master robertson

7.3: Summary Judgment (Application and decision)

Case Summary

Master Robertson considered whether or not a new Regulation which required insurers to advise claimants of a pending limitation date applied to claims that were under discussion before the Regulation came into force. Master Robertson also considered the issue of whether the limitation period is waived or suspended while parties negotiate a possible resolution. The motor vehicle accident occurred in March 2011, and the Plaintiff and representatives of the insurer had their first contact in May 2011. In June 2013, a representative of the insurance company told the Plaintiff that the limitation had run and unless he had a Statement of Claim “processed”, the insurer could not deal with the Claim. The Plaintiff sought legal counsel and eventually filed the Statement of Claim well past two years after the motor vehicle accident. The Defendant’s insurance company argued that the Plaintiff was out of time. In reply, the Plaintiff relied on section 5.3 of the Fair Practices Regulation, AR 128/2001 and the doctrine of promissory estoppel.

Master Robertson, following the principles set forth in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108, noted that in Summary Judgment Applications each party is required to put their best foot forward. There was no evidence to infer an intention by the insurer to waive or suspend the limitation period, and nothing in the nature of a promise or assurance upon which the Plaintiff relied. The Plaintiff simply assumed that his case would be settled. Further, the Fair Practice Regulation was not in force when the Plaintiff first advanced his Claim to the insurer so it did not apply to the Plaintiff’s claim. In the result, Master Robertson dismissed the Action.

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