Court File and Parties

NEWMARKET COURT FILE NO.: CV-16-125133-00 DATE: 2019-01-09 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Yousef Abdullah, Plaintiff and Canadian Life Insurance Company, Defendant

BEFORE: The Honourable Mr. Justice P.W. Sutherland

COUNSEL: Amelio Thé, for the Plaintiff/Respondent Jeffery Mitchell, for the Defendant/Moving Party

HEARD: December 14, 2018

Decision on Summary Judgment Motion

Overview

1The defendant brings a summary judgment motion to dismiss the action as against it on the basis that the action commenced by the plaintiff is statutorily barred and has breached the limitation period to submit the required notice and proof of claim to the defendant.

2The plaintiff opposes the motion. The plaintiff contends that the action is not statutorily barred in that the statement of claim was commenced before the two year limitation period mandated by statute and further that the plaintiff should receive relief from forfeiture if there is a breach of the limitation period for providing the required notice and proof claim.

3For the reasons that follow, I dismiss the motion of the defendant without prejudice to the defendant to claim that action is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (“the Act”).

Background

4The plaintiff emigrated from Jordan to Canada in 1975. He worked as a mechanic from 1979 to 1984 when he joined Minute-Man Delivery, a courier business where he became manager in the 1990’s.

5The plaintiff, through his wife, purchased life insurance coverage from the defendant in the 1980’s which included a disability benefit. The Certificate of Insurance is numbered 44AC2U3734 for Group Master Policy No. 25465GC194C (“the Policy”). The actual policy was purchased by his late wife, Christina. She was the one who took care of the household paperwork and family finances.

6The plaintiff paid all the required premiums for the Policy.

7The plaintiff’s wife is deceased.

8The plaintiff was involved in a motor vehicle collision on February 22, 2005. In his Statement of Claim, the plaintiff alleges that he has suffered a permanent and total disability as a result of the collision.

9Within weeks of the collision, the plaintiff completed the application for statutory accident benefits.

10The plaintiff applied for and received Canada Pension Plan Disability Benefits (“CPP Benefits”).

11On May 19, 2005, the plaintiff signed a Beneficiary Change Request form with the defendant (“the Change Form”) requesting to have his son named as his beneficiary for the insurance benefit, given that his son turned 18 years of age. The plaintiff believed that the beneficiary change was for life insurance. He did not realize, he states, that he had any disability coverage under the Policy.

12The plaintiff did not notify the defendant that his collision-related injuries prevented him from working in the first two years after the collision.

13In a letter dated November 13, 2013, the defendant advised the plaintiff that his benefit coverage would expire effective January 13, 2014.

14The plaintiff applied for benefits submitting a Claimant Statement to the defendant on January 24, 2014. An attending physician statement accompanied the Claimant Statement.

15The defendant requested that the plaintiff attend two medical examinations. The plaintiff attended these examinations. In a letter dated March 17, 2015, the defendant denied the benefit to the plaintiff. In that letter, the defendant stated:

According to the Independent Medical Examination you underwent you are not permanently and totally disabled due to an accidental bodily injury. There is no evidence that you suffered a disabling impairment due to your motor vehicle accident on February 22, 2005. For this reason, we regret that we are unable to provide assistance. [2]

16The Statement of Claim of the plaintiff was issued on January 6, 2016 and the defendant filed its Statement of Defence dated March 8, 2016.

17A report on the matter of the Re-instatement of the plaintiff was conducted and released in September 2011.

18The plaintiff commenced this proceeding by a Notice of Action issued on July 7, 2014. The Statement of Claim was issued on August 6, 2014.

Issues

19The issues for the court to determine on this summary judgment motion are:

(a) Is the action or parts of the action commenced by the plaintiff statutorily barred by the provisions of the Act? (b) Is the action barred by the plaintiff failing to comply with the Policy’s timelines? (c) If so, is the plaintiff entitled to relief from forfeiture?

Legal Principles

Summary Judgment

20Pursuant to Rule 20.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court must grant summary judgment if it is satisfied there is no genuine issue requiring a trial. In response to a summary judgment motion, one is not permitted to solely rely on allegations or denials in their statement of defence but must provide affidavit material with the specific facts showing that there is a genuine issue requiring a trial.

21There will be no genuine issue requiring a trial when a court is able to reach a fair and just determination on the merits. A fair and just determination on the merits is achieved when:

(a) The process allows the judge to make necessary findings of facts; (b) The process allows the judge to apply the law to the facts; and, (c) It is a proportionate and more expeditious and less expensive means to achieve a just result. Hryniak v. Mauldin, 2014 SCC 7

22On a motion of summary judgment, the court must first determine if there is a genuine issue requiring a trial based on the evidence given on the motion. If there appears to be a genuine issue requiring a trial, the court would then determine if the need for a trial can be avoided using the powers under Rule 20.04(2.1) of the Rules of Civil Procedure by weighing the evidence, and evaluating the credibility of the deponents and draw any reasonable inference of the evidence unless it is in the interest of justice for these powers to be exercised only at a trial. These powers are presumptively available to the judge to give effect to the goals of timeliness, affordability and proportionality in review of the litigation as a whole. Hryniak v. Mauldin, 2014 SCC 7; Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, at para. 31.

23In contrast, the responding party must put their “best foot forward” or risk summary judgment being awarded against them. The evidentiary burden is on the responding party to present affidavit material or other evidence to support the allegations or denials in their pleading. Absent of this evidence, an adverse inference can be drawn. Vincorp Financial Ltd. v. Hope’s Holdings Inc., 2010 ONSC 5538, at para. 15.

Analysis

Is the action commenced by the plaintiff statutorily barred by the provisions of the Act?

24Section 4 of the Act reads:

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.

25Section 1 states: “claim” means “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”

26Section 5 sets out when a claim is discovered. Section 5 (1) states:

(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)

27Section 5(2) sets out a presumption that: “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.”

28The defendant submits that the plaintiff knew of the benefits under the policy when he sent in the Change Form in May 2005. The plaintiff further knew that he was disabled when he applied for CPP Benefits for his injuries arising from the collision in 2006.

29In addition, the plaintiff admits that he received the letter dated November 13, 2013 in advance of his sixty-fifth birthday on December 15, 2013. The plaintiff, the defendant contends, had the capability to read and understand the letter. The plaintiff graduated from George Brown College and held a management position with a courier company. He personally completed the application for statutory accident benefits. The defendant argues that the latest date for discoverability of the benefits claim is November 13, 2013. At this latest date, the plaintiff action offends section 4 of the Act given that the action was not commenced until January 6, 2016. The action is therefore statutorily barred.

30The main question for the court to answer is: when did the plaintiff know he had disability benefits with the defendant and when did he know he could have made a claim against those benefits?

31In Nasar Hospitality Service Inc. v. Intact Insurance, 2018 ONCA 725, Brown J.A. examined the application of the “appropriate means” element of the discoverability test under section 5(1)(a)(iv) of the Act and stated, at paragraph 35:

Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of finding of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv)-namely the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in the event evidence proves the contrary presumption date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.

32Further on in the decision, at paragraph 39, Brown J.A. observed:

I would simply reiterate that granting summary judgment dismissing an action as statute-barred, or declaring when a claim was discovered, requires making specific findings of fact. Assumption about the matter in ss. 5(1) and (2) of the Act are not analytical substitutes for findings of fact. If the records does not enable the summary judgment motion judge to make those findings with the certainty required by Hryniak, then a genuine issues requiring a trial may exists.

33The difficulty this court has, at this point in time, is the extent of evidentiary record to determine that there is no genuine issue requiring a trial on discoverability by the plaintiff of the disability benefits he had with the defendant.

34It is not in contention between the parties that there are outstanding undertakings, under advisements and refusals given by the defendant. The most critical of these deal with the ‘if and when’ a copy of the policy setting the terms of the benefits contained in that policy were provided to the plaintiff.

35The plaintiff submits that the court cannot determine the date of discoverability for which the limitation date would start to run on this motion. The evidentiary record is presently insufficient. The plaintiff contends that there are numerous undertakings not answered by the defendant. These answers are required before the court can adjudicate this motion. The undertakings deal with what documents were actually sent to the plaintiff and when and, specifically, a copy of the policy. The plaintiff also argues that the court should draw an adverse inference from the defendant’s failure to answer the undertakings. The plaintiff has not brought a motion compelling the defendant to answer its undertakings and refusals.

36It appears that a letter which enclosed the certificate of insurance was drafted addressed to the plaintiff. The letter is evidenced by Exhibit “A” of the affidavit of Jennifer Wright. There was no issue taken to the person and address to which the letter was addressed. However, the letter provided is undated. Ms. Wright does not depose in her affidavit when and if the letter was sent to the plaintiff.

37The evidence provided does indicate that in May 2005, the plaintiff changed beneficiary to his son. However, the Change Form does not describe the type of insurance provided, except for the name of the defendant includes the phrase “life insurance”. The plaintiff deposed that at this point in time, he thought the insurance he had was life insurance. This seems logical given the lack of the type of insurance in the name of the defendant and that the policy and certificate number seems to have been included in the Change Form by the defendant.

38The plaintiff did receive the November 2013 letter from the defendant which indicates that his “Permanent and Total Disability coverage” will expire on January 13, 2014.

39The evidence provided is that the plaintiff’s son, Adam attempted to obtain information from the defendant on the meaning of the letter and called numerous times until he was connected with the claims department from the customer service department. The plaintiff contends that these calls were made in January 2014.

40The defendant contends that a phone call on January 16, 2014 from Adam is the first notice it received from the plaintiff concerning making a claim against the disability benefits.

41In January 2014, the plaintiff received claim forms from the defendant and submitted those forms within weeks of receiving the forms.

42The plaintiff argues that once he became aware of the disability benefits, he acted diligently. He completed the forms, obtained the Attending Physician’s Statement from his physician and submitted the forms to the defendant.

43As stated above, the critical question is the date of discoverability by the plaintiff.

44It seems to me that the plaintiff acted diligently when he knew there was availability of benefits for him, be it accident benefits or CPP Benefits. The plaintiff commenced an action against the insurance company of the person who collided with his vehicle. He also acted diligently when, from his evidence, he knew that he had disability benefits with the defendant.

45Given the circumstances as described, I am not convinced that the record before me is complete to permit the making of specific factual determination on the date of discoverability by the plaintiff, that is, when he knew he had disability benefits with the defendant to make a claim against those benefits.

46The evidence of the plaintiff is that he did not know until January 14, 2014 and the action was commenced on January 6, 2016, within two years.

47The defendant has not answered the undertakings concerning the date that the terms of the policy were sent to the plaintiff and the specifics of the conversations between the plaintiff’s son, Adam and the customer service representative(s) of the defendant.

48Thus, I am not satisfied that I can make a factual determination from the evidence provided that there is no genuine issue requiring a trial, concerning the discoverability of the disability benefits claim of the plaintiff.

Is the action barred by the plaintiff failing to comply with the Policy’s timelines?

49There is no dispute that the plaintiff failed to comply with the notice provision in the Certificate or the time period for applying for benefits.

50The plaintiff failed to submit notice of his claim and proof of his claim within ninety days of the claim arising, as required by the terms of the Policy.

51The plaintiff claims relief from forfeiture of this notice requirement. The court may grant relief from forfeiture. Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 SCC 100, at para. 32; section 328 of the Insurance Act, R.S.O. 1990, c. I.8; section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

52The starting point is for the court to ascertain whether the breach is one of “imperfect compliance” or “non-compliance with a condition precedent”. Only breaches of imperfect compliance may be subject to relief from forfeiture. Falk Bros Industries Ltd. v. Elance Steel Fabricating Co., 1989 SCC 38, at pp. 784-785.

53In order to grant relief from forfeiture, the court must:

(a) Examine whether the conduct of the plaintiff was reasonable; (b) Examine the gravity of the breach; (c) Examine the disparity between the value of the property forfeited and the damage caused by the breach.

54Without a complete evidentiary record, as stated above, the court cannot determine whether the plaintiff should be granted relief from forfeiture.

55The determination of the discoverability date is critical to the finding of whether the plaintiff qualifies for relief from forfeiture. The determination of the date is required to ascertain whether the plaintiff acted reasonably, and the gravity of the breach.

56Accordingly, I am not satisfied on the evidentiary record before me that I can determine that there is no genuine issue requiring a trial on whether the plaintiff should be granted relief from forfeiture.

Disposition

57I therefore order that the motion of the defendant is dismissed without prejudice to the defendant to claim that the plaintiff’s action is barred by the Act or by failing to adhere to the limitation periods set out in the Policy.

58If the parties cannot agree on costs, then the plaintiff to serve and file his submissions for costs within twenty-one days from the date of this decision, and the defendant will have twenty-one days thereafter to serve and file its submissions. There is no right for any reply submissions. The submissions to be no more than three pages, double-spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.