COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Balzer v. Sun Life Assurance Company of Canada,

 

2003 BCCA 306

Date: 20030523


Docket: CA029008

Between:

BETTY BALZER

Respondent

(Plaintiff)

And

SUN LIFE ASSURANCE COMPANY OF CANADA,

carrying on business as SUN LIFE OF CANADA

Appellant

(Defendant)

 


 

Before:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray

 

O. Samuel

Counsel for the Appellant

W. Cheung

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

9 January 2003

Place and Date of Judgment:

Vancouver, British Columbia

23 May 2003

 

Written Reasons by:

The Honourable Madam Justice Huddart

Concurred in by:

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray


Reasons for Judgment of the Honourable Madam Justice Huddart:

[1]         This appeal requires this Court to consider the application of the general limitation period in the Insurance Act, R.S.B.C. 1996, c. 226 to a group term insurance policy including disability coverage issued to participating Canada Safeway stores for the benefit of their employees.  Section 22 provides for that limitation period in these words:

Limitation of actions

22 (1) Every action on a contract must be commenced within one year after the furnishing of reasonably sufficient proof of a loss or claim under the contract and not after.

(2) An action must not be brought for the recovery of money payable under a contract of insurance until the expiration of 60 days after proof, in accordance with the contract

(a) of the loss, or

(b) of the happening of the event on which the insurance money is to become payable,

or of such shorter period as may be set by the contract of insurance.

 

[2]         The appeal is from an order of Morrison J. made 6 September 2001 refusing Sun Life’s application to dismiss the action by way of summary trial under Rule 18A because it was instituted more than one year “after the furnishing of reasonably sufficient proof” of the claim.  The appeal was heard together with an appeal from an order made the same day by Pitfield J. in Watterson v. Sun Life Assurance Co. of Canada (2001), 99 B.C.L.R. (3d) 373 (S.C.), 2001 BCSC 1269, granting Sun Life’s application for dismissal on the basis of the same limitation period.  Madam Justice Morrison’s reasons are reported at (2001), 98 B.C.L.R. (3d) 314 (S.C.), 2001 BCSC 1264.  As will become apparent when I discuss the authorities construing s. 22(1), there is general agreement about the meaning of the provision.  Its application to a particular policy is more problematic, as this case and Watterson, supra, illustrate. The policies at issue are materially different.

[3]         From the words of s. 22, it is immediately apparent the provision does not fit comfortably with coverage for disability benefits that require continuous proof of disability, where the cause of action accrues monthly, as it does under the Canada Safeway group policy.  The relevant provisions are these:

SUMMARY

 

Totally Disabled - an employee is totally disabled if he is in a continuous state of incapacity due to illness which, while it continues throughout the Elimination Period and during the following 18 months of incapacity prevents him from performing each and every duty of his normal occupation:

-while it continues thereafter, prevents him from engaging in any occupation for which he is or becomes reasonably qualified by education, training or experience.

 

Elimination Period - the period commencing on the date the employee becomes totally disabled and ending on the later of

(i)             the completion of 6 months of continuous total disability, or

(ii)        the last day Weekly Indemnity Benefits are payable to the employee, or

(iii)   the scheduled date of return to work for an employee on an approved leave of absence.

 

CLAIMS

 

TIME OF PAYMENT

 

Long Term Disability Benefits will be paid, subject to receipt of the required proof of claim in one sum for any full month of total disability occurring immediately after completion of the Elimination Period. Thereafter, payments will be made monthly at the end of each full month of total disability.

 

NOTICE AND PROOF OF CLAIM   

 

Notice of Claim. Written notice of claim must be given to Sun Life at any of its offices in Canada at least 30 days before the end of the applicable Elimination Period, or if later, within 6 months from the date of commencement of total disability, whether or not the employee’s employment is deemed by the Employer, as described in the Termination of Employment definition, to continue during his absence from work.

 

Proof of Claim. Written proof of claim must be furnished to Sun Life within the longer of (a) the period specified for Notice of Claim, or (b) 90 days after the commencement of the period for which benefits are available in respect of such claim.

 

MONTHLY INDEMNITY BENEFIT PROVISION

 

If an employee becomes totally disabled while insured under this Provision and his total disability existed continuously during the Elimination Period Sun Life will pay, during the uninterrupted continuance of his total disability, subject to LIMITATIONS, EXCLUSIONS AND SUBROGATION below, a benefit equal to the amount of Monthly Indemnity based on the insured earnings of the employee at the beginning of his Elimination Period.

 

Elimination Period means a period of total disability beginning with the first day of total disability and equal to the period specified in the Summary, during which neither Monthly Indemnity nor Monthly Rehabilitative Income is payable. …

 

 

[4]         The parties agree the elimination period in this case was six months.  In March 1993, Canada Safeway notified Sun Life Ms. Balzer was seeking disability benefits as a result of her absence from work since 8 October 1992.  Consequently, Ms. Balzer obtained and provided the forms Sun Life required to prove her claim.  Ultimately, Sun Life determined Ms. Balzer was entitled to benefits under the “own occupation” coverage in the policy.  It paid those benefits from 29 April 1993 to 28 October 1994.  During that period, with Ms. Balzer’s permission, it sought and obtained more information about her condition from her medical advisers and by way of an independent medical examination.

[5]         On 11 July 1994 it advised Ms. Balzer that,

Based on the current information on file, benefits will not be paid beyond the 18 month period which is October 28, 1994. If you have not already done so, please prepare to return to work.

 

[6]         On 16 August 1994, Sun Life wrote to remind her, inter alia:

…that benefits will not be paid beyond October 28, 1994. Based on the evidence on file, you cannot be considered continuously totally disabled from performing any occupation as required by your contract.

 

If you wish us to review our decision, we will require more detailed medical information. Please send us a comprehensive report from the attending physician, describing the disabling condition in detail, and including the following information: the extent and severity of the condition; the restrictions imposed by the condition, and how they prevent you from performing a commensurate occupation; the prognosis, the current treatment, and any supplementary documentation, such as consultation notes and test results.

 

Please note that we are not responsible for any expenses that may be charges [sic] by medical authorities for providing this information.

 

 

The respondent’s personal physician, Dr. K. D. Newcombe, wrote to Sun Life on 4 November 1994, stating that Ms. Balzer was “manifestly unable to work at the present time” and that it was unlikely she would ever re-enter the work force without a great deal of rehabilitative effort that might possibly permit “some sort of part time work of a very sedentary nature.”  Dr. Newcombe’s opening paragraph set the tone of his opinion:

Mrs. Betty Balzer appears to me today asking me for yet another letter explaining the nature of her disability.  I find it surprising that you would approach the patient for this information, particularly since my previous correspondence to your firm has been detailed and should leave little room for misunderstanding about exactly [how] debilitated this lady is. [sic]

 

[7]         Dr. Newcombe went on to summarize Ms. Balzer’s medical history.  She had suffered carcinoma of the breast followed by surgery, chemotherapy, and radiation.  She subsequently developed, and was treated for, depression.  At the same time, she was found to have fibromyalgia and arthritis of the neck and shoulders.  She was suffering continuous severe pain in the muscles, tendons and ligaments of the neck, shoulders and lower back.  She lacked energy and was fatigued by even the simplest domestic chores. She could prepare meals, but not vacuum because of the pain. Her husband handled most of the heavy household chores.

[8]         Sun Life replied to Ms. Balzer on 2 December 1994, stating, inter alia:

Based on the evidence received, it is our Medical Consultants’ considered opinion that you cannot be considered totally disabled from performing any occupation.  As a result, we have no alternative but to decline payment of this claim beyond October 28, 1994, the period already paid.

 

If, however, you do find this to be an accurate representation of the facts [sic] and wish to pursue your claim further, you should provide our Medical Consultants with an up-to-date medical report from your attending specialist.  This report should contain objective medical evidence showing a continuous disease process and explaining how this disease prevents you from performing any occupation.  The report should be obtained at no expense to Sun Life and should be supported by supplemental documentation such as recent test results, hospital records, if any, consultation notes and the nature of treatment rendered.

 

[9]         In response, on 19 January 1995, Dr. Newcombe wrote:

Mrs. Balzer tells me that further clarification of my letter of 4 November 1994 is required.  Betty Balzer is totally disabled from performing any occupation.

 

 

Sun Life replied on 8 February 1995, to say virtually the same thing it had said twice before, that it required “an up-to-date detailed medical report, as outlined in our letter of December 2, 1994,” before it would review its decision to reject her “claim” for ongoing benefits.  The respondent replied herself, probably after another year had passed, essentially saying her condition had not changed, her doctor continued to be of the same opinion and could not provide any further information, and she was doing all she could to try to improve her condition by exercise.  She asked for a further review of her claim and consideration of her appeal, including a personal appointment with one of Sun Life’s medical consultants.  Sun Life’s response on 14 May 1996 was to once again request the detailed medical report it wanted, “in order to reconsider your claim.”

[10]    Thus, every letter advised her that benefits under the “any occupation” coverage were denied, but would be reviewed if she were to provide the detailed medical report Sun Life wanted.  Sun Life maintained before Morrison J. that Ms. Balzer’s right to sue expired on one of three possible dates:

·        on 2 December 1995 (one year after the insurer wrote to inform Ms. Balzer that it had denied her continuing claim based on the Dr. Newcombe’s letter dated 4 November 1994), at which point, Sun Life submits Ms. Balzer had furnished reasonably sufficient proof of her continuing claim.

·        on 29 October 1995 (one year after her “own occupation” benefits terminated),

·        or, on the view of the evidence it considered most favourable to Ms. Balzer, on 30 April 1997 (one year after its receipt of her last letter in support of her claim for continuing benefits under the policy.)

However, in its correspondence with Ms. Balzer, Sun Life at no time suggested time was running against her claim to “any occupation” coverage, that she was required to file a new proof of claim for that coverage, or that her time for making that claim had expired, whether by virtue of the insurance contract or the provisions of the Insurance Act. 

[11]    In these circumstances, it is not surprising Ms. Balzer believed Sun Life needed more medical information to continue her benefits under the changed definition of total disability; that she did not think they had denied her claim.  Doctor Newcombe’s letter of 19 January 1995 is evidence that she could not provide what they appeared to want.  The record suggests she gave up trying to persuade Sun Life she was totally disabled from any occupation by reason of fibromyalgia, arthritis, and side effects of the treatments she had undergone for cancer. She did obtain Canada Pension Plan disability benefits at some point, benefits she continues to receive.

[12]    Then, on 17 February 2000, after seeking legal advice, she sued on the group insurance contract, seeking long-term disability benefits from 29 October 1994.  It was her position that her entitlement to benefits accrued month-to-month, and that, at most, s. 22(1) of the Act operated to limit her recovery to the 12 months immediately preceding her action.  This was said to be the effect of the decision of this Court in Holme Estate v. Unum Life Insurance Co. of America, 2000 BCCA 627.  

[13]    By analogy from the reasoning of Donald J.A. in that case, Madam Justice Morrison agreed that s. 22(1) did not bar the action.  After reaching that conclusion, she commented at para. 30 she had “some questions as to whether there was a clear and unequivocal denial” by Sun Life, but refused to consider that issue because “only the question of the limitation period” was in issue before her.  She did not mention that the wording of the limitation period applicable in Holme Estate, supra, differed from that of s. 22.  She did not determine when any limitation period began.  Nor did she consider directly the meaning of the phrase “reasonably sufficient proof of a claim under the contract.” 

[14]    It may be that Sun Life did not suggest any interpretation of that phrase.  Mr. Justice Pitfield noted at para. 13 of his reasons in Watterson, supra, that counsel for Sun Life “was reluctant to provide the court with an interpretation of the words ‘reasonably sufficient proof of a claim’ within the meaning of s. 22(1) of the Insurance Act.”  Despite the disadvantage of not having submissions on the point, Pitfield J. concluded at para. 13 the phrase means “the date upon which the insurer receives a reasonable amount of information permitting it to carry out an assessment of liability in good faith.”  Counsel for Ms. Watterson had suggested it meant material that would compel Sun Life to conclude the claimant was entitled to benefits.

[15]    Unsurprisingly, Pitfield J. rejected that proposition, as he did a submission based on New York Life Insurance Co. v. Handler, [1937] S.C.R. 127, comparable to that Morrison J. accepted.  In his view, (at para. 20):

The proposition that a limitation period should be defined retrospectively from the commencement of an action ignores the wording of s. 22 which defines a limitation period prospectively from the date on which reasonably sufficient proof of a claim is provided to the insurer.

 

 

[16]    On the evidence in Watterson, supra, Pitfield J. found that Sun Life, Ms. Watterson, and her physician regarded the material supplied by Ms. Watterson not later than 30 November 1997 to be sufficient for the purpose of a proof of claim, and that the limitation period began to run on that date.  This was the date on which Sun Life maintained the period had begun to run, because it had by that date received all the documents the policy required to be delivered in support of long-term “any occupation” coverage.  That conclusion suggests the limitation period commences to run when the insurer receives whatever information the insured provides to comply with the contract’s requirement of a Proof of Claim. 

[17]    However, it is not clear to me how any insured under the Canada Safeway policy in receipt of benefits under “own occupation” coverage could determine “the date upon which the insurer receives a reasonable amount of information permitting it to carry out an assessment of liability in good faith,” when an insurer asks for more detailed information as a condition of continued coverage, as Sun Life did in this case.  This request is more comparable to a termination of benefits for want of proof of continuing eligibility than to the contractual requirement for a new proof of claim for benefits under “any occupation” coverage that was specified in the group policy under which Ms. Watterson was insured.

[18]    The Canada Safeway policy did not require formal proof of claim for “any occupation” benefits.  Ms. Balzer did not provide one.  Without any request from her, Sun Life wrote to tell her it would be terminating her benefits on 28 October 1994, and that it had made its decision on the basis of the “current information on file.”  That was the information she had provided in proof of her claim as required following the elimination period, such further information as her medical advisors had provided subsequently, and information provided by Dr. Commerford, who had examined Ms. Balzer on Sun Life’s behalf.  Where disability is continuous, an insured would understand the contract as requiring her to provide information requested on a continuing basis about her illness and its effect on her ability to work, to establish that she was “totally disabled” during any given month and thus entitled to the benefit for that month.

[19]    Although an insured might understand from a close reading of the policy that the definition of “totally disabled” changed after payments for 18 months, and that Sun Life could terminate her benefits if she did not meet the changed eligibility standards, it is unlikely an insured would be able to figure out from this policy that a new proof of claim was required.  In this way, the Canada Safeway policy differs from both the policy in Recchia v. Co-operators Life Insurance Company, (1999), 33 C.C.L.I. (3d) 271, aff’d 2000 BCCA 277, and that in Watterson, supra, both of which made clear the need for proof of claim for any coverage, whether original as in the former, or sequential as in the latter.

[20]    Without knowledge that a new proof of claim was required, an insured would not understand that a new limitation period had begun to run on what the insurer considered a new claim.  The Insurance Act would not alert the ordinary person for whom it is written to the existence of a new claim or a new limitation period.  Thus, it would not be evident to an insured receiving benefits that she should issue a writ to preserve her cause of action while carrying on continuing correspondence about what she would consider one claim.  To her, she was simply seeking the continuation of disability benefits under a changed condition.  The Canada Safeway policy would not assist.  I could find nothing in it that would alert an insured to the existence of a limitation period with regard to a claim for “any occupation” benefits in circumstances where the insurer was already paying “own occupation” benefits as the result of a claim under the policy. 

[21]    Moreover, I am not persuaded the insurer who drafted the Canada Safeway policy could reasonably expect an insured to read its provisions as requiring a new proof of claim be delivered when the coverage changed.  The insured would respond to the termination of benefits by providing whatever information the insurer required.  I doubt even the most informed insured would know that by so doing she was filing a proof of a new claim such as to trigger the application of s. 22(1), and if she did, she might well conclude the claim would be open until proved, as Clancy J. noted in Mameli v. American Home Assurance Co. (2002), 98 B.C.L.R. (3d) 322 (S.C.) at para. 47:

The language employed in s. 22(1) of the Act is unfortunate. It can be read as providing that the claimant must provide reasonably sufficient proof of the loss before the limitation period begins to run. That would mean that the claim would be proven before the limitation period began to run. An insurer could never rely on the limitation period. The claim would remain open until one year after the loss was proved. …

 

 

[22]    Sun Life’s first submission is that Ms. Balzer “was required to provide reasonably sufficient proof of her claim to qualify for disability benefits under the new coverage.”  It does not say when Ms. Balzer was required to file proof of a new claim or suggest where in the policy that or any evidentiary requirement might be found.  Rather, it pointed to para. 59 of the reasons of Clancy J. in Mameli, supra, where he wrote:

When the limitation period does begin to run, the starting point is “the date upon which the insurer receives a reasonable amount of information permitting it to carry out an assessment of liability in good faith” (Watterson, supra). The insurer makes the decision as to what is reasonably sufficient evidence. If there is a reasonable basis for the decision of the insurer, the court will not intervene. Objective certainty is not required. Ordinarily, an insurer would be entitled to assess a claim on receipt of the completed proof of loss forms provided by the insurer, assuming, of course, that the forms require sufficient information to allow a reasonable assessment as to the sufficiency of evidence. If additional evidence beyond that contained in the proof of loss forms is provided, an insurer would be obliged to consider it.

 

 

[23]    Ms. Mameli had filed proofs of claim against both defendant insurers in accordance with the provisions of their accidental death policies.  Ms. Watterson filed separate proofs of claim, one for “own occupation” and one for “any occupation” coverage, in accordance with the provisions of her income replacement policy.  Ms. Balzer, as I have explained, did not file a proof of claim for “any occupation” coverage, and the policy did not expressly require her to do so.

[24]    However, Sun Life’s corollary submission is that the delivery of Dr. Newcombe’s “report” of 4 November 1994 constituted the event that triggered the commencement of the limitation period, because by that letter Ms. Balzer provided sufficient evidence to enable it to assess her claim to continuing benefits in good faith, whether or not she understood she was furnishing proof of a new claim under new coverage.

[25]    Some policies are well adapted to the concept that “own occupation” and “any occupation” disability insurance are separate coverages, as if in separate policies, as is evident from the terms of the policy at issue in Watterson, supra.  It provided for the two coverages in separate parts; it provided for separate proofs of claim.  Others do not accord comfortably with the concept of deemed separate policies and coverages, as the Canada Safeway policy demonstrates.  Nevertheless, the terms of that policy as modified by the Insurance Act, must govern the rights of the parties.

[26]    Sun Life’s promise is to pay the insured a long-term disability benefit “during the uninterrupted continuance of his total disability”…“if an employee becomes totally disabled while insured … and his total disability existed continuously during the Elimination Period.”  The benefit is to be paid “in one sum for any full month of total disability occurring immediately after completion of the Elimination Period” and thereafter “monthly at the end of each full month of total disability.”

[27]    That fundamental promise suggests an uninterrupted flow of benefits if the “total disability” is once established for so long as the “total disability” continues, by whichever definition applies for a given month.  When that most important promise is placed beside the Notice and Proof of Claim provisions in the policy, an insured could be forgiven for concluding only one proof of claim is required to trigger benefits that would continue unless and until she could no longer establish she was “totally disabled” under the relevant definition.  Under this policy, there cannot be two discrete periods of “total disability” requiring separate proofs of claim.  There is one period requiring continuing proof, although what must be proved to establish continuing entitlement changed after 18 months, in this case, on 28 October 1994.

[28]    Sun Life’s second submission is that the preferable interpretation is that “the insured should be deemed to have furnished reasonably sufficient proof of the ongoing claim under the contract when benefit payments are terminated.”  Its position is that such a purposive approach to the application of s. 22 would provide certainty and accord with the Legislature’s intention of providing a one-year limitation period on claims where no other limitation period applies.  Conveniently, this result would accord with Sun Life’s practice of automatically considering a potential claim under “any occupation” coverage while it is paying “own occupation” benefits.

[29]    While I agree the purpose of s. 22 is an important element in its interpretation, I am not persuaded the language of s. 22 can bear this interpretation.  Where an insured has a continuing claim and her cause of action accrues monthly under an insurance contract, only express statutory language should limit that claim.

[30]    More interesting is Sun Life’s third submission that the limitation period began when it denied continuing coverage. Some authorities suggest a proof of claim is not necessary to trigger the commencement of the limitation period under s. 22(1), in circumstances where a potential claim is clearly and unequivocally rejected on the basis of information provided to the insurer on the insurer’s behalf: Dachner Investments Ltd. v. Laurentian Pacific Insurance Co. (1989), 36 B.C.L.R. (2d) 98 (C.A.); Knight Towing Ltd. v. Guardian Insurance Co. of Canada et al. (1989), 37 C.C.L.I. 222 (B.C.S.C.).

[31]    This seems to me to be a proposition of general application, because s. 24(1) [now s.22(1)] modified any limitation provision in the marine policies at issue, as it does those in any group accident and sickness policy.

[32]    At issue in both cases, was a claim for the cost of repairs of a boat under a marine insurance policy governed by the Insurance (Marine) Act.  There was neither a statutory nor contractual requirement that the insured file a proof of loss.  However, under the policy, the cause of action did not accrue until 30 days following proof of loss.  Industry practice was that an insurance adjuster hired by one or other party would submit a statement for settlement by underwriters.  A party who disagreed with the proposed settlement would employ a marine surveyor to challenge it.

[33]    Before Oppal J., Laurentian Pacific argued that the policy’s one-year limitation period began to run from the date it had denied coverage rather than from the date proof of loss was provided to it some 15 months later, and sought dismissal of the action by way of summary trial under Rule 18A.  The denial was based on information received from a marine surveyor who concluded the incursion of seawater into the vessel was due to a faulty hull fitting rather than as a result of a collision with a submerged object as claimed.

[34]    After stating the rule I quoted above, Taggart J.A. continued (at 102):

The confusion as to the date of commencement of a period of limitation appears to have flowed from the misapprehension that a denial of coverage by an insurer worked a repudiation of the contract of insurance. Unless a policy contains an express provision having that effect a denial of coverage by an insurer is no more than a notification to the insured that the insurer construes the policy in a way which precludes coverage for the loss claimed by the insured.

 

 

[35]    However, this Court found the insurer’s subsequent written offer of cooperation with the insured’s surveyor belied clear and unequivocal denial of coverage and allowed the appeal. Likewise, in Knight Towing, Macdonald J. was not convinced the insurer had denied coverage clearly and unequivocally.

[36]    What emerges from this brief discussion is that s. 22(1) does not easily fit with income replacement insurance policies or with the practice of the insurance industry.  Its application requires adaptation if the Legislature’s intention to create a one-year limitation period for all insurance claims is to be given effect.  One promising approach is that the limitation period may be triggered by a clear and unequivocal denial of a potential claim.  Such a denial precludes any claim because it tells the insured no purpose will be served by making one.  This will have the effect of telling the insured she may want to consider commencing an action if she wants to pursue her claim. 

[37]    The respondent submits the more instructive reasoning is that of Donald J.A. in Holme Estate, supra.  In the respondent’s view, its application to the Canada Safeway policy would mean that a claim to disability benefits, once established by agreement or by judgment within the limitation period, would accrue from month-to-month for the duration of total disability, and the limitation period would apply, if at all, only to limit recovery of insurance money payable during the 12 month period preceding the commencement of the action.  This reasoning, she submits, would “protect insured parties in long-term claim situations where a strict interpretation of the limitation clause is inappropriate, and where the claim and the necessity for proof of claim are continuous.”  It would also allow for situations like that in Watterson, supra, where a proof of claim is furnished and denied.

[38]    While the reasoning in Holme Estate, supra, will always be appropriate where the cause of action accrues monthly and the limitation period is determined by the date the insurance money becomes payable, as is apparent from my reasons in the companion appeal Watterson v. Sun Life Assurance Co. of Canada, 2003 BCCA 305, I would not apply s. 22(1) as a general rule to limit recovery under disability coverage to benefits for the year preceding the action.  I agree with Pitfield J. to do so would be to ignore the wording of s. 22(1).

[39]    I have no difficulty with the proposition that the claim of Ms. Balzer is continuing, that her cause of action accrues monthly, and that the risk insured against was the continuance of a total disability.  But that coverage could terminate at any time for want of continuing proof of total disability.

[40]    It is at denial of coverage or termination of benefits that an insured would have reason to sue the insurer.  That is when a limitation period should begin to run, not while benefits are being received, not on some later date when an insured decides to file a proof of loss or commence an action. This sensible result is at the root of the reasoning in the authorities cited to us.

 

[41]    I am persuaded that good sense dictates the solution to the conundrum posed by the entirely inadequate words the Legislature has chosen to incorporate into every group accident and sickness policy by the convoluted provisions of the Insurance Act.  Read literally, the words of s. 22(1) create the absurd result that the limitation period in this case would have begun to run while the benefits were being paid, or alternatively, would not begin to run until after a claim is made.

[42]    But the words, by edict of the Legislature, have become an overriding provision of the Canada Safeway policy.  Both parties are bound by them, and this Court must give the insurance contract such business sense as can be made of it.

[43]    The authorities interpreting marine insurance policies provide the best route to a practical interpretation of the policy as statutorily amended.  A clear and unequivocal denial of coverage precludes the need to furnish a claim (where the policy does not require the filing of a proof of claim) and triggers the commencement of the limitation period.  This general rule permits a case-by-case application of the one-year limitation period appropriate to the wide variety of factual circumstances that may give rise to disputes about continuing coverage under generic group accident and sickness policies. It avoids the absurd results a literal reading of the words of s. 22(1) would otherwise produce in this and like cases.  It leaves room for their application to cases where the policies permit that reading.

[44]    Here, there was no unequivocal denial, Ms. Balzer had been paid some benefits, and when payment stopped she was left with the impression that her coverage could be reconsidered if additional medical information was supplied.  Sun Life never effectively engaged s. 22(1), and as time never commenced to run under it no part of her claim is time-barred.

[45]    Any ambiguity in the communication of a refusal of benefits, as to whether it is a clear and unequivocal denial, should be resolved in favour of the insured.  To avoid any doubt, the preferred course for an insurer intending to deny coverage should be to include an alert in the letter drawing the insured's attention to the one year limitation in s. 22(1) and informing the insured that the insurer will rely on the denial as starting the running of time.  The communications of Sun Life in Watterson are not that explicit but they are sufficiently unambiguous in the circumstances of that case to


support Pitfield J.'s conclusion, and that is the essential difference between the two cases.

[46]    It follows I would dismiss the appeal.

 

 

 

“The Honourable Madam Justice Huddart”

 

 

 

I AGREE:

 

 

 

 

“The Honourable Mr. Justice Mackenzie”

 

 

 

I AGREE:

 

 

 

 

“The Honourable Mr. Justice Thackray”