Court docket of Attraction overturns movement decide, discovering declare for incapacity advantages is statute barred – Canadian Insurance coverage Regulation Weblog

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Insurance coverage legislation – Group insurance coverage – Long run incapacity advantages – Limitation of actions – Apply – Appeals – Abstract judgments

Clarke v. Solar Life Assurance Co. of Canada>, [2020] O.J. No. 71, 2020 ONCA 11, Ontario Court docket of Attraction, January 8, 2020, D.M. Brown, G. Huscroft and G.T. Trotter JJ.A.

The insured made a declare for long-term incapacity advantages resulting from well being issues in 2011. The insurer supplied incapacity advantages by reference to 2 intervals of time. The primary interval, which lined the plan’s elimination interval and the next 24 months, handled an insured as “completely disabled” who was prevented from performing the important duties or their common or “Personal Occupation”. For the second interval past 24 months, the plan handled an insured as “Completely Disabled for Any Occupation” in the event that they had been prevented from partaking in any commensurate occupation for which they had been or turned fairly certified by schooling coaching or expertise.

The insurer initially denied the insured’s declare for advantages. Following an inside attraction, the insurer notified the insured on February 24, 2014, that she was eligible for advantages beneath the primary interval, however not the second. The insurer invited the insured to submit additional medical data concerning her entitlement to advantages within the second interval.

The insured made an additional inside attraction in March 2017. On June 19, 2017, the insurer notified the insured that it maintained its denial of advantages for the second interval and suggested her that consideration of the attraction shouldn’t represent a waiver of the limitation interval set out within the Limitations Act, 2002 [S.O. 2002, c. 24, Sched. B] (the “Act”) or rights beneath the coverage. The insured commenced an motion on August 2, 2018. The insurer introduced a movement for abstract judgment to dismiss the motion.

The movement decide dismissed the insurer’s software on the premise that the language within the February 24, 2014, letter was equivocal and didn’t quantity to “damage, loss or injury” as per the Act. The movement decide additional decided that the limitation interval truly commenced as of the date of the June 19, 2017, letter. These determinations had been overturned on attraction as errors of legislation.

First, the Court docket of Attraction held that the movement decide erred in figuring out when the “damage, loss or injury” occurred. Per the precept in Pepper v. Sanmina-Sci Methods (Canada) Inc., 2017 ONCA 770, the Court docket of Attraction famous that the reason for motion for breach of contract and “damage, loss or injury” occurred as of February 24, 2014, when the insurer stopped paying long-term incapacity advantages. Second, the movement decide did not correctly apply the cumulative and comparative discovery evaluation to find out when a continuing can be an acceptable means to treatment the “damage, loss or injury” by failing to make the requisite findings of reality. Consequently, the movement decide’s holding lacked an ample authorized and factual basis and the order was put aside. The Court docket of Attraction declined to make its personal dedication as there was not an ample factual report and ordered that the remaining points be decided by some type of trial.

This case was digested by Michael J. Robinson>, and first printed within the LexisNexis® Harper Gray Insurance coverage Regulation Netletter and the Harper Gray Insurance coverage Regulation Publication. If you need to debate this case additional, please contact Michael J. Robinson at>.

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