Stone v. Sun Life Assurance Co. of Canada, (2015) 362 Nfld. & P.E.I.R. 250 (NLTD(G))

JudgeThompson, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateJanuary 26, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 362 Nfld. & P.E.I.R. 250 (NLTD(G))

Stone v. Sun Life (2015), 362 Nfld. & P.E.I.R. 250 (NLTD(G));

    1125 A.P.R. 250

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.017

Tracey Stone (plaintiff) v.Sun Life Assurance Company of Canada/Sun Life du Canada, Compagnie d'assurance-vie (defendant)

(201001T1444; 2015 NLTD(G) 16)

Indexed As: Stone v. Sun Life Assurance Co. of Canada

Newfoundland and Labrador Supreme Court

Trial Division (General)

Thompson, J.

February 10, 2015.

Summary:

Stone's appeal of the denial of her long term disability claim was dismissed by the defendant insurer in March 2009. She filed her statement of claim in March 2010. The statement of defence was filed in June 2012. The defendant made numerous unfulfilled requests for up to date medical information. In November 2014, the defendant applied to dismiss the action for want of prosecution (delay). The defendant asserted that the absence of timely notice and delivery of adequate medical evidence resulted in prejudice to it in that it was unable to obtain medical advice and offer proposals for mitigation to the plaintiff.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Stone's appeal of the denial of her long term disability claim was dismissed by the defendant insurer in March 2009 - She filed her statement of claim in March 2010 - The statement of defence was filed in June 2012 - The defendant made numerous unfulfilled requests for up to date medical information - In November 2014, the defendant applied to dismiss the action for want of prosecution (delay) - The defendant asserted that the absence of timely notice and delivery of adequate medical evidence resulted in prejudice to it in that it was unable to obtain medical advice and offer proposals for mitigation to the plaintiff - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - No prejudice was proven - The plaintiff's disability had "crystallized" as of March 2009 - At that time, the plaintiff had disclosed all of the medical information supporting her claim - Whether the plaintiff's condition engaged liability under the policy as of March 2009 was the issue at trial - The alleged loss of opportunity to offer proposals for mitigation did not take place in this case.

Practice - Topic 5362

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

Cases Noticed:

Dawe v. Brown (1994), 120 Nfld. & P.E.I.R. 40; 373 A.P.R. 40 (Nfld. T.D.), refd to. [para. 3].

10736 NF Inc. v. Newfoundland and Labrador (Minister of Transportation and Works) et al., [2013] Nfld. & P.E.I.R. Uned. 67; 2013 NLTD(G) 73, refd to. [para. 4].

Cervo v. Raimondo (2006), 217 O.A.C. 12; 277 D.L.R.(4th) 95 (C.A.), refd to. [para. 11].

Chiarelli v. Wiens (2000), 129 O.A.C. 129; 46 O.R.(3d) 780 (C.A.), refd to. [para. 13].

Haynes v. RBC Life Insurance Co., [2010] O.T.C. Uned. 2470; 2010 ONSC 2470 (Master), refd to. [para. 15].

Savundranayagam v. Sun Life Assurance Co. et al., [2008] O.A.C. Uned. 527; 67 C.C.L.I.(4th) 241; 170 A.C.W.S.(3d) 739 (Div. Ct.), refd to. [para. 16].

Counsel:

Beverley Barter, for the plaintiff;

Jonathan Dale, for the defendant.

This application was heard at St. John's, N.L., on January 26, 2015, by Thompson, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on February 10, 2015.

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