Limitation period to be debated at trial

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Limitation period to be debated at trial

Canadian Underwriter - Toronto,ON,Canada*

http://www.canadianunderwriter.ca/issues/ISArticle.asp?

id=82292 & issue=04012008

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 .

The case involves property damage caused by mould. The appellant,

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.

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.