, but there is no evidence that she communicated this decision to Mr. Ferguson. An internal email from Ms. Killeavy to Ms. Foltarz in November 2005 establishes that Ms. Killeavy was aware of this fact and intentionally kept it from Mr. Ferguson. There is no evidence in the record that Ms. Foltarz was unsuccessful in an actual attempt to use the Release provided by Mr. Ferguson to communicate with his doctor.

[42] After sending Mr. Ferguson a written warning, Halton ceased paying his STD benefits effective June 24, 2005, because he had not submitted medical documentation to substantiate his absence due to illness or injury.

[43] On July 11, 2005, Mr. Ferguson’s supervisor, Lauretta Kailan, wrote him to confirm that his STD benefits had ceased. She stated that he was in breach of Halton’s Sick Leave Policy for failing to provide medical information to support his absence from work. She also wrote, “Your failure to co-operate with your employer by providing information of your physical abilities so as to facilitate your return to work is contrary to your obligations under the Ontario Human Rights Code.” She cautioned him that, if he failed to provide medical information to substantiate his absence and facilitate his return-to-work by July 18, 2005, she would deem him to have abandoned his employment.

[44] Mr. Ferguson replied to Ms. Kailan in writing on July 15, 2005. He stated that he did not wish to abandon his employment with Halton, but that he was unable to return to work at that time due to deteriorating health. He referenced the medical documentation that he had submitted to Halton during his prior sick leave earlier that year. He stated that further medical documentation supporting his current absence from work had been faxed to Halton from his doctor’s office the week of June 13th. He also stated that documentation confirming his “current state of medically mandated restrictions” had been faxed to Halton earlier that day (i.e., July 15, 2005). Notably, he concluded his letter with the following request, “Please if you could also forward a copy of my employee benefits package to me so that I may be informed about our policies, benefits and obligations to the Region and to our coverage provider.”

[45] Mary Killeavy, Halton’s Manager of Labour Relations, replied to Mr. Ferguson’s letter on July 20, 2005, advising him that Halton had not received any medical documentation from his doctor to support his absence from work. She directed him to provide Ms. Foltarz with “acceptable medical documentation” from his physician or with a signed Medical Release for Ms. Foltarz to contact his physician directly. She did not explain that Ms. Foltarz had concluded that the existing Release was not adequate. She requested that he comply with her directions by July 22, 2005, failing which his employment status would be reviewed.

[46] In her July 20, 2005 letter, Ms. Killeavy enclosed a Medical Release form, as well as information pertaining to Halton’s Workplace Accommodation policy. Although she stated that the employee benefits information requested by Mr. Ferguson in his July 15, 2005 letter was also enclosed, the attachments did not include any information about the LTD coverage provider, Mr. Ferguson’s obligations under the LTD plan, the ASO agreement with Sun Life, the LTD application process or any other information pertaining to LTD benefits.

[47] Ms. Killeavy was aware that Mr. Ferguson had taken a three month sick leave earlier that year and that he was claiming to be absent for the same medical reasons as before. In these circumstances, given his written request for his “employee benefits package”, she ought to have forwarded to him information about Halton’s LTD Plan as well as the STD Plan. Instead, she provided information about Halton’s accommodation protocols. She was focused on trying to get him to return to work, rather than on informing him of his income-replacement benefits. Her letter and the documentation that she provided were not responsive to his request.

[48] Halton received a medical note from Mr. Ferguson’s physician on July 22, 2005 and deemed it to be insufficient to support his continued absence from work. The doctor’s note is not included in the motion record. An email from Ms. Killeavy to Ms. Kailan dated July 26, 2005 indicates that Halton had concerns about the content of the note and that Ms. Foltarz would be consulting with Halton’s physician on the matter.

[49] Between August 10, 2005 and October 20, 2005, Ms. Foltarz wrote seven letters to Mr. Ferguson, each time enclosing a Workplace Safety Insurance Board (WSIB) Functional Abilities form and directing that it be completed by his treating physician and returned to her. Contrary to Ms. Killeavy’s evidence and Halton’s submissions, this correspondence did not advise Mr. Ferguson that additional medical documentation was required to support his absence and the provision of STD benefits. On the contrary, none of the letters mentioned STD benefits. The requested medical information related to a WSIB claim made by Mr. Ferguson because of occupational exposure to chemicals in the workplace. The letters explicitly stated that the WSIB Functional Abilities form was required for the purpose of facilitating his return to work, not for the purposes of supporting his absence or assessing his entitlement to STD benefits.

[50] Mr. Ferguson retained Mr. White in early November 2005. Together, they met with Ms. Killeavy and Robert Gray, Halton’s Director of Legal Services, on November 18, 2005. During the meeting, Mr. Ferguson shared details about numerous health concerns for which he was receiving medical treatment, including gastro-intestinal, cardiac and bone marrow issues. He advised that his doctors did not know exactly what was going on with him, but did not feel that he should be working. He mentioned that he had been hospitalized twice since leaving work, from June 17-19, 2005 and from October 21-25, 2005, and had also had several emergency hospital visits. He further advised that he was wearing a nitro patch because of frequent small heart attacks.

[51] During the meeting, Mr. Ferguson provided Halton with a new signed Medical Release, permitting Ms. Foltarz to consult with a number of doctors who had been treating him since June 14, 2005. He advised that the WSIB Functional Abilities form had been completed by his doctors and sent directly to WSIB.

[52] Disability income-replacement benefits were discussed during the meeting. Halton took the position that Mr. Ferguson had not provided sufficient medical information to justify payment of benefits. Mr. Ferguson and Mr. White disagreed. According to Mr. White’s affidavit, he and Mr. Ferguson indicated that Mr. Ferguson was unable to work at that time and might be unable to work for some time. Mr. White deposed that they made it clear that Mr. Ferguson would be seeking STD and LTD benefits. This evidence was confirmed by Ms. Killeavy during her cross-examination.

[53] Regarding the discussion about disability benefits during the meeting, Mr. White deposed: “I said I wanted to see copies of the policies and made a note ‘need policy’.” During his cross-examination, he stated that he had no independent recollection of the meeting beyond what was written in his meeting notes. The hand-written notes include the following:

STD/LTD ? need policy; Bill C-45 and require all of his file self directed/funded insurance / STD self funded at LTD, but, directed by company need copy of policy

[54] Ms. Killeavy denied that Mr. White requested a copy of the LTD Policy during the meeting. Her hand-written meeting notes make no reference whatsoever to LTD or STD benefits. Her notes are obviously incomplete because they do not capture a number of topics discussed during the meeting, which she summarized in a reporting email to Ms. Foltarz after the meeting. Her email states that Mr. White “asked a few questions about our short term and long term disability benefit plans and how they work, who insures them”. This statement in her email is consistent with Mr. White’s references to STD and LTD benefits in his meeting notes.

[55] Halton did not submit an affidavit from Mr. Gray, who was also present at the meeting, so there is no evidence to corroborate Ms. Killeavy’s testimony. Mr. Ferguson gave no evidence on the issue.

[56] I am persuaded by the totality of the evidence available to me – particularly Mr. White’s more accurate contemporaneous notes – that Mr. White requested a copy of the LTD policy from Halton during the November 18, 2005 meeting. I recognize that there is no actual “policy” because Halton’s LTD Plan is not underwritten by an insurer, but Halton ought to have understood his request to refer to the LTD Plan Specifications.

[57] Ms. Killeavy deposed that Mr. Ferguson and Mr. White were advised, during the November 18, 2005 meeting, that the LTD Plan was self-funded, but administered by a third-party company. This evidence is corroborated by Mr. White’s notes and I accept it as credible. There is no evidence that Sun Life was identified during the meeting as the third party plan administrator.

[58] Although Mr. White was provided with some useful information in the meeting, it was not sufficient for him to be able to advise Mr. Ferguson about the LTD application process. Without a copy of the LTD Plan Specifications, Mr. White and Mr. Ferguson could not have known that the elimination period for LTD benefits would expire in less than a month (on December 13, 2005), that notice of Mr. Ferguson’s LTD claim had to be provided to Sun Life as soon as possible and that proof of claim, using forms provided by Sun Life, ought to be submitted by March 13, 2006 and, in any event, not later than March 13, 2007. They were not told any of this information by Ms. Killeavy or Mr. Gray during the November 18, 2005 meeting, despite the fact that Mr. White specifically asked about how the LTD Plan worked. This is precisely why Mr. White requested a copy of the LTD “policy” during the meeting. The LTD Plan specifications setting out the above information were never provided to him.

[59] I accept Ms. Killeavy’s uncontested evidence that Mr. White did not specifically request a copy of the Sun Life proof of claim forms during the November 18, 2005 meeting. But neither did she offer to provide them, nor did she direct him on how to obtain them from Sun Life. She acknowledged during her cross-examination that Halton had a copy of the forms.

[60] As his employer, Halton owed a duty to Mr. Ferguson to assist him in applying for LTD benefits: Tarailo v. Allied Chemicals Canada Ltd. (1989), 68 O.R. (2d) 288 (ONSC) and Herbert v. Manulife Financial, 2002 ABQB 891, 326 A.R. 128, at para. 64. During her cross-examination, Ms. Killeavy acknowledged Halton’s duty to treat employees with disabilities fairly and reasonably. She agreed that part of Halton’s duty is to ensure that employees with disabilities know what they need to do to obtain disability benefits. She testified that Halton’s usual practice was to send the Sun Life proof of claim forms to employees on extended sick leave so that they could apply for LTD benefits before their elimination period was completed. This practice promoted a smooth transition from STD to LTD benefits without interruption.

[61] Ms. Killeavy stated that Halton’s Disability Management office (staffed by the Co-ordinator, Ms. Folhartz, and one assistant) was responsible for tracking employees’ sick leaves and maintaining records and schedules with respect to the dates for their eligibility for LTD benefits. The Disability Management staff ensured that employees on extended sick leave received the LTD application forms prior to the expiry of the elimination period that applied to their particular situation. There was a system in place so that, once an employee reached a particular week of STD benefits, a package of LTD information would be sent out to them.

[62] Ms. Killeavy explained that a Personal Sick Form was kept by the Disability Management staff for each employee who was on paid sick leave. The form set out (among other things) the date that the employee’s STD benefits would expire and recorded the date when the LTD forms were sent to the employee.

[63] The motion record contains a copy of Mr. Ferguson’s Personal Sick Form for the prior medical leave that he started on January 10, 2005. There is no indication on his Personal Sick Form that the LTD application forms were sent to him during that first leave (which ended on April 20, 2005). There is no evidence that a new Personal Sick Form was created for him in respect of the leave that he commenced on June 14, 2005. Contrary to its usual practice, the Disability Management office was not tracking his second leave to ensure that the LTD application forms were sent to him before the expiry of the 182 day elimination period. Ms. Killeavy explained that the tracking was only done for employees who were in receipt of STD benefits, despite the fact that receipt of STD benefits was not a precondition to eligibility for LTD benefits. Mr. Ferguson was not in Halton’s tracking system because Halton had ceased paying his STD benefits, even though no final decision had yet been made by Halton about his entitlement to STD benefits.

[64] When Mr. Ferguson met with Ms. Killeavy and Mr. Gray on November 18, 2005, the end of his elimination period was only 25 days away. Still, they did not provide him with a copy of the LTD package that Halton typically sent to all employees on an extended sick leave. Mr. Foltarz knew that Ms. Killeavy was meeting with Mr. Ferguson. Although Mr. Ferguson was not being tracked by the Disability Management team, Ms. Foltarz was aware that he had been off work for approximately five months at that point in time. Halton cannot claim that Mr. Ferguson had completely fallen off its radar. Halton knew that the elimination period was about to end and that Mr. Ferguson could then apply for LTD benefits, but it did not share that information with him and his lawyer – even after the lawyer specifically asked for information about how the LTD plan works.

[65] Halton did not take the position, during the November 18, 2005 meeting, that Mr. Ferguson was ineligible for benefits because he was not disabled. Rather, Halton maintained that insufficient medical information had been provided. Ms. Killeavy advised Mr. Ferguson that Ms. Foltarz would need to contact the doctors named on the Medical Release in order to adjudicate his claim for benefits. She reassured him that Ms. Foltarz would do so as quickly as possible.

[66] After the meeting in November 2005, Mr. Ferguson’s file at Carters PC was primarily handled by two other lawyers in the firm. Over the ensuing months, these lawyers, Mr. Ferguson and Mr. Ferguson’s doctors provided medical information to Halton on numerous occasions, including hospital records and clinical notes. Halton continuously maintained that the information was insufficient because it did not contain a medical diagnosis of Mr. Ferguson’s condition(s) and did not identify periods of absence when he was disabled from working. Pursuant to Halton’s request, Mr. Ferguson gave Halton’s consulting physician permission to speak to his treating physician directly. He also agreed to undergo an independent medical examination (IME) by one of Halton’s physicians. The record shows that the consultation between doctors occurred in July 2006, but Halton did not proceed with the IME and did not change its position regarding the insufficiency of Mr. Ferguson’s medical documentation.

[67] The sufficiency of the medical records to establish Mr. Ferguson’s entitlement to disability benefits is not at issue in these motions. However, the medical information provided to Halton is relevant to the issue of whether Halton was aware that he was seeking LTD as well as STD benefits. I find that Halton was aware, for the following reasons.

[68] First, Mr. Ferguson (and his lawyers) provided Halton with information about his ongoing symptoms and health conditions well beyond the 182 day elimination period in the LTD Plan. It ought to have been obvious to Halton that he was seeking long-term income-replacement disability benefits beyond the maximum 26 weeks of STD benefits.

[69] Second, Mr. Ferguson wrote a letter to Ms. Foltarz dated February 23, 2006, in which he updated her on his health conditions and recent hospitalization. He explicitly referenced his request for LTD benefits in the letter. The subject line of the letter is: “Re: Requested Instatement of Long Term and Short Term Benefits”. The first sentence reads, “This letter is in regards to the continued denial of my Short Term and Long Term Disability Benefits.” During her cross-examination, Ms. Killeavy confirmed that she had seen this letter. She conceded that, although she was focused on his STD claim at the time, the letter indicated to her that Mr. Ferguson also wanted LTD benefits.

[70] Third, one of the lawyers at Carters PC had a telephone conversation with Ms. Killeavy on October 26, 2006 about an angry voicemail message that Mr. Ferguson had left Ms. Killeavy. Their conversation was summarized in a memo from the lawyer to Mr. White, which records Ms. Killeavy stating that Mr. Ferguson was “upset about not receiving his LTD benefits” and “that the Region of Halton has a very generous STD/LTD package and normally their employees go right into LTD after receiving STD without any hitches.”

[71] Fourth, between November 2006 and February 2007, a lawyer at Carters PC corresponded regularly with Ms. Killeavy about the medical documentation being submitted by Mr. Ferguson. Multiple email messages and letters were exchanged, with subject lines that explicitly referenced Mr. Ferguson’s “LTD Claim” and/or “LTD/STD” benefits.

[72] Finally, an email from Carters PC dated February 28, 2007 advised Ms. Killeavy that further medical records would become available in April 2007 “in support of Mr. Ferguson’s claim for short-term/long-term disability benefits.”

[73] All of the above correspondence occurred prior to the March 13, 2007 deadline for submitting an LTD application to Sun Life, of which Mr. Ferguson and his lawyers were unaware. Ms. Killeavy conceded during her cross-examination that Halton knew about the March 13, 2007 deadline. Halton also knew that Mr. Ferguson wanted LTD benefits. Yet neither Ms. Killeavy nor anyone else at Halton brought the application deadline to Mr. Ferguson’s (or his lawyers’) attention, provided him with a copy of Sun Life’s LTD application forms, or explained to him that an LTD application needed to be submitted to Sun Life in order for him to be considered for LTD benefits.

[74] Mr. Ferguson gave credible and unchallenged evidence that Halton never advised him (either during the November 18, 2005 meeting or at any other time) that he was required to make an application for LTD benefits separate from his STD benefits claim.

[75] As noted earlier, Ms. Killeavy confirmed that it was Halton’s normal practice to notify employees on sick leave (in writing) of their eligibility to apply for LTD, to remind and encourage them to apply, to send them the application forms, and to note, on their Personal Sick Form, the date when the LTD forms were sent. She acknowledged that this was not done in Mr. Ferguson’s case. She explained that it was not done because Mr. Ferguson was not approved for STD benefits, but Halton’s LTD plan does not require an employee to qualify for STD benefits before applying for or receiving LTD benefits. It only requires completion of the elimination period.

[76] Ms. Killeavy testified that in the usual course, after LTD forms were sent to an employee, the Disability Management staff would communicate and liaise with the employee with respect to their claims. She agreed that part of Ms. Foltarz’s role was educational – to ensure that employees knew what benefits were available to them and how to get through the application process. She agreed that Ms. Foltarz provided counselling to employees in receipt of STD benefits to make sure they understood that there is a separate process for LTD benefits and that Sun Life adjusts the LTD claims. Mr. Ferguson was not provided with any counselling and educational assistance from Ms. Foltarz or any other Halton employee. He was left in the dark about the requirements of the LTD application process.

[77] In the circumstances, it was reasonable for Mr. Ferguson to believe that no separate application was required for LTD benefits. The record shows that he and his lawyers at Carters PC were under the impression that they merely had to provide diagnostic information satisfactory to Halton in order to have his STD benefits retroactively reinstated and then his LTD benefits claim would be processed.

[78] Halton submits that Mr. Ferguson and his lawyers did not make “any real effort” to obtain the requisite LTD documentation in order to ascertain what steps needed to be taken to apply for LTD benefits and what timelines applied. Although I agree that the lawyers at Carters PC could have been more diligent in following up on Mr. White’s request for a copy of the LTD policy during the November 18, 2005 meeting, it is not accurate to state that they made no genuine effort to obtain relevant LTD documentation.

[79] On June 13, 2006, Mr. White made a written request for Mr. Ferguson’s “complete employment file” (emphasis in original) in a letter to Ms. Killeavy. While explicitly reserving the generality of his request, he specified that he wanted, among other things, copies of all disability insurance forms, employment benefit records, and benefit brochures. The Sun Life application forms ought to have been provided at that time, along with the LTD Plan Specifications, which set out the timeline for filing an application.

[80] Instead, Ms. Killeavy responded on July 28, 2006, providing Mr. White with a copy of Mr. Ferguson’s employment file and a document that she called a “benefits brochure”. The document contained summary information about the STD plan. She did not provide Mr. White with any information or documentation relating to Halton’s LTD Plan, despite the fact that Mr. Ferguson had by that point been off work for more than 13 months and had long ago completed the LTD elimination period.

[81] Halton relies on the fact that, on February 23, 2007, an articling student at Carters PC emailed one of the associate lawyers working on Mr. Ferguson’s file, stating that he did not see dates for Mr. Ferguson’s STD or LTD benefits applications in the file. This evidence shows that the lawyers at Carters PC were likely aware that Mr. Ferguson had not submitted a separate application for LTD benefits. There is, however, no evidence that they knew that such an application was required. On the contrary, the evidence establishes that Mr. Ferguson’s lawyers were under the impression, based on their communications with Halton, that Mr. Ferguson simply needed to submit medical documentation satisfactory to Halton in order to be approved for STD benefits and then his LTD benefits claim would be processed.

[82] Mr. White confirmed, during his cross-examination, that he had previously dealt with STD and LTD cases. He stated that he had not previously dealt with any case involving Halton’s LTD Plan. There is no evidence that he was familiar with the particular terms of Halton’s Plan. He said he was aware that normally there is a higher threshold disability requirement for LTD benefits than for STD benefits. He acknowledged that, in general, a claim for LTD benefits could be advanced independently of a claim for STD benefits, but he added, “a lot of policies have a requirement that you have to have STD first to have LTD.”

[83] It is undisputed that Halton’s LTD Plan did not require a claimant to obtain STD benefits during the elimination period in order to qualify for LTD benefits, but there is no evidence that this was discussed during the November 18, 2005 meeting or that it was ever communicated to Mr. Ferguson or his lawyers.

[84] From the date of the meeting on November 18, 2005 until February 2007, Halton was aware that Mr. Ferguson was seeking both STD and LTD benefits for income-replacement, yet no one advised him (or his lawyers) that he was required to submit proof of claim forms to Sun Life in order to initiate a separate application for LTD benefits. No one provided him (or his lawyers) with a copy of the LTD Plan Specifications or of the ASO agreement with Sun Life. No one gave him (or his lawyers) a copy of the LTD application forms. No one advised him (or his lawyers) that the deadline for submitting his LTD application was March 13, 2007.

[85] By letter dated March 20, 2007, Halton’s Acting Director of Human Resources informed Mr. Ferguson for the first time that his claim for STD benefits was denied. Mr. Ferguson was advised that he was expected to return to work as soon as possible. He was directed to contact Ms. Killeavy by April 3, 2007, failing which Halton would assume that he had resigned from his employment.

[86] A lawyer from Carters PC responded by letter dated April 3, 2007, advising Halton that they had been instructed by Mr. Ferguson to commence an action for denial of STD benefits. Mr. Ferguson did not return to work and his employment was terminated effective April 3, 2007. The STD action against Halton was commenced on July 11, 2007.

[87] From that point onward, Carters PC ceased corresponding directly with Halton about Mr. Ferguson and began corresponding instead with Halton’s Legal Services Division.

[88] On June 5, 2008, Mr. White made a specific written request to the Legal Services Division for “a copy of any information with respect to Long Term Disability for employees of the Region of Halton for the year 2005”. A law clerk replied on June 11, 2008, enclosing information regarding Halton’s LTD benefits. This letter was the first time that Mr. Ferguson’s lawyers were provided with written documentation relating to Halton’s LTD Plan. The information was both incomplete and misleading.

[89] First, the cover letter from the law clerk stated that Halton’s LTD benefits were “provided by Sun Life Assurance Company of Canada”, which is incorrect. Under the ASO agreement, Sun Life provides only administrative services to Halton and has no responsibility for providing LTD benefits to employees.

[90] Second, the law clerk’s letter enclosed a print-out from Halton’s employee intranet of a document entitled “Core Info”, which contains unclear and confusing information about the LTD Plan. Sun Life’s logo is prominently displayed on the first page of the document beside the title “Long Term Disability Benefits”. The document states that written notice of claim must be filed with Sun Life; that Sun Life has the right to have a claimant medically examined at any time; that rehabilitation benefits are only payable if approved by Sun Life; that claimants must be receiving appropriate medical treatment, as determined by Sun Life; and that Sun Life will pay reasonable charges for examinations by a physician of its choice while a claim is pending. The Core Info document does not specify that Sun Life provides only administrative services in respect of the LTD Plan. The Core Info document includes some references to “the ASO Agreement” but it does not explain that the acronym “ASO” stands for Administrative Services Only. It does not state that the LTD plan is self-funded by Halton. It would be reasonable for a reader to form the impression from the Core Info document that Sun Life is the benefits provider, particularly when read in conjunction with the incorrect statement in the cover letter.

[91] Under the subtitle “Long Term Disability”, the Core Info document states: “Your employer has appointed a Plan Administrator who looks after your coverage… He/she also submits claims to us on your behalf, using forms we provide.” Since the employer is Halton, it is reasonable to assume that “us” and “we” refer to Sun Life. It is entirely unclear who the Plan Administrator refers to. In fact, the Plan Administrator is Sun Life, so this key clause in the Core Info document makes no sense at all.

[92] It appears that even Ms. Killeavy was confused by this clause. When questioned about it during her cross-examination, she stated incorrectly that “Plan Administrator” refers to two people in Halton’s Disability Management office, namely Ms. Foltarz and the Disability Management Assistant. However, “Plan Administrator” was not Ms. Foltarz’s title. Ms. Killeavy agreed that it was not terminology Halton used to refer to Ms. Foltarz’s position. During the motions hearing, Halton’s counsel submitted – contrary to its own witness’s testimony – that the Plan Administrator refers to Sun Life. In the context of Halton’s ASO agreement with Sun Life, that must be correct.

[93] The Core Info document directs employees to contact the Plan Administrator to obtain the necessary claim forms, but does not identify the Plan Administrator or provide any information about how to contact the Plan Administrator. Ms. Killeavy agreed that, to her knowledge, the Plan Administrator was never identified to Mr. Ferguson. Notably, the LTD Plan Specifications refer to Sun Life as the “Administrator” throughout, but that document was not provided to Mr. White.

[94] In arguing that Mr. Ferguson was put on notice that he was required to submit a separate LTD application within 90 days of the expiry of the elimination period in the LTD plan, Halton relies on the fact that the Core Info document includes the following paragraph:

Written notice of claim must be filed with Sun Life Assurance Company as soon as reasonably possible, after the occurrence or commencement of any loss. Your Plan Administrator will provide you with claim forms upon receipt of the above mentioned notice. Proof of loss must be provided within 90 days.

[95] The document does not define “loss” or explain the meaning of “proof of loss”. It does not specify to whom proof of loss must be provided or when the 90 day time limit begins to run. The document could reasonably be interpreted to mean that the 90 days commence once the claim forms have been provided by the Plan Administrator. In fact, the 90 days start to run after completion of the elimination period, as set out in the LTD Plan Specifications, but that cannot be inferred from the Core Info document.

[96] The Core Info document mentions the elimination period, but simply states that it “lasts for the number of days shown in the Benefit Schedule.” A copy of the Benefit Schedule is not attached. It is not possible to ascertain the length of the elimination period from the Core Info document.

[97] Under the subtitle, “Important Points to Remember About Your Coverage”, the Core Info document concludes with the following paragraph:

For easy reference, this certificate is limited to brief descriptions of coverage provided. The exact terms are contained in the ASO Agreement – the benefit agreement. Accordingly, all rights are determined in accordance with the ASO Agreement, not this certificate.

[98] In fact, the “exact terms” of coverage (including the time limits for submitting a claim and the one year limitation period for commencing a legal action) are included in the LTD Plan Specifications. The Core Info document does not even mention the existence of the Plan Specifications document. In any event, neither the ASO agreement nor the Plan Specifications were provided to Mr. White.

[99] Remarkably, Ms. Killeavy testified that, at the time that Mr. White made his request for copies of LTD documentation in early June 2008, she was not aware of the Plan Specifications. She said that, had she been aware of the document, she probably would have sent it to him. She confirmed that Ms. Foltarz would have been aware of it.

[100] An internal Carters PC memorandum dated June 25, 2008 records that a further verbal request for LTD documentation was made by Carters PC on June 24, 2008. The memo summarizes a telephone conversation between Mr. White’s law clerk and one of Halton’s lawyers regarding an upcoming mediation session in connection with the STD action. The clerk’s memo states:

I asked . . . if there were any other documents pertaining to the STD and LTD benefits for the employees of Halton Region other than the copies of documents we received that appear to have come from Halton’s web site. She advised that she wasn’t sure, but if there are they will be contained within the mediation brief.

[101] Halton alleges that, despite its failure to provide copies of the LTD Plan Specifications, Mr. Ferguson’s lawyers knew that a LTD application needed to be submitted because they were verbally advised of the 90 day deadline in telephone conversations with Halton’s lawyers. Ms. Killeavy deposed that, on August 27, 2008, the lawyer at Carters PC who had primary carriage of the file spoke to an unnamed “lawyer from the solicitors for Halton” and “was advised that in order to be eligible to receive long term disability benefits, proof of loss must be provided within 90 days.” Ms. Killeavy further deposed that “[s]hortly thereafter, the lawyer from the solicitors for Halton advised White of this during a telephone call.” Ms. Killeavy did not identify the lawyer for Halton who allegedly had these conversations with Mr. Ferguson’s lawyers.

[102] I reject Ms. Killeavy’s evidence on this point as unreliable hearsay. The unidentified “lawyer from the solicitors for Halton” did not swear an affidavit attesting to the substance of the telephone conversations. There is no foundation established for Ms. Killeavy’s purported knowledge of the content of these phone calls. There is evidence of a phone call between Mr. White and Halton’s lawyer in late August 2008, but no reliable evidence that Mr. White was advised, during the call, that a separate LTD application needed to be submitted by Mr. Ferguson within 90 days or at all.

[103] On August 29, 2008, instead of providing Mr. White with the LTD Plan specifications, Halton’s lawyer re-sent him the Core Info document, along with a copy of the June 11, 2008 cover letter from Halton’s law clerk, which incorrectly states that Halton’s LTD benefits are “provided by Sun Life”. The fax cover sheet stated, “further to our conversation, please find enclosed another copy of Halton Region’s letter dated June 11, 2008 with the enclosed Sun Life policy”. The enclosed document was, in fact, the Core Info document, not a Sun Life policy. Indeed, there is no Sun Life policy because Halton’s plan is self-funded.

[104] Mr. Ferguson’s (and his lawyers’) confusion about what was required to initiate a LTD claim must be assessed in the full context of all the correspondence and verbal communications with Halton, as well as the misleading Core Info document. Mr. Ferguson’s pursuit of LTD benefits was made clear to Halton as early as November 2005, but he was never advised that he needed to submit a separate application to Sun Life in order for his LTD claim to be considered along with his claim for STD benefits.

[105] Notably, the evidence establishes that submission of a LTD application from Mr. Ferguson was not, in fact, required in order for Sun Life to commence a LTD claim for him. Although Mr. Ferguson did not submit a formal application for LTD benefits to Sun Life until June 2010, the record establishes that a LTD claim for him was initiated by Sun Life in June 2009. An email exchange between Sun Life’s Senior Claims Consultant and Halton’s Benefits and Pension Analyst (copied to Ms. Killeavy) confirms that Halton provided Sun Life with the necessary information to set up the claim in July 2009. This was apparently done without Mr. Ferguson’s input or knowledge.

[106] According to Mr. Smitiuch’s testimony, the realization that Mr. Ferguson needed to submit a LTD application to Sun Life came to his attention for the first time in or about March 2010, when Halton served him with a mediation brief that contained the LTD Plan documents. Halton questions the plausibility of Mr. Smitiuch’s evidence based on the information that was conveyed to him at the time of the transfer of Mr. Ferguson’s file from Carters PC in September 2008. Halton alleges that Mr. Smitiuch knew that the reason Mr. Ferguson wanted to change lawyers was precisely because Mr. White had failed to file a LTD application on his behalf. That allegation is not supported by the evidence of Mr. Ferguson, Mr. White or Mr. Smitiuch. Their evidence establishes, on a balance of probabilities, that Mr. Ferguson retained new counsel after Mr. White disclosed to him that Carters PC had failed to include, in the June 2007 STD action, a claim for denial of LTD benefits. Failure to plead a claim for LTD benefits in an action and failure to submit an LTD application are two different things. The evidence does not establish that Mr. White told Mr. Ferguson that Carters PC had failed to submit a LTD application on his behalf or that Mr. Ferguson conveyed to Mr. Smitiuch that Mr. White had failed to submit a LTD application on his behalf.

[107] I accept Mr. Smitiuch’s evidence that he did not know, prior to the mediation in March 2010, that a separate LTD application needed to be submitted to Sun Life and/or that the application deadline had passed. I have not overlooked the fact that the Statement of Claim issued by Mr. Smitiuch in July 2009 includes a solicitors’ negligence pleading against Carters PC and Mr. White, alleging that they failed to submit an application for LTD benefits on Mr. Ferguson’s behalf. This pleading is, on its face, inconsistent with Mr. Smitiuch’s testimony that he was not aware that a separate LTD application needed to be filed until March 2010. I was troubled by this inconsistency, but it has been explained to my satisfaction by Peter Cho, a lawyer who was involved in drafting the July 2009 Statement of Claim.

[108] Mr. Cho testified that the solicitors’ negligence pleadings were just allegations that he and Mr. Smitiuch hoped to be able to establish. He stated that, when the pleadings were drafted, they had not reached any conclusions as to whether Mr. White had missed a deadline for filing a LTD application on Mr. Ferguson’s behalf, or what that deadline might have been. The pleadings were, in essence, boilerplate clauses. I find this to be a plausible explanation, given the nature of pleadings, which are often drafted without knowledge of all the relevant facts and without certainty that the pleading party will be able to marshal the evidence necessary to prove the pleaded facts.

[109] Still, the July 2009 pleading suggests that Mr. Ferguson’s lawyers were aware that, in at least some instances, a separate LTD application is required, and were alive to the possibility that Mr. White might have failed to ensure that Mr. Ferguson submitted the requisite application. This knowledge must be imputed to Mr. Ferguson. The question is whether that knowledge is sufficient to find that Mr. Ferguson behaved unreasonably by failing to submit a LTD application to Sun Life within the time limits prescribed by Halton’s LTD Plan Specifications. I conclude that Halton’s persistent failure to provide him (or his lawyers) with accurate and complete information about the LTD application process created unnecessary confusion and rendered his actions reasonable in the circumstances.

[110] Furthermore, Mr. Ferguson and his lawyers acted reasonably after they learned (from Halton’s mediation brief in March 2010) that the LTD Plan Specifications required him to submit a LTD application on forms provided by Sun Life in order to initiate a claim for LTD benefits. On March 26, 2010, Mr. Smitiuch wrote to Halton’s lawyer and requested that Halton provide him with the LTD application forms that needed to be completed and submitted by Mr. Ferguson. Halton’s lawyer responded on April 7, 2010 by referring Mr. Smitiuch to Sun Life’s website. Her letter stated, “Given the terms of the plan, the Plaintiff is likely well beyond any limitation periods.” Mr. Smitiuch had just recently received, for the first time, a copy of the LTD Plan Specifications and ASO agreement. Prior to service of Halton’s mediation brief, neither Mr. Ferguson nor any of his lawyers had been provided with any documentation that clearly set out the prescribed time for filing a LTD application.

[111] Mr. Ferguson submitted his LTD application to Sun Life on June 3, 2010. I accept Mr. Smitiuch’s testimony that the LTD application was submitted as soon as possible. Sun Life’s application forms include a Plan Member’s Statement that must be completed by the claimant employee and an Attending Physician’s Statement that must be completed by the employee’s treating physician. Allowing for some time to consult with his doctor and complete the forms, I find that Mr. Ferguson acted expeditiously in taking steps to rectify the situation. He submitted his LTD application as soon as practicable after he learned about the need to do so.

[112] Taking into consideration all of the circumstances that gave rise to Mr. Ferguson’s delay in submitting his LTD application and the steps taken by him after the missed deadline was brought to his attention, I find that Mr. Ferguson’s conduct was reasonable.

(ii) Severity of Mr. Ferguson’s Contractual Breach

[113] The second factor for consideration in determining Mr. Ferguson’s claim for relief from forfeiture is the seriousness of his contractual breach. His delay in filing his LTD application was in excess of three years, which is very lengthy, but there is no evidence of prejudice suffered by Halton.

[114] As noted above, the record establishes that a LTD claim for Mr. Ferguson was initiated by Sun Life in June 2009, a year before Mr. Ferguson submitted his formal application. Sun Life’s decision to commence the claim had to have been prompted by Halton because Sun Life could not otherwise have known that Mr. Ferguson was off work and was claiming to be disabled. Halton was clearly aware of Mr. Ferguson’s pursuit of LTD benefits prior to the filing of his application in June 2010.

[115] Indeed, the record establishes that Halton was aware of Mr. Ferguson’s pursuit of LTD benefits as early as November 18, 2005. Unlike Nguyen v. Nguyen, 2014 ONSC 6405, 41 C.C.L.I. (5th) 246, this is not a case in which Sun Life, the plan administrator, will be deprived of the ability to conduct a timely investigation into the merits of Mr. Ferguson’s LTD claim. Sun Life will not be required to adjudicate a historical claim without the benefit of contemporaneous medical information because Halton was receiving updated medical documentation from Mr. Ferguson all along. Moreover, Halton had an opportunity to have Mr. Ferguson examined by a physician of its own choosing; its decision to forego the independent medical examination cannot be the basis of a claim of prejudice caused by Mr. Ferguson. Furthermore, Mr. Ferguson had signed a Medical Release, authorizing Halton’s Disability Management Coordinator to communicate directly with his physicians. One of Halton’s consulting physicians did, in fact, speak with Mr. Ferguson’s doctor in the summer of 2006. Halton can therefore provide Sun Life with the relevant contemporaneous medical information to adjudicate the claim. It will not be prejudiced by the need to reconstruct a historical file after the fact.

[116] Any prejudice to Halton resulting from the delayed application is therefore minimal: Dube, at paras. 12-14.

(iii) Disparity

[117] The final factor for consideration in determining a claim for relief from forfeiture is the disparity between the value of what would be forfeited and the damages caused by the plaintiff’s contractual breach.

[118] In this case, the minimal prejudice suffered by Halton is outweighed by the harm to Mr. Ferguson of not being able to pursue his LTD claim. He is 50 years old. If his claim for LTD benefits succeeds, he will be entitled to 65% of his salary until age 65. He stands to lose potentially in excess of half a million dollars if relief from forfeiture is denied. Where there is such significant disparity between the value of the property forfeited and the minimal damage caused by the breach, relief from forfeiture is patently a correct result: Scicluna at para. 31.

[119] Based on all of the above, I conclude that it is just, in the circumstances of this case, to grant Mr. Ferguson relief from forfeiture pursuant to s. 98 of the Courts of Justice Act.

[120] Mr. Ferguson also requested relief from forfeiture based on section 129 of the Insurance Act, R.S.O. 1990, c. I.8. Halton argues that the Insurance Act does not apply to its self-funded LTD Plan. It is unnecessary for me to decide this issue because the requested relief has been granted pursuant to the CJA.

D. Did Mr. Ferguson cease to be eligible for LTD benefits by reason of the termination of his employment prior to submitting his application for benefits?

[121] Halton argues that Mr. Ferguson is not entitled to LTD benefits because his employment was terminated on April 7, 2007, more than three years before he filed his application for LTD benefits and he did not initiate a wrongful dismissal action.

[122] Halton’s LTD Plan Specifications stipulate that a person’s coverage will terminate on “the date on which the person is no longer actively employed on a full-time basis”, unless an extension of coverage is specifically provided by the terms of the LTD Plan. The Plan states that coverage can be continued while the covered person is unable to work due to accident or sickness, but not for more than 12 months, unless Sun Life gives its prior agreement in writing.

[123] These “termination of coverage” provisions in the LTD Plan relate to future claims, not claims that arose during the course of an employee’s employment. Mr. Ferguson’s claim for LTD benefits (the merits of which has yet to be determined) arose during the course of his employment with Halton. The policy provides coverage for such a claim, even though his employment was subsequently terminated prior to the date when he filed his application for LTD benefits.

[124] I note that this interpretation of the LTD Plan Specifications was recently applied by the Ontario Court of Appeal in a case involving similar contract language in a group insurance policy: MacIvor v. The Manufacturers Life Insurance Co., 2018 ONCA 381, 422 D.L.R. (4th) 232, at paras. 14-24.

E. Does the two-year limitation period in the Limitations Act, 2002 apply to Mr. Ferguson’s claims against Halton or is it varied by the one-year contractual limitation period in Halton’s LTD plan?

[125] Halton argues that the one year contractual limitation period in the LTD Plan Specifications supersedes the two year statutory limitation period for Mr. Ferguson to bring an action against Halton for LTD benefits. The terms of Halton’s LTD plan stipulate that no legal action may be introduced later than one year after the period in which a proof of claim must be submitted, which in Mr. Ferguson’s case would have been March 13, 2008. Halton argues that this contractual limitation period displaces the two-year limitation period set out in s. 4 of the Limitations Act, 2002. Halton further argues that this action – which was commenced on November 10, 2011 – is barred by the expiry of the one year contractual limitation period.

[126] Subsection 22(1) of the Limitations Act, 2002 prohibits parties from contracting out of the statutory limitation periods specified in the Act, except in circumstances set out in ss. 22(2) to 22(6). Halton relies on the exception in s. 22(5), which permits parties to shorten a statutory limitation period by a business agreement made on or after October 19, 2006. Mr. Ferguson, Mr. White and Carters PC argue that Halton’s LTD Plan does not constitute a “business agreement” as defined by s. 22(6) of the Limitations Act, 2002 and that the exception in s. 22(5) therefore does not apply. They rely on cases in which courts have held that insurance policies are not business agreements within the meaning of s. 22(5): Kassburg v. Sun Life, 2014 ONCA 922, 379 D.L.R. (4th) 665, at para. 61. Halton argues that its self-funded LTD Plan is distinguishable in important respects from a traditional insurance policy and constitutes a business agreement.

[127] It is unnecessary for me to determine whether Halton’s LTD Plan constitutes a “business agreement” because the plan, which forms part of Mr. Ferguson’s employment contract with Halton, was not “made on or after October 19, 2006”. For that reason, even if it were a business agreement (an issue upon which I express no opinion), the exception in s. 22(5) of the Limitations Act, 2002 would not apply. Consequently, the one-year contractual limitation period in the LTD Plan Specifications is not enforceable. The two year statutory limitation period applies.

F. Are Mr. Ferguson’s claims against Halton barred by expiry of the limitation period?

[128] Mr. Ferguson bears the onus of establishing that his claim against Halton is not statute-barred: Colin v. Tan, 2016 ONSC 1187, 81 C.P.C. (7th) 130, at para. 65.

[129] According to s. 4 of the Limitations Act, 2002, the two-year limitation period began to run on the day Mr. Ferguson’s claim was discovered. The discoverability of a claim involves identification of the wrongdoer and of his or her acts or omissions that give rise to liability. It is not enough that a plaintiff has suffered a loss and has knowledge that someone might be responsible. The identity of the wrongdoer and the culpable acts of the wrongdoer must be known or be knowable with reasonable diligence: Colin, at para. 55 and Johnson v. Studley, 2014 ONSC 1732, at para. 59.

[130] Section 5(1) of the Limitations Act, 2002, states:

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).

[131] Subsection 5(2) of the Limitations Act, 2002 creates a rebuttable presumption that a plaintiff had knowledge of the matters referred to in s. 5(1) (a) on the day the act or omission on which the claim is based took place.

[132] Halton’s primary argument is that the day on which the underlying act or omission took place in Mr. Ferguson’s case is June 14, 2005. On that date, Mr. Ferguson claimed to be totally disabled, was aware of his LTD coverage and was not receiving LTD benefits. Halton submits that the two-year statutory limitation period presumptively started to run on June 14, 2005 and, unless Mr. Ferguson rebuts that presumption, the limitation period expired on June 13, 2007.

[133] I reject this argument because Mr. Ferguson was not even eligible to receive LTD benefits in June 2005. He did not become eligible for LTD benefits until the expiry of the 182 day elimination period. In these circumstances, he did not have a cause of action against Halton for denial of LTD benefits in June 2005.

[134] In the alternative, Halton argues that the limitation period began to run on December 13, 2005, which marked the end of Mr. Ferguson’s elimination period under the LTD Plan. On that date, Mr. Ferguson claimed to be totally disabled, was aware of his LTD coverage and was potentially eligible to receive LTD benefits, but Halton was not paying him the benefits. Halton submits that the two-year statutory limitation period therefore presumptively started to run on December 13, 2005 and, unless Mr. Ferguson rebuts that presumption, the limitation period expired on December 13, 2007.

[135] There is no dispute between the parties that, had Mr. Ferguson submitted a timely application for LTD benefits, the discoverability of a claim against Halton would have been triggered by a clear and unequivocal denial of his application. This principle derives from insurance case law: Richards v. Sun Life Assurance Co., 2016 ONSC 5492, [2016] I.L.R. I-5911, at paras. 18, 22-23 and Thompson v. Sun Life Assurance Co., 2015 ONCA 162, 47 C.C.L.I. (5th) 287, at paras. 13-14. Halton argues that the denial of Mr. Ferguson’s application cannot be the trigger for the limitation period in this case because of the inordinate delay in filing his application.

[136] In traditional insurance cases where no application for benefits has been submitted by the plaintiff, courts have found that the limitation period begins to run from the date the plaintiff became aware that they were totally disabled and had knowledge of the existence of their coverage: Thompson at paras. 13-15. If it were otherwise, a plaintiff could stall and control the triggering of the limitation period by holding back on filing an application indefinitely or until it suits them. Halton argues that the same principles should apply in this case, notwithstanding the self-funded nature of Halton’s LTD plan.

[137] I agree that Halton’s self-funded LTD plan is analogous, for many intents and purposes, to an insurance contract. However, the principles established in the insurance jurisprudence (regarding the trigger of a limitation period in cases where no application has been submitted) are not applicable in the particular circumstances of this case, because Halton’s LTD Plan explicitly prohibited Mr. Ferguson from commencing a legal action sooner than May 12, 2007.

[138] The LTD Plan Specifications stipulate that “no legal action in connection with a claim can be introduced sooner than 60 days after the period in which proof of claim must be submitted.” In Mr. Ferguson’s case, proof of claim had to be submitted by March 13, 2007. Under the terms of the plan, Mr. Ferguson was not permitted to commence a legal action sooner than May 12, 2007 (60 days after March 13, 2007). It therefore cannot be that the two-year limitation period for commencing an action began to toll 15 months earlier, on December 13, 2005.

[139] Moreover, December 13, 2015 cannot be the date on which Mr. Ferguson’s claim was discovered because it would not have been appropriate at that time to commence a legal proceeding for LTD benefits: Limitations Act, 2002, s. 5(1) (iv). Whether an action constitutes “appropriate means” to remedy a situation depends on the specific factual matrix of each case: Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161, at para. 21 and 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34. The legislative intent underlying s. 5(1)(a)(iv) of the Limitations Act, 2002 is to enable courts to function more efficiently by deterring needless litigation: 407 ETR, at para. 48.

[140] In this case, in mid-December 2015, Halton was requesting further medical documentation from Mr. Ferguson to substantiate his absence from work due to disability. His lawyers were engaged in regular correspondence with Halton about both his STD and LTD benefits for many months thereafter. He continued to provide Halton with updates on his health, he consented to Halton’s doctor speaking to his treating physician and he agreed to undergo an independent medical examination at Halton’s request. Halton was considering the medical information submitted. In these circumstances, it would not have been appropriate for him to commence litigation for LTD benefits.

[141] Halton argues, in the further alternative, that Mr. Ferguson’s cause of action against Halton could not have been discovered later than the end of January 2007, because the record establishes that Mr. White asked an associate lawyer in his firm to start drafting a STD/LTD statement of claim for Mr. Ferguson in late January 2007. I reject this argument based on Mr. White’s credible explanation for his instructions to his associate, namely that it was his regular practice always to sue for both STD and LTD benefits on behalf of clients, regardless of whether or not there had been a denial of LTD benefits or other act or omission to ground a cause of action.

[142] Halton argues, in the further alternative, that the two-year limitation period began to run on May 12, 2007, when Mr. Ferguson had knowledge of his disability, awareness of his LTD coverage, was not receiving LTD benefits and there was no longer any contractual barrier to him commencing an action. According to this argument, the limitation period for commencing an action against Halton expired on May 12, 2009.

[143] I agree that May 12, 2007 is the earliest that the two-year limitation period could have been triggered, based on the specific terms of Halton’s LTD Plan. However, I do not agree with Halton’s submission that the claim was discovered (or was reasonably discoverable) by Mr. Ferguson on that date.

[144] Mr. Ferguson’s solicitors’ knowledge must be imputed to him in determining whether or not he knew or ought reasonably to have known the facts giving rise to his cause of action: Colin, at para. 67. The question is whether Mr. Ferguson or his lawyers knew enough facts on May 12, 2007 to base a cause of action for LTD benefits against Halton.

[145] I am satisfied on the balance of probabilities that Mr. Ferguson and his lawyers did not know, until the mediation in March 2010, that Halton was responsible for paying LTD benefits (rather than Sun Life). Halton argues that they ought to have known because Mr. White was told, in the meeting on November 18, 2005, that Halton’s LTD Plan was self-funded and Mr. White’s handwritten notes from the meeting were in the file that was transferred to Mr. Smitiuch in September 2008.

[146] Although Mr. White was told, in the November 2005 meeting, that the LTD Plan was self-funded, his request for a copy of the LTD policy was ignored by Halton. Subsequent requests for LTD Plan documents resulted in inaccurate information being provided to Carters PC. When Mr. White’s file was transferred to Mr. Smitiuch, it contained the confusing and misleading Core Info document, but not the LTD Plan Specifications or ASO agreement.

[147] Mr. Smitiuch had previously dealt with STD and LTD cases, but none involving Halton. During his cross-examination, he could not recall whether he knew the meaning of an ASO agreement at the time. He and Mr. Cho both deposed that they were misled by the Core Info document and were under the impression that Halton’s LTD benefits were insured by Sun Life. This explains why they named Sun Life and not Halton as a defendant when they filed a LTD claim on Mr. Ferguson’s behalf in July 2009.

[148] I accept their evidence as credible. The fact that they had possession of Mr. White’s November 18, 2005 meeting notes does not, in my view, undermine their credibility on this point, because one would reasonably expect them to refer to the LTD documents produced by the employer rather than former counsel’s handwritten notes to ascertain the terms of the LTD Plan.

[149] Halton argues that Mr. White must have known that Mr. Ferguson had a claim against Halton for LTD benefits in September 2008, when he recommended that Mr. Ferguson obtain new counsel because Carters PC had failed to plead a claim for LTD benefits in the STD action. Halton alleges that Mr. Ferguson relayed this information to Mr. Smitiuch when he changed counsel, so Mr. Smitiuch was also aware of the LTD cause of action in September 2018.

[150] Mr. White was cross-examined on this point. His testimony included the following:

My limited recollection is that, at that point in time, I met with Mr. Ferguson and had advised him that I was concerned about an issue around the LTD and that I was investigating it. … [W]e were going into mediation and I had taken the file back from Suzanne [the associate lawyer who had primary carriage] . . . and when I was looking at the statement of claim, I did not see an LTD claim in it and I went looking for the policies and could not find the policies.

[151] Asked to clarify “what in particular was the concern or issue” he had when he realized that the statement of claim did not include a claim for LTD benefits, he responded:

My own practice was to, and maybe it’s controversial, I used to simply always sue for STD and LTD as a general practice. Even though there is that care law around stays on LTD claims, if there’s not been a denial, I would still launch the lawsuit. It’s just the way I practised.

[152] Halton alleges that, in a meeting in September 2008, Mr. White admitted to Mr. Ferguson that he had missed the limitation period for filing a LTD action. The evidence in the record does not support this allegation.

[153] In his affidavit, Mr. Ferguson stated that, in September 2008, Mr. White advised him “that he may have missed the limitation period to bring an action” for LTD benefits (emphasis added). This evidence is consistent with Mr. White’s testimony that he told Mr. Ferguson he was concerned about an LTD issue and was investigating it.

[154] During his cross-examination, Mr. Ferguson changed his evidence. He gave the following answer to the following question:

Q. And I think you’ve indicated this in your affidavit… Mr. White informed you that it was possible he had missed a limitation period that would affect your claim?

A. That wasn’t what he said. He said “I missed to put the long-term disability on with your short-term disability and, Ian, you are going to have to sue me for that negligence, and I suggest you get an outsider of town lawyer. And that’s verbatim what he said.”

[155] Mr. White denied making any admission about a missed limitation period. I prefer Mr. White’s evidence on this point because Mr. Ferguson’s evidence is inconsistent and because Mr. White’s evidence is corroborated by Mr. Smitiuch’s and Mr. Cho’s recollections of what Mr. Ferguson conveyed to them when they were retained. On a balance of probabilities, I find that Mr. White did not admit to missing a limitation period when he spoke to Mr. Ferguson in September 2008. I further find that Mr. White had not discovered Mr. Ferguson’s cause of action against Halton for LTD benefits at that time, nor could he have reasonably discovered the cause of action, given the confusing documentation provided by Halton and the withholding of relevant documentation by Halton.

[156] Finally, I conclude that Mr. Ferguson and his lawyers could not have known that he had a claim against Halton until they had an opportunity to review the LTD Plan Specifications: Arcelormittal Dofasco Inc. v. Industrial Alliance Insurance and Financial Services Inc., 2016 ONCA 224, 129 O.R. (3d) 792, at para. 28. Mr. Smitiuch received the Plan Specifications for the first time in March 2010. Mr. Ferguson’s action, commenced on November 10, 2011, was therefore within the two-year limitation period and is not statute-barred.

[157] Given my finding that Mr. Ferguson’s claims against Halton are not barred by expiry of a limitation period, it is unnecessary for me to answer the remaining questions raised by these motions.

CONCLUSION

[158] For the reasons set out above, Halton’s summary judgment motion to dismiss Mr. Ferguson’s claim is dismissed.

[159] Mr. White’s and Carters PC’s motion seeks orders dismissing all claims and all cross-claims against them in this action and in Court file no. CV-380907, the earlier July 2009 action for professional negligence brought by Mr. Ferguson against them. The latter action is not before me, so I cannot dismiss it. I am not prepared to go so far as to dismiss this action based on the findings above. In my view, a more appropriate remedy is a declaration that the limitation period for Mr. Ferguson to commence a claim for LTD benefits against Halton did not expire during the time that Carters PC was retained by him to investigate his entitlement to LTD benefits and commence an action, if necessary, to obtain the benefits.

[160] Nothing in these Reasons for Judgment should be taken to be a comment or finding on the merits of Mr. Ferguson’s LTD claim, whether Halton breached its employer’s duty of good faith to Mr. Ferguson, whether the Insurance Act applies to Halton’s self-funded LTD plan, or whether Mr. White and Carters PC satisfied their professional obligations in their representation of Mr. Ferguson.

COSTS

[161] If the parties are unable to settle costs, they may make brief written submissions to me (of no more than three pages). Submissions should be accompanied by each party’s Outline of Costs and by copies of any settlement offers that have costs implications.

[162] Mr. Ferguson’s submissions must be served and filed by October 26, 2018. Mr. White and Carters PC’s submissions must be served and filed by November 9, 2018. Halton’s costs submissions must be served and filed by November 23, 2018. There will be no reply submissions unless requested by me.

Petersen J.

Released: September 26, 2018

APPENDIX A

EXCERPTS OF LTD PLAN SPECIFICATIONS

COVERAGE PROVISIONS

TERMINATION OF COVERAGE -- A person’s coverage will terminate on the earliest of the following dates unless it is continued under the Continuation of Coverage provision below, or unless an extension of coverage is specifically provided by the terms of the agreement: … the date on which the person is no longer actively employed on a full-time basis.

CONTINUATION OF COVERAGE -- Coverage can be continued while the covered person is unable to work due to accident or sickness.

LIMITATION -- Coverage cannot be continued for more than 12 months after the date on which the covered person was last actively at work in the circumstances described above, unless the Administrator gives its prior agreement in writing. A continuation during accident or sickness is not subject to the limitation unless it occurs before there has been a return to active employment following a previous continuation.

GENERAL PROVISIONS

NOTICE AND PROOF OF CLAIM - The Administrator must receive written notice and proof of claim within the time limits, if any, shown in each Benefit.

CLAIM FORMS - The Administrator will provide forms for filing proof of claim.

BENEFIT PROVISIONS

ELIMINATION PERIOD - The elimination period is the initial period of disability which must be completed by a covered person before benefits become payable. It starts on the first day of total disability … or if later, the first day that appropriate medical treatment is received. …If total disability continues without interruption, the elimination period lasts for [182 days].

BENEFITS

TOTAL DISABILITY BENEFIT - After the elimination period has been completed, a covered person qualifies for a total disability benefit while he/she continues to satisfy [the definitions of disability set out in the Plan Specifications].

CLAIMS

NOTICE - Initial notice of claim must be given to the Administrator as soon as possible after a period of disability begins.

PROOF - Proof of claim must be given to the Administrator in writing no later than:

1. 90 days after completion of the elimination period; or
2. in no event later than 1 year after the end of the 90 day period specified in paragraph 1.

BENEFIT ASSESSMENT - The Administrator has full responsibility for assessing entitlement to benefits. When making a decision, the Administrator will take into account all relevant information which has been provided . . . Benefits are payable only for periods for which the Administrator has received proof of entitlement satisfactory to the Administrator. . .

LEGAL ACTION - No legal action in connection with a claim can be introduced:

1. sooner than 60 days after the period in which proof of claim must be submitted; or
2. later than 1 year after the same period.