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[2] I would dismiss the appeal. Under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the limitation period began to run when the claim was “discovered”, as determined by s. 5. The insurer’s duty of good faith did not require it to give notice of the limitation period to its insured. While the legislatures of some provinces have imposed a statutory obligation to that effect, there is no such requirement in Ontario. Whether there should be is a matter I would leave to the legislature.
[44] There is no statutory provision in this case similar to that considered by the Supreme Court in Smith v. Co-operators. Further, as Gonthier J. cautioned in Smith v. Co-operators, “it is not the role of this Court to set out the specific content of insurance refusal forms. This task is better left to the legislature” (at para. 14).
[45] The Ontario legislature might have gone further than it has, for example, by adopting the approach taken in Alberta or British Columbia. It presumably chose not to do so and, in my respectful view, the court should not impose consumer protection measures on insurers, outside the terms of their policies, that the legislature has not seen fit to require. A properly crafted regime, such as those in effect in Alberta and British Columbia, would not only have to specify the requirement to give notice, but also the consequences of failing to do so.
[46] The consequences of the appellant’s proposed expansion of the duty of good faith are significant. The appellant’s interpretation would effectively judicially overrule the provisions of the Limitations Act, 2002 by making notice given by an insurer to an insured the trigger for the limitation period, rather than discoverability of the underlying claim. This would defeat the purpose of the statute and bring ambiguity, rather than clarity, to the process.
E. CONCLUSION AND ORDER
[47] For these reasons, I would dismiss the appeal with costs to the respondent in the amount of $15,000, inclusive of disbursements and all applicable taxes.
Released: “G.R.S.” May 18, 2017