



COURT OF APPEAL FOR ONTARIO

CITATION:
Deck International
    Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309

DATE: 20120511

DOCKET: C53138

MacPherson, Gillese and Blair JJ.A.

BETWEEN

Deck International Inc. and Richard Laurie
    Donaldson

Plaintiffs (Appellants)

and

The Manufacturers Life Insurance Company

Defendant (Respondent)

George Windsor, for the appellants

Gordon Jermane and Ted Shieck, for the respondents

Heard and released orally: May 9, 2012

On appeal from the judgment of Justice Hugh R. McLean of
    the Superior Court of Justice, dated December 2, 2010.

ENDORSEMENT

[1]

The appellants commenced an action on February 1, 2005, in which they
    sought long term disability (LTD) benefits from the respondent, The
    Manufacturers Life Insurance Company, for a disability said to have arisen in
    1990.

[2]

In 1998 the appellants sought LTD benefits from the respondent for the
    same disability.  The respondent refused to make the payments because the
    appellants had paid no premiums on the disability insurance policy since
    October 1, 1990.  It is worthy of note that on December 11, 1990, the respondent
    had advised the appellants in writing that the policy had been cancelled
    effective October 1, 1990, and that any claims incurred prior to the date of
    cancellation had to be submitted no later than 90 days after October 1, 1990. 
    Dental and healthcare claims were submitted but no claim for LTD benefits was
    made until 1998.

[3]

The respondent brought a summary judgment motion and the appellants
    brought their own summary judgment cross-motion.

[4]

The motion judge found that the limitation periods had long run in the
    action.  He further determined that Mr. Donaldson, the individual
    plaintiff/appellant, was not saved by s. 7 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sch. B.  Section 7 prevents the limitation period from
    running during any time in which the person with the claim is incapable of
    commencing or proceeding in respect of the claim because of his or her
    physical, mental or psychological condition.  The motion judge found that there
    was insufficient evidence to support a finding of incapacity such that s. 7
    would apply.  Accordingly, the motion judge granted the respondents motion and
    dismissed the appellants cross-motion.

[5]

The appellants appeal.  They submit that the motion judge failed to
    consider all of the evidence that was before the court.

[6]

We do not accept this submission.  There was no medical evidence to the
    effect that Mr. Donaldson lacked the capacity to commence the action within the
    meaning of s. 7.  There was evidence from family members as to his disability,
    but that is not the same thing as medical evidence going to the issue of
    capacity to commence an action.

[7]

Accordingly, we see no basis on which to disturb the judgment below. 
    The appellants let the disability insurance policy lapse in 1990, leaving
    themselves with no insurance when they sought LTD benefits in 1998.  For the
    reasons given by the motion judge, by the time the appellants commenced their
    action, the limitation periods had long expired.  As a result, there was no
    genuine issue requiring a trial.

[8]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    at $7,000, inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

R.A.
    Blair J.A.


