Court of Appeal

CASE NO.                                      VOL. NO.                                            PAGE

VIRGINIA MERNER                      - and -             PATRICK FLINN, CAROLE DOWNEY, GREG BLANCHARD, IVANO ANDRIANI, JACK INGRAM AND DAVID COXEN, THE TRUSTEES OF THE NOVA SCOTIA ASSOCIATION OF HEALTH ORGANIZATIONS LONG TERM DISABILITY PLAN TRUST FUND

(Appellant)                                                                                        (Respondents)

CA 168701                                                     Halifax, N.S.                Freeman, J.A.

                            [Cite as: Merner v. Flinn, 2001 NSCA 142]

APPEAL HEARD:                        September 11, 2001

JUDGMENT DELIVERED:          October 16, 2001

SUBJECT:       Long term disability insurance; limitation period,  private contract; Limitation of Actions Act, R.S.N.S. 1989, c. 258; Civil Procedure Rules 14.25, 25.01.

SUMMARY:    The appellant was disabled from working as a nurse in 1991 and received disability benefits under a private contract for 30 months, after which benefits were discontinued on grounds she was capable of other employment.  She claims to have discovered that her disability prevented her from continuing with the computer course she was taking only after the expiration of the one-year limitation period contained in the contract.  After refusing to strike limitation defence the Chambers judge struck the statement of claim, terminating the appellant’s action. 

ISSUES:              Did the appellant’s claim meet the test for striking a pleading, that it was obviously unsustainable?

RESULT:         The appeal was allowed.  The appellant’s claim was not obviously unsustainable.  There were issues as to the discoverability of the appellant’s claim and the applicability of the one-year limitation period.  These, together with the limitation defence, should be determined after a full hearing.