{"id":190,"date":"2015-03-23T20:08:23","date_gmt":"2015-03-24T00:08:23","guid":{"rendered":"http:\/\/limitations.ca\/?p=190"},"modified":"2015-03-23T20:23:25","modified_gmt":"2015-03-24T00:23:25","slug":"ontario-for-some-the-limitations-act-remains-a-novelty-exhibit-2","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=190","title":{"rendered":"Ontario: For some, the Limitation Act remains a novelty (Exhibit 2)"},"content":{"rendered":"

In February, I cautioned <\/a>against taking the bench’s familiarity with the Limitation Act, 2002<\/em><\/a> for granted. For I some, I suggested, it remains a novelty.<\/p>\n

The Court of Appeal’s decision in Thompson v. Sun Life Assurance Company of Canada <\/em><\/a>should encourage readers to head this advice.\u00a0 A motion judge ignored or misapprehended section 22<\/a> off the Act when determining whether to enforce a shortened limitation period in a group insurance policy:<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The primary ground of appeal advanced by Ms. Thompson is that the motion judge erred in concluding that her action was barred by reason of a contractual one-year limitation provision contained in the Policy. We agree that the motion judge erred in reaching that conclusion.<\/p>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The January 1, 2006, Group Benefits Handbook for the Policy described the limitation period for long-term disability benefit claims as follows: \u201cNo legal action may be brought by you more than one year after the date we must receive your claim forms or more than one year after we stop paying Long-Term Disability benefits.\u201d<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In his reasons, the motion judge simply wrote in respect of this issue: \u201cThe plaintiff\u2019s claim in this action is barred by the contractual one-year limitation provision of the policy.\u201d The reasons of the motion judge do not explain how he reached that conclusion. Section 22 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, permits the variation of the general two-year limitation period set out in s. 4 in two circumstances. First, s. 22(2) provides that a limitation period under the Act may be varied or excluded by an agreement made before January 1, 2004. Second, s. 22(5) provides that the s. 4 limitation period may be varied or excluded by a business agreement made on or after October 19, 2006.<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The motion judge made no finding whether the Policy was made before January 1, 2004. Nor did the motion judge make any finding as to whether the Policy was a \u201cbusiness agreement\u201d within the meaning of s. 22(5) of the Act. In the absence of such findings, the conclusion by the motion judge that Ms. Thompson\u2019s action was barred by the contractual one-year limitation provision of the Policy is not supportable.<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Moreover, in light of this court\u2019s decision in Kassburg v. Sun Life Assurance Company of Canada<\/em>, 2014 ONCA 922, which was released after the motion judge had granted summary judgment in this case, there is strong reason to doubt that the Policy would fall within the \u201cbusiness agreement\u201d exception contained in s. 22(5) of the Act.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In February, I cautioned against taking the bench’s familiarity with the Limitation Act, 2002 for granted. For I some, I suggested, it remains a novelty. The Court of Appeal’s decision in Thompson v. Sun Life Assurance Company of Canada should encourage readers to head this advice.\u00a0 A motion judge ignored or misapprehended section 22 off … Continue reading Ontario: For some, the Limitation Act remains a novelty (Exhibit 2)<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[77,24,44,52,43],"class_list":["post-190","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-misbehaving-judges","tag-ontario-act","tag-ontario-act-s-22","tag-ontario-act-s-225","tag-ontario-court-of-appeal"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/190","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=190"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/190\/revisions"}],"predecessor-version":[{"id":196,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/190\/revisions\/196"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=190"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=190"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=190"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}