Ontario Trial Lawyers Asssociation Case

Transcription

11/11/2014
archive.constantcontact.com/fs142/1114697326977/archive/1119104679800.html
CASE SUMMARIES
November 10, 2014
Nguyen v. SSQ Life Insurance Company Inc.,
2014 ONSC 6405 (S.C.J.)
The Defendant brought a motion for summary judgment to
dismiss the Plaintiff's claim for Long-Term Disability Benefits
("LTD") under a group insurance policy issued to the
Plaintiff's employer. The Plaintiff had been injured in a
motor vehicle accident in March 2, 2010 and never
returned to work. Due to his limited English language skills,
he did not become aware of his group insurance policy until
it was brought up at an examination for discovery in his tort
action three years later. His counsel subsequently
contacted the employer for information about the policy
and to have the employer submit paperwork to complete
the Plaintiff's LTD application. Pursuant to the terms of the
policy, the Plaintiff should have submitted his application by
September 24, 2010. The Defendant LTD insurer denied the
application on the basis of untimeliness. The Plaintiff
commenced an action against the LTD insurer shortly
thereafter.
At issue was whether the Plaintiff's claim was barred by
both the contractual limitation period under the group
insurance policy and the statutory limitation period under s.
4 of the Limitations Act. The Court also considered whether
the Plaintiff was entitled to relief from forfeiture under s.
http://archive.constantcontact.com/fs142/1114697326977/archive/1119104679800.html
IN THIS ISSUE
CASE SUMMARIES
- Nguyen v. SSQ Life
Insurance Company Inc.
- L'Espérance v.
Economical Mutual
Insurance Group
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129 of the Insurance Act.
The Court ultimately decided that the Plaintiff had proven
that he was unable to submit his application sooner and
that the insurer had no reason to deny him coverage as a
result of submitting a late application. The Court found that
the employer had not fulfilled its contractual obligation to
provide the Plaintiff with documents he required to
exercise his rights under the group insurance policy. The
Court further noted that the wording of the LTD policy gave
the Defendant discretion to admit late claims. In the
alternative, the Court asserted that relief from forfeiture
was available to the Plaintiff given caselaw which had found
the failure to give notice of a claim as imperfect compliance
amenable to relief from forfeiture. The Court noted that the
Defendant could still evaluate the LTD claim going forward
and retroactively on the basis of medical records available
from the AB and tort claims. The Defendant's summary
judgment motion was dismissed and the Court made a
binding determination that the Plaintiff's application was
either timely or that relief from forfeiture should be
granted in the event that the Application was found to be
untimely.
Case Details on CanLII
L'Espérance v. Economical Mutual Insurance
Group, 2014 ONSC 6293 (S.C.J.)
The Defendant insurer and adjuster brought a summary
judgment motion on the basis that the Plaintiff's claim was
initiated beyond the applicable one-year limitation period
under section 148 and Statutory Condition 14 of the
Insurance Act. They also sought to strike the claim against
the adjuster personally on the basis that there was no
dispute that the insurer was vicariously liable for the
adjuster's actions. On June 3, 2011, the Plaintiff advised the
insurer that his vehicle had been stolen. The following day,
the Plaintiff advised that the vehicle had been found by
police in a remote location and destroyed by fire. The
Plaintiff submitted a sworn Proof of Loss on or about
August 18, 2011 in accordance with Statutory Condition
6(1)(c) of the Policy. Shortly thereafter, the insurer
requested that the Plaintiff participate in an examination
under oath. Pursuant to Statutory Condition 9(3), the
Plaintiff could not bring an action against his insurer until
he completed an examination under oath. The examination
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under oath was not started until April 20, 2012 and the
insurer issued requests for undertakings into late July 2012.
On August 15, 2012, the insurer advised the Plaintiff that
his claim had been denied on the basis of being fraudulent.
At that time, the insurer also asserted that the Plaintiff's
claim for recovery was barred due to the limitation
provisions in the Insurance Act. The Plaintiff subsequently
commenced an action for breach of contract and bad faith
against both the insurer and the adjuster on the file.
The Court found that the Insurance Act and its Statutory
Conditions had to be read as a cohesive whole. The Court
agreed with the Plaintiff's submission that the insurer's
decision to engage in an examination under oath pursuant
to Statutory Condition 6(4) should be assessed contextually
in terms of how it affects an insured's ability to initiate an
action. The Court found it unreasonable to expect an
insured to sue for breach of contract by breaching his/her
own contract to start an action before an examination
under oath had been completed. The Court asserted that an
insurer who engages Statutory Condition 6(4) before and
after a limitation period should be estopped from relying on
that limitation period to the detriment of an insured. In the
alternative, the Court looked at the Plaintiff's claim for bad
faith and found that it constituted an independent
actionable wrong that was not restricted by the one-year
limitation period. It also found that the Plaintiff's assertion
of bad faith and his recourse under the contract of
insurance were inextricably linked. It found that the
disposition of the missed limitation period issue within the
summary judgment motion was prevented by the existence
of the bad faith claim against the insurer for causing the
limitation period to be missed. The Court dismissed the
portion of the Defendants' summary judgment motion
relating to the limitation issue. However, it also dismissed
the Plaintiff's claim against the adjuster on the basis that
the adjuster was acting in his capacity as an employee of
the insurer.
Case Details on CanLII
Summaries provided by Veronica Marson, OTLA member
and lawyer practising with Singer Kwinter Barristers &
Solicitors.
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Please submit it with a link to the decision to:
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Published by Ontario Trial Lawyers Association
The Ontario Trial Lawyers Association (OTLA) is an association of lawyers acting
for plaintiffs, with 1,500 members across the province and the country. OTLA is
comprised of lawyers, law clerks, articling students and law students from
Ontario. Together, we work in our local communities to ensure equal access to
justice, full and fair protection of the rights of those who have suffered injury,
and the safety of all. Learn more at www.otla.com.
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Ontario Trial Lawyers Asssociation Case

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