"Appropriate" must mean legally appropriate - Pepper v Sanmina-Sci Systems (Canada) Inc. ONCA 730 (CanLII)

October 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Pepper v Sanmina-Sci Systems (Canada) Inc. ONCA 730 (CanLII)

Date of Decision: September 21, 2017
Heard Before:  Hoy A.C.J.O., MacFarland and Huscroft JJ.A.

Ripened Claim: 'appropriate' must mean legally appropraite; glossing over the definition of appropriate is not legally correct; delaying commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened injects an unacceptable element of uncertainty into the law of limitation of action

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 6, 2017, with reasons reported at 2017 ONSC 1516 (CanLII).

REASONS FOR DECISION

Samina-Sci Systems stopped paying LTD to Mr. Pepperon November 1, 2007. At that point, Mr. Pepper had a cause of action against the Sanmina-Sci Systems – and ought to have been aware that he did. He retained litigation counsel in early January, 2008 to deal with his claim for disability benefits. This fact belies any suggestion of a lack of awareness of the appropriateness of commencing a lawsuit at that point in time.

As the motion judge noted, this policy of insurance provides no formal appeal process for when a claim is denied, and there is no alternate statutory appeal process. There is no obligation on an insurer to advise its insured about statutes of limitation and, in this case, the dealings between the Sanmina-Sci Systems and Mr. Pepper in attempting to resolve the claim do not give rise to an estoppel argument

The motion judge in his reasons noted that it would have been “prudent” for the solicitor retained by Mr. Pepper to treat November 1, 2007 as the commencement date for the running of the limitation and he ought to have stopped his analysis right there. It was not just a matter of prudence but of legal correctness. The failure on the part of legal counsel and the motion judge to recognize November 1, 2007 as the date on which the limitation period commenced is an error in law.

On that date, Mr. Pepper had, in the language of the Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 (CanLII) – a “fully ripened claim.” That was the “appropriate” time to commence litigation. As Sharpe J.A. noted in Markel:

…the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened…would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

The motion judge recognized that Mr. Pepper had a “fully ripened” claim as of November 1, 2007 and his further analysis is, in our view, no more than an “evaluative gloss” on the word “appropriate” and introduces the uncertainty Markel cautions against.

CONCLUSION

The appeal is allowed. The order below is set aside, and, in its place, issue an order dismissing the action with costs. Costs of the appeal and of the motion below are to the Sanmina-Sci Systems and are each fixed in the agreed upon sum of $15,000 for a total of $30,000, inclusive of disbursements and HST.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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