CASE SUMMARIES. November 10, Nguyen v. SSQ Life Insurance Company Inc., 2014 ONSC 6405 (S.C.J.) IN THIS ISSUE UPCOMING EVENTS

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1 CASE SUMMARIES November 10, 2014 IN THIS ISSUE Nguyen v. SSQ Life Insurance Company Inc., 2014 ONSC 6405 (S.C.J.) The Defendant brought a motion for summary judgment to dismiss the Plaintiff's claim for Long-Term Disability Benefits ("LTD") under a group insurance policy issued to the Plaintiff's employer. The Plaintiff had been injured in a motor vehicle accident in March 2, 2010 and never returned to work. Due to his limited English language skills, he did not become aware of his group insurance policy until it was brought up at an examination for discovery in his tort action three years later. His counsel subsequently contacted the employer for information about the policy and to have the employer submit paperwork to complete the Plaintiff's LTD application. Pursuant to the terms of the policy, the Plaintiff should have submitted his application by September 24, The Defendant LTD insurer denied the application on the basis of untimeliness. The Plaintiff commenced an action against the LTD insurer shortly thereafter. At issue was whether the Plaintiff's claim was barred by both the contractual limitation period under the group insurance policy and the statutory limitation period under s. 4 of the Limitations Act. The Court also considered whether the Plaintiff was entitled to relief from forfeiture under s. CASE SUMMARIES - Nguyen v. SSQ Life Insurance Company Inc. - L'Espérance v. Economical Mutual Insurance Group RIDE AT YOUR OWN RISK: THE PERILS OF RIDE-SHARING SERVICES DISTRACTED DRIVING: UPPING THE ANTE NEW OTLA MEMBERS UPCOMING EVENTS A Celebration of the Personal Injury Bar Dinner Honouring Timothy P. Boland and Sheldon A. Gilbert, Q.C. Fri., November 14, 2014, 6:00 p.m. 1/6

2 129 of the Insurance Act. The Court ultimately decided that the Plaintiff had proven that he was unable to submit his application sooner and that the insurer had no reason to deny him coverage as a result of submitting a late application. The Court found that the employer had not fulfilled its contractual obligation to provide the Plaintiff with documents he required to exercise his rights under the group insurance policy. The Court further noted that the wording of the LTD policy gave the Defendant discretion to admit late claims. In the alternative, the Court asserted that relief from forfeiture was available to the Plaintiff given caselaw which had found the failure to give notice of a claim as imperfect compliance amenable to relief from forfeiture. The Court noted that the Defendant could still evaluate the LTD claim going forward and retroactively on the basis of medical records available from the AB and tort claims. The Defendant's summary judgment motion was dismissed and the Court made a binding determination that the Plaintiff's application was either timely or that relief from forfeiture should be granted in the event that the Application was found to be untimely. Case Details on CanLII L'Espérance v. Economical Mutual Insurance Group, 2014 ONSC 6293 (S.C.J.) The Defendant insurer and adjuster brought a summary judgment motion on the basis that the Plaintiff's claim was initiated beyond the applicable one-year limitation period under section 148 and Statutory Condition 14 of the Insurance Act. They also sought to strike the claim against the adjuster personally on the basis that there was no dispute that the insurer was vicariously liable for the adjuster's actions. On June 3, 2011, the Plaintiff advised the insurer that his vehicle had been stolen. The following day, the Plaintiff advised that the vehicle had been found by police in a remote location and destroyed by fire. The Plaintiff submitted a sworn Proof of Loss on or about August 18, 2011 in accordance with Statutory Condition 6(1)(c) of the Policy. Shortly thereafter, the insurer requested that the Plaintiff participate in an examination under oath. Pursuant to Statutory Condition 9(3), the Plaintiff could not bring an action against his insurer until he completed an examination under oath. The examination Location: The Ritz-Carlton Hotel 181 Wellington St. West, Toronto Download the registration form Long Term Disability Conference: Good Practices and Bad Faith from Coast to Coast Friday January 23, 2015 Location: Twenty Toronto Street Conferences and Events 20 Toronto Street, Toronto, Ontario M5C 2B8 Online Registration 2015 Medical Malpractice Conference: Strategies for Success February 6-9, 2015 Location: Atlantis Paradise Island, Nassau, Bahamas Conference Program Online Registration 2015 Products Liability Conference: Products Liability Litigation Wed. April 1, 2015 Location: Twenty Toronto Street Conferences and Events 20 Toronto Street, Toronto, Ontario M5C 2B8 Online Registration More events > Stay Connected 2/6

3 under oath was not started until April 20, 2012 and the insurer issued requests for undertakings into late July On August 15, 2012, the insurer advised the Plaintiff that his claim had been denied on the basis of being fraudulent. At that time, the insurer also asserted that the Plaintiff's claim for recovery was barred due to the limitation provisions in the Insurance Act. The Plaintiff subsequently commenced an action for breach of contract and bad faith against both the insurer and the adjuster on the file. The Court found that the Insurance Act and its Statutory Conditions had to be read as a cohesive whole. The Court agreed with the Plaintiff's submission that the insurer's decision to engage in an examination under oath pursuant to Statutory Condition 6(4) should be assessed contextually in terms of how it affects an insured's ability to initiate an action. The Court found it unreasonable to expect an insured to sue for breach of contract by breaching his/her own contract to start an action before an examination under oath had been completed. The Court asserted that an insurer who engages Statutory Condition 6(4) before and after a limitation period should be estopped from relying on that limitation period to the detriment of an insured. In the alternative, the Court looked at the Plaintiff's claim for bad faith and found that it constituted an independent actionable wrong that was not restricted by the one-year limitation period. It also found that the Plaintiff's assertion of bad faith and his recourse under the contract of insurance were inextricably linked. It found that the disposition of the missed limitation period issue within the summary judgment motion was prevented by the existence of the bad faith claim against the insurer for causing the limitation period to be missed. The Court dismissed the portion of the Defendants' summary judgment motion relating to the limitation issue. However, it also dismissed the Plaintiff's claim against the adjuster on the basis that the adjuster was acting in his capacity as an employee of the insurer. Case Details on CanLII Summaries provided by Veronica Marson, OTLA member and lawyer practising with Singer Kwinter Barristers & Solicitors. Know of a case that should be included here? Please submit it with a link to the decision to: 3/6

4 11/11/2014 archive.constantcontact.com/fs142/ /archive/ html Will Campbell, OTLA Digital Media Coordinator New on the OTLA Blog: Ride at Your Own Risk: The Perils of Ride Sharing Services This past year the app-based ride sharing service, Uber has come to Canada. Uber denies that it is a commercial transportation company; rather, it describes itself as a technology company only offering a matchmaking service to connect riders with drivers. Uber is currently operating in Toronto and Ottawa. Uber operates through a smart phone app or web browser. Continue Reading on OTLABlog.com Distracted Diving: Upping the Ante The catastrophic injuries and devastating losses that can happen from accidents due to impaired driving have become known by most. Responsible drivers do not drink and drive: they call a cab, use public transit or have a designated sober driver. Responsible drivers consider other factors that could also impair their ability to control their motor vehicle, including drugs or inattention. Continue Reading on OTLABlog.com 4/6

5 Welcome to our New Members! Welcome to the newest OTLA members! Alexei Antonov, Toronto Neil Wilson, Toronto Amanda Lo Cicero, Toronto Ross Mirian, Toronto Charles Genest, Ottawa Gregory Chang, Toronto Nancy Cooper, Timmins Tina Charles, London Daniel Macdonald, London Get Social. Stay Connected. Do you use social media? We do too! If you haven't already, connect with OTLA on Facebook and Twitter. Here are three good reasons why you should: 1. Be among the first to know when new events are announced, publications are available, and bulletins are issued! 2. Join our community of over 1,000 engaged members, the interested public, industry leaders, law associations, and lawyers across the country. 3. We follow back! Plus, if you have quality content that's relevant to our membership, we can share it with a wide audience. The Ontario Trial Lawyers Update weekly e-newsletter is brought to you by McKellar Structured Settlements. 5/6

6 You are receiving this e-newsletter as a service of your membership with Ontario Trial Lawyers Association or because you have subscribed to this service. Read our Privacy Policy. You are encouraged to send us your comments about this e-newsletter. Past editions of the Ontario Trial Lawyers Update e- newsletter are archived on the OTLA website (members only). Published by Ontario Trial Lawyers Association The Ontario Trial Lawyers Association (OTLA) is an association of lawyers acting for plaintiffs, with 1,500 members across the province and the country. OTLA is comprised of lawyers, law clerks, articling students and law students from Ontario. Together, we work in our local communities to ensure equal access to justice, full and fair protection of the rights of those who have suffered injury, and the safety of all. Learn more at 6/6