Supreme Court

Judge:

The Honourable Justice Pierre L. Muise

Heard:

April 8, 2015, in Digby, Nova Scotia

Summary:

Vantassel’s Section B insurer, Dominion, advised her, in April 2008 that her weekly indemnity benefits would end May 11, 2008. Vantassel immediately informed Dominion she was contesting the termination of benefits on the basis that her condition was such that she had been approved for CPP Disability benefits. Dominion advised Vantassel it needed, among other things, her complete CPP file before reconsidering its decision. Between May 2008 and March 6, 2009 it conveyed multiple requests and reminders to Vantassel regarding her CPP File. Vantassel advised Dominion, on multiple occasions, of her efforts to have the file supplied to them. She received it with a letter dated March 10, 2009. She did not recall if she sent it to Dominion. It was not disputed that Dominion did not receive it. She retained a lawyer May 31, 2009, a few weeks after the expiry of the one year limitation period. That lawyer did not file a Notice of Action until April 22, 2010. Dominion, in its Statement of Defence raised a limitation period defence. Vantassel brought a pre-trial motion to disallow that defence.

Issues:

1.       Does the determination of whether relief should be granted pursuant to Section 3(2) of the Limitation of Actions Act require findings of fact that are best left to the Trial Judge?

2.       If not, should the Court exercise its discretion to disallow a limitation period defence pursuant to Section 3(2) of the Limitation of Actions Act?

Result:

Since the action was commenced within four years of the termination of benefits, the Court had discretion to disallow the limitation period defence. There was no dispute as to when the cause of action arose. It was unnecessary to determine whether a rolling cause of action existed. Therefore, there was no need to defer the issue to the trial judge.

Despite incomplete diligence on the part of Vantassel and her lawyer, given that Dominion had received early notice that the termination of benefits was contested, it was equitable to disallow the limitation period defence. There was little or no loss of cogency of evidence. Any such loss prejudiced Vantassel as much as Dominion. Any loss of opportunity to obtain an independent medical exam or conduct surveillance was not due to the delay in commencing the action. Dominion would still be able to challenge the claim on its merits. The harsh result of Vantassel losing her cause of action would be disproportionate to the purposes of the limitation period. The motion was granted and the defence disallowed.