Merner v. Nova Scotia Association of Health Organizations Long Term Disability Plan Trust Fund, 2001 NSCA 142

• Judge: Bateman, Freeman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 11, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 142;(2001), 200 N.S.R.(2d) 315 (CA)

Merner v. Disability Plan (2001), 200 N.S.R.(2d) 315 (CA);

 627 A.P.R. 315

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. DE.052

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

(CA 168701; 2001 NSCA 142)

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

Nova Scotia Court of Appeal

Bateman, Freeman and Oland, JJ.A.

October 16, 2001.

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 employee 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, in a decision reported at 189 N.S.R.(2d) 241; 590 A.P.R. 241, refused to strike the limitation defence and struck the employee's statement of claim. The employee appealed.

The Nova Scotia Court of Appeal allowed the appeal and set aside the order striking the statement of claim.

Practice - Topic 2201

Pleadings - Striking out pleadings - Juris­diction - An employee sued the trustees of a long term disability plan - The trustees asserted that the action was time barred and applied to strike the statement of claim under Civil Procedure Rules 14.25 and 25.01 - The motions judge struck the statement of claim, holding that he had jurisdiction to do so based on a limitation defence - The Nova Scotia Court of Appeal allowed the employee's appeal - The test for striking a statement of claim was whether the claim was obviously unsustainable - Although there might be instances where the facts as to an expired limitation period as disclosed by the plead­ings were so clear that a claim was ob­viously unsustainable, this was not one of them - Substantial questions as to the limitation defence remained to be answered at trial.

Practice - Topic 2239.2

Pleadings - Striking out pleadings -Grounds - Action prescribed or barred by limitation period - [See 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. 13].

Myers v. Maritime Life Assurance Co., [2001] N.S.R.(2d) Uned. 34 (C.A.), refd to. [para. 13].

Binder v. Royal Bank of Canada et al. (1996), 150 N.S.R.(2d) 234; 436 A.P.R. 234 (C.A.), refd to. [para. 15].

Seacoast Towers Services Ltd. v. MacLean (1986), 75 N.S.R.(2d) 70; 186 A.P.R. 70 (C.A.), refd to. [para. 16].

Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 (C.A.), refd to. [para. 16].

Ross v. Canada (Attorney General) et al. (1999), 180 N.S.R.(2d) 266; 557 A.P.R. 266 (C.A.), refd to. [para. 21].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.25, rule 25.01 [para. 9 et seq.].

Counsel:

Harvey M. McPhee, for the appellant;

Alan V. Parish, Q.C., and Brian Casey, for the respondents.

This appeal was heard on September 11, 2001, by Bateman, Freeman and Oland, JJ.A., of the Nova Scotia Court of Appeal. Freeman, J.A., delivered the following judg­ment for the court on October 16, 2001.