Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A r C h 2 0 1 5 7 t he question whether the Nova Scotia judiciary will accept the concept of rolling limitations is still up in the air, but two deci- sions from the Supreme Court of Nova Scotia do clarify when a disability insur- ance policy will be interpreted to not have a rolling limitation. While the limitation period will always depend on the specific language of the policy, "where a policy defines the limita- tion period with reference to a defined date, which does not recur every month, it, therefore, does not create a rolling limita- tion period," notes Michelle Chai, an asso- ciate with Stewart McKelvey in Halifax. In Thornton v. RBC General Insurance Co., the first of the two N.S. Supreme Court cases, Justice Michael Wood acknowledged the uncertainty that surrounds rolling limi- tation in Nova Scotia. "The issue of wheth- er there is a rolling limitation for periodic payments has not been decided in Nova Scotia, although the question has arisen in the context of a summary judgment motion," he stated in his 20-page decision. In the case before the court, the plain- tiff had been injured in a motor vehicle accident more than a decade earlier and was now seeking benefits from his Section B insurer as well as long-term disability benefits through his employer, Volvo Canada Ltd. The court found no rolling limitation was created by the language of the disability policy. While the policy was clear that claims must begin within three years from a defined date that does not reoccur every month, the policy was not clear about what happens if there are ongoing discussions with an insured con- cerning the sufficiency of medical infor- mation or if benefits are paid for a period of time and then terminated. "I believe this ambiguity should be interpreted against the defendant and I would take the approach of the British Columbia Court of Appeal . . . and find that the limitation period does not begin to run until there is a clear and unambiguous denial of benefits," said Wood. In Thompson v. RBC Life Insurance Co., the court concurred with Thornton and determined the clock doesn't run from the time when the cause of action arose but from the time the proof of claim is required. "When there are ongoing discus- sions with an insured about the sufficiency of medical information or if benefits are paid for a time then terminated, the ambi- guity should be interpreted against the insurance company," wrote Justice Jamie Campbell. "It is difficult to know the date when proof of claim is required when discussions are ongoing," he added. "The ambiguity is resolved to the benefit of the insured by the determination that the time begins to run only when there has been a clear and unequivocal denial of benefits. Insurance companies can't claim the advantage of confusion about when time begins to run." As a result of these cases, notes Stew- art McKelvey partner Patricia Mitchell, "lawyers and clients will need to carefully review the language of the denial letters and the policy in order to determine when a limitation period begins. In order to trig- ger the limitation period for such policies, the insurer must clearly and unequivo- cally deny benefits to the insured," she adds. "Finally, a review of the limitations language in policies may be necessary to ensure it is understandable and a defined date is calculable." — donalee MoUlTon donalee@quantumcommunications.ca \ At L A N t I C \ C E N t r A L \ W E s t rEgIoNAL WrAp-up At L A N t I C Rolling limitations addressed by NSSC Two new TYPeS of eMPloYee leaVe In new BRUnSwICK N ew Brunswick's Employment Standards Act now allows for two new types of leave for employees with children: critical illness leave, and death or disappearance leave. The former provides for time with seriously ill children, and the latter when children die or are missing, most likely the result of a criminal activity. Employers, and that includes law firms, would be wise to familiarize themselves with the new types of leave and the criteria an employee must satisfy in order to qualify, says Ryan Seymour, an associate with Cox & Palmer in Fredericton. "If employers have employee policy handbooks or guides outlining the differ- ent types of leaves an employee may take, these should be added. All parties should be clear on what the new leaves provide for." Seymour doesn't anticipate numerous requests for the new types of leave. "The criteria an employee must satisfy in order to be eligible for each leave is quite specific," he notes. In the case of a critical illness, an employee is entitled to as much as 37 weeks unpaid leave to care for an ill child under 18 years of age. A doctor's certificate, the anticipated start and end dates, and notice of intention to take the leave must all be provided. In situations where both parents work for the same employer, the leave can be split if desired. The second new type of leave also grants an employee up to 37 weeks of unpaid time off when a child under 18 years of age dies or disappears as the probable result of a crime. If the employee is charged with involvement in that crime, there is no entitlement to the leave, however. As with the critical illness leave, employees are entitled to return to their former position or an equivalently paid position. Unlike critical illness leave, however, parents who work for the same employer are both entitled to take the full 37 weeks. New Brunswick's amendments are not unique in Atlantic Canada. Both Newfoundland and Labrador, and Nova Scotia allow for similar types of leave. — dM

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