On July 26, 2017, the plaintiff, a lawyer for Legal Aid Ontario, submitted a claim for long-term disability benefits (LTDs) to Sun Life Assurance Company of Canada (Sun Life), alleging total disability as of April 18, 2017, due to left arm and shoulder pain, anxiety, depression and phantom limb pain. On September 26, 2017, the plaintiff received a letter from Sun Life advising her that her claim for LTDs had not been approved as she did not satisfy the definition of “total disability”.
This Summary Judgement Motion was brought to determine whether or not the plaintiff commenced her action against Sun Life within the statutory limitation period pursuant to the Limitations Act, 2002, SO 2002, c. 24, Sch B (the Act). Sun Life asserted that the Statement of Claim was not served within six months of the date of its issuance and moved to strike the claim on that basis. The plaintiff moved for an order validating service of the Statement of Claim. The plaintiff also argued that the motion for summary judgement was brought by Sun Life prior to delivering a Statement of Defence, such that the motion for summary judgement cannot proceed.
The Statement of Claim was issued on December 13, 2019. The Statement of Claim was forwarded to a representative of Sun Life on January 27, 2021. This was the first time Sun Life was aware of the action commenced against them. Counsel for Sun Life served a Notice of Motion upon the plaintiff, on March 31, 2021, to dismiss the action for failing to serve it within the time prescribed by the Rules of Civil Procedure. Counsel for the plaintiff indicated that he intended to bring a cross-motion to validate or extend the time for service of the Statement of Claim.
Counsel for the plaintiff swore an affidavit indicating that the Statement of Claim was issued during the pandemic, his offices were closed due to lockdown and he failed to serve the claim in time. Counsel stated that it was not an intentional decision by him or the plaintiff not to serve the Statement of Claim.
Justice Nicholson opined that this was a case of a solicitor’s inadvertence in failing to serve the Statement of Claim, exacerbated by that fact that the world was experiencing a generational pandemic disrupting his office and Ontario courts. It is not unfathomable that such a slip might occur in these circumstances. Furthermore, Sun Life was well aware that the plaintiff disputed their denial of her claim, as she continued to file material to appeal their decision and had communicated with them in a fashion that made it clear that she disagreed with their decision.
Justice Nicholson concluded that, despite the passage of time between the issuance of the Statement of Claim and when the plaintiff’s counsel forwarded it to Sun Life, this action cannot be said to “have come out of the blue”. He granted the plaintiff leave to extend the time for service of the Statement of Claim.
The court then turned to the issue of whether Sun Life can bring a Summary Judgement Motion, or continue its Summary Judgement Motion, without first delivering a Statement of Defence. On the face of rule 20.01(3) of the Rules of Civil Procedure, a pre-requisite for a defendant to bring a motion for summary judgement is filing a Statement of Defence.
Justice Nicholson found that the plaintiff’s counsel had implicitly consented to the Summary Judgement Motion being brought prior to the delivery of the Statement of Defence, therefore waiving the requirement. Implied consent was given when the plaintiff’s counsel and Sun Life’s counsel agreed that the motions would be heard in a single hearing. Justice Nicholson held that he would not dismiss Sun Life’s motion for summary judgement on the technical basis that Sun Life was required to file a Statement of Defence prior to bringing the motion. Furthermore, he stated that it is necessary in this case to resort to rule 2.03 of the Rules of Civil Procedure and dispense with strict compliance with rule 20.01 of the Rules of Civil Procedure.
Justice Nicholson concluded that Sun Life’s motion to dismiss the action based on late service of the Statement of Claim was dismissed and the plaintiff’s cross-motion to extend time for service of the Statement of Claim was granted and service of the Statement of Claim was validated. However, Sun Life’s motion for summary judgement was granted and the plaintiff’s action was dismissed.
The plaintiff’s action was ultimately dismissed because it was found that the limitation period began on September 26, 2017, the date that the initial denial letter was sent and the date the plaintiff discovered the claim upon which the action was based. The plaintiff, a trained lawyer, on receipt of Sun Life’s letter, would have known the limitation period prescribed by the Act. Furthermore, Sun Life, on various occasions, warned the plaintiff of the limitation period. Sun Life did not indicate the exact date of when the limitation period was to expire, however, Justice Nicholson opined that this was not a requirement of Sun Life and therefore did not excuse the plaintiff for issuing the statement of claim beyond the limitation period.
