Raymond v. Royal & Sun Alliance Insurance Co. of Canada, 2014 NSCA 13

• Judge: Beveridge, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 07, 2013
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 13;(2014), 340 N.S.R.(2d) 290 (CA)

Raymond v. Royal & Sun (2014), 340 N.S.R.(2d) 290 (CA);

    1077 A.P.R. 290

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. FE.011

Royal & Sun Alliance Insurance Company of Canada (appellant) v. Logan Llewellyn Raymond (respondent)

(CA 413454; 2014 NSCA 13)

Indexed As: Raymond v. Royal & Sun Alliance Insurance Co. of Canada

Nova Scotia Court of Appeal

Beveridge, Farrar and Bryson, JJ.A.

February 6, 2014.

Summary:

Raymond suffered significant injuries when the motor vehicle in which he was a passenger was involved in an accident. The vehicle was insured by Royal & Sun Alliance Insurance Co. of Canada ("Royal"). Raymond brought an action against Royal under Civil Procedure Rule 57 (claims under $100,000) seeking income disability benefits to the date of trial, which he estimated at $15,000, and outstanding medical expenses in the amount of $9,633.47. Royal said that the real amount involved far exceeded $100,000 and that rule 57 was not intended to apply in such a situation. Royal brought a motion for a declaration to that effect.

The Nova Scotia Supreme Court, in a decision reported at (2013), 325 N.S.R.(2d) 398; 1031 A.P.R. 398, dismissed Royal's motion. Royal appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Practice - Topic 5274.2

Trials - General - Simplified procedure actions - When available - Raymond suffered significant injuries when the motor vehicle in which he was a passenger was involved in an accident - Raymond brought an action against the insurer of the vehicle ("Royal") under Civil Procedure Rule 57 (claims under $100,000) seeking income disability benefits to the date of trial and outstanding medical expenses - Royal said that the real amount involved far exceeded $100,000 and that rule 57 was not intended to apply in such a situation - Royal moved for a declaration to that effect - Moir, J., dismissed Royal's motion - Royal appealed - Royal argued that "complexity", the "public interest" and alternatively, rule 57.04(5) should take this case outside rule 57 - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "The kinds of factors that the court must consider in deciding whether to remove a case from Rule 57, should begin with Rule 57.03(5). Moreover, it is that Rule under which a party challenging the expedited process should bring its motion. As Justice Moir noted, invoking Rule 57 is a matter of the plaintiff's choice. A defendant can only challenge that choice under Rule 57.03(5). Other than arguing that it should have access to full pre-trial process, Royal has not explained how 'justice cannot be done by applying this Rule' (57.03(5)(a)). Royal asserts that this is a 'complex disability claim', but does not say how Rule 57 cannot accommodate that alleged complexity" - See paragraphs 38 to 45.

Practice - Topic 5274.2

Trials - General - Simplified procedure actions - When available - [See first Practice - Topic 5274.5 ].

Practice - Topic 5274.5

Trials - Simplified procedure actions, fast track litigation, etc. - Monetary limit - Raymond suffered significant injuries when the motor vehicle in which he was a passenger was involved in an accident - The vehicle was insured by Royal & Sun Alliance Insurance Co. of Canada ("Royal") - Raymond brought an action against Royal under Civil Procedure Rule 57 (claims under $100,000) seeking income disability benefits to the date of trial, which he estimated at $15,000, and outstanding medical expenses in the amount of $9,633.47 - Royal said that the real amount involved far exceeded $100,000 and that rule 57 was not intended to apply in such a situation - Royal moved for a declaration to that effect - Moir, J., dismissed the motion - Royal appealed - Royal submitted that the combination of Raymond's youth and his injuries could easily elevate his "total of all claims" above $100,000 for income replacement benefits alone, assuming entitlement to age 65 - Royal said "claims" had to be read broadly to include all potential future claims - The Nova Scotia Court of Appeal dismissed the appeal - Future claims for disability benefits were separate causes of action - In a judicial process designed to determine liability and quantum, "claims" could not include that to which one was not entitled as of the date of assessment and which therefore could not be awarded - Raymond's Statement of Claim did not apply to causes of action arising after trial - Justice Moir was correct when he said "... the estimate required by Rule 57.04(1)(c) is an estimate of the total value of the causes of action sued for, and in a disability policy of this kind, any liability to make future payments is a separate cause recoverable only if the disability persists" - See paragraphs 13 to 37.

Practice - Topic 5274.5

Trials - Simplified procedure actions, fast track litigation, etc. - Monetary limit - The plaintiff brought an action against the defendant under Civil Procedure Rule 57 (claims under $100,000) - The defendant said that the real amount involved far exceeded $100,000 and that rule 57 was not intended to apply in such a situation - The defendant moved for a declaration to that effect - The motion was dismissed - The defendant appealed - The Nova Scotia Court of Appeal requested that counsel provide supplementary written submissions on "... whether Rule 57.04(3) limits a plaintiff to the amount allegedly owing at the time the action is commenced or to an amount (up to $99,999.00) allegedly owing as of the date of judgment?" - The court stated that "With respect to the supplementary question posed by the court, both parties agree that damages should be calculated to the date of assessment following the usual rule in civil actions" - See paragraphs 4 and 10.

Cases Noticed:

Fawson et al. v. St. Clair (2013), 336 N.S.R.(2d) 54; 1063 A.P.R. 54; 2013 NSCA 123, refd to. [para. 6].

Antunes v. Great-West Life Assurance Co., [2005] O.T.C. 1093 (Sup. Ct.), refd to. [para. 21].

Andersen v. Great-West Life Assurance Co., [1988] O.J. No. 987 (S.C.), refd to. [para. 21].

Keddy v. Clarica Life Insurance Co., [2002] O.T.C. Uned. A12 (Sup. Ct.), refd to. [para. 21].

Revere (Paul) Life Insurance Co. v. Herbin (1996), 149 N.S.R.(2d) 200; 432 A.P.R. 200 (S.C.), refd to. [para. 23].

Imperial Life Financial v. Langille (1997), 166 N.S.R.(2d) 46; 498 A.P.R. 46 (S.C.), refd to. [para. 23].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 24].

Keizer v. Slauenwhite (2012), 313 N.S.R.(2d) 344; 990 A.P.R. 344; 2012 NSCA 20, refd to. [para. 24].

Shaker v. Chow, [2012] B.C.T.C. Uned. 617; 2012 BCSC 617, refd to. [para. 43].

Smith v. Van Gregt, [2004] B.C.T.C. Uned. 903; 2004 BCSC 1837, refd to. [para. 43].

Bhate v. Telecom Leasing Canada (TLC) Ltd. et al. (1999), 8 B.C.T.C. 30 (S.C. Master) refd to. [para. 43].

Ram v. Pointner et al. (1999), 7 B.C.T.C. 378 (S.C. Master), refd to. [para. 43].

Statutes Noticed:

Civil Procedure Rules (N.S.), 2009, rule 1.01 [para. 27]; rule 57.02 [para. 28]; rule 57.03, rule 57.04 [para. 9].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Brown, Craig, and Menezes, Julio, Insurance Law in Canada (2nd Ed. 1991), p. 246 [para. 20].

Norwood, David, and Weir, John D., Norwood on Life Insurance Law in Canada (3rd Ed. 2002), p. 479 [para. 19].

Sullivan, Ruth, Driedger on the Construction of Statutes (3rd Ed. 1994), pp. 291, 294 [para. 30].

Counsel:

Lisa Richards and Tim Roberts, for the appellant;

Ansley Simpson and Robert B. Carter, for the respondent.

This appeal was heard on October 7, 2013, at Halifax, N.S., before Beveridge, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bryson, J.A., on February 6, 2014.