The Supreme Court of Canada has declined to hear an appeal of a decision made by the Court of Appeal for Saskatchewan, dismissing the appeal with costs to Co-operators General Insurance Company.
The lower court had upheld the chambers judge’s decision concluding that the applicable limitation period had expired.
In the case, Robin Goertz and GSL Developments Ltd., owners of a duplex in Saskatoon, commenced legal action against the insurer more than five years after a fire occurred at the property. Co-operators applied to dismiss the claim against it on the basis that it was statute-barred and that the client had been advised of this limitation period on a number of occasions by the company.
“On September 21, 2014, there was a fire at the property. It was not contested that the cause of the fire was accidental and that the policy of insurance the Appellants had with Co-operators was in good standing and in effect at the time of the loss. A dispute arose between the parties as to the amount payable pursuant to the terms of the policy. Dissatisfied with the payout as calculated by Co-operators, GSL and Mr. Goertz issued a statement of claim against Co-operators and O’Reilly (O’Reilly Insurance Ltd, operating as O’Reilly Insurance and Financial Services) on January 17, 2020,” the appeal court’s decision states.
Following the fire, the insurer advised Goertz that the policy provided insurance on a replacement cost basis, subject to a co-insurance clause and payment of a $1,000 deductible. When the insurer determined that the cost to rebuild assessment and a subsequent appraisal indicated that the property was underinsured, this triggered the co-insurance clause, resulting in a much lower payout than would otherwise have been the case had the appellants been fully insured.
“The appellants were repeatedly advised of the limitation period by Co-operators,” the decision continues. During the back and forth which occurred in the years which followed, Goertz failed to deliver information or proof of loss forms and did not cash any of the checks sent by Co-operators. (The company reissued the stale-dated checks on three occasions.)
“I do not accept the suggestion that, in the circumstances, Co-operators was required to make an application to compel Mr. Goertz to file a proof of loss,” the appeals court decision states.
While the chambers judge found that the limitation period commenced in January 2017, as it was clear by this date that Co-operators was closing its file, the appeals court judges found that the limitation period began even earlier, in August 2015. “It is a difference that does not change the outcome. Absent some sort of extension or tolling, the limitation period for commencement of the claim expired long before the claim was issued,” they write.
“Parties cannot simply engage in a never-ending debate for tactical reasons and then say that the limitation period did not start to run because the debate was ongoing,” the Court of Appeal decision adds. “Merely engaging in settlement discussions, in and of itself, does not extend a limitation period.”
