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LIMITATION OF ACTIONS - When time begins to run - Discoverability

Thursday, December 24, 2020 @ 6:06 AM  

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Appeal by the defendant Momentive Specialty from dismissal of their application for summary dismissal of the action as statute-barred. The respondent’s husband was a former employee of the appellant. He died in 2012. The husband held a life insurance policy though his employment. In 2007 the husband had applied to increase the insurance limit. The appellant, however, never forwarded the required forms to the insurer. In February 2013, the insurer informed the respondent’s attorney that it had not received the husband’s application form from the appellant. In April 2013, the respondent sued the appellant in Oregon where she now lived. In January 2014, a decision of the U.S. court made clear that Oregon had no jurisdiction to hear her case as no wrong occurred within Oregon.

In January 2015, the respondent commenced this action in Alberta. The judge found that the respondent did not know until July 2012 that the appellant was not the plan administrator. It was not until the insurer provided information in February 2013 that the respondent had the facts to learn that the husband’s request for increased insurance might have stopped in the appellant’s office.

HELD: Appeal dismissed. The record supported an inference that, given the appellant’s words and silences, the suspicions of the respondent’s attorney passed from speculative to supported no earlier than February 2013 when he learned that the insurer had not received the initial form and that the appellant had not told the truth. The chambers judge implicitly considered that before 2014, proceedings in Alberta were not warranted. She made no reviewable error in placing weight on that unique circumstance. The appellant’s policy concerns, such as forum shopping, did not arise on this record and did not need to be addressed. There was no error in the lower court’s conclusion that the appellant had not met the test for summary dismissal.

Milota v. Momentive Specialty Chemicals Canada, Inc., [2020] A.J. No. 1256, Alberta Court of Appeal, P.A. Rowbotham, B.K. O'Ferrall and J. Antonio JJ.A., November 19, 2020. Digest No. TLD-December212020007