Daniel Plastino v. Desjardins Financial Security Life Assurance Company

COURT FILE NO.: CV-27236/16

DATE: 2022-06-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL PLASTINO Plaintiff

– and –

DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY Defendant

COUNSEL:

John D. Campbell, for the Plaintiff

James Lim, for the Defendant

HEARD: May 20, 2021

BEFORE: Rasaiah J.

REASONS FOR DECISION on summary judgment Motion

OVERVIEW

[1] The plaintiff, Mr. Daniel Plastino, was insured under a policy of group insurance issued by, the defendant, Desjardins Financial Security Life Assurance Company (“DFS”), bearing policy number 541003 (the “Policy”).

[2] On or around February 2, 2008, the plaintiff ceased work and thereafter submitted a claim for long term disability (“LTD”) benefits to DFS. The plaintiff was eventually approved for monthly LTD effective October 1, 2008.

[3] As DFS paid these benefits it continually reviewed the plaintiff’s condition.

[4] In a letter dated February 13, 2013, DFS gave notice to the plaintiff that the medical documentation no longer supported that the plaintiff met the definition of “Total Disability” and informed the plaintiff that “your LTD claim will terminate effective March 14, 2013”. The letter also advised the plaintiff that he could appeal the decision if he disagreed with this decision.

[5] LTD benefits were paid up to March 14, 2013. As of March 15, 2013, no further benefits were paid to the plaintiff by the defendant.

[6] The plaintiff appealed.

[7] Various correspondence was exchanged between DFS and the plaintiff concerning the plaintiff’s appeals from March 15, 2013, to and including July 9, 2014.

[8] The Policy does not have a formal appeal process and there is no end to the appeal process. In other words, there is no limit to the number of appeals that can be made. DFS would be required to continue to review and evaluate appeals as and when they are received.

[9] The plaintiff issued a Statement of Claim on July 4, 2016, more than three years after the benefits were terminated on March 15, 2013.

[10] Pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, summary judgment, DFS brought a motion to dismiss the claim of the plaintiff and for costs. DFS seeks a dismissal of the plaintiff’s claim on the basis that the limitation period for the action is governed by the Limitations Act, 2002, SO 2002, c 24, Sch B (“Limitations Act”) and as such, is statute barred.

ISSUES

[11] The main issue is whether there is a genuine issue for trial with respect to the issues raised by DFS and the plaintiff, including:

(a) the commencement date of the limitation period,

(b) the applicable limitation period in the context of this case,

(c) what the plaintiff understood, did, or did/could not do after his benefits were terminated during the applicable limitation period and the stop/delay of the run time of same, if any,

(d) evidentiary and credibility issues,

(e) promissory estoppel, and

(f) relief from forfeiture.

ANALYSIS

Summary Judgment

[12] A defendant may, after delivering a statement of defence, move with supporting affidavit material, or other evidence, for summary judgment on all or part of the claims in the statement of claim.

[13] It is settled law that the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial with respect to a claim. In determining whether there is genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. weighing the evidence;

2. evaluate the creditability of a deponent; and

3. draw any inferences from the evidence.

[14] The responding party must put his/her best foot forward on a summary judgment motion.

Application to the Evidence

[15] A copy of the Policy was filed. I reviewed the Policy.

[16] The plaintiff points to the section titled “Claims” and argues it establishes a three-year limitation period.

[17] I find that there is no genuine issue for trial that the Policy sets a three-year limitation period that takes the limitation period outside of the Limitations Act. My reasons are as follows.

[18] Under the “Claims” section that the plaintiff referred the court to, there is a section titled "Notice and Proof of Claim" which states:

Notice and proof of any claim must be received by the Insurer within the time limit, if any, specified for each benefit…

Failure to submit notice or proof of claim within the prescribed time limit does not invalidate the claim, provided that the notice and proof of the claim are sent as soon as reasonably possible.

No action or proceedings may be brought against the insurer for the

recovery of any claim within 60 days or after 3 years following the

expiration of the time in which proof of claim is required.

[19] I find the ordinary language of all three clauses falls within the context of initiating a claim for the various benefits provided by the Insurer. The sections outline when the insured needs to make/prove his or her claims for the benefits themselves, and timelines for the submission of claims for the applicable benefits which includes an absolute bar in some instances.

[20] In the Policy, after this said section, I observed there were separate sections for member basic life insurance, member accidental death and dismemberment, member voluntarily life insurance, spouse voluntary life insurance and member long term disability benefits. Each of these sections has “its own” subsection titled “Notice and Proof of Claim”. Member long term disability benefits are in issue.

[21] Under the member long term disability benefits section, under the subsection titled “Notice and Proof of Claim”, it provides:

Initial written notice of a claim must be submitted to the Insurer within 31 days of the expiry of the Qualifying Period and initial written proof, within 60 days of the expiry of the Qualifying Period.

[22] This section by its ordinary language defines when written notice and proof of the claim is required and provides further support for the aforesaid interpretation.

[23] “Qualifying Period” is defined in the Policy as meaning the period, as specified in the Benefit Schedule, of continuous Total Disability that must be completed before LTD benefits commence under this benefit (member long term disability benefit), addressing the commencement of the claim for the benefit. “Total Disability” is defined and what is considered to be “continuous” while satisfying a qualifying period.

[24] All the ordinary language used relates to applications for and recovery of claims for the benefits, not termination of in-pay claims for benefits once they have been granted. Termination, as well as reinstatement are distinct issues.

[25] Reinstatement is in fact treated distinctly in applicable cases. There is a provision for reinstatement (presumably following a termination or interruption) which is not applicable in this case (given the plaintiff claims his disability never ended and that he was continuously totally disabled since 2008).

[26] There is an absence of a clear contractual limitation period in the Policy specifically in relation to termination of benefits.

[27] When one reads all the above together, the sections by their ordinary language deal with the initial proof of the claims and recovery of benefits related to same. In/on the facts of this case applying the wording as set out with the ordinary language used under the sections, the plaintiff’s qualifying period of a continuous Total Disability (which he claims was never interrupted which is important) completed September 30, 2008, as his LTD commenced October 1, 2008. Notice is required within 31 days and initial proof is required within 60 days, or approximately by December 1, 2008, regarding the proof. No claim for recovery of the claim therefore or proceeding in relation to same can be brought within 60 days or after 3 years following the expiration of the time in which proof of claim is required. That is not the issue here. Termination of in-pay benefits is the issue.

[28] The Limitations Act imposes a basic limitation period of two years to bring an action from the time that a plaintiff “discovers” his claim.

[29] The Limitations Act provides:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

Discovery

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

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

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

[30] The plaintiff is presumed to have known of the matters referred to in s. 5(1)(a) unless the contrary is proven.

[31] Whether an action is appropriate depends on the specific factual or statutory setting of each individual case; there are many factual issues that will influence the outcome. Prior case law can assist in identifying certain general principles.

[32] If the Limitations Act applies, when s. 5(1)(b) of the Act is applied, the determination whether legal action would be appropriate takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known. Section 5(1)(b) is described as a modified objective test in Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors (2012), 113 O.R. (3d) 401, [2012] O.J. No. 5683, 2012 ONCA 851, at para. 70.

[33] In this case, there is no formal appeal process, and there is no end to the appeal process that would set a limitation period on denial of the appeal. In other words, there is no limit to the number of appeals that could have been made by the plaintiff. DFS would continue to review and evaluate appeals as they are received. In the case of Pepper v. Sanmina-Sci Systems (Canada) Inc.[“Pepper”], the Ontario Court of Appeal considered when the limitation period begins to run in the context of a claim for LTD benefits when no formal appeal process exists. I find that the principles are applicable to this case. I appreciate that findings in cases such as this remain fact dependent, but I agree that there are many similar facts in the Pepper case to the case at bar. Many of the authorities filed by the plaintiff were distinguishable, in that the facts of the cases included formal appeal processes and/or processes with discernable end dates.

[34] In paragraph 5, regarding the appropriateness of bringing a claim in cases such as this, the Court of Appeal in Pepper stated that upon the termination of benefits the claimant had a “fully ripened claim” and consequently the termination of benefits is the “appropriate” time to commence litigation. The limitation period starts to run subject to the facts of the case. The Court of Appeal referred to the language used from its earlier decision in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, to reaffirm “the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened…would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.” I agree.

[35] In this case, based on the above, the plaintiff’s claim thus arguably ripened March 15, 2013. In the letter dated February 13, 2013, DFS advised the plaintiff that his medical documentation no longer supported the definition of Total Disability, and the letter specifically informed the plaintiff that “your LTD claim will terminate effective March 14, 2013”. The letter also advised the plaintiff that if he disagreed with the decision, that he could appeal by submitting new medical evidence. The letter outlined what the appeal should include. The plaintiff acknowledged receipt of the February 13, 2013 letter from DFS. I acknowledge that there is no reference to commencing legal action as highlighted by the plaintiff. On this point, there is no obligation in law on DFS to notify the plaintiff. DFS stopped paying the plaintiff LTD as of March 15, 2013. As of March 15, 2013, no further benefits were paid to the plaintiff by the defendant.

[36] On or about April 16, 2013, DFS received a fax dated March 19, 2013, along with medical documentation from the plaintiff’s family doctor. The plaintiff knew his benefits were being terminated on or before March 19, 2013, accordingly.

[37] What happens after this termination must be reviewed as I appreciate the analysis does not stop here.

[38] After review of this said fax, in a letter dated April 29, 2013, DFS requested further information and refers to the plaintiff advising DFS on April 29, 2013, that he would be providing additional medical information for the appeal of his LTD claim and that DFS would complete their review of his appeal once they received the additional medical information. The letter refers to the fact that an appeal is being addressed and to interpret otherwise is not supported on the motion record.

[39] The plaintiff acknowledges that he advised DFS that he would be appealing the decision to terminate his LTD benefits. This acknowledgement further communicates actual appreciation of the termination. The plaintiff clearly knew he his benefits were being terminated and he chose to appeal.

[40] The evidence from the plaintiff varied on the record for this motion. This concerned me. The plaintiff raises credibility as an issue for determination of genuine issue for trial, but in this case, on the record before me, it appears to me that the real credibility and reliability issues lie with the plaintiff. That being said, I do not find that same forms a genuine issue for trial.

[41] The plaintiff provided various explanations for his inconsistencies. The plaintiff’s explanation for the variance in his evidence included that he was mistaken or misunderstood certain facts he had initially provided and/or questions he was asked on examination for discovery. He also indicated that life events, and/or his medical condition and/or medications affect his memory, supporting his position with medical documentation filed.

[42] I considered in this analysis that the plaintiff on this motion for summary judgment must put his best foot forward and that he was aware of the live issues on this motion for summary judgment.

[43] When I considered the plaintiff’s evidence, I had difficulties accepting that he was mistaken or that he misunderstood or that his medical condition or medication were factors that would reasonably explain the inconsistencies or his ability to commence an action. All the circumstances taken together call his explanations into question. Responding to the motion, was the time and place to provide all information to the court to assess his explanations. I find he did not do so. Moreover, with respect to his personal testimony, I am not persuaded that a trial would accomplish anything on this issue if one accepted and applied his own explanation of having memory issues because of his condition in terms of the reliability of his testimony.

[44] I also considered the following, which in addition to genuine issues regarding credibility and reliability, also goes to/overlaps the questions regarding same with respect to what the plaintiff did after the termination and what he understood, and what objectively 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 s. 5(1)(a) of the Limitations Act.

[45] The plaintiff’s initial evidence on examination for discovery was clear that he was thinking of “suing” DFS in March of 2013 but decided to appeal. The plaintiff states his state of mind and ability to answer questions was affected at the examination for discovery on November 27, 2017. There is no specific medical evidence supporting this. There is no indication that the plaintiff was confused when he used that word. It was some time before he communicated this “confusion” to DFS following the discovery. He did not correct his evidence for some time after. I recognize that at the discovery at times the plaintiff was emotional, but same does not equate to or present as confusion. In general, there is no indication that the plaintiff was grossly unresponsive or unable to answer the questions surrounding this issue or other issues at discovery. He states he was aware of the denial. He chose to go through the appeal process based on what he went through to obtain the benefits in the first place. He did not state he was not able to seek legal advice and/or assistance from his union. He made a choice how he presents his own evidence.

[46] Further, I noted that the plaintiff consulted a lawyer who he identified as his cousin, namely, Mr. Orlando Rosa; initially advising that he did this in May of 2013. Point one is that he had access to a family member who is a qualified licenced lawyer. The record is such that the plaintiff provided Mr. Rosa with information and documents related to the termination of his LTD benefits, but that ultimately Mr. Rosa did not take the case on because apparently Mr. Rosa did not take “such cases”. Point two, he does not state that Mr. Rosa failed to go over the options with him on what to do or what he could do. The plaintiff stated that he phoned Mr. Rosa repeatedly to get an answer as to whether Mr. Rosa would help him or not, what appears to be over a period of a couple to few months. Points three and four are that I noted that these actions on the part of the plaintiff denote an understanding that something needed to be done/seeking a remedy would have been appropriate, and that he was capable during this timeframe of making these inquiries and attending upon Mr. Rosa. This step undertaken by the plaintiff was over two years prior to the commencement of his action if this occurred in May of 2013.

[47] In the plaintiff’s affidavit filed for this motion this evidence changed. The plaintiff states that he consulted Mr. Rosa in September or October of 2014. This is sill well before March of 2015. Regarding Mr. Rosa, the plaintiff in putting his best foot forward did not provide any record of any kind to help clarify or assess his purported mistake on timeframe. In my view the plaintiff could have provided further information with respect to Mr. Rosa without jeopardizing solicitor client privilege. Further, both consultation timeframes occur before the expiry of two years following the termination.

[48] The plaintiff in his affidavit further states that on the examination for discovery he thought “suing” meant “pursuing his appeal” and that all he knew was that he could appeal. I do not accept this on the record before me. Again, Mr. Rosa, the plaintiff’s cousin he reports stated that “he did not take these types of cases”, not that he did not have one or explain what his “case” was. All the record reflects is that Mr. Rosa was allegedly more interested in other lawsuits the plaintiff was presenting with unrelated to his LTD, namely suing a priest, the details of which I do not need to go into except to highlight that the evidence seems to suggest that Mr. Rosa went outside of providing information than simply addressing the LTD benefits appeal with the plaintiff. If the plaintiff is asking this court to infer that the plaintiff was not told or told he could not pursue litigation by way of statement of claim against DFS by Mr. Rosa, I have no evidence of same.

[49] The plaintiff consulted more than one counsel after his LTD was terminated. I noted the plaintiff’s affidavit was inconsistent internally as to when he consulted this second lawyer, namely, Mr. Chorney. First, he states it was on or about February 2015 and then later states it was not before March of 2015 (paras 31 and 35 of his affidavit, both dates potentially being before the expiry of two years after his benefits were terminated). What this evidence does show is that again that the plaintiff thought it appropriate because of the LTD benefits termination to consult another qualified licenced counsel and decided to do so.

[50] I also noted that the plaintiff stated that he thought he would just appeal on his own by trying to see his family doctor, psychologist, and psychiatrist. I noted in giving this evidence, he recounted that he had difficulties obtaining his benefits in the first place and that it took about a year (however the record reflects that LTD was granted June 22, 2009, retroactive to October 1, 2008), and that after providing all information they requested, sooner or later he ended up getting paid. He thought this was just going to be “another one of those examples”, but then he knew he was in “over his head”, and he knew this after his benefits ended in March and April and he waited until May to find a lawyer to help him. These steps demonstrate exercise of a choice to engage in the manner he did, to adopt a wait and see approach with his appeal. It is also important to note his acknowledgement that he was in “over his head” as to his state of mind and demonstration of intact cognition of that fact during this timeframe.

[51] I acknowledge that the Plaintiff states he did not have a copy of the Policy in his argument. There is no explanation as to why he did not ask or could not have asked for a copy either from DFS and/or the union. There is no evidence that he was ever denied a copy. Noteworthy is that some of the DFS letters sent to the plaintiff referred and alerted the plaintiff to specific applicable provisions of the Policy. Following the LTD benefits termination, the plaintiff demonstrated that he was able, on his own, to tend to the gathering of medial information, attending on treating care providers, and speaking to DFS disability specialists assigned to his file to deal with his appeal on more than one occasion. Even if he did request a copy, I have found that the limitation period is not set by the Policy.

[52] I considered the medical documentation filed including but not limited to entries of “major depression, “double depression”, dysthymic disorder, eating disorder, anxiety, panic disorder and PTSD that opined affect on the plaintiff’s social and occupational performance. The key point being, that while he may have been continuing to suffer a disability with those effects, no medical documentation was filed on this motion that opines that the plaintiff was not able to consult and retain a lawyer to commence an action or to appreciate his rights and claims for specific timeframes, or that he was incapacitated functionally to a point with respect to doing same and/or gathering information on his own. The record reflects the opposite on more than one occasion, that he was. Despite the opinions/diagnoses he is relying on from his care providers, he was able to do other things including tending to his appeal and consulting others. Further I noted the medical documentation, and the plaintiff acknowledges that his condition in fact varied at times over the time following the termination of his LTD benefits. I acknowledge that against this he states that “most of the time” he was severely depressed and that his mood and memory were affected by his medication. Again however, in addition to the actions he took related to this case, it is noted that the plaintiff is capable to shop, drives a car, can tend to his own personal care, and take care of issues related to his mother and/or issues related to her death. There is insufficient evidence of thought disorder, that cognitively he was not grossly intact, and that insight and judgment were not intact over the course of the limitation period before it expired. It appears ability existed to maintain his personal relationships, look after an elderly parent, and engage in care of himself and family while maintaining a household throughout.

[53] I appreciate the statement that “just because a person can meet their daily activities does not mean they have capacity to start an action” but equally I appreciate the statement that “just because a person has a mental or psychological illness does not necessarily mean that they are incapable of doing so”. It is not a blanket all-or-nothing circumstance. It remains relevant to consider evidence of an individual plaintiff’s capacity which includes doing other things because such evidence may provide objectively verifiable indicators of capacity to commence an action: Carmichael v. Glaxo Smith Kline Inc., 2020 ONCA 447, paras. 111 and 117.

[54] The focus of the filed medical reports is on the plaintiff’s ability to work. The medical reports do not infer incapacity in all aspects of the plaintiff’s functioning and specifically ability to commence a legal proceeding or to seek assistance from anyone to do so. There is no evidence that the medications prescribed to the plaintiff rendered him incapable.

[55] Some of the authorities relied on by the plaintiff suggest that a potential litigant requires persuasive medical or psychological evidence to prove that they lacked the capacity to commence a proceeding in respect of a claim. I received no evidence of this.

[56] The record reflects that the plaintiff handled all his personal needs, business, medical care, and legal affairs (seeing lawyers). There is no evidence in the record that these affairs were tended to by anyone else because of incapability on the part of the plaintiff.

[57] The plaintiff refers to the death of his mother as having caused trauma and depression for him and how he was being pressed by siblings to sell or buy the house that he had been living in with his mother from her estate. This statement and lack of further information on this does not assist me to assess his allegation of incapacity to bring a claim related to termination of his LTD benefits.

[58] The plaintiff in his affidavit states that his depression was compounded by DFS’ constant requests for further medical information and its “consistent refusal to accept the information that was provided”. However, again he attended to his appeal and DFS’s requests, and obtained the information on his own regularly (at minimum four occasions based on the letters).

[59] In the plaintiff’s affidavit, I also considered that the plaintiff speaks to how he was able to contact his union in 2015 to ask for assistance with his LTD appeal. By letter dated February 23, 2015, DFS provided documentation to the union. There is no explanation from the plaintiff beyond that he felt that DFS would eventually start to pay again (despite nothing coming from them that they would) for not going to the union earlier. The point is that he had another resource of knowledge available to him and appears to have had no difficulties going to the union when he finally chose to do so.

[60] I considered the termination and appeal letters filed.

[61] On or about October 24, 2013, DFS in a letter dated October 31, 2013, DFS requested further information to assess the plaintiff’s appeal, the subject of the correspondence is identified as “appeal decision”. The body of the correspondence refers to information required to fairly adjudicate the claim for disability benefits. It is clear in my view to the reader that the plaintiff is involved in an appeal. There is nothing in my view misleading about asking for further information to assess an appeal that DFS was obliged to assess.

[62] On or about November 15, 2013, DFS in a letter dated November 25, 2013, DFS requested further information to assess the plaintiff’s appeal, indicating the correspondence is being sent in respect to the claim and to clarify the information required to review the claim on appeal. It highlights and includes the termination provisions of the Policy and indicates that a decision is pending on the claim pending receipt of information specifically requested under heading titled “Appeal Information”.

[63] On or about December 4, 2013, DFS received further medical documentation from the plaintiff’s treating psychiatrist. After reviewing this information, in a letter dated December 11, 2013, DFS requested further information to assess the plaintiff’s appeal, indicating the correspondence is being sent to clarify the information required to complete their review of his appeal. It highlights and includes the termination provisions of the Policy and indicates that a decision is pending receipt of information specifically requested under heading titled “Appeal Information”.

[64] On or about March 11, 2014, DFS received further medical documentation including prescription medication documentation. After review, in a letter dated March 20, 2014, DFS reiterated and maintained the decision that it had communicated to the plaintiff in February 2013 that LTD benefits were terminated as of March 15, 2013. DFS again stated that the documentation did not support Total Disability and therefore LTD benefits were not payable beyond March 14, 2013. This letter is identified as being with respect to the plaintiff’s appeal, that DFS had reviewed the information sent on the appeal, that their decision remained unchanged and that his benefits remained terminated. The letter notified the plaintiff of his ongoing appeal rights. This is March of 2014, more than two years before the plaintiff issued his statement of claim. Noteworthy is that he is being notified more than a year later that DFS is not changing its position as he communicated, he was hoping they would.

[65] The plaintiff chose to continue to provide information. On or about May 16, 2014, DFS received more medical documentation regarding the plaintiff’s claim from the plaintiff’s family doctor. DFS reviewed the documentation and in a letter dated July 9, 2014, DFS maintained its decision to deny LTD benefits again (third time) and identified in the correspondence the steps taken by DFS as being a “re-review” of the plaintiff’s entire file. This letter again notified the plaintiff of ongoing appeal rights and gave the plaintiff the option of submitting a customer complaint with Desjardins’ Dispute Resolution Officer (“DRO”), a “customer satisfaction tool”. The DRO’s role is to evaluate the merits of DFS’ decision should a client feel that they have not received the service to which they are entitled to. This option was not outlined, in any way, as affecting the plaintiff’s ability to continue to submit appeals if he so chose to continue to appeal. The plaintiff in his affidavit acknowledges that he understood that he could further appeal or that he could submit a complaint.

[66] A point in highlighting the letters is that, taken as a whole, and individually with what they state, they are clearly related to and identified as being related to an appeal of a termination of the plaintiff’s benefits. In them, DFS is maintaining their decision to terminate. When the plaintiff states he consulted the two lawyers referred to above, it is not clear what documentation he gave to them, but it is clear these letters were available. When the union was consulted by the plaintiff, DFS did not refuse to provide information needed and did so.

[67] On examination for discovery, the plaintiff understood his benefits were terminated and that he could appeal. The plaintiff in his affidavit seems to appreciate that the letters were indicating “further” appeal rights existed. There was nothing stopping the plaintiff from asking questions had he chose to on the record before me.

[68] By treating the termination of benefits date as the commencement date of the limitation period, the Court of Appeal in Pepper in paragraphs 2 to 6, endorsed the principle: where there is an informal appeals’ process with no reasonably ascertainable end date, subsequent appeals that are reviewed and responded to by an insurer, do not delay the commencement of the limitation “clock”. Accordingly, the subsequent appeals by the plaintiff in Pepper did not change the limitation period commencement date. I find this principle applies.

[69] The plaintiff states that DFS never notified him of limitation periods in the letters. Again, that is not DFS’s obligation. The Court of Appeal in Pepper further reiterates the principle, in regard to interactions between an insured and insurer after the termination of benefits that there is no obligation on an insurer to advise its insured about statutes of limitation.

[70] In this case, the dealings between the appellant and the respondent in attempting to resolve the claim do not raise genuine issue for trial in respect of estoppel. I noted that the plaintiff did not plead promissory estoppel in his pleadings. Nonetheless, all the letters have been filed. There was no promise within any of them not to rely on the limitation period. There were no admissions as to liability by DFS. No language was used that can be interpreted as an unambiguous promise on the part of DFS that it would not rely on limitation periods. As to conduct, I do not accept that there is genuine issue for trial that the assertions by DFS and steps taken by DFS to fairly adjudicate each appeal or advise of appeal rights or the complaint procedure amount to promises or assurances intended to affect their legal relationship. I find it is important to note that according to the plaintiff, DFS was essentially challenging at first instance, meaning the approval of his LTD claim at first instance, and he knew that. In fact, the way he explained why he chose to appeal was related to this previous experience, namely, that after a while he felt they would approve, not because anyone with or on behalf of DFS made a representation to him otherwise. Further, my view is that one cannot either classify the process and interaction as negotiation. It was an appeal process with requests and provision of information. In my view, there would have to have been something more to find promissory estoppel or for the process to have the affect/interpretation that the plaintiff is looking for. There is nothing else on this record before me.

CONCLUSION

[71] I find based on the above that this is a case where I can reach a fair and just determination on the merits on a motion for summary judgment. I can make necessary findings of fact. I can apply the law to those facts and summary judgment in this instance is the more expeditious and least expensive means to achieve a just result. I find there is no genuine issue requiring a trial and I have considered that a responding party must answer, put his or her best foot forward. I am not of the view that weighing the evidence, evaluating credibility and the drawing of inferences in this case should only be exercised at a trial. Between the exhibits, the affidavits and transcripts filed, there was a record upon which a fair and just determination could be made.

[72] I conclude that the plaintiff based on the foregoing above was subjectively aware in March of 2013 that his benefits were terminated; that DFS was refusing to continue to pay them; that he, within the timeframe of the running of the limitation period, had opportunity and the actual knowledge that he should get advice, seek remedy, and he was not incapacitated to excuse him from or delay the running of the limitation period. His claim ripened March 15, 2013. The Limitations Act applies. The limitation period expired March 14, 2015.

[73] It is the plaintiff’s burden to prove that he was incapable of commencing a proceeding in respect of the claim because of any physical, mental and/or psychological condition. He is presumed to have been capable unless the contrary is proved. I find he has not met that burden on a balance of probabilities.

[74] I had been given a picture of what the plaintiff has gone through and is continuing to go through. I had been provided with medical reports. The plaintiff was or ought to have been alive to the issues for this summary judgment and the importance of responding to the motion with his best foot forward. While I am not unsympathetic to the plaintiff’s medical conditions, it is not the mere diagnosis that the court must consider. The medical reports did not support that the plaintiff was incapacitated to commence a legal action. Further, it is all the circumstances and abilities I must consider. I find the record supports that the evidence demonstrates that the plaintiff had been capable of appreciating the denial of his benefits and having the ability to address the denial, or appreciate a proceeding would be appropriate to seek remedy. Further, the medical evidence speaks to varying degrees of his disability at times. The plaintiff raised the issue of the denial (speaking to his awareness of same) to his treating health care providers. He on more than one occasion took steps to deal with his benefits, such as making appointments, attending appointments, gathering information and responding to his appeals, making appointments to see counsel (Mr. Rosa and Mr. Chorney), and seeking help from a union representative. He was responsible for during the timeframe, his elderly mother and caring for her according to the materials filed. It appears he was meeting his personal care needs. The materials filed I find demonstrate a level of functioning that does not support incapacity to discover or prosecute his claim.

[75] As such, I am not persuaded that the plaintiff would not have been able to understand the minimum choices or the decisions he would have been required to make, to appreciate the consequences of those choices, to fully understand or appreciate the nature of the proceedings he ought to have initiated and/or to retain counsel if he so chose to do so.

[76] Even if he had not subjectively discovered his claim in time, a reasonable person with the abilities and in the circumstances of the plaintiff as I described ought to have known the matters referred to in s. 5(1)(a) for all the same reasons. I find he ought to have.

[77] Even if I am wrong regarding my findings about the application of the Limitations Act versus contractual limitation period, based on my findings of fact and analysis, the plaintiff brought his claim later than three years following the denial, which is when his claim ripened.

[78] I am not persuaded that relief from forfeiture has application to this case.

[79] I was not directed by the plaintiff to authorities that support the application of the remedy of relief from forfeiture in the context of an expired limitation period arising from a failure to commence an action following termination of LTD benefits.

[80] Relief from forfeiture is described in the authorities referred to by the plaintiff as a power of the court to protect a person against the loss of an interest or a right because of a failure to perform or perfectly comply with a condition to coverage itself. It is equitable in nature and discretionary, granted sparingly, with the party seeking it bearing the onus.

[81] The cases referred to, where this relief had been sought, centered around failures to comply with a policy condition or condition precedent for receipt of insurance proceeds (coverage itself) and where leniency in respect of strict compliance with the condition would not result in prejudice to the insurer.

[82] This is not a case of a failure to comply or perfectly comply with a policy condition or to perform a covenant, or a relatively minor condition precedent to coverage itself.

[83] This is a case in which the plaintiff did sufficiently notify DFS of his claim and/or provide proof of loss and received coverage, namely, LTD payments, until they were terminated due to lack of continued eligibility as determined/defined/interpreted by DFS. The alleged expired action in question is based on the termination of benefits on a determination/definition/interpretation made by the Insurer on the eligibility criteria.

[84] The summary judgment motion is granted in favour of DFS.

[85] The plaintiff’s claim is dismissed as statute barred.

[86] If the parties are unable to agree as to costs, DFS shall provide brief written submissions within 15 days of today’s date. The Plaintiff shall provide brief responding submissions within 30 days of today’s date. DFS may provide brief written reply within 45 days of today’s date. Brief means five pages or less, excluding bills of costs and offers to settle the motion.

Rasaiah J.

Released: June 23, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL PLASTINO

• and –

DESJARDINS FINANCIAL SECURITY LIFE ASSURANCE COMPANY

REASONS FOR decision on summary judgment motion

Rasaiah J.

Released: June 23, 2022