



COURT OF APPEAL FOR ONTARIO

CITATION: Thompson v. Sun Life Assurance Company of Canada, 2015
    ONCA 162

DATE: 20150312

DOCKET: C59477

Cronk, Gillese and Brown JJ.A.

BETWEEN

Patricia Thompson

Appellant

and

Sun Life Assurance Company of Canada

Respondent

Andrew R. Kerr, for the appellant

Dina Konduros, for the respondent

Heard: March 10, 2015

On appeal from the judgment of Justice David Salmers of
    the Superior Court of Justice, dated September 9, 2014.

ENDORSEMENT

[1]

The appellant, Patricia Thompson, appeals from the judgment of D. Salmers
    J. dated September 9, 2014 which granted summary judgment dismissing her
    action. The only evidence on the summary judgment motion was that filed by the
    respondent, Sun Life Assurance Company of Canada (Sun Life); Ms. Thompson did
    not file any evidence.

[2]

Ms. Thompson was employed by Casino Rama Services Inc. (Casino Rama)
    from June, 1996 until September 19, 2008.  Sun Life had issued a group policy
    of insurance to Casino Rama (the Policy) which was in force during that
    period of time, and Ms. Thompson was an eligible employee of Casino Rama for
    the purposes of long-term disability benefits under the Policy.

[3]

Casino Rama terminated Ms. Thompsons employment on September 19, 2008. 
    Ms. Thompson commenced her action on September 17, 2010.  In her statement of
    claim, Ms. Thompson claims payment of long-term disability benefits from
    September 20, 2008, for the duration of her disability.

[4]

Prior to issuing her statement of claim, Ms. Thompson had not submitted
    any proof of claim under the Policy seeking disability benefits.

[5]

The primary ground of appeal advanced by Ms. Thompson is that the motion
    judge erred in concluding that her action was barred by reason of a contractual
    one-year limitation provision contained in the Policy.  We agree that the
    motion judge erred in reaching that conclusion.

[6]

The January 1, 2006, Group Benefits Handbook for the Policy described
    the limitation period for long-term disability benefit claims as follows: No
    legal action may be brought by you more than one year after the date we must
    receive your claim forms or more than one year after we stop paying Long-Term
    Disability benefits.

[7]

In his reasons, the motion judge simply wrote in respect of this issue:
    The plaintiffs claim in this action is barred by the contractual one-year
    limitation provision of the policy.  The reasons of the motion judge do not
    explain how he reached that conclusion.  Section 22 of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sched. B, permits the variation of the general
    two-year limitation period set out in s. 4 in two circumstances.  First, s.
    22(2) provides that a limitation period under the Act may be varied or excluded
    by an agreement made before January 1, 2004.  Second, s. 22(5) provides that
    the s. 4 limitation period may be varied or excluded by a business agreement
    made on or after October 19, 2006.

[8]

The motion judge made no finding whether the Policy was made before
    January 1, 2004.  Nor did the motion judge make any finding as to whether the
    Policy was a business agreement within the meaning of s. 22(5) of the Act. 
    In the absence of such findings, the conclusion by the motion judge that Ms.
    Thompsons action was barred by the contractual one-year limitation provision
    of the Policy is not supportable.

[9]

Moreover, in light of this courts decision in
Kassburg v. Sun Life
    Assurance Company of Canada
, 2014 ONCA 922, which was released after the
    motion judge had granted summary judgment in this case, there is strong reason
    to doubt that the Policy would fall within the business agreement exception
    contained in s. 22(5) of the Act.

[10]

Notwithstanding
    that the motion judge erred in dismissing Ms. Thompsons action on the basis of
    the contractual limitation period, other findings he made supported the
    actions dismissal.

[11]

First,
    the motion judge held that Ms. Thompson had not met qualifying conditions of
    the Policy, stating:

Under the policy, the plaintiffs coverage for disability
    benefits ended when her employment terminated on September 19, 2008.  The
    plaintiff made no claim while she was an employee.  The plaintiff did not make
    a claim for benefits within the 60 day period after disability that is required
    pursuant to the policy.

[12]

These
    conclusions were based upon the uncontroverted evidence filed by Sun Life, and
    there is no reason to interfere with them.

[13]

Second,
    the motion judge also concluded that Ms. Thompsons action was barred by the
    statutory two-year limitation period in s. 4 of the Act.  In para. 7 of her
    statement of claim, Ms. Thompson had pleaded:

In August of 2008, while the aforesaid policy was in full force
    and effect, the Plaintiffbecame totally disabled from her employment as a
    result of severe pain in her foot, leg, hip, groin and back.

[14]

The
    pleading thus indicates that Ms. Thompson discovered her total disability in
    August, 2008. However, she did not commence this action until more than two
    years later, on September 17, 2010, making her action statute-barred.

[15]

We
    see no error in these additional reasons given by the motion judge for
    dismissing Ms. Thompsons action. Indeed, we agree with them.

[16]

The
    appeal, therefore, is dismissed.  Sun Life is entitled to its costs of the
    appeal, fixed in the sum of $2,700, inclusive of disbursements and HST.

E.A.
    Cronk J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


