Between
Richard Thurston La Prairie, plaintiff (appellant), and
Royal Trust Corporation of Canada, defendant
(respondent)
[2005] O.J. No. 2587
Court File No. 7704
Ontario Superior Court of Justice
Divisional Court - Toronto, Ontario
J.R.R. Jennings J.
June 14, 2005.
(6 paras.)
Counsel:
Mr. Sabsay for the appellant
Ms. Raso for the respondent
¶ 1 J.R.R. JENNINGS J. (endorsement):- Counsel advise that the findings of fact made by the trial judge are not an issue. The sole issue on this appeal is whether she was correct in determining that the limitation period ran from the time the respondent notified the appellant of changes it had made to its dental insurance coverage, as is to be implied from her finding that the contract was then breached.
¶ 2 The contract between the parties was the letter of August 20, 1981 . It provided that the respondent would provide dental insurance at a level then existing.
¶ 3 In my opinion, the advice given by the respondent to the appellant 5 years later was at most an anticipatory breach of the contract between them. The appellant in writing clearly refused to accept the proposed change, notwithstanding that to avoid being left with no coverage, he enrolled in the new plan. The actual breach which gave rise to his cause of action occurred in 2003, when the respondent refused to pay for the appellant's dental work. That being so, his claim is not statute-bound, and in finding otherwise, the trial judge erred.
¶ 4 The appeal is allowed. Judgment for the appellant may issue in the amount found by the trial judge which she would have awarded but for the limitation period defence. The appellant is entitled to pre-judgment interest at the applicable rate from the date of his claim.
¶ 5 Costs of the trial and of the appeal to the appellant on a partial indemnity basis.
¶ 6 If the parties cannot agree on quantum, the appellant may make written submissions within 10 days, and the respondent within 10 days thereafter. I should add that the scale of costs of the trial must reflect that the appellant appeared in person.
J.R.R. JENNINGS J.
