Limitations issues have a way of encouraging creative but hopeless arguments.<\/p>\n
Take for example Richards v. Sun Life Assurance Company of Canada<\/em><\/a>.\u00a0 The plaintiff argued that the first clear and unequivocal denial of his benefits claim was contained in the defendant insurer’s statement of defence.\u00a0 Justice Bale had none of this:<\/p>\n [19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As previously noted, the plaintiff argued that the first clear and unequivocal denial of his claim was contained in Sun Life\u2019s statement of defence. Assuming this to be the case, \u201cclear and unequivocal denial\u201d cannot be the applicable test, since the plaintiff would then have commenced his action prior to discovering his claim, a logically inconsistent result.<\/p><\/blockquote>\n By commencing a proceeding in respect of a claim, a claimant necessarily acknowledges discovery of the claim.\u00a0 It is, as Justice Bale put it, logically fraught to both assert a claim and an argument that you have yet to discover it.<\/p>\n Justice Bale’s decision also contains a helpful discussion of rolling limitation periods:<\/p>\n [<\/a>25]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The plaintiff argues that a rolling limitation period applies, and that the plaintiff is only barred from claiming the disability benefits that would have been payable more than two years before the action was commenced. I disagree.<\/p>\n [<\/a>26]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 A rolling limitation period may apply to claims for periodic payments, in cases where the issue is whether certain payments to which the plaintiff is entitled have been made (e.g.<\/i> payments of rent), as opposed to cases where the issue is whether the plaintiff was entitled to the periodic payments in the first place. In the former type of case, the material facts will have arisen on a periodic basis, and it will not be unfair to require a defendant to litigate those facts during the applicable limitation period following the date upon which an individual payment became due. However, in the latter type of case, the material facts will have arisen at the time that the plaintiff alleges he or she first became entitled to periodic payments, and it would be unfair to require the defendant to litigate those facts, for a potentially unlimited period of time.<\/p>\n [<\/a>27]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In the present case, the issue is whether the plaintiff was entitled to disability benefits, at the time of his application to Sun Life, and the concept of a rolling limitation period does not apply.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":" Limitations issues have a way of encouraging creative but hopeless arguments. Take for example Richards v. Sun Life Assurance Company of Canada.\u00a0 The plaintiff argued that the first clear and unequivocal denial of his benefits claim was contained in the defendant insurer’s statement of defence.\u00a0 Justice Bale had none of this: [19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As … Continue reading Ontario: If you sue, you’ve discovered your claim<\/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":[188,9,277],"class_list":["post-510","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-clever-but-futile-arguments","tag-discovery","tag-rolling-limitation-periods"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/510","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=510"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/510\/revisions"}],"predecessor-version":[{"id":511,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/510\/revisions\/511"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=510"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=510"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=510"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n