2017 ONSC 464, 2017 ONSC 464

CITATION : Hogarth v. The Great-West Life Assurance Company , 2017 ONSC 464 COURT FILE NO.: 855/13 DATE: 2017/01/24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Nicole Hogarth, Plaintiff (Responding Party) AND: The Great-West Life Assurance Company and Ontario Lottery and Gaming Corporation, Defendants (Moving Party) BEFORE: Madam Justice H. A. Rady COUNSEL: Karl Arvai, Counsel for the Plaintiff (Responding Party) Laila Karimi Hendry, Counsel for the Defendant Ontario Lottery and Gaming Corporation (Moving Party) HEARD: November 28, 2016 ENDORSEMENT Introduction [ 1 ] This is a motion for

summary judgment dismissing the claim as barred by the Limitations Act , 2002. [ 2 ] The moving party, Ontario Lottery and Gaming Corporation, says the plaintiff and her counsel knew or ought to have known the cause of action arose more than two years before the action was started on May 9, 2013. The action has been settled against Great- West Life Assurance Company and as a result, it did not participate in the motion. Background [ 3 ] The plaintiff is a former employee of OLG. She was injured in a car accident on March 16, 2004.

She sought long term disability benefits provided through her employment, which she received for approximately 18 months. They were interrupted when GWL took the position she was not totally disabled. However, the plaintiff was reinstated for the period July 16 – September 15, 2006, but GWL maintained that she was not disabled after September 15, 2006. In February 2009, she commenced an action against GWL, to which OLG was not party.

She did not return to work at OLG but began an unpaid leave of absence in the meantime. [ 4 ] Effective October 1, 2008, OLG purported to cancel the plaintiff’s supplementary health benefit coverage for failure to maintain benefit payments while she was on leave of absence (as I will discuss below). [ 5 ] The litigation against GWL was settled on December 9, 2010 when GWL offered either to reinstate the plaintiff’s long term disability benefits, retroactive to September 16, 2006 or in the alternative, to pay a lump sum representing past and future entitlement. [ 6 ] The plaintiff opted for the latter settlement option.

She received $123,500, plus costs. A release was signed.

I am told that GWL accepted that the plaintiff was totally disabled from September 15, 2006 to December 9, 2010 and into the future as evidenced by the terms of the release. [ 7 ] On May 26, 2011, she was terminated by OLG on the basis that she could no longer perform the tasks of her employment. [ 8 ] It is the treatment of the plaintiff’s supplementary health, dental and life insurance benefits during her disability after September 15, 2006 and in the future that forms the basis of this lawsuit against OLG. [ 9 ] It was a term of the plaintiff’s group benefits policy that she would continue to be eligible for the supplementary coverage during periods of disability.

It also provided that coverage would continue beyond the termination of employment, if at the time of termination, she was absent due to disability. [ 10 ] During employment, including leaves of absence, an employee was responsible for a portion of the payment of monthly premiums. OLG funded the other portion. During periods of disability, payment of premiums was made entirely by OLG. So, after GWL reinstated the plaintiff’s LTD benefits for the period July 16 – September 15, 2006, OLG refunded the plaintiff $495.60 for premiums she had paid during that time.

After her claim was settled with GWL for a lump sum, OLG refunded the plaintiff the balance of the premiums she had paid – the sum of $4,700.43 in 2006, 2007 and 2008. Chronology [ 11 ] The following chart is adapted from the moving party’s factum, with the elaboration necessary from the evidentiary record. Relevant Timeline

Date Occurrence November 1, 1999 The plaintiff commenced employment with OLG. March 16, 2004 The plaintiff was involved in a motor vehicle accident. She then obtained the maximum allowable STD benefits. January 18, 2005 The plaintiff began to receive LTD benefits from GWL. July 16, 2006 GWL said the plaintiff was no longer disabled as of this date. She was subsequently reinstated, however, for the period July 16 – September 15, 2006. September 15, 2006 GWL determined that the plaintiff’s claim for LTD benefits was no longer supported as of this date.

She began an unpaid leave of absence from OLG during which she was required to pay for 100% of the cost of the premiums for supplementary benefits. October 19, 2006 OLG refunded the plaintiff benefit premiums from July 16 – September 15, 2006. She had not paid the September premium so the refund was for July and August payments she had made. March 20, 2007 OLG wrote the plaintiff saying: “This letter is to advise you of the status of your benefits with Ontario Lottery & Gaming. Effective the date of this letter your benefits have been terminated as you have not provided regular premium payments.

Your benefit premiums are currently two months in arrears in the amount of $495.60. Please forward your payments via certified cheque or money order to Human Resources as soon as possible. We have received correspondence from Great West Life regarding your claim for on-going entitlement and note they continue to deny your claim for continued Long Term Disability benefits.” It appears that coverage was subsequently reinstated although there is an evidentiary gap about whether the plaintiff paid the arrears.

September 30, 2008 OLG advised the plaintiff in writing that she would not have health benefit coverage due to arrears accumulated effective October 1, 2008. The letter is reproduced in full below. October 1, 2008 OLG cancelled the plaintiff’s participation in supplementary benefits. Benefit premiums were $2,607.36 in arrears at that time. February 6, 2009 The plaintiff commenced an action against GWL with respect to the termination of her LTD benefits. December 9, 2010 The plaintiff settled her LTD benefits claim on a lump sum basis. A full and final release was executed.

Of the total sum paid, $122,700 was allocated to future disability benefits (excerpted below) .

January 6, 2011 Ryan Steiner, who was acting for the plaintiff, wrote to OLG’s Mr. Corbo confirming their conversation of that date, the settlement with GWL and saying: “I am hopeful that after reviewing this material, that OLG will reinstate Ms. Hogarth’s medical benefits and reimburse her for any premiums she has paid for this benefit since the MVA of March 16, 2004. If the medical benefits are not to be reinstated. I would appreciate an explanation why OLG feels Ms. Hogarth is not entitled to same.” OLG did not respond. January 31, 2011 The plaintiff’s claim for the cost of prescription was declined.

March 25, 2011 Mr. Steiner wrote to Mr. Corbo again asking for its position with respect to the reinstatement of the plaintiff’s supplementary benefits. He said: “You will recall that I sent you correspondence dated January 6, 2011 providing information demonstrating both that Ms. Hogarth suffered a catastrophic impairment in the MVA dated March 16, 2004, and that Great West Life has determined she has suffered a total disability from that date forward. I confirm that I spoke with you approximately two weeks ago and you advised that OLG has accepted Ms.

Hogarth’s disability for the purposes of a waiver of her premiums on medical and dental benefits from March 16, 2004 [the date of the MVA]. You also advised that you are attempting to contact Great West Life to determine the amount of premiums that need to be repaid to Ms. Hogarth. I require you to confirm your position in writing within ten days or I will have no option but to commence an action against OLG.” He concluded: “…I expect you to give this your full attention and resolve this matter within ten days or face legal action and cost and consequences arising therefrom.” OLG did not respond to this letter.

May 26, 2011 OLG terminated the plaintiff’s employment. In its letter of termination, OLG wrote: “All of the current medical documentation that has been supplied by you to our third party claim managers has indicated that you are unable to perform the essential duties of your position as a Dealer nor any other position that may become available at the OLG. Furthermore, you have also indicated to us that you can no longer return to work.

We also have noted that on December 9, 2010 you negotiated a full and final settlement with Great West Life regarding your disability claim.” On the same date, OLG made arrangements to pay the plaintiff $4,700 for benefit premiums said to be owing to her.

June 1, 2011 OLG paid the plaintiff $4,700.43 for premiums paid by her in 2006, 2007 and 2008. OLG calculated that total premiums payable for that period totalled $7,574.24. The figure paid represented reimbursement for what the plaintiff paid. June 6, 2011 Plaintiff’s claim for prescription denied. June 10, 2011 Mr. Steiner wrote to OLG confirming the plaintiff’s settlement with GWL and stating: “Ms. Hogarth disputed the denial of her long-term disability benefits.

Updated medical information was provided to Great West and their correspondence indicated an acknowledgement of total disability and the option was provided to reinstate the long term disability benefit or provide a lump sum payment. Ms. Hogarth elected to accept a lump sum payment and the matter of disability benefits was resolved. The issue now becomes Ms. Hogarth’s entitlement to her medical and dental benefits. OLG has acknowledged her total disability, as clearly indicated in your correspondence of May 26, 2011.

The policy clearly provides that coverage for medical and dental benefits is to continue after severance for total disability, but that the policy requires that medical and dental benefits are to continue.” September 24, 2012 Small Claims Court action commenced by the plaintiff against OLG (detailed below) . December 10, 2012 Statement of Defence filed by OLG. March 6, 2013 Small Claims Court action dismissed on consent. May 9, 2013 Notice of Action issued in this action.

The September 30, 2008 letter [ 12 ] Given its importance to the motion from OLG’s perspective, it is reproduced in full: Please be advised effective October 1, 2008 you will no longer have benefit coverage due to your benefit premium in arrears. As per the letter that was sent to your attention on September 11, 2008, your benefit payments continue to remain $2607.36 in arrears.

I spoke to you on September 12, 2008, and you indicated that you needed to speak to someone at corporate payroll before discussing this situation any further, as you were told earlier in the year that you are not require [sic] to pay for any of the prior balances. You were given the phone number and were advised to let me know the status as soon as possible as we needed to work out a payment plan. On September 19, 2008, I called you to follow-up on this situation.

At that point I advised you that if you did not start making payments toward your arrears, above your monthly benefit premiums, your benefits would be terminated. On September 29, 2008 we received a money order in the amount of $288.45. We appreciate your monthly payment; however, this does not cover any monies in arrears. OLG’s Policy states: During a leave without pay, employees have the option to maintain their benefit coverage or terminate coverage for the period of the leave. Maintaining coverage for long-term income protection (LTIP) is mandatory for all full-time employees.

For every full month of absence, employees are required to pay both the employee and the employer share of all benefit premiums. [Emphasis in original].

If you would like to discuss this situation further, please feel free to contact me. The Policy [ 13 ] The OLG benefits brochure describes the coverage provided for supplementary health, dental and life insurance benefits in almost identical terms.

In respect of supplementary health benefits, coverage ends on the earliest of: • the last day of the month in which the employee terminates employment for reasons other than total disability; • the last day of the month the employee is on an approved leave of absence without pay for over 30 days and does not pay the required premiums; or • the date the employee joins the armed forces of any country on a full-time basis. [ 14 ] The provision respecting the dental plan is the same except coverage ends on the day employment is terminated for reasons other than total disability, and the life insurance provision does not contain the third criterion noted above. [ 15 ] A copy of OLG’s Human Resources Manual and the GWL policy is found in OLG’s motion record (Tabs C and

D) but their provisions need not be reproduced here because the brochure accurately sets them out. The Release [ 16 ] The majority of the release is in the usual form.

The portions relevant to this motion are reproduced here: The undersigned hereby directs that payment shall be made to: Karl Arvai “in trust” And allocated as follows: a) $800 with respect to disability arrears; b) $122,700 with respect to future disability payments; c) $13,000 for legal fees, inclusive of HST & disbursements … And for the said consideration, the undersigned hereby agrees that it is a condition of this settlement that this settlement, all negotiations pertaining thereto, and the terms hereof are to remain confidential and the undersigned agrees not to disclose the negotiations pertaining to this settlement and the terms of this settlement to others, except as to her financial and legal advisors and/or as may be required by law.

The undersigned hereby acknowledges that she has instructed her legal counsel and any experts retained on her behalf to keep the negotiations pertaining to this settlement and the terms of this settlement confidential. The undersigned hereby understands that the terms of this settlement may be disclosed to her employer, OLG, for purposes of receiving medical benefits from said employer. [Emphasis added.] Small Claims Court Action [ 17 ] On September 24, 2012, the plaintiff commenced a Small Claims Court action against OLG seeking payment of $27,783.48.

This was said to be for reimbursement of payments she had made to OLG for 86 months for supplementary coverage, during the time she was entitled to or receiving long term disability benefits from. At para. 10 of the claim, she pleaded: 10. The Plaintiff only became aware of the fact that she was not obligated to make these payments in order to maintain her medical benefits at the time her employment was terminated for frustration in and around May 26, 2011. [ 18 ] In its statement of defence, OLG pleaded as follows: 21.

On October 1, 2008, OLG stopped providing the Plaintiff with benefit coverage because her benefit premium payments were $2,607.36 in arrears. 22. The Plaintiff did not make any benefit premium payments to OLG after her benefits were terminated on September 30, 2008, contrary to paragraphs 8 and 9 of the Plaintiff’s Statement of Claim.

23. OLG understands that the Plaintiff commenced an action against GWL in 2010 with respect to the termination of her LTIP [LTD] benefits. Specifically, the Plaintiff sought reinstatement of her LTIP benefits, presumably on the basis that the Plaintiff remained totally disabled. OLG was not a party to this action. 24. On or about January 6, 2011, the Plaintiff’s legal counsel informed OLG that the Plaintiff and GWL had reached a settlement on December 9, 2010.

GWL agreed to reinstate the Plaintiff’s LTIP benefits retroactive to September 16, 2006 and the Plaintiff accepted a lump sum payment in settlement of all past disability benefits with OLG. OLG was not involved in this settlement. 25. As a result of the settlement and retro-active reinstatement of the Plaintiff’s benefits, on June 1, 2011, OLG reimbursed the Plaintiff $4,700.43 representing the benefit premium payments the Plaintiff made to OLG since her motor vehicle accident on March 16, 2004. [Emphasis added.] 26.

The Plaintiff was re-enrolled in OLG’s LTIP plan and received LTIP benefits from the date of the settlement until her employment was terminated on May 26, 2011. The Plaintiff was not required to, and did not, make any benefit premium payments during this time. [ 19 ] It appears that the Small Claims Court action was dismissed on consent on March 6, 2013. The claim seems to have pleaded erroneously that the plaintiff had made premium payments throughout the time she was ultimately determined to be disabled. There is no evidence about why the claim was dismissed or on what basis, aside from the consent.

The Affidavit Evidence [ 20 ] The moving party relies on an affidavit in support sworn by Luciano Corbo, the human resources manager for OLG dated April 21, 2016. He deposed: 12. By letter dated September 30, 2008, OLG advised Ms. Hogarth that her participation in the supplementary benefits under its Group Benefits Policy would be cancelled effective October 1, 2008 because her benefit premium payments were $2,607.36 in arrears. 13. Since October 1, 2008, Ms.

Hogarth has not, at any time, been re-enrolled in the Group Benefits Policy and neither has she (nor any of the Plaintiffs) received coverage for the supplementary benefits. Additionally, Ms. Hogarth has not made any benefit premiums payments since that time. [ 21 ] He said that he did not respond to Mr. Steiner’s letters of January 6, 2011 or March 25, 2011. With respect to the conversations referred to in those letters, Mr. Corbo said: 19. Both the January 6, 2011 and the March 25, 2011 letters from Mr. Steiner make reference to conversations that he purportedly had with me prior to those letters being sent.

I do not have an independent recollection of these conversations. 20. However, at some point before the March 25, 2011 letter, I remember advising Mr. Steiner that OLG would reimburse Ms. Hogarth for benefit premiums that she had previously paid (i.e. from 2006 to 2008). I do not agree with Mr. Steiner’s assertion in the March 25, 2011 letter that OLG agreed to accept Ms. Hogarth’s disability “for the purposes of a waiver of her premiums on medical and dental benefits from March 16, 2004 forward”. I don’t understand what this sentence exactly means and would not have used such language in my conversation with Mr.

Steiner. 21. OLG subsequently (in or about May or June 2011) reimbursed Ms. Hogarth for the benefit premiums that she had previously paid between 2006 and 2008 in the amount of $4,700.43. This was in keeping with what I told Mr. Steiner. [ 22 ] Mr. Steiner swore an affidavit dated May 4, 2016 in response to the motion. He deposed: 13. On December 9, 2010, GWL accepted Ms. Hogarth’s disability and paid all past and future disability benefits… 14. On January 6, 2011, I sent a letter to Mr. Corbo confirming a conversation we had had earlier in the day. The letter clarified that GWL had accepted that Ms.

Hogarth was disabled and had been disabled since her accident on March 16, 2004. As such, GWL had paid Ms. Hogarth LTIP disability benefits retroactively from the date when they were wrongfully denied on September 15, 2006 and ongoing. As a result of Ms. Hogarth’s disability being continuous from March 16, 2004 onwards, she was entitled to have her

supplementary health and dental benefit premiums paid for by OLG. I requested that OLG reinstate Ms. Hogarth’s supplementary health and dental benefit coverage and repay Ms. Hogarth for all premiums which were wrongfully paid by her since her accident on March 16, 2004… 15. In or around the week of March 11, 2011, I contacted Mr. Corbo again to follow-up on the re-enrollment of Ms. Hogarth in OLG’s supplementary health and dental benefit policy. At that time, Mr. Corbo agreed to reinstate Ms.

Hogarth’s supplementary health and dental benefits coverage and to repay those premiums which had been wrongfully paid by Ms. Hogarth for that coverage since her accident on March 16, 2004. This agreement acknowledged that Ms. Hogarth had been disabled since March 16, 2004 and that OLG had wrongfully stopped coverage in connection with her supplementary health and dental benefit coverage. 16. On March 25, 2011, I sent a letter to Mr.

Corbo setting out the terms of our agreement earlier in March 2011 to repay premiums and reinstate benefit coverage and asking that he take the necessary steps in fulfilling that agreement. I asked that Mr. Corbo fulfill the agreement within 10 days, or face legal action… 17. On May 26, 2011, OLG wrote to Ms. Hogarth confirming that they accepted her total disability to continue to work and, as a result, were terminating her employment due to a frustration of contract… 18. On or around June 1, 2011, OLG forwarded a cheque to Ms.

Hogarth in the amount of $4,700.43 for the reimbursement of all premiums she had wrongfully paid to maintain her supplementary health and benefit coverage from March 16, 2004 to present. This payment was pursuant to the agreement between OLG and Ms. Hogarth in March 2011 to re-enroll Ms. Hogarth in OLG’s supplementary health and dental benefit coverage. 19. On June 10, 2011, I sent a letter to OLG advising them that supplementary health and dental coverage should be continued past the termination of employment date because Ms. Hogarth’s employment had been terminated due to her disability... 20.

Pursuant to my conversation with Mr. Corbo in March 2011, and the repayment of premiums on or around June 1, 2011, Ms. Hogarth had been re-enrolled in OLG’s supplementary health and dental benefit coverage, at least until OLG terminated Ms. Hogarth’s employment on May 26, 2011. Transcript Evidence [ 23 ] OLG submits that the plaintiff confirmed at her cross-examination that she knew that she no longer had supplementary benefit coverage as of October 1, 2008 and that those benefits were never reinstated.

She also said she knew she did not have supplementary benefit coverage as of the date of her settlement with GWL on December 9, 2010. [ 24 ] The relevant passages from her cross-examination are as follows: Q. 16-18 Q. So on or about September 30th, 2008, OLG sent you a letter located at tab F of your affidavit. Can you turn to that? So on that day OLG advises you that it had cancelled your supplementary health benefits effective October 1, correct – 2008? I should mention the year, October 1, 2008, right? A. Yes. Q. Okay, and at that point, you knew that you no longer had supplementary benefit coverage? A.

According to the letter, yes. Q. And you received the letter in and around that time, correct? A. I believe so.

… Q. 27 Q. You were never actually reinstated on long term disability benefits? A. I don’t recall. MS. KARIMI HENDRY: Mr. Stevenson, is that an issue in terms of confirmation that Ms. Hogarth is not reinstated on disability benefits? MR. STEVENSON: As I stated before, we don’t have any information to the contrary that it was a lump sum benefit, or a lump sum settlement for past and future long term disability benefits in December 2010. MS. KARIMI HENDRY: Okay. … Q. 29 Q. So at that time you settled the lawsuit with Great West Life, you knew that you did not have supplementary health coverage with OLG, right? A.

Correct. … Q.34 Q. But you knew you didn’t have coverage and then you were relying on your counsel to seek the reinstatement of that supplementary benefit coverage? A. Yes. [ 25 ] Mr. Corbo was examined for discovery on February 3, 2016. He testified: Q.214-217 Q. …So my first question sir is do you remember having a conversation with Mr. Steiner from my office sometime early March of 2011? A. I don’t recall. Q. Okay do you recall receiving this letter?

A. I don’t recall. Q. …MR. STEVENSON: Q. Do you remember having a discussion with him, with Mr. Steiner at any point about the reinstatement and the waiver of premiums on medical and dental benefits? A. No. … Q.272-274 Q. MR. STEVENSON: Q. You said that you’re making, you’re repaying premiums owing to her in the amount of $4700? A. Yes. Q. To your understanding why did you do that? A. It was to cover adjustments I believe in pensions, premiums, that’s my recollection. There was a period where she was entitled to it, there was a request made. Because she was entitled to it, we paid it out. Q.

I don’t notice anything in this fax and correct me if I’m wrong but I don’t see any reference in this letter to pension. The reference that I have here is to, for benefit premiums. A. Then that’s what it is, benefit premiums. … Q.278-279 Q. Then can you indicate to me what some of the reasons are why O.L.G. would make this kind of a payment? A. Fast and furied (ph) I guess.

I don’t you know, if it was an error, a mistake, a miscalculation, if she was entitled – basically if somebody’s entitled to a benefit, it was some kind of an entitlement obviously so obviously she didn’t get what she was entitled to, whatever that was. And it was brought to our attention and we paid it out. Q. Okay. A. So it could be, I don’t recall specific details. I don’t remember. MR.

STEVENSON: So Counsel it’s going to, I take it from your client’s evidence and the evidence that we’re gonna have to rely on going forward for your position is that your client has no knowledge as to why this premium amount was paid out? MS. HENDRY: Well…. A. It says premium benefit…. MS. HENDRY: Well Mr. Corbo has said that he doesn’t recall. If you’d like an undertaking for me to confirm one way or the other, I can take that? MR. STEVENSON: I would, yes. COURT REPORTER: Is that to confirm why benefit was paid or why this…

MS. HENDRY: Maybe Mr. Stevenson can…. MR. STEVENSON: Yes I can set out the undertaking sure. I’d like defence’s undertaking to provide me with their position on why a benefits premium in the amount of $4700 was paid to Ms. Hogath sometime after May 26 th , 2011. MS. HENDRY: Okay. MR. STEVEN: Thank you. [ 26 ] I pause here to note that Mr. Corbo’s evidence at discovery is different than what he deposed two months later in his April 21, 2016 affidavit at paras. 19 and 20. He seems to have a better recollection on the later occasion of what discussion he had with Mr.

Steiner prior to the March 25, 2011 letter. [ 27 ] Finally, Mr. Steiner was cross-examined on his affidavit. On the issue of his discussions with Mr. Corbo, he said: Q. 81-102 Q. So at that point, both you and Ms. Hogarth knew that she was not receiving supplementary health and dental benefits through OLG, correct? A. Yes. That’s why I was writing to Mr. Corbo to tell him that these, inform him of the reinstatement and this release and asking for, now, payment of the medical benefits. Q. Correct, but you’ll agree with me that Ms.

Hogarth was never reinstated on long term disability benefits under the terms of OLG’s plan? She was provided a lump sum payment in settlement? A. I don’t know that. I know that she got a lump sum payment in December on the release, and I know that in September they talked about reinstatement, but I can’t remember if between September and December if they had reinstated her, or not. MS. KARIMI HENDRY: Mr. Stevenson, is that an issue in dispute, or are we clear that she was not reinstated on long term disability benefits during that time? MR.

STEVENSON: I don’t believe we have any information that she was reinstated during that time. MS. KARIMI HENDRY: Q. So Mr. Steiner, you knew that she wasn’t receiving supplementary health benefits and that’s why you were sending this letter to Mr. Corbo to seek reinstatement, correct? A. Yes, and that’s why we added this in the release because we were going to be pursuing that from OLG. Q. Right. And you never received a response from this letter, this January 6th letter that you sent to Mr. Corbo, correct? A. A written response? Q. Any response. A. Yes, I had a conversation with Mr.

Corbo on the phone in March talking about it, but I don’t believe, I have no recollection of any written material and I don’t see any in the file. Q. Did you call him, or did he call you? A. I can’t recall, but I would believe that I would have called him because my best recollection is that I tried to call him to discuss… Q. But he didn’t respond to your… A. …this issue. Q. Sorry. A. Go ahead.

Q. Finish your sentence. A. I’m done. Q. Right, so he didn’t actually respond to your letter, you followed up? A. I can’t recall. That’s just my guess is that I followed up. I could be wrong. Q. Okay, so paragraph 15 of your affidavit… A. Yes. Q. …so here I believe you were, so in the first sentence you said in or around the week of March 11, I contacted Mr. Corbo again to follow up on the re-enrolment of Ms. Hogarth. So is it fair to say that you called him?

Was there something else that we don’t have in your materials that would suggest that what you’ve written here in your affidavit is correct as opposed to what your recollection is right now? A. No. I’m just trying to give you as accurate information as I can. Q. Sure. A. I cannot confirm that I called him. Basically what would have happened is Mr. Stevenson would have provided me with this letter of March 25th, 2011 when we were talking about the affidavit, where I talk about speaking with Mr. Corbo and I recall having that conversation with Mr.

Corbo, although not the details, some five years after, but I can’t tell you whether I called him, or he called me. Q. So you said you remember having a call with him, but you don’t remember the details, so… A. Yes. Q. …do you actually have an independent memory of that call, or is your memory being informed by that letter that you sent? A. No. I remember speaking with Mr.

Corbo and having a discussion with him about how OLG was going to handle supplementary health and dental benefits and then I specifically recall that he was not responding after that conversation because that’s the type of thing that bothered me at the time. Q. So when you say you remember him and you discussing how OLG was going to handle supplementary benefits, what do you mean by that? A.

I know that we talked about that we were requesting repayment and that my recollection is that he indicated that they were going to repay the benefits and then that’s why I wrote the following letter to ask him to confirm that information in writing. Q. Okay. A. I can’t… Q. So… A. I can’t remember, you know, what we said, words in that conversation. Q. Fair enough, that was a long time ago. A. Yes, but the gist of the conversation I do remember that.

Q. Okay, so you were requesting repayment of the benefit premiums and he indicated that they would be repaid? A. That’s my recollection, yes. Q. And in fact, that OLG did end up repaying it? A. Yes, but we didn’t just talk about that. We talked about payment on an ongoing basis as well and they did not do that. Q. Okay, why would your client – that’s fine. So Mr. Corbo, I appreciate you haven’t reviewed his affidavit and if you’d like, you can take a minute and we could go off the record for you to review it, but it’s Mr.

Corbo’s evidence that he never –well, he did tell you that the benefit premiums would be repaid, there was never any suggestion that supplementary benefit coverage would be reinstated. Are you disagreeing with Mr. Corbo’s evidence? A. Yes. My recollection is different. … Q.111 Q. Since Mr. Corbo denies ever agreeing to reinstate that supplementary benefit coverage for Ms. Hogarth based on the plain language or the plain reading of this letter, is it possible that Mr. Corbo only agreed to repay the benefit premiums that Ms.

Hogarth paid and that maybe you interpreted that as some kind of agreement for reinstatement of benefits? A. I don’t believe so. The Parties’ Positions [ 28 ] OLG submits that effective October 1, 2008, it cancelled the plaintiff’s supplementary health benefit coverage because she did not pay the premiums during her “leave of absence”. It says benefits were never reinstated and the plaintiff knew that she did not have coverage after that date. Her claim is out of time, it is said. [ 29 ] The plaintiff submits that the analysis is not nearly so neat.

She says there is genuine issue requiring a trial on discoverability of her cause of action or alternatively, the court can rule on the issue in her favour, even in the absence of a cross motion. [ 30 ] The plaintiff points to the first period during which GWL terminated her LTD benefits but later reinstated them, thereby acknowledging her total disability during that time. It then resolved her lawsuit for disability benefits after September 15, 2006, by paying her past and future benefits in a lump sum.

Consequently, OLG became obliged to reimburse the premiums (or the portions) she had paid during the time she was disabled. She says she was entitled to retroactive supplementary health benefits during the times she was acknowledged by GWL to be disabled and receiving LTD payments. Finally, she says she was disabled at the time she was terminated, entitling her to supplementary health benefits into the future. The Law [ 31 ] I do not propose to reproduce the text of Rule 20 and the jurisprudence on

summary judgment since the 2010 amendment to the Rule. Suffice it to say that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 32 ] Even if there is a genuine issue, the court is given expanded powers to weigh evidence and assess credibility in appropriate circumstances. The Issues and Disposition [ 33 ] As I see it, the factual and legal issues include: 1. (

a) Can OLG take the position that supplementary benefits were cancelled as of October 2008 for non-payment of premiums – when it was subsequently established that the plaintiff was not obliged to have paid premiums at all, because she was disabled throughout the time as evidenced by the resolution with GWL? In other words, was OLG obliged to pay 100 percent of premiums during the period of her disability that was ultimately acknowledged by GWL by virtue of the settlement concluded?

(

b) Is it significant that OLG appears to have relied on GWL’s position on disability when it determined responsibility for premiums? (

c) What is the legal effect of OLG’s refund of premiums paid by the plaintiff from 2006-2008 and reinstating her coverage for that period? Is it an acknowledgement that she was disabled and it ought to have paid the premiums thereby ensuring her coverage? 2. (

a) How does one reconcile the evidentiary conflict between the evidence of Mr. Steiner and Mr. Corbo, and the documentary record? (

b) What is the significance of OLG’s failure to respond to Mr. Steiner’s letters? 3. (

a) Was OLG obliged to give clear and unequivocal notice to the plaintiff of the cancellation of her supplementary benefits? (

b) Was the letter of September 30, 2008 such notice? (

c) Has the plaintiff admitted the legal effect of the notice? A reading of the relevant passages from her cross-examination is arguably more nuanced than OLG suggests particularly when considered with all of the facts. (

d) How is the letter reconciled with the pattern of dealings between OLG and the plaintiff prior to 2008, when coverage was reinstated? As already noted, there appears to be an evidentiary gap on this issue. 4. (

a) What is the effect of the commencement of the Small Claims Court action? (

b) What is the effect of the apparent admission by OLG at paras. 24 and 25 of its statement of defence to the Small Claims Court action? 5. Have the parties acted in good faith consistent with the principles enunciated in Bhasin v. Hrynew , 2014 SCC 71 ? 6. What is the relevant limitation period? The fact that the plaintiff said at her cross-examination that she knew her benefits were cancelled by OLG as of October 2008 is not necessarily determinative, in view of the circumstances outlined above. [ 34 ] It should be apparent that, given the number of issues I have identified,

summary judgment is not appropriate. Most of the enumerated issues were not the subject of argument, orally or in the facta. Simply put, I do not have the confidence that a just result can be achieved through

summary judgment, even with the use of the expanded powers conferred by Rule 20. [ 35 ] The motion is dismissed. [ 36 ] If the parties cannot agree, I will receive written submissions on costs by February 28, 2017. “Justice H. A. Rady” Justice H. A. Rady Released: January 24, 2017