Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725

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The Plaintiff sought indemnification under a commercial insurance policy for losses caused by water damage to its business premises on January 31, 2013.  The loss was reported to the insurer, Intact Insurance, on the same day. 

Intact began to adjust the claim.  Between February and May 2013, it issued three payments to the Plaintiff and engaged in settlement negotiations.  In a July 22, 2013 letter, Intact informed the Plaintiff that it was denying “any further claims for damages as a result of this loss due to policy violations and or exclusions contained herein.”  The Plaintiff issued its Statement of Claim on April 22, 2015, more than two years after the flood but less than two years before the July 22, 2013 denial letter.  Intact brought a summary judgment motion arguing that the action was statute-barred.

The motion turned on s. 5(2) and s. 5(1)(iv) of the Limitations Act, 2002 which states:

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).  

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 

The motion judge dismissed Intact’s motion and declared that the limitation period did not begin to run until July 23, 2013.  Although the motion judge assumed the Plaintiff knew on February 1, 2013, the day it sought indemnification from Intact that it had recourse through Intact, he concluded the Plaintiff did not know that a proceeding would be an “appropriate means” to remedy its loss until July 2013 when Intact formally denied its claim. 

Justice Brown writing for the Court of Appeal set aside the order of the motion judge and granted Intact summary judgment. During the motion, the Plaintiff conceded that it was foreclosed from arguing that Intact’s conduct after notification of the claim on January 31, 2013 gave rise to a promissory estoppel that precluded Intact from relying on the Act.  Justice Brown held that this concession operated, in the circumstances of this case, to make the day on which the Plaintiff knew or ought to have known an action was an appropriate means to remedy the loss on February 1, 2013, the day it sought indemnification for its loss from its insurer. 

Susan Dhaliwal
Written by

As a personal injury lawyer, Susan is passionate about and dedicated to obtaining fair compensation for injured victims. She knows firsthand the legal process can be complicated to navigate and uses a positive and compassionate approach when assisting her clients.

Following her call to the Bar in 2012, Susan has limited her practice exclusively to the area of personal injury. She frequently appears before the Superior Court of Justice and has successfully represented clients at arbitration before the Financial Services Commission of Ontario.

Susan is active in her community and can provide legal services in Punjabi.