Boutin v. Co-Operators Life Insurance Company

Boutin v. Co-Operators Life Insurance Company Collection Decisions of the Court of Appeal Date 1999-01-12 Docket numbers C28221 Judges Osborne, Coulter Arthur Anthony; Abella, Rosalie Silberman; Charron, Louise Vivianne Subject Civil Decision Content DATE: 19990112 DOCKET: C28221 COURT OF APPEAL FOR ONTARIO OSBORNE, ABELLA and CHARRON JJ.A. BETWEEN: ) ) J. Dallal JACQUELINE BOUTIN ) For the appellant ) Appellant ) ) and ) P. McCallen ) for the respondent THE CO-OPERATORS LIFE ) INSURANCE COMPANY ) ) Respondent ) ) Heard: October 29, 1998 ) OSBORNE J.A.: [1] The appellant’s action against the respondent group disability insurer was dismissed on the respondent’s motion under Rule 21.01(1)(a) to determine a question of law – whether the appellant’s action was barred by the 1 year limitation period in the disability policy under which she asserted her claim against the respondent. The motions judge, Wallace J., found that the limitation period applied and that the respondent could rely on it. She thus dismissed the appellant’s action. In reaching this conclusion, the motions judge relied on the pleadings and extensive evidence that was filed on the motion. [2] The appellant submits that the motions judge erred in reaching the conclusion she did and in dealing with the limitation period issue on a Rule 21.01(1)(a) motion. She takes the general position that in the circumstances, the respondent cannot rely upon the policy limitation period since the respondent did not provide her with a copy of the policy, or refer to the limitation period in material concerning the policy that was given to her and other employees. She also relies upon the fact that, after benefits were terminated, during the period in which her claim was being considered by the respondent, nothing was said to alert her about the 1 year limitation period. These, and other facts, support the appellant’s pleading of waiver and estoppel in relation to the application of the policy limitation period. THE FACTS [3] As a result of her employment with Fort Erie Duty Free Shoppe Limited, the appellant was insured under a group disability policy issued by the respondent. In 1991, due to mental illness, she was unable to work. She applied for and received weekly disability benefits under the policy from September 9, 1991 to January 1, 1992 and monthly disability benefits from January 2, 1992 to June 30, 1993. The respondent terminated payment of all benefits under the policy on June 30, 1993. It informed the appellant that her benefits had been terminated by a letter to her dated November 25, 1993. [4] When the appellant contacted the respondent about appealing the termination of her disability benefits, she was told that she could participate in an “in house” appeal procedure that the respondent provided. She decided to take advantage of this procedure. On April 21, 1994, the respondent advised the union official representing the appellant that the “appeal process” would commence once the appellant provided new medical information “... to support the appeal.” [5] On July 12, 1994, over one year after the respondent had stopped paying benefits, the respondent wrote to the appellant and explained how its appeal process would unfold. In that letter the respondent advised the appellant that it would require her to undergo an independent medical examination. [6] On July 21, 1994, the respondent advised the appellant that it had made an appointment for an independent medical examination on July 29, 1994 with Dr. Awad, a Toronto psychiatrist. The respondent’s July 21st letter stated: On receipt of the results of the independent medical examination, we will advise you of any change in the status of your claim. [7] On September 28, 1994, the respondent told the appellant that the appeal process was complete and that no further disability benefits would be paid. It thus, in effect, confirmed its earlier decision, effective June 30, 1993, to terminate the payment of disability benefits. By way of explanation, the respondent referred to Dr. Awad’s report, its review of the appellant’s file and “additional information” that it had obtained. [8] In her affidavit the appellant said that, due to ill health, she was incapable of “...effectively dealing with” the respondent’s decision to terminate her monthly disability benefits during the winter of 1994-95. She stated that in June, 1995 she telephoned Judy Batches, a representative of the respondent, to ask about the “additional information” referred to in the respondent’s letter. Ms. Batches told the appellant that this information was confidential. The appellant then told Ms. Batches that she had retained a lawyer who had agreed that she was entitled to disability benefits. The appellant admitted that her statement to Ms. Batches about retaining a lawyer and about the lawyer’s opinion was false. [9] On August 1, 1995, the appellant contacted a solicitor who told her that he did not do the kind of legal work that she required. As a result, she contacted another lawyer who referred her to the law firm that now represents her in this action. This action was started on June 11, 1996. [10] The limitation period in the group disability policy was first raised as a discrete issue in a letter to the appellant’s solicitors from Deborah Pacholka, the respondent’s associate legal counsel, dated June 29, 1996. In that letter Ms. Pacholka said that the respondent would be relying on the policy’s 1 year limitation period. Until that time the appellant stated in her affidavit that she knew nothing about a limitation period in the policy, 1 year or otherwise. She never saw a copy of the policy, or any part of it. She did receive a benefits summary from her union and a Group Benefits Program Booklet from her employer; however, neither made any reference to the policy’s limitation period. Nor was the appellant advised of the limitation period in the many contacts she had with representatives of the respondent after the respondent terminated her benefits under the policy. [11] The relevant group policy was filed on the respondent’s Rule 21.01(1)(a) motion. It is a 37 page document. I see no need to set out its provisions other than to refer specifically to the limitation period which a discerning reader can locate at p. 13 of the policy. This part of the policy provides: Limitation of action No action or proceeding at law or in equity shall be brought against the Insurance Company to recover benefits payable under this Policy prior to the expiration of sixty (60) days after Proof of Loss has been filed in accordance with the requirements of this Policy, nor shall such action be brought at all unless brought: ... (ii) where benefits have been paid under the provision under which benefits are being claimed – within one year of the date on which the Insurance Company terminates the payment of benefits under the said provision. If any time limitation of this Policy with respect to the bringing of an action at law or in equity is less than that permitted by the law of the province in which the insured Employee resides at the time this Policy is issued, then the limitation is hereby extended to agree with the minimum period permitted by law.1 [12] In its statement of defence, the respondent pleaded that the limitation period in the policy was a complete bar to the appellant’s claim. Paragraph 20 of the statement of defence sets out the respondent’s limitation period defence in these terms: 20. Co-Operators terminated the payment of Monthly Benefits under the Policy effective June 30, 1993. The plaintiff was advised of such termination by letter dated November 25, 1993. Pursuant to the terms of the Policy referred to in paragraph 19 aforesaid, any action or proceeding at law or in equity by the plaintiff against Co-operators under the Policy for payment of Monthly Benefits was required to be brought within one year of the date on which Co-Operators terminated the payment of benefits under the Policy. Such action was therefore required to have been brought within one year from June 30, 1993 or, alternatively, within one year from November 25, 1993. As the plaintiff did not bring this action until June 11, 1996, she has failed to bring it within the limitation period prescribed by the Policy and the action should therefore be dismissed. [13] In her reply, the appellant pleaded waiver and estoppel. She referred to the history of her dealings with the respondent in support of her general pleading that the respondent could not rely on the 1 year policy limitation period because of waiver or estoppel. [14] On November 19, 1996, the appellant was examined for discovery. On September 5, 1997, the respondent moved under Rule 21.01(1)(a) for determination of a question of law and consequent upon that determination for an order dismissing the plaintiff’s action. The notice of motion reflected that the respondent relied upon the pleadings in the action, its request to admit dated April 11, 1997 and the documents attached to that request. [15] In a brief handwritten endorsement the motions judge dismissed the appellant’s action without costs. She concluded that: In my view, the Defendant did not act as an adviser to the plaintiff, nor did it make any promises or representations to her that would bring into play the doctrines of waiver or of promissory estoppel. The Plaintiff advised the Defendant that she had counsel and she appeared represented by union agent, the Defendant had no obligation to protect her interests and never purported to do so. The Defendant is entitled to rely upon the contract’s one year limitation period which expired, at the very latest, September 1995 – a timeframe within which the Plaintiff had consulted counsel. The Plaintiff has no ability to pay costs. ANALYSIS [16] The respondent’s motion was, as I have said, made under Rule 21.01(1)(a). The relevant parts of the rule are: 21.01 (1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or ... and the judge may make an order or grant judgment accordingly. (2) No evidence is admissible on a motion, (a) under clause (1)(a), except with leave of a judge or on consent of the parties; [17] Through the respondent’s request to admit, the record before the motions judge included the policy, various claims forms, medical information and correspondence between the respondent and the appellant, or her representatives. The record also included the appellant’s affidavit and a transcript of her examination for discovery. Whether there should have been evidence before the motions judge on this Rule 21.01(1)(a) motion in light of the provisions of Rule 21.01(2)(a) does not appear to have been an issue that was raised by counsel, or considered by the motions judge. It can at least be said that the record does not reveal the consent of the parties, or that the motions judge granted leave to file evidence on the motion. In any case, there was evidence before the motions judge and she considered it in reaching her conclusion that the appellants’ action was commenced more than one year after the respondent terminated her benefits (a non-issue on anyone's view of the facts) and, more significantly, that there was no basis upon which to conclude that the respondent could not rely on the policy limitation period. [18] I do not think the issue to be determined on this appeal is whether the answer to the question whether the limitation period is applicable in the circumstances was correct. Rather, it seems to me that the core issue is whether, in these circumstances, the respondent’s limitation period defence should have been dealt with at all on a motion under Rule 21.01(1)(a). In my view, the answer to that question is “no”. I will now explain how I came to that conclusion. [19] To understand the scope of Rule 21, it is important to take into account the difference among Rules 20, 21 and 22, all of which seek to shorten or eliminate trials and thus reduce the cost of litigation. These rules are clearly related in their function, but they are not randomly interchangeable. [20] On a motion under Rule 20 the motions judge must determine that there is or is not a genuine issue for trial: see Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.). That determination is based on the evidence filed on the motion. It is not based on the pleadings, apart from any admissions in the pleadings. Thus, a party responding to a summary judgment motion cannot sit back and rely on the pleadings. See 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.). Because of the provisions of Rule 20.04(4), if the only genuine issue for trial is a question of law, the motions judge may determine the question of law and grant judgment accordingly. Rule 20.04(4) provides that this will be done only where there are no facts in dispute which may give rise to a genuine issue for trial. [21] Motions under Rule 21 and 22 are different from summary judgment motions under Rule 20. Motions under Rules 21 and 22 focus on questions of law raised by the pleadings (Rule 21.01(1)(a)), or stated by agreement of the parties (Rule 22.01(1)). A Rule 22 motion brought by the agreement of the parties will, as a result of the provisions of Rule 22.04(a), be accompanied by an agreed statement of fact to the extent that facts are necessary “to enable the court to determine the question stated.” Rule 21.01(2) provides that there be no evidence on a motion under Rule 21.01(1)(a) “except with leave of a judge or on consent of the parties.” Since Rule 21.01(1)(a) requires that the question of law be raised by the pleadings there will generally be no need for evidence on a Rule 21.01(1)(a) motion. It seems clear to me that it was for this reason that the drafters of the Rules provided that there should be no evidence on a motion under Rule 21.01(1)(a), except for cases in which leave is granted or there is consent. [22] I do not think that the issue whether the policy limitation period is a bar to the appellant’s action is a question of law that should have been resolved on a Rule 21.01(1)(a) motion. As the motions judge’s endorsement indicates, the application of the limitation period in this case depends upon findings of fact for its resolution. This is also apparent from the appellant’s reply to the respondent’s statement of defence. In my opinion, whether the respondent is entitled to rely on the limitation period in the policy has a significant factual component and is thus a matter which should be addressed at trial, not on a Rule 21.01(1)(a) motion. [23] Even if leave was granted to permit the parties to file evidence on the motion, I do not think that inferences to be drawn from the evidence are so clear as to permit the question of law in issue to be resolved on a Rule 21.01(1)(a) motion. [24] Accordingly, I would allow the appeal with costs, set aside the order below and dismiss the respondent’s motion with costs. Released: January 12, 1999 _______________________________ 1 No submissions were made as to the meaning to be given to this apparent qualification of the limitation period. It is not necessary to determine what the effect of this part of the policy limitation period is in this case.