Boyce v. Co-Operators General Insurance Co.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Cronk and Lauwers, JJ.A.
• Citation: (2013), 307 O.A.C. 28 (CA),2013 ONCA 298
• Date: 30 April 2013

Boyce v. Co-op General (2013), 307 O.A.C. 28 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MY.011

Thomas Boyce and Marilyn Boyce (respondents/plaintiffs) v. The Co-Operators General Insurance Company (appellant/defendant)

(C56369; 2013 ONCA 298)

Indexed As: Boyce v. Co-Operators General Insurance Co.

Ontario Court of Appeal

Doherty, Cronk and Lauwers, JJ.A.

May 8, 2013.

Summary:

The insured claimed that their retail store was damaged by vandals in October 2010 and filed a proof of loss in December 2010. The insurer denied coverage. The insured commenced an action against the insurer in February 2012, more than one year, but less than two years after the incident. The insurer moved for summary judgment, claiming that the action was out of time by virtue of the one year limitation period in the insurance policy.

The Ontario Superior Court, in a decision reported [2012] O.T.C. Uned. 6381, dismissed the motion for summary judgment. The court held that the provision in the policy limiting coverage to claims made within one year of the loss did not override the statutory two-year limitation period set out in s. 4 of the Limitations Act. The insurer appealed.

The Ontario Court of Appeal allowed the appeal, set aside the order below and dismissed the action insofar as it was based on a claim made under the insurance policy.

Insurance - Topic 6504

Multi-peril property insurance - General - Limitation period - [See first Limitation of Actions - Topic 9306 ].

Limitation of Actions - Topic 9306

Postponement or suspension of statute - By agreement of the parties - The insured claimed that their retail store was damaged by vandals - The insurer denied coverage - The insured sued the insurer in February 2012, more than one year, but less than two years after the incident - The insurer moved for summary judgment, claiming that the action was commenced outside the one year limitation period in the policy - The motions judge refused summary judgment holding that the one year limitation provision in the policy did not override the statutory two year limitation period (Limitations Act, s. 4) - The insurer appealed - The Ontario Court of Appeal allowed the appeal - This was a business agreement within the meaning of s. 22(5) of the Limitations Act and as such the parties were free to shorten the limitation period, provided the provision in clear language described the limitation period, identified the scope of the application of that limitation period, and excluded the operation of other limitation periods - See paragraphs 9 to 26.

Limitation of Actions - Topic 9306

Postponement or suspension of statute - By agreement of the parties - Section 22(5) of the Limitations Act provided that in respect of business agreements a limitation period under the Act, except one established under s. 15, could be varied or excluded by agreement - The Ontario Court of Appeal discussed what a court had to consider when faced with a contractual term which purported to shorten a statutory limitation period - See paragraphs 11 to 20.

Cases Noticed:

International Movie Conversions Ltd. v. ITT Hartford Canada (2002), 154 O.A.C. 189; 57 O.R.(3d) 652 (C.A.), refd to. [para. 11].

Bell Canada v. Plan Group Inc., [2012] O.T.C. Uned. 42; 2012 ONSC 42, refd to. [para. 14].

Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 46 O.A.C. 292; 3 O.R.(3d) 1, refd to. [para. 17].

Syncrude Canada Ltd. et al. v. Hunter Engineering Co. and Allis-Chalmers Canada Ltd. et al., [1989] 1 S.C.R. 426; 92 N.R. 1, refd to. [para. 17].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, sect. 22(5) [para. 13].

Counsel:

Mitchell K. Kitagawa, for the appellant/defendant, the Co-Operators General Insurance Company;

Richard Knott, for the respondents/plaintiffs, Thomas and Marilyn Boyce.

This appeal was heard on April 30, 2013, before Doherty, Cronk and Lauwers, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on May 8, 2013.