



COURT OF APPEAL FOR ONTARIO

CITATION: Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017
    ONCA 730 DATE: 20170921

DOCKET: C63568

Hoy A.C.J.O., MacFarland and Huscroft JJ.A.

BETWEEN

Kevin
    Pepper

Plaintiff

(Respondent)

and

Sanmina-Sci
    Systems (Canada) Inc. and
The Standard Life Assurance Company of Canada

Defendants

(
Appellant
)

Elizabeth Bennett-Martin and Stephen Simpson, for the
    appellant

Brian A. Pickard, for the respondent

Heard: September 12, 2017

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 6, 2017, with reasons reported at 2017
    ONSC 1516.

REASONS FOR DECISION

[1]

On the facts of this case, the insurer appellant stopped paying long-term
    disability benefits to the respondent claimant on November 1, 2007. At that
    point, the respondent had a cause of action against the appellant  and ought
    to have been aware that he did. Indeed he retained litigation counsel in early
    January, 2008 to deal with his claim for disability benefits. This fact belies
    any suggestion of a lack of awareness of the appropriateness of commencing a
    lawsuit at that point in time.

[2]

As the motion judge noted, this policy of insurance provides
no
formal appeal process for when a claim is denied, and there is no alternate
    statutory appeal process as there was in
407 ETR Concession Company Limited
    v. Day,
2016 ONCA 709
.

[3]

There is no obligation on an insurer to advise its insured about
    statutes of limitation and, in this case, the dealings between the appellant
    and the respondent in attempting to resolve the claim do not give rise to an
    estoppel argument.

[4]

The motion judge in his reasons noted that it would have been prudent
    for the solicitor retained by the respondent to treat November 1, 2007 as the
    commencement date for the running of the limitation and he ought to have
    stopped his analysis right there. It was not just a matter of prudence but of
    legal correctness. The failure on the part of legal counsel and the motion
    judge to recognize November 1, 2007 as the date on which the limitation period
    commenced is an error in law.

[5]

On that date, the respondent had, in the language of the
Markel
    Insurance Co. of Canada v. ING Insurance Co. of Canada,
2012 ONCA 218  a
    fully ripened claim. That was the appropriate time to commence litigation.
    As Sharpe J.A. noted in
Markel
:

the word appropriate must mean legally appropriate. To give
    appropriate an evaluative gloss, allowing a party to delay the commencement
    of proceedings for some tactical or other reason beyond two years from the date
    the claim is fully ripenedwould, in my opinion, inject an unacceptable element
    of uncertainty into the law of limitation of actions.

[6]

The motion judge recognized that the respondent had a fully ripened
    claim as of November 1, 2007 (see para. 71-72 of the Reasons). His further
    analysis is, in our view, no more than an evaluative gloss on the word
    appropriate and introduces the uncertainty
Markel
cautions against.

CONCLUSION

[7]

The appeal is allowed. The order below is set aside, and, in its place,
    issue an order dismissing the action with costs.

[8]

Costs of the appeal and of the motion below are to the appellant
    and are each fixed in the agreed upon sum of $15,000 for a total of $30,000,
    inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

J. MacFarland J.A.

Grant Huscroft J.A.


