Rolling Limitation Periods and Periodic Payments: Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518

In Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518, the Ontario Court of Appeal reviewed the concept of rolling limitation periods and held that rolling limitation periods do not apply to periodic payments when an employee is aware of a potential breach from the beginning and there is no “fresh cause of action” with each payment.

…rolling limitation periods do not typically apply to disputes involving contracts with recurring payments.

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In Ontario, the Limitations Act, 2002 provides a basic limitation period of two years. The limitation period is triggered two years from the date the claimant knew, or ought to have known, that the potential defendant did or failed to do something that caused the claimant harm. This is referred to as the discoverability principle.

A rolling limitation period can be applied when an ongoing contractual obligation is breached on a recurring basis. With each breach, a new limitation period could begin. However, it is not automatically applied to claims that involve ongoing obligations. Specifically, rolling limitation periods do not typically apply to disputes involving contracts with recurring payments.

In this case, Mr. Karkhanechi (“Mr. K”) became an employee of Connor, Clark & Lunn Financial Group Ltd. (“CCL”) in 2014 at which time his compensation package was structured in a partnership agreement with CCL. The partnership agreement involved a post-retirement scheme, which included periodic payments to be made to Mr. K for nine years following his retirement on a declining basis. In the ninth year, his share of equity in his employer would be zero.

In 2016, Mr. K was terminated from his employment with CCL, triggering the compulsory retirement provision in the partnership agreement. Following Mr. K’s termination, he claimed that the post-retirement payments that he was receiving were less than he believed he was entitled to. CCL disagreed with Mr. K’s claimed entitlement to receive permanent post-retirement payments. Despite bringing the disagreement up in March 2017 after receiving his first post-retirement compensation statement that had been reduced, Mr. K did not take action to commence proceedings until more than two years later, in December 2019.

In September 2021, a motion judge granted summary judgment against Mr. K after finding that his claims were statute barred under the Limitations Act, 2002. The motion concluded that the applicable two-year limitation period began to run on March 27, 2019 because on that date the loss was discoverable. Mr. K appealed the order arguing that the motion judge erred by failing to apply a rolling limitation period, and by finding his request for a declaration to be statute-barred, contrary to s. 16(1)(a) of the Limitations Act, 2002, which provides that there is no limitation period for the seeking of a declaration.

The Court of Appeal disagreed that a rolling limitation period applied and found that the motion judge was correct in concluding that a single breach with continuing consequences occurred on March 27, 2017, when CCL clearly rejected Mr. K’s claim to permanent periodic payments under the partnership agreement. By March 2017, Mr. K had the material facts required to initiate an action relating to the ongoing damage that would arise from CCL’s denial to the claims Mr. K was making.

According to the Court, the key distinction in determining whether a roiling limitation period applies is whether there are multiple, separate damage claims arising from the breach or continued loss or damage. In the latter situation, the basic limitation period still applies. The Court explained: This distinction matters because entitlement to rolling limitation periods is premised on the notion that with each new breach a “fresh cause of action” arises that “sets the clock running for a new two-year limitation period” …. Put simply, without a “new breach”, there is no justifiable basis for applying a rolling limitation period.

Take Away:

It is important to understand any limitation periods that may apply to a claim that you may have, and to understand exactly when clock starts running on that limitation period. Generally, you have two years to start a lawsuit after you discover that you have suffered an injury, loss, or damage. In determining whether a rolling limitation period applies, one should always look at the nature of the breach. In cases where there is a breach that gives rise to continuing loss or damages, a rolling limitation period typically will not apply. On the other hand, where there is more than one breach leading to separate damages claims or a “fresh cause of action”, a rolling limitation period may apply.

 

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What is a Reasonable Amount of Exercise in a Disability Claim? Dhanda v. Thind, 2022 BCSC 1003

When a claim for disability is made, the claimant opens themselves up to scrutiny of how they are living their life, what medical care they receive and how they function in their work and personal life.  “Activities of daily living” are used to describe day to day functions that everyone needs to perform for basic self-care and survival.  Other activities, such as socializing, entertainment, travel and exercise are also considered when Insurers adjudicate disability claims.  As with any evidence, there are subjective and objective factors to consider both for the Plaintiff and Adjudicator, and as with most claims the findings are often in the grey areas.

The Plaintiff’s credibility is arguably the most important factor in disability trials.

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The recent jury decision of Baker v. Blue Cross has left everyone guessing what evidence led the jury to award the largest punitive damages award in Canadian history.  We have read that there was 375 hours of surveillance and my understanding is that Ms. Baker’s fitness routine was likely questioned.  Surveillance has long been used by Insurers as another piece of evidence to consider in adjudication.  The use of surveillance at trial has had a mixed outcome for Insurers, from an unsuccessful defence in cases such as Baker v. Blue Cross and a successful defence in Bezanson v. Sun Life Insurance Company, 2015 NSSC 1, where “surveillance took place over the course of the next few years, for several days each time” and there was “many hours of DVD evidence from 2009 to 2013”.  

In the recent case of Dhanda v. Thind, 2022 BCSC 1003 we have one Judge’s findings on what was argued to be an “extensive” exercise routine, that was self-reported by the Plaintiff, at the time of trial. It is another example of what a court looked at when tasked with assessing a Plaintiff’s disability claim. 

Ms. Dhanda was in second year of her undergrad degree at UBC when she was struck from behind while at a red light in March of 2018.  She sustained persistent soft tissue pain in her neck and back with sleep mood disturbances, and sensitivity to light and noise.  Prior to the accident, she was very active and played competitive soccer through high school, recreational soccer while at university, pursued gymnastics, weight-training and running.  She was also supportive at home with the household and family business as well as at her Sikh temple.

After her accident she declined a dual-degree business program fearing the workload would be too much, given her physical discomfort and difficulties concentrating. She stopped cooking at the temple, working for the family business, playing soccer and doing gymnastics and helped out less around the house. She was accommodated with extra time for exams and provided note-taking assistance at UBC and graduated in April 2020 with a BA. In September of 2020 she began UBC’s accelerated nursing program.  She experienced back pain and fatigue in her clinical rotations and was concerned how her body would respond to a full workload.  In late 2021 she began working as a student nurse in the emergency department at Surrey Memorial Hospital.  She continued to worry about the physical nature and longevity of nursing work.

At the time of trial she was embarking on her nursing career and was seeking $640K-$790K of damages for preclusion from physically demanding jobs.  The Defendants suggest $120K – $170K and argued that her functioning was better than she alleged. 

The Judged awarded damages of $328,210.00.

A significant portion of the Defendant’s defence focused on the Plaintiff’s exercise routine at the time of the trial.  The Plaintiff self-reported that she participated in strength training 4 times per week as well as walking or running an additional 4 times per week.  She claimed that her workouts were now less strenuous than before her accident.  The Judge used the adjective “extensive” to describe the exercise routine in paragraph 29, but it is not clear is he was paraphrasing from an expert report or if he found the routine extensive himself.  

The Judge found that “regarding her exercise regime, in my view this is an important aspect of Ms. Dhanda’s overall condition”.  I agree with the defendants that her exercise regime is difficult to reconcile with some of the limitations she described at trial, such as with housework and cooking at the temple.  Having said that, I do not find this discrepancy undermines Ms. Dhanda’s overall credibility about her condition.” 

Take Away:

The amount of exercise and activity that a Plaintiff participates in, will likely always have to be considered on a case by case basis and credibility is arguably the most important factor in disability trials where the evidence is always conflicting.  If Ms. Dhanda had not disclosed her exercise routine and it had been found on surveillance, would the outcome have been different? I personally do not consider Ms. Dhanda’s activity level “extensive”.  There is certainly a general conception of what a disabled lifestyle should include when a Plaintiff is looking for compensation due to an inability to work.  Any activities beyond what are required for basic functioning will always be examined, and what is “reasonable” will continue to be subjected to both objective and subjective evidence and views of the court. 

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Largest Punitive Damages Award – Baker v. Blue Cross Life Insurance Company of Canada

By now everyone has heard about the Toronto jury decision awarding the largest known punitive damages on record to an individual plaintiff in Canada after a five-week trial in the Ontario Superior Court of Justice.

The award of $1.5 million in punitive damages was made against the Blue Cross Life Insurance Company of Canada (“Blue Cross”) in connection with its more than 6-year denial of long-term disability (“LTD”) benefits in favour of Sara Baker, a 47-year-old woman who suffered a brain bleed/stroke in 2013 after which she was unable to return to her job as a Director at a hospital. The six-member jury also awarded the full reinstatement of Ms. Baker’s LTD benefits, along with $40,000 in aggravated damages for Ms. Baker’s mental distress.

As this was a jury decision there are no reasons for the decision but this is what has been reported so far:

  • Blue Cross initially paid disability benefits to Ms. Baker after her brain bleed/stroke. LTD benefits were denied when Blue Cross determined she could return to work in an alternate occupation that would pay her at least 60% of her pre-disability earnings. Ms. Baker’s doctors opined that her cognitive impairments, headaches, and mental fatigue, were intractable and rendered her unable to work.
  • Due to the COVID-19 pandemic and restrictions on civil jury trials, Ms. Baker sought to have her case determined by a Judge alone.  Blue Cross maintained the trial should be decided by a Jury which resulted in a further delay. Blue Cross, in a sworn affidavit, explained that a jury trial was essential to its “strategy for the defence of this action” based on “the surveillance reports and videotapes.” These included 375 hours of covert surveillance Blue Cross had undertaken of Ms. Baker, none of which showed Ms. Baker engaged in any activities inconsistent with the symptoms of her brain bleed/stroke.
  • In his closing address to the jury, Ms. Baker’s counsel, Stephen Birman, cited Blue Cross’ excessive and irrelevant surveillance, along with numerous examples of Blue Cross failing to consider available medical and vocational evidence, including that of its own medical experts, as grounds for a finding that Blue Cross had breached its duty of good faith and caused Ms. Baker mental distress.

TAKEAWAY:  In assessing the merits of a claim for bad faith, the Court must find that the conduct was high-handed, arbitrary, malicious or reprehensible to offend the Court’s sense of decency and therefore worthy of punishment. Vulnerability or hardship of the insured is also an important consideration. It is important to understand that although an insurers’ claims file may be full of errors, those by themselves do not constitute bad faith. Similarly, the incorrect denial or termination of disability benefits is not in itself evidence of bad faith.

 

Relief from Forfeiture in LTD – Smith v. Sun Life and Wiles v. Sun Life

Smith v. Sun Life 2021 ONSC 7109 (CanLII)

 

The Ontario Court granted the Plaintiff relief from forfeiture for failing to submit a formal Long Term Disability (LTD) application and dismissed Sun Life’s motion for summary judgment to dismiss the Plaintiff’s claim.  

Key Facts and timing in Smith 

The Plaintiff was approved for Short Term Disability (STD) benefits under the same Policy through his employer with Sun Life.  The Plaintiff was participating in an approved gradual return to work (GRTW) plan when he was unable to continue working and submitted another STD claim.  The Plaintiff’s STD benefits were declined at first review and then upon appeal.  The time to submit an LTD application was less than a month after the STD benefits were denied.  The Plaintiff sued Sun Life about two months after the STD denial.         

 

Wiles v. Sun Life 2018 ONSC 1090 (Can LII) (appeal dismissed 2018 ONCA 766 (CanLII)

In Wiles, Sun Life was successful in their motion for summary judgment to dismiss the Plaintiff’s claim for salary continuance and LTD benefits.  Sun Life was the administrator of a Salary Continuance Service for the Employer as well as the insurer for LTD benefits.  The Plaintiff claimed disability in 2015, after she was terminated by her Employer without cause.  She submitted Salary Continuance forms in December of 2015.  An attending physician’s statement (APS) was requested by Sun Life and not submitted.  The Claim was closed in February of 2016 for failure to submit an APS.  A Statement of Claim was issued in January of 2017 only against Sun Life for breach of a group Disability Policy. The motion for summary judgment was served in May of 2017, an attending physician’s statement and LTD claim was served in July of 2017 and the Statement of Claim was amended to include LTD benefits in September of 2017.   

The court found that:

      • The Plaintiff did not submit a claim for LTD benefits until May 2017.
      • The LTD claim was not completed until July 2017, when the Plaintiff’s lawyer submitted an APS.
      • The Plaintiff was aware of the distinction between Salary Continuance Services and LTD benefits in November of 2015.
      • There was no explanation why the forms were not submitted in a timely manner.
      • There was no explanation why a claim for LTD benefits was not made within the time limits as set out in the insurance Policy.  

 

 

 

 

 

TAKEAWAY  

The transition between STD and LTD can trigger procedural issues if there is a denial at the STD stage and the claim does not officially transition into LTD benefits.  It can be even more complicated if there are different carriers for the STD and LTD benefits.  Many contracts provide that LTD benefits are only available once STD benefits are paid in full, but as seen in the Smith case, the Courts was unwilling to find that a separate process was necessary, when the Plaintiff’s disability had been adjudicated for STD benefits and little time had passed, which would result in the Plaintiff being barred from further benefits due to a procedural failure.  Although the courts have often chosen the two year statutory limitation period over any shorter contractual period, one of the larger differences between these cases is the unexplained delay in Wiles, of almost two years before the insurer had the documents to assess the disability claim, compared to Smith, where the insurer had already made an initial assessment of the claim when the LTD period arose.       

 

Are mediations always confidential?

Union Carbide Canada Inc. v. Bombardier

 

The Supreme Court of Canada found that a confidentiality clause in a private mediation can override the exception to the common law settlement privilege that enables parties to produce evidence of confidential communications in order to prove the existence or the scope of a settlement.  The court explained that if the parties choose to tailor their confidentiality requirements by contract to exceed the scope of the common law settlement privilege, it must be done expressly and with the intention that the clause prohibit the parties from disclosing the terms of settlements for enforcement purposes.

Signed minutes of settlement

In Union Carbide Canada Inc. v. Bombardier Inc.  2014 SCC 35 the mediation contract was signed on the eve of the mediation.  It was a standard form contract provided by the mediator to which no changes were made by either party. To determine if a confidentiality clause displaces settlement privilege, the court considered the wording of the clause, the intent of the parties, the circumstances in which it was formed and the contract as a whole.

The court held that there was no evidence that either party intended to exceed the settlement privilege.

The confidentiality clause in question read as follows:

  1. Anything which transpires in the Mediation will be confidential.  In this regard, and without limitation;
  2. Nothing which transpires in the Mediation will be alleged, referred to or sought to be put into evidence in any proceeding;
  3. No statement made or document produced in the Mediation will become subject to discovery, compellable as evidence or admissible into evidence in any proceeding, as a result of having been made or produced in the Mediation; however, nothing will prohibit a party from using, in judicial or other proceedings, a document which has been divulged in the course of the Mediation and which it would otherwise be entitled to produce;
  4. The recollections, documents and work product of the Mediator will be confidential and not subject to disclosure or compellable as evidence in any proceeding.

TAKEAWAY: If you want override the presumption of settlement privilege and make everything at a mediation confidential, you can, but you need to clearly state that is your intention in the mediation agreement and lose the ability to enforce a potential settlement with evidence from the mediation. 

Peres v Moneta Porcupine Mines Inc.

The Importance of Signed Minutes of Settlement

We have all been in lengthy mediations that carry on well past 5pm. At the end of the day when a settlement number is agreed on, the parties may decide to finalize the settlement after the mediation, the next day, or even later.

Results Mediators - Signed minutes of settlement
Signed minutes of settlement

This may not be wise, as you could end up arguing a motion about whether a settlement was reached in which mediation communications are admissible as in the case of Peres v Moneta Porcupine Mines Inc., 2021 ONSC 5798 (CanLII)

The plaintiff, Ian C. Peres, brought a successful motion enforcing a settlement agreement that was purportedly reached via email correspondence between counsel within an hour following the end of a full day mediation.  There were no minutes of settlement signed, and the defendant denied that a settlement was reached despite numerous emails exchanged following the mediation. The issue before the Superior Court was whether the emails following the mediation were an agreement to settle.

Upon reviewing the emails, the Court found that “the essential terms are clear, albeit requiring embodiment in formal legal language to be drafted by counsel.” The Court found there was little merit in defendant counsel’s argument that there was no “meeting of the minds” instead, it found that the parties did agree on the essential terms, but some further work was required to write up the details.

TAKEAWAY: If you believe there is a settlement in principle, ensure there are signed minutes of settlement before walking away from the mediation.

How diverse is your list of Mediators?

Results Mediators Neutral DiversityThe OBA’s Working Group on Neutral Diversity recently released a report examining diversity in alternative dispute resolution settings and proposing recommendations about how it can be improved in Ontario.

The report revealed that arbitrators and mediators hired in Ontario do not reflect the gender or racial diversity of the demographics of the province or the legal profession. Respondents to a survey reported that in the last two years, the mediators that they hired were men 70% of the time, and white 94% of the time.

As female mediators and one of us of South Asian decent, we are pleased that the OBA has taken the initiative to spotlight that a diversity issue does exist.  It should be a priority for the legal profession to reflect the community it serves, improving diversity across the board, from legal recruiting and retention to Neutral development, retention and selection.

The report sets out a number of recommendations for lawyers and organizations to consider to increase Neutral diversity. By following the recommendations in this report, the diversity of mediators and arbitrators hired in Ontario can be improved with positive results for clients, lawyers, Neutrals and the legal and ADR professions as a whole.

Below are a few recommendations to diversify your Neutral selection:

1. Request diverse names when seeking recommendations for Neutrals.

2. When proposing Neutrals to opposing counsel, include diverse candidates.

3. If you are wary of retaining someone new, consider hiring unfamiliar or less senior Neutrals to mediate smaller value or simpler cases as a way of gaining comfort with them.

4. Instruct outside counsel to include diverse Neutrals in lists of Neutrals they propose and encourage selection of diverse Neutrals where appropriate.

5. Educate clients about the benefits of using Neutrals from diverse backgrounds, e.g., different perspectives can help you identify gaps in your case and avoid group thinking.

By following the recommendations in this report, the diversity of mediators and arbitrator hired in Ontario can be improved with positive results for clients, lawyers, Neutrals and the legal and the ADR professions as a whole.

The legal profession in Ontario needs to step up in increasing Neutral diversity because “diversity is everyone’s business”.

Presumption of In-Person Attendances Start April 19, 2022

Just when we thought the Ontario courts were embracing on-line appearances they have released guidelines setting out presumptive methods of attendance for events in Superior Court of Justice proceedings.  The guidelines that take effect on April 19th set out the Court’s expectations for the following proceedings:  Case conferences, pre-trials, trials, motions, examinations for discovery, mandatory mediations, assessment hearings, cost hearings, and appeals.

Specifically for Mandatory Mediations, the guidelines state:

“ALL MEDIATIONS WILL BE HELD IN PERSON, UNLESS THE PARTIES CONSENT TO IT BEING CONDUCTED VIRTUALLY OR UNLESS THE COURT SPECIFIES A DIFFERENT MODE OF PROCEEDING.”

Read the full Guidelines here: http://https://www.ontariocourts.ca/scj/guidelines-mode-of-proceedings/guidelines-civil/

Results Mediators is happy to accommodate either virtual or in-person mediations to suit your and/or your client’s needs.  Please contact us to discuss any specific accommodation requests.

Why choose Results Mediators?

Results Mediators

WE ARE EXPERIENCED

  • We are lawyers first and together have almost 40 years of litigation and mediation experience representing both Plaintiffs and Defendants.
  • We understand insurance, specifically Disability (STD/LTD); Life and Health; AB; and Employment matters.
WE ARE EMPATHETIC
  • We care and understand that there is a lot on the line for each of the parties to a dispute and provide a collaborative forum for constructive and positive discussion.
  • We offer both virtual and in person mediations to suit clients’ needs to ensure the process is comfortable and not stressful for either party.
WE ARE DEDICATED
  • We do not simply relay messages back and forth between parties. We know when to push and when to hold back but ultimately, we will work our very hardest to move the parties toward a successful settlement.
WE ARE AVAILABLE
  • We have dates open before the summer, so you do not have to wait to settle.

Tips for a Successful Mediation

Results Mediators - Tips for a Successful Mediation
The mediation process works best when the parties in dispute are willing to participate in meaningful discussions with a genuine intent to resolve the dispute. Here are a few tips to keep in mind for your next mediation.  
1. Be prepared with documents and authority
In order to assert your position at mediation your Mediation Brief should clearly set out the issues in dispute, the pertinent facts of the case, along with any key evidentiary documents or expert opinions. Without supporting documents or evidence, issues can be difficult to resolve, leaving the parties frustrated at the mediation. In addition to exchanging documents, it is essential that the person at the mediation has full authority to make a binding decision. Being prepared and having the proper authority to settle leads to efficient time spent at a mediation and less frustration for all parties.
2. Respect the process and each other 
Maintaining respect is crucial for a healthy atmosphere within the mediation process.  Getting results, including compromises, within any negotiated dealings is unlikely when anyone feels insulted or disrespected. As mediators we ensure that each person feels they are being heard and respected and guide the mediation to ensure the parties have the time and space they need to maintain proper grounding throughout the process. Often parties get frustrated as the mediation drags on or feels like it’s taking too long. However, the passage of time and process matters and actually assists in reaching a resolution.
3. Focus on solutions to resolve and reach a deal
Settlement is possible when the parties appreciate that a resolution is better than a continuation of the dispute.  As mediators we work towards a deal that satisfies all the parties involved. However, all parties must genuinely focus on achieving a resolution to the dispute. Without good faith and focus the mediation process will end without a resolution.
We hope these tips are beneficial reminders to you and look forward to assisting you with your next mediation.