Merner v. Nova Scotia Association of Health Organizations Long Term Disability Plan Trust Fund, (2000) 189 N.S.R.(2d) 241 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 07, 2000
• Jurisdiction: Nova Scotia
• Citations: (2000), 189 N.S.R.(2d) 241 (SC)

Merner v. Disability Plan (2000), 189 N.S.R.(2d) 241 (SC);

 590 A.P.R. 241

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. DE.015

Virginia Merner (plaintiff) v. Patrick Flinn, Carole Downey, Greg Blanchard, Ivano Andriani, Jack Ingram, and David Croxen, the Trustees of the Nova Scotia Association of Health Organizations Long Term Disability Plan Trust Fund (defendants)

(S.H. 110146)

Indexed As: Merner v. Nova Scotia Association of Health Organizations Long Term Disability Plan Trust Fund

Nova Scotia Supreme Court

Goodfellow, J.

November 24, 2000.

Summary:

An employee received benefits under a long term disability plan. The trustees of the plan determined that, as of September 7, 1994, the employee was no longer totally disabled within the meaning of the plan and terminated benefits. The employee's appeal was denied on February 1, 1995. The employee was advised that her right to appeal to the court expired in 30 days. On November 3, 1998, the plaintiff sued the trustees, claiming entitlement to long term disability benefits. The trustees asserted that the action was barred because of the time limitation. The employee applied to strike out the time limitation defence.

The Nova Scotia Supreme Court dismissed the employee's application, holding that it would not be equitable to allow the action to proceed.

Limitation of Actions - Topic 2421

Actions in contract - Pension plans - Gen­eral - The trustees of a long term disability plan determined that, as of September 7, 1994, an employee was no longer totally

disabled and terminated her benefits - The employee's appeal was denied on February 1, 1995 - The employee was advised that her contractual right to appeal to the courts would expire in 30 days - The employee attempted retraining, but her condition worsened and, in early 1998 she concluded that she could not retrain - On November 3, 1998, she sued the trustees of the plan claiming entitlement to long term disability benefits - The Nova Scotia Supreme Court allowed the trustee's limitation defence, holding that it would not be equitable to allow the action to proceed - The claim ended if the employee was not totally disabled at the time the claim was denied and a new cause of action did not arise at the end of each payment period.

Practice - Topic 2201

Pleadings - Striking out pleadings - Juris­diction - The Nova Scotia Supreme Court held that it had jurisdiction on an appli­cation under Civil Procedure Rule 14.25 or 25.01 to strike a statement of claim be­cause of a limitation defence - See para­graph 6.

Practice - Topic 2239.2

Pleadings - Striking out pleadings -Grounds - Action prescribed or barred by limitation period - [See Limitation of Actions - Topic 2421 and Practice - Topic 2201 ].

Cases Noticed:

Hendsbee v. Khuber and Stockmal (1995), 148 N.S.R.(2d) 270; 429 A.P.R. 270 (S.C.), refd to. [para. 6].

Smith v. Clayton et al. (1994), 133 N.S.R.(2d) 157; 380 A.P.R. 157 (S.C.), refd to. [para. 8].

Brett v. Anthony & Boulton et al. (1998), 171 N.S.R.(2d) 356; 519 A.P.R. 356 (S.C.), refd to. [para. 25].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.25, 25.01 [para. 6].

Counsel:

Harvey M. McPhee, for the plaintiff;

Brian Casey, for the defendants.

Goodfellow J., of the Nova Scotia Supreme Court, heard this matter in Chambers on November 7, 2000, and delivered the following written reasons on November 24, 2000.