Layland v. Canadian Co-Operative Association et al., 2015 ONSC 835

• Judge: Lederer, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 09, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONSC 835;(2015), 330 O.A.C. 235 (DC)

Layland v. Cdn. Co-op Assoc. (2015), 330 O.A.C. 235 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.002

Greta Layland (plaintiff/respondent) v. Canadian Co-Operative Association and Co-Operators Life Insurance Company (defendants/respondents)

(443/14; 97-CU-121825; 2015 ONSC 835)

Indexed As: Layland v. Canadian Co-Operative Association et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lederer, J.

February 12, 2015.

Summary:

In May 1996, the plaintiff sued the defendant insurer. The insurer had denied the plaintiff's application for long-term disability benefits under a group insurance policy issued to her employer. The need for a right to sue application (RSA) arose because of the allegations in the amended statement of claim that the insurer caused the plaintiff's "Total Disability" as that term was defined in the policy. The 1996 action was automatically stayed when the RSA was not filed as required in December 2000. In July 2012, the plaintiff moved to lift the stay. The motion judge lifted that stay and allowed the action to continue on the basis that the blame for the delay was shared by both parties and the action could continue without prejudice to the defendants.

The Ontario Divisional Court, per Lederer, J., granted leave to appeal with respect to the question of whether the action should be dismissed as a result of the delay.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In May 1996, the plaintiff sued the defendant insurer - The insurer had denied the plaintiff's application for long-term disability benefits under a group insurance policy issued to her employer - The need for a right to sue application (RSA) arose because of the allegations in the amended statement of claim that the insurer caused the plaintiff's "Total Disability" as that term was defined in the policy - The 1996 action was automatically stayed when the RSA was not filed as required in December 2000 - In July 2012, the plaintiff moved to lift the stay - The motion judge lifted that stay and allowed the action to continue on the basis that the blame for the delay was shared by both parties and the action could continue without prejudice to the defendants - The Ontario Divisional Court, per Lederer, J., granted leave to appeal with respect to the question of whether the action should be dismissed as a result of the delay - The responsibility to move an action forward was not an equal or even a shared responsibility - It rested mainly with the plaintiff - The motion judge relied mainly on what the defendant had done, which was misplaced - Long-term disability claims were not static - Such claims involved medical conditions that could change over time - With the passage of time, the defendant was unable to trace the progress of the plaintiff's disability - The problem and any prejudice was exacerbated by the death of the doctor who prepared expert reports - Therefore, there was reason to doubt the correctness of the decision of the motion judge, but also the matters raised were of such importance that leave to appeal should be granted - In short, some determination needed to be made to confirm and recognize the responsibility of plaintiffs in bringing actions where the basis for the claim might evolve over time.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See Practice - Topic 5360 ].

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - [See Practice - Topic 5360 ].

Cases Noticed:

Standard Trust Co. v. Jackson (1993), 43 A.C.W.S.(3d) 1080, refd to. [para. 46, footnote 22].

Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.), refd to. [para. 47, footnote 24].

Woodheath Developments Ltd. v. Goldman (2003), 175 O.A.C. 259; 66 O.R.(3d) 731 (Div. Ct.), refd to. [para. 47, footnote 24].

Dynes v. Standard Life Assurance Co., [2012] O.A.C. Uned. 156 (C.A.), refd to. [para. 62, footnote 30].

Savundranayagam v. Sun Life Assurance Co. et al., [2007] O.T.C. Uned. R23 (S.C. Master), refd to. [para. 66, footnote 37].

Haynes v. RBC Life Insurance Co., [2010] O.T.C. Uned. 2470 (S.C. Master), refd to. [para. 66, footnote 37].

Wallace v. Crate's Marine Sales Ltd. et al., [2014] O.A.C. Uned. 603; 2014 ONCA 671, refd to. [para. 71, footnote 40].

Heit v. Great-West Life Assurance Co. (1996), 182 A.R. 174; 61 A.C.W.S.(3d) 1072 (Q.B. Master), refd to. [para. 72, footnote 42].

Counsel:

Greta Layland, plaintiff/responding party, in person;

Pamela Miehls, for Co-Operators Life Insurance Company, defendant/moving party/respondent;

No one appeared for Canadian Co-Operative Association, defendant/respondent.

This application was heard at Toronto, Ontario, on January 9, 2015, by Lederer, J., of the Ontario Divisional Court, who delivered the following decision on February 12, 2015.