Vantassel v. Dominion of Canada General Insurance Co., 2015 NSSC 159

• Judge: Muise, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 08, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 159;(2015), 360 N.S.R.(2d) 343 (SC)

Vantassel v. Dominion of Can. (2015), 360 N.S.R.(2d) 343 (SC);

  1135 A.P.R. 343

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.013

Judy E. Vantassel (plaintiff) v. The Dominion of Canada General Insurance Company (defendant)

(SD No. 327781; 2015 NSSC 159)

Indexed As: Vantassel v. Dominion of Canada General Insurance Co.

Nova Scotia Supreme Court

Muise, J.

June 9, 2015.

Summary:

The plaintiff was injured in a February 16, 2006, motor vehicle accident. Disability benefits (own occupation) were paid for two years. Long-term disability benefits (any occupation) were denied on the ground that the plaintiff was capable of other sedentary employment. The plaintiff immediately challenged the denial of long-term benefits on the ground that she had been approved for Canada Pension Plan (CPP) disability benefits. The insurer requested the complete CPP file before reconsidering its decision. The plaintiff advised the insurer of efforts to obtain the file, but never provided it. The one year limitation period for commencing an action passed. A few weeks later, the plaintiff retained a lawyer and an action was commenced 11 months later. The insurer's statement of defence raised a limitation period defence. The plaintiff made a pre-trial motion to disallow the defence.

The Nova Scotia Supreme Court exercised its discretion to disallow the limitation period defence.

Insurance - Topic 4138

Automobile insurance - Accident benefits - Limitation period - [See Limitation of Actions - Topic 9426 ].

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Considerations - Prejudice to parties - The plaintiff's insurer paid her disability benefits (own occupation) for two years - Long-term disability benefits (any occupation) were denied on the ground that the plaintiff was capable of other sedentary employment - The plaintiff immediately challenged that decision on the ground that she had been approved for Canada Pension Plan (CPP) disability benefits - The insurer requested the complete CPP file before reconsidering its decision - The plaintiff advised the insurer of efforts to obtain the file and provided other medical information, but not the CPP file - The one year limitation period passed - Several weeks later, the plaintiff retained a lawyer and an action was commenced 11 months after the limitation period expired - The insurer's statement of defence pleaded the limitation period - The Nova Scotia Supreme Court exercised its discretion to allow the plaintiff's pre-trial motion under s. 3(2) of the Limitation of Actions Act to disallow the limitation period defence - The court rejected the insurer's argument that determining whether relief should be granted under s. 3(2) required fact findings that were best left to the trial judge - The action was commenced less than four years after the limitation period expired, so s. 3(6) did not preclude disallowing the defence - There was sufficient evidence to resolve the issue - Notwithstanding incomplete diligence by the plaintiff and her lawyer, the insurer had early notice that the plaintiff contested its decision and it was equitable to disallow the limitation period defence - Balancing prejudices favoured the plaintiff - No or little evidence was lost - Any lost opportunity by the insurer to obtain independent medical evidence or conduct surveillance in the 11 month period was not due to the delay - Not disallowing the defence would result in the plaintiff not having her claim heard - Disallowing the defence still permitted the insurer to defend on the merits - The insurer, although continually pressing for the CPP file, never raised the issue of the pending expiry of the limitation period with the self-represented plaintiff - The court stated that "it would be inequitable for an insurer to take advantage of a mandatory limitation period clause in an insurance contract to defeat an unsophisticated insured's claim without bringing that limitation period to the insured's attention where, as in the case at hand, the insured has indicated he or she is contesting the denial of benefits" - See paragraphs 39 to 81.

Cases Noticed:

Welsh v. Wawanesa Mutual Insurance Co. of Canada (2002), 203 N.S.R.(2d) 305; 635 A.P.R. 305; 2002 NSSC 90, refd to. [para. 17].

Thornton v. Economical Insurance Group (2010), 295 N.S.R.(2d) 55; 935 A.P.R. 55; 2010 NSSC 355, refd to. [para. 18].

Oliver v. Elite Insurance Co. (2014), 353 N.S.R.(2d) 232; 1115 A.P.R. 232; 2014 NSSC 413, refd to. [para. 30].

MacCulloch v. McInnes, Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220; 1995 CanLII 4292 (C.A.), refd to. [para. 31].

Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. 32].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 3 [para. 29].

Counsel:

Derrick J. Kimball and Sharon L. Cochrane, for the plaintiff;

Karen Bennett-Clayton, for the defendant.

This motion was heard on April 8, 2015, at Digby, N.S., before Muise, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 9, 2015.