April 1, 2008 by Canadian Underwriter
The retroactive application of the Limitations Act does constitute a genuine issue for trial, according to the Ontario Court of Appeal.
In Camilli v. Guardian Insurance, a three-judge panel agreed to set aside a Superior Court summary judgement issued in favour of an insurer by Justice Jack Jenkins.
The case involves property damage caused by mould. The appellant, Nancy Camilli, first discovered the mould in 1997. She sued in 2003.
The Limitations Act came into force on Jan. 1, 2004, and so it has no application in this case, said the panel. “Therefore if the limitation period is the former period of six years, there is a genuine issue for trial as to whether the claim was brought within that period,” the panel wrote in its endorsement.
Jenkins found the applicable limitation period is one year, based on a statutory condition in the plaintiff’s home insurance policy.
But the Court of Appeal observed Camilli said she had no knowledge of the one-year limitation period contained in the insurance policy, because she never received the policy. She said she received only a summary sheet.
“In our view, the question of whether the appellant received the policy, and if not, whether in the circumstances she is bound nevertheless by the one-year limitation in Condition 14, are also genuine issues for trial,” wrote the panel.