COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

St. Pierre v. Chriscan Enterprises
  Ltd.,

2010 BCCA 78

Date: 20100128

Docket:
CA037703

Between:

Ernie
and Marilyn St. Pierre

Appellants

(Plaintiffs)

And

Chriscan
Enterprises Ltd. and Len Suchocki

Respondents

(Defendants)

Before:

The Honourable Mr. Justice K. Smith

(In Chambers)

On
appeal from: Supreme Court of British Columbia, November 20, 2009
(
St. Pierre v. Chriscan Enterprises Ltd.
, Kelowna Registry 84835)

Oral Reasons for Judgment

Counsel for the Appellant:

A.
  C. Kempf

Counsel for the Respondent:

D.P.
  Church, Q.C.

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  28, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  28, 2010

[1]

K. SMITH J.A.
:
This is an application for leave to appeal from a judgment staying an action
brought in the Supreme Court in favour of an arbitration pursuant to an
arbitration clause in a building contract.

[2]

The appellants were the owners of some property.
They hired the respondents as project manager to build them a house on what is
essentially a cost plus contract for a fee calculated as a percentage of the
ultimate cost. After the contract had been completed, the appellants discovered
that one of the contracts let by the respondents for a major part of the
construction was to a company in which the respondent Mr. Suchocki was a
principal. The appellants had not been aware of that. They commenced action in
the Supreme Court alleging that this constituted a breach of fiduciary duty as
a result of which the respondents received secret profits.

[3]

The question of the merits of those allegations
is immaterial on this application. The question here is whether there is any
merit in the appellants submission that the chambers judge erred in granting a
stay of proceedings in favour of arbitration. The arbitration clause in
question provided:

In the event of
any disagreement between the parties hereto as to the interpretation of this
contract... such dispute shall be referred to a single arbitrator and settled
pursuant to the terms of the
Commercial Arbitration Act
of British
Columbia...

The clause also referred to disputes as to
the quality of materials and construction arranged by the respondent and to deficiencies,
which are also matters of dispute between the parties but do not bear directly
on the question that I have to determine here.

[4]

The chambers judge decided that whether there
was a fiduciary relationship between the parties in these circumstances that gave
rise to a right to damages based on secret profits depended on an
interpretation of the contract and that it was therefore within the terms of
the arbitration clause and could not be pursued in the trial court. He relied
heavily on a decision of the trial court in
James v. Thow
, 2005 BCSC
809, [2005] B.C.W.L.D. 4918, which considered an arbitration clause that
differed somewhat from the one in question. The arbitration clause considered
in
James v. Thow
provided, so far as it is relevant:

If at any time
any dispute, difference or question shall arise concerning the interpretation
of this Agreement or the rights or liabilities of the General Partner or the
Limited Partners... such dispute, difference or question shall be referred to a
single arbitrator

[5]

The allegations in that case were of fraud and
other similar allegations, and it was held, as I understand the decision in
James
v. Thow,
that they were within the phrase the rights or liabilities of the
General Partner or the Limited Partners in the arbitration clause and therefore
were required to be submitted to arbitration.

[6]

The chambers judge in this case considered that
it was on all fours with
James v. Thow
even though it did not contain
the reference to arbitration of rights and liabilities of the parties to the
contract.

[7]

Mr. Church, in his very thorough submission,
argued that makes no difference because the real question is whether the
contract must be examined and interpreted in order to determine what the
relationship was between the parties for purposes of establishing whether there
was a relationship that would give a right to damages for taking secret
profits. He says that is clear in this case, that without looking at what his
client promised to do under the contract, it is not possible to determine what
the relationship was so as to provide a foundation for the appellants claim,
and that since one must look to the contract for those things it is
self-evident that it is a matter of interpretation of the contract and that it
must go to arbitration.

[8]

Mr. Kempf responds that there is no dispute
about the interpretation of the contract in this case, that it is clear on its
face what the relationship was. He makes the point that if an allegation of
fiduciary duty and secret profit must go to arbitration on a clause such as
this, then even allegations of theft or fraud in contractual situations would
be required to go to arbitration on that wording.

[9]

The test for merits on an application for leave
to appeal is not a high one. I do not have to be satisfied that the appellants
will succeed if the matter goes to appeal, but only that there is an arguable
case. The authority on which Mr. Church primarily relies is a decision of the
trial court in our province, and I have no reason to question the correctness
of the decision, but there has been no appellate pronouncement on this question
in this province and it is an issue that I think may attract the interest of a
division of this Court.

[10]

Taking all of those matters into account, I am
satisfied that the low threshold standard has been met and that the other
criteria that I must take into account on an application for leave to appeal
are satisfied.

[11]

Leave to appeal is granted.

The Honourable Mr. Justice K. Smith


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. MacDuff
,

2011 BCCA 2

Date: 20110106

Docket: CA036919

Between:

Regina

Respondent

And

John William
MacDuff

Appellant

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice Bennett

On appeal from:
Provincial Court of British Columbia,
(
R. v. MacDuff
, Kelowna Docket 63050)

Counsel for the Appellant:

N. Cobb

Counsel for the Respondent:

P. Eccles

Place and Date of Hearing:

Vancouver, British
  Columbia

September 29, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2011

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

John MacDuff was convicted in the Provincial Court of production of
marihuana contrary to s. 7(1) of the
Controlled Drugs and Substances Act
(
CDSA
), possession of marihuana for the purpose of trafficking,
contrary to s. 5(2) of the
CDSA,
and theft of electricity, contrary to
s. 326(1)(a) of the
Criminal Code.

[2]

The police executed a search warrant at Mr. MacDuffs residence which
was issued for theft of electricity.  They found a sophisticated, multiple room
grow operation in the basement.  There were 1,619 marihuana plants in two
stages of production.  The plants were valued between $94,000 - $141,000 per
crop.  The operation was capable of producing several crops per year.

[3]

The police also found a hydro bypass which was how the theft of
electricity was committed.

[4]

The trial judge quashed the search warrant, but admitted the evidence
pursuant to s. 24(2) of the
Charter of Rights and Freedoms
(the
Charter
).
Mr. MacDuff appeals the decision to admit the evidence pursuant to s. 24(2) of
the
Charter.

Overview

[5]

On January 4, 2006, two employees of FortisBC Inc. (Fortis) conducted
a service check at premises in Kelowna.  The check revealed that electricity
was being stolen by the occupant.  They conducted a test that lasted 6.2 seconds
and disclosed that 19,225 watts of electricity was stolen during that brief
time.  They submitted a report to the RCMP which stated the amount of wattage
which they believed was being stolen.

[6]

Constable Bellamy of the Kelowna RCMP applied for a telewarrant to
search the premises on the basis of the theft report from Fortis as well as
other investigations he conducted.  The Information to Obtain the warrant (ITO)
stated that Constable Bellamy was applying for a telewarrant because it is
impracticable for the Informant to appear personally because: There are no
JJPs available at the local courthouse today, or any time this week.

[7]

At trial the evidence of the impracticability of appearing in person was
amplified by Constable Bellamy.  He testified that he called the Kelowna Courthouse
prior to commencing the paperwork for the warrant to see if there was a JJP
(Judicial Justice of the Peace) available.  He was told, as he wrote in the
ITO, that there were none available that day nor would there be any available
for the rest of the week.  Constable Bellamy was asked if he inquired about the
availability of a judge to hear the warrant.  He replied that he did not.  He
said:

A          Ive been advised
that the procedure is to contact the courthouse for a local JJP.  If they are
not available, then we are to contact the JJP centre because they are to screen
the
Criminal Code
warrants and
CDSA
warrants so that the judges
are not inundated during the day.  They have more important things to do than
just the warrant applications.

[8]

Constable Bellamy did not say who advised him that judges were not
available.  He did not refer to the practice directive of the Chief Provincial
Court Judge issued on March 4, 2005 which states that [u]nder no circumstances
may a search warrant application be referred to a judge by a judicial
administrative assistant or a court registry without the approval of the
applicable Administrative Judge.  The Crown did not refer to the practice
directive and it was not before the judge who heard the trial.

[9]

The trial judge set aside the telewarrant on the following basis:

[12]      Section 487.1(4) provides
that the officer must include a statement of the circumstances that make it
impracticable for the peace officer to appear personally before a justice.
Cst. Bellamy failed to do this.

However, the trial judge admitted the evidence pursuant to
s. 24(2) of the
Charter
.

Issues on Appeal

[10]

Mr. MacDuff submits that the trial judge erred in admitting the evidence
pursuant to s. 24(2).  He submits that the decision was made prior to the
decisions of the Supreme Court in
R. v. Grant
, 2009 SCC 32

and
R.
v Harrison
, 2009 SCC 34.  He submits that under the revised analysis, the
evidence must be excluded.

[11]

The Crown takes the position that the trial judge erred when he quashed
the warrant and that there was no breach of the
Charter
.  The Crown also
submits that if the trial judge was correct in his decision to quash the
warrant, he was correct in his conclusion that the evidence obtained as a
result of the search was admissible under s. 24(2).

Quashing the search warrant

[12]

The Crown submits that the trial judge erred in quashing the search
warrant by finding that Constable Bellamy had to inquire whether any judges
were available to hear the application before he applied for a telewarrant.
The Crown submits that Constable Bellamy referred indirectly to the practice
directive when he stated that it was his understanding that judges would not
hear these applications.

[13]

The Crown at trial did not put the practice directive before the judge
nor was Constable Bellamy asked about the source of his knowledge regarding
judges being unavailable for search warrants.

[14]

Despite finding a breach of s. 8 in the obtaining of the warrant, the
trial judge admitted the evidence based on s. 24(2).  As I would not interfere
with his decision to admit the evidence, I find it unnecessary to address the
issue of whether he was correct in his decision regarding the breach of s. 8

[15]

However, because the seriousness of the breach is something which must
be considered in a s. 24(2) analysis, I would make the following observations
regarding the practice directive.

[16]

The practice directives as issued by the Chief Judge of the Provincial Court
have been referred to in several judgments.  Although there have been several
practice directives issued since 2002, I reproduce below the directive which
was in force at the time Constable Bellamy applied for the telewarrant.  The
directive was provided to the court without objection.  It is also set out in
the reasons of Humphries J. in
R. v. Passon
,

2009 BCSC 192:

Directive of March 4,
2005

Practice Direction

Pursuant to Section 11 of the Provincial Court Act

Daytime Search Warrant Applications

This Practice Direction confirms and clarifies the
information contained in a
Practice Note dated June 6, 2003
sent to the
Provincial Judiciary, and a memorandum of the same date sent to police
agencies, Administrative Judges, the Ministry of the Attorney General,
Department of Justice, and Court Services Branch.  Copies of these
documents may be obtained from the office of the Chief Judge.

Pursuant to section 11 of the Provincial Court Act, search
warrant applications made during court sitting hours (daytime search
warrants), other than applications that are required by the relevant statutory
provisions to be heard by a judge (judge warrants), are assigned to be heard
in person by available judicial justices of the peace (JJPs), at the Justice
Centre in Burnaby and in all court locations in which JJPs are normally
resident or regularly preside in traffic court.  This does not include
circuit courts where there is no registry.

Police agencies within a reasonable distance of a location
where there is or may be a JJP presiding are instructed that when they
contemplate applying for a daytime search warrant, before they prepare the
paperwork, they are required to telephone the judicial administrative assistant
or court registry in the relevant location to inquire whether a JJP is
available to hear the application in person.

JJPs are considered to be available to hear applications in
person when court is not sitting during scheduled court sitting hours, but
not
during scheduled breaks or lunch adjournments, when presiding in court, or
outside sitting hours.
Judges are not assigned to hear
any
daytime
search warrant applications other than judge warrants.  Under no
circumstances may a search warrant application be referred to a judge by a
judicial administrative assistant or a court registry without the approval of
the applicable Administrative Judge.  Judge warrants must be referred to
the Justice Centre or the Administrative Judge in the applicable district.

If a JJP is not available to hear a daytime search warrant
application in person, either because there is no JJP in or near the location
or because inquiry has been made and no JJP is available, and the application
is one that may be made by telewarrant, application may be made to the Justice
Centre at the number below.  The application must set out the reasons that
it cannot be heard in person.

In rare cases, a daytime search warrant application must
be heard in person by a judge for specific reasons of sensitivity or
security.  Requests for a judge to be assigned to the specific application
must be made through the Office of the Chief Judge or the Justice Centre at the
numbers shown below.

Office of the chief Judge (604)
660-2864     Justice Centre (604) 660-3263

Carol Baird Ellan, Chief Judge

March 4, 2005

[Emphasis added.]

[17]

As can be seen above, Constable Bellamy complied with the directive;
however, it is unfortunate that the directive was not placed before the trial
judge.  Issues relating to the directive itself are not on appeal and the
reference to the directive should not be read beyond the scope of these
reasons.

Admission of the evidence

[18]

The trial judge gave two sets of reasons in relation to the s. 24(2)
issue.  In his first set of reasons, he stated that there was no evidence that
the police officer had received training in the preparation of an ITO, nor was
there evidence that he was supervised by a more experienced officer.  He also
found that the police officer did not intentionally try to avoid the
requirements of the telewarrant provisions.  As a result, he did not find that
there was bad faith by the police officer.

[19]

The trial judge added other comments in relation to the reputation of
the administration of justice.  He said:

[43]      In a similar vein, an unfulfilled pre-condition to
a telewarrant was a defect that should have been obvious to the justice.  The
consideration and granting of the warrant implies that the justice did not know
the pre-conditions to considering a telewarrant or was not paying attention to
what he or she was doing.

[44]      This incompetence is
inconsistent with the reputation of the administration of justice.  It allows
searches where searches are not justified and opens the door for successful
defences for reasons apart from the merits of the case.

[20]

In my respectful opinion, the JJP would have been well aware of the
directive of the Chief Provincial Court Judge.  I appreciate that the trial
judge was not provided with that directive; however, in the face of the reality
of the situation, there was nothing incompetent about the actions of the JJP.
The Chief Judge had given express directions that JJPs were to hear all day time
search warrant applications unless there was a special and overriding reason
why a judge had to hear the application.  While the directive was before this
Court, it was not introduced as fresh evidence.  Therefore, I am considering
the appeal on the basis of the findings of fact made by the trial judge.

[21]

The trial judge concluded, in his first set of reasons, that the
Collins
factors had been met (see
R. v. Collins
, [1987] 1 S.C.R. 265).  The
offence was serious, the evidence was real evidence and the breach of the
Charter
was unintentional and not serious.  He admitted the evidence.

[22]

This ruling was given on November 19, 2007.  The trial judge permitted
the application to be re-opened for further argument which was heard on August
22, 2008.  On September 18, 2008, the trial judge again dismissed the
application to exclude evidence but provided more reasons.  The basis for
re-opening the motion, which was consented to by the Crown, was that the trial
judge had overlooked or misstated some evidence in his original ruling.  In
particular he overlooked the evidence that an officer senior in rank to
Constable Bellamy did review the ITO before it was submitted to a JJP and that the
trial judge failed to take into consideration Constable Bellamys considerable
experience with the RCMP.

[23]

The trial judge concluded that the two investigators for Fortis misled
Constable Bellamy by:

i)        failing
to comply with company policy that two tests should be taken before determining
that electricity was stolen;

ii)        overstating the amount
of missing electricity;

iii)       failing
to advise that the missing electricity was worth less than a cent; and

iv)       failing
to advise that there could be non-criminal explanations for the discrepancy.

[24]

In his second set of reasons, the trial judge made several gratuitous statements.
He stated that Constable Bellamy should have treated the two investigators for
Fortis as informants of an unknown reliability.  However, had Constable
Bellamy said this in the ITO, he would have misled the JJP.  He had known one
of the investigators for over 20 years and knew of the second investigator, as
both were retired RCMP officers.  In my respectful view, the trial judges statement
that the investigators were of unknown reliability was an error in favour of
Mr. MacDuff.

[25]

Next, he stated that the informants (referring to the Fortis investigators),
claimed not to have known that their alleged theft was for less than a
penny.  He further said:

[12]      ... Their excuse for
exaggerating the amount of missing electricity was that Fortis commonly dealt
with electricity in terms of kilowatt hours.  The Informants were hired
specifically to investigate electricity thefts.  I do not accept that they did
not know the value of the very thing they were hired to investigate.

[26]

I have read the transcript of the trial.  Neither investigator said that
they did not know that their alleged theft was for less than a penny.  One
investigator agreed with defence counsel that it would be a fraction of a cent
and the other investigator agreed with defence counsel that it would have been
around $1.50.  What the investigators did not do was state in their report that
the measurement relied on to demonstrate that electricity was being stolen was
only 6.2 seconds long.  This evidence was sufficient to give grounds to believe
that there was a bypass, which is what the search warrant was issued for.  The small
value of the 19,225 watts stolen during the 6.2 second measurement period was
irrelevant because with a bypass, the theft is on-going.

[27]

The next statement is that [t]he Informants gave only the flimsiest
excuse for why they did not do two measurements as was required by policy.
They also did not explain why they kept the policy breach a secret.  There is
no evidence that there was a policy to take two measurements.  The
investigators testified that sometimes they take two measurements, and sometimes
they do not.  This is another error in favour of Mr. MacDuff.

[28]

The trial judge then said:

[14]      The explanations of the
informants were unsatisfactory.  They showed themselves to be at best
unreliable and at worst intentionally misleading.  In future Information from
them should not be relied on.

[29]

As noted above, the trial judges comments were based on his
misapprehension of the evidence.  His comments regarding the investigators, and
in particular, any future treatment of their evidence,  were in my opinion, not
founded on the evidence.  It was an unfair comment and may well have had a
deleterious effect on their careers.

[30]

He then characterized Constable Bellamys investigation as sloppy
because he did not investigate the matter further than the report he was
given.  In fact, Constable Bellamy testified to several other steps he took in
the course of investigating this matter prior to seeking the telewarrant.
Again, in my view, this comment was based on the trial judges misapprehension
of the evidence.

[31]

Despite his findings, the trial judge found again that the police
officer did not act in bad faith, that the evidence was real, and that the
seriousness of the offence weighed in favour of admitting the evidence.

[32]

Since this decision was rendered, the Supreme Court of Canada released
its decisions in
Grant
and
Harrison
where a revised approach to
s. 24(2) was developed.  I will now turn to analyzing the findings of the trial
judge through this new lens.

[33]

In summary, the trial judge quashed the telewarrant to search Mr.
MacDuffs premises because the police officer did not confirm that a judge
would not hear the daytime search warrant application.

[34]

There was nothing on the face of the warrant, save the lack of reference
to the impracticality of having a judge hear the application, which would
render the warrant otherwise unlawfully or improperly obtained.

[35]

On amplification, the only evidence that appears to not have been
disclosed to the JJP was the time it took to test the meter and the cost of the
theft for that timeframe.  As noted above, in my view, that information is
irrelevant in the circumstances of this case.

[36]

Under the framework for the application of s. 24(2) of the
Charter
established in
Grant
(paras. 72-86) and
Harrison
, a court must
consider:

i)    the seriousness of the
Charter
-infringing
state conduct

ii)   the
impact of the breach on the
Charter
-protected interests of the accused;
and

iii)  societys interests in an adjudication
on the merits.

Seriousness of the
Charter
-infringing state
conduct

[37]

The trial judge concluded that this was a relatively minor
Charter
violation.  I agree.  The police officer obtained a warrant from a member of
the judiciary.  He provided the JJP with all of the information he had
obtained.  He ensured that there was no JJP who could hear his application in
person within a reasonable time frame.  His only error was to fail to confirm
that a judge was unavailable to hear the application, based on his (correct)
understanding that judges were not to be asked to issue daytime warrants.  The
trial judge found no bad faith on the part of the officer.  This conduct is at
the minor end of the
Charter
breach spectrum (
Grant
at para. 74).

The impact of the breach on the
Charter
-protected
interests of the accused

[38]

Here, the unreasonable search intruded on the privacy interests of Mr.
MacDuff.  The police searched his home, where his privacy interests are
significant.  Therefore, the impact of the breach is serious from this
perspective (
Grant
at para. 78).

Societys interests in an adjudication of the case on its
merits

[39]

Several factors are examined under this heading of analysis which takes
into account the truth-seeking function of the criminal trial process.  They
include the reliability of the evidence and the importance of the evidence to
the Crowns case.  The evidence seized is highly reliable and is key to the
case against Mr. MacDuff.  Without the evidence from his home, there is no case
against Mr. MacDuff.

Conclusion

[40]

All of these factors weigh in favour of the inclusion of evidence and I
would not interfere with the finding of the trial judge in admitting the
evidence.

[41]

Therefore I would dismiss the appeal.

The Honourable Madam Justice Bennett

I agree:

The Honourable Madam Justice
Kirkpatrick

I agree:

The Honourable Mr. Justice
Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Olson,

2011 BCCA 8

Date: 20110106

Docket: CA038370

Between:

Regina

Respondent

And

Michael Bernhard
Olson

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Madam Justice D. Smith

On appeal from:
Provincial Court of British Columbia, July 13, 2010
(
R. v. Olson
, Prince George Registry 30997-KC-3; 30997-A-2; 30258-K-2)

Oral Reasons for Judgment

Counsel for the Appellant:

J.M. Duncan

Counsel for the (Crown) Respondent:

J.M.I. Duncan

Place and Date of Hearing:

Vancouver, British
  Columbia

January 6, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2011

[1]

D. SMITH J.A.
: The appellant, Michael Bernhard Olson, applies for
leave to appeal sentence, and if leave if granted, appeals his eight-month
conditional sentence order in Provincial Court (plus the equivalent of 10
months pre-disposition custody) for the following
Criminal Code
offences
that were charged in three separate Informations and to which he pleaded
guilty:

a)

assault, contrary
to s. 266, and uttering threats to cause death or bodily harm, contrary to s.
264.1(1)(a), both on July 8, 2009, in regard to the first victim, and for which
the Crown proceeded summarily;

b)

assault, contrary
to s. 266, between October 22, 2009 and November 12, 2009; uttering threats to
cause death and bodily harm, contrary to s. 264.1(1)(a), on January 19, 2010;
obstruction of justice, contrary to s. 139(2), between January 19, 2010 and
January 24, 2010; and breach of an undertaking under s. s. 499(2), contrary to
s. 145(5.1), all in regard to the second victim and for which the Crown
proceeded by indictment; and breach of recognizance, contrary to s. 145(3), on
February 9, 2010, in regard to the second victim for which the Crown proceeded
summarily.

c)

breach of
recognizance, contrary to s. 145(3), on February 9, 2010, in regard to the
second victim for which the Crown proceeded summarily.

[2]

The appellants sentence further included a three year probation order,
a five year firearms prohibition, an order that he provide a sample of his DNA
for registration with the DNA national databank(a secondary or discretionary
order), and a restitution order of $847.32 to the second victim. None of these
orders are at issue in this appeal.

[3]

The appellants principal ground of appeal is that the sentencing judge
erred in law in rejecting the joint submission of the Crown and defence for a
global three month conditional sentence order for all of the above-noted
offences.

[4]

For the reasons that follow I would dismiss the appeal.

Background

[5]

The circumstances of the offences involved brutal attacks and threats of
death and bodily injury on two successive and unrelated live-in girlfriends,
two breaches of a no-contact court order made for the protection of the second
victim, and an attack on the administration of criminal justice by the
appellants intimidation of the second victim to drop her complaint to the
police. The appellants second breach of a no-contact order in regard to the
second victim (the February 9, 2010 breach of recognizance) resulted in the
appellants ongoing detention for five months until his guilty pleas on all of
the offences on July 13, 2010.

[6]

The sentencing judge summarized the circumstances of the offences as
follows:

[3]        The circumstances of these events are ... very
troubling to the Court because of the nature of the offences, the manner in
which they were committed, and who they were committed against.

[4]        Mr. Olson entered into a spousal relationship with
Candice Chadwick. They met through an online dating service. She moved into his
residence, and she agreed to pay $800 a month to live with him. She had two
children to support and, as a result, worked two jobs. She describes Mr. Olson
a being controlling. He had many rules. He was abusive when drinking, and there
were several incidents that occurred between them before July 8, 2009, which is
the date on which the criminal offences to which Mr. Olson had pled guilty
arose.

[5]        Prior to July 8, 2009, Ms. Chadwick felt it
necessary to leave the relationship but returned. On July 8, 2009, Mr. Olson
was drinking. He became angry over money issues. Ms. Chadwick was in the living
room, and according to her, Mr. Olson pounced on her, screamed at her, and told
her that she needed to learn a lesson. He pinned Ms. Chadwick down and began
licking her like a dog. He then began to bite her. He bit her in various places
on her body and particularly in her breast and nipple region. He eventually let
her up briefly but re-assaulted her, banged her head against the wall, and
pressed his thumbs into her temples. He then left her, returning soon after
saying he was sorry but that she needed to be taught a lesson. He told her that
if she tried to leave him, he would have her fired and have another woman, a
friend of his kick her ass.

[6]        Ms. Chadwick remained in the home for
approximately a week after that. After about a week, Mr. Olson became angry
again because Ms. Chadwick had done him the indignity of having her boss drive
her home after a late-night shift. On this occasion she fled, called the RCMP,
and they arrived at the residence; however, Mr. Olson refused them entry. They
did not enter the residence on that occasion because there was some concern
that he may be in possession of firearms. Later, they came, arrested him, and
released him on bail.

[7]        I have no doubt, although the bail documents were
not put before me, that the bail terms and conditions required him to stay away
from Ms. Chadwick, and thankfully he has.

[8]        That was in July. By the fall of 2009, Mr. Olson
had moved onto a new and different relationship, this one with Ms. Butress. He
moved into her residence. It is reported that he was controlling and abusive of
her as well. On one occasion, he became angry when they were in bed. He flipped
the bed over on top of her (it was a mattress) and began kicking it.

[9]        This type of behaviour continued between October
and December. In December, Mr. Olson became upset regarding Ms. Butresss
former boyfriend. He began to call every name in the phone book that had the
same last name as her former boyfriend. He assaulted her. He bit her ear. The
police came and arrested him. They released him, however, with a no-contact
provision, but that apparently did not stop Mr. Olson, who returned to Ms.
Buttresss residence and was there for some time. When he returned, he again
threatened Ms. Butress, threatened to kill her and her family, and he refused
to leave.

[10]      On January 19 of this year, they were arguing.
Again, Mr. Olson assaulted her in the bathroom, hitting her head striking her,
and said that he would kill her. He got a knife. He said he would keep her in
the bathroom. She pleaded with him to let her out. He disconnected the phone.
He threatened to stab her 100 times, cut off her head and put it in the toilet.
He said he would kill her cat; then he would kill his dog; then he would kill
himself.

[11]      Ms. Buttress says that during the time she lived
with Mr. Olson he had a terrible drinking problem, drinking at least a case of
beer a day.

[12]      The next day after that incident Ms. Butresss face
was swollen. Mr. Olson brought her some ice but in doing that kind gesture also
repeated the threats he had made the day before. He embellished on how he was
going to kill himself.

[13]      On January 24, the RCMP called Ms. Butresss
residence to discuss with her the previous incident that resulted in Mr.
Olsons arrest and his subsequent release. Mr. Olson was present when that call
was made, and because of the threats he had made against Ms. Butress, she
attempted to dissuade the police from proceeding with those charges. That is
the obstruction of justice to which he has pled guilty. She was afraid of Mr.
Olson. She was afraid that if she said to the police, Oh, by the way, he is
standing right here, that other violence would be visited upon her.

[14]      On January 25, 2010, Mr. Olson again began to the
threaten Ms. Butress, but she fled the home, called the police this time; they
came and arrested him.

[15]      He was released again. Again, I was not advised as
to whether that was as a result of a bail hearing or a simple police release.
If it was the former, I expect that one of my colleagues would have heard all
of the facts and duly considered the past history before deciding to release
Mr. Olson. If it was the latter, it is concerning because the police obviously
would not necessarily have had before them all of his history.

[16]      However, Mr. Olson was
not deterred in his contact with Ms. Butress. He went back near her residence
on February 9. That was in breach of his bail release documents. He walked
around the residence and then left. He was arrested and has been held in
custody ever since.

[7]

At the time of the sentencing hearing, the appellant was a 37-year old
unemployed logger. He had an admitted drinking problem but no criminal record.
A pre-sentence report was not sought or ordered.

[8]

The joint submission by Crown and defence for a three-month conditional
sentence order was broken down as follows:

(a) July 8, 2009 assault of Ms. Chadwick:

2 months

(b) July 8, 2009 uttering threats to Ms. Chadwick:

4 months (concurrent)

(c) October 22-November 12, 2009 assault of Ms. Butress,
  January 19, 2010 uttering threats to Ms. Butress, January 24, 2007
  obstruction of justice in regard to Ms. Butress, and January 24, 2007 breach
  of undertaking in regard to Ms. Butress:

a global sentence of 8
  months consecutive to (a) and (b)

(d) February 9, 2010 breach of recognizance in regard to
  Ms. Butress:

1 month consecutive to all
  of the other sentences

[9]

The proposed global sentence of 13 months was to be reduced by 10 months
based on the two-for-one credit the appellant was entitled to receive at that
time for his five months pre-sentence custody, resulting in a net global
sentence of three months to be served in the community under a conditional
sentence order.

[10]

The sentencing judge expressed concern about the joint submission, the
lack of victim impact information, and the lack of a pre-sentence report. He
acknowledged the import of the decisions of this Court in
R. v. Bezdan,
2001
BCCA 215, 154 B.C.A.C. 215 and
R. v. Nome,
2002 BCCA 468, 172 B.C.A.C.
183, and the need for a sentencing judge to give careful consideration to a
joint submission and not reject it unless he or she explains in what way it is
contrary to the public interest and would bring the administration of justice
into disrepute. However, he found the similarity between the nature and manner
of the offences between the two victims, both within a relatively short period
of time, to be of particular concern. He advised counsel that he was
considering rejecting the joint submission and adjourned the hearing to the
following day for further submissions and authorities from counsel that might
explain and support the joint submission.

[11]

The following day both counsel made further submissions. The Crown
acknowledged that the obstruction of justice offence would likely require a
consecutive sentence but maintained his position that the joint submission for
a global conditional sentence order of three month remained appropriate. In
support of his position he relied on the following authorities:
R. v.
Cooper,
2009 BCCA 208, 270 B.C.A.C. 247;
R. v. Maynard,
2008 ONCJ
445, 79 W.C.B. (2d) 63;
R. v. Rollins,
2006 Carswell Ont. 7998;

and
R. v. Fuentes
(1994), 51 B.C.A.C. 154, 84 W.A.C. 164. Counsel for the
appellant reiterated his submissions from the previous day, but submitted in
the alternative that if the sentencing judge rejected the joint submission he
could address his concerns by imposing a longer conditional sentence order with
more onerous terms.

[12]

The sentencing judge ultimately rejected the joint submission. He
distinguished the Crowns authorities on their facts, expressly referred to s.
718.2 (a) (i) and (ii) of the
Criminal Code,
which provide for an
increase in sentence where aggravating circumstances that include the abuse of
an offenders spouse or the abuse of a person by an offender in a position of
trust are established, and underscored the seriousness of the obstruction of
justice offence which strik[es] at the heart of the criminal justice system
and our societys norms, concluding:

[46]      ... When people attempt
to subvert or obstruct justice, they are attempting to subvert or obstruct the
very pillars of our civilization, and that requires, in my view, a very firm
sentence.

[13]

He then imposed an eight-month conditional sentence order (in addition
to the equivalent of 10 months pre-sentence custody), which he broke down as
follows:

(a) July 8, 2009 assault of
  Ms. Chadwick:

2 months

(b) July 8, 2009 uttering threats to Ms. Chadwick:

4 months concurrent to (a)

(c) October 22-November 12, 2009 assault of Ms. Butress:

6 months concurrent to (a)

January
  19, 2010 uttering threats to Ms. Butress:

6 months concurrent to (b)

January
  24, 2010 obstruction of justice in regard to Ms. Butress:

9 months consecutive to (c)
  and (d)

January
  24, 2010 breach of undertaking in regard to Ms. Butress:

2 months concurrent to (a)
  and (b)

(d) February 9, 2010 breach of recognizance in regard to
  Ms. Butress:

3 months consecutive to all
  other sentences

[14]

From the global sentence of 18 months, the sentencing judge credited the
appellant with the equivalent of 10 months pre-disposition custody, leaving a
net global sentence of 8 months. In acceding to the joint submission for a
conditional sentence order the judge stated:

[69]      I have given careful consideration to the
provisions of s. 742.6 and the provisions set out in the case of
R. v.
Proulx
[2000 SCC 5, [2000] 1 S.C.R. 61]

in coming to a decision as
to whether or not a sentence should be served in the community or not. I have
to consider a number of factors. First of all, is there a minimum term of
imprisonment? There is not here. Second of all, is imposing imprisonment less
than two years being sought? That is what is happening here, so you qualify on
that basis. The third and fourth tests are whether or not I am satisfied
serving the sentence in the community would not endanger the safety of the
community. I have to also be satisfied that serving the sentence in the
community would be consistent with the fundamental purpose and principle of
sentencing as set out in ss. 718 to 718.2.

[70]      I have considered those
terms, sir, and I have considered whether or not you are a suitable candidate
to serve your sentence in the community, and although unfortunately Ms. Butress
and Ms. Chadwick may disagree with my view on this, I have come to the
conclusion, in large part because you have already spent five months in custody
and in large part because of the terms and conditions I am going to impose on
you with regard to the conditional sentence, that you may serve your sentence
in the community rather than being held in jail further.

[15]

The difference between the joint submission and the sentence imposed
focused largely on the increase in sentence for the obstruction of justice
offence to nine months, and the increase in the breach of recognizance offence
from one to three months, both of which were made consecutive to the other
sentences. However, the sentencing judge appeared alive to the totality
principle by making the sentences for the assault, uttering threats, and breach
of undertaking in regard to the second victim concurrent with the sentences for
the assault and uttering threats in regard to the first victim.

Positions of the parties

[16]

The appellant submits that the sentence proposed by way of joint
submission was not contrary to the public interest, would not have brought the
administration of justice into disrepute, and was not unfit for any other
reason. He contends that the nine month sentence imposed for the obstruction of
justice offence was excessive and exceeds the sentences in all of the cases
cited by the Crown that involved offenders with criminal records in similar
circumstances. In that regard, counsel for the appellant places considerable
weight on this Courts decision in
Cooper
to support his position that a
two month consecutive sentence for obstruction of justice, in the circumstances
of this case, would have been appropriate and adequately reflected the
seriousness of the offence.

[17]

The Crown submits the sentencing judge was not bound to accept the joint
submission and that it was not an error in principle for him to reject the
joint submission by imposing a longer conditional sentence order. Moreover, the
sentence that was imposed, the Crown submits, was not unfit given the
seriousness of the offences and the appellants breaches of the court orders
made for the protection of the victims leaving it open to him to have found
that the appellant did not meet the requirements for a conditional sentence
order and instead to have imposed a conventional custodial sentence. In support
of its position, the Crown relied on the following authorities:
R. v.
Hunter,
2006 BCCA 433, 231 B.C.A.C. 55;
R. v. Frigenette
(unreported),
November 29, 1994, Vancouver Registry No. CA019359;
R. v. Hall,
2001
BCCA 74, 150 B.C.A.C. 313 and
R. v. Titchener,
2009 BCCA 554, 280
B.C.A.C. 23.

Discussion

[18]

The standard of review on sentence appeals is that absent an error in
principle, failure to consider a relevant factor, or an overemphasis of the
appropriate factors, an appellate court should only intervene to vary a
sentence if the sentence is demonstrably unfit:
R. v. M. (C.A.),
[1996]
1 S.C.R. 500 at para. 90.

[19]

It is common ground that a joint submission is not binding on a
sentencing judge who retains his or her discretion to impose a fit sentence
that may differ from the joint submission. However a joint submission should
not be rejected lightly and the sentencing judge should give reasons for doing
so. While the sentencing judge is not required to inform the offender that he
or she proposes to depart from the joint submission it is preferable for the
judge to articulate his or her concerns and provide counsel with an opportunity
to make further submissions and provide additional material where available to
address those concerns:
R. v. Grisson
(1997), 100 B.C.A.C. 249;
R. v.
Bezdan,
2001 BCCA 215, 154 B.C.A.C. 122;
R. v. Pretty
, 2005 BCCA 52,
208 B.C.A.C. 79;
R. v. Fuller,
2007 BCCA 353, 244 B.C.A.C. 158;
R. v.
Furey,
2007 BCCA 395, 245 B.C.A.C. 67 395;
R. v. Penney,
2010 BCCA
307, 288 B.C.A.C. 209.

[20]

These principles and recommended procedure for a sentencing judge who is
not inclined to accede to a joint submission were succinctly summarized by Mr.
Justice Low in
Pretty
at para. 2:

The appellant contends that the
appeal judge erred in not finding error on the part of the sentencing judge in
imposing a sentence greater than that proposed in the joint submission without
advising counsel and without having a good reason for the departure. It is
clear from the cases that a sentencing judge is not bound by a joint
recommendation from counsel as to the appropriate sentence. The judge can
reject the joint submission but ought to give reasons for doing so and not
disregard it or overlook it. The authorities in this Court state that it is
preferable for the judge to make plan the reasons for the concern with the
joint submission so that counsel can place any additional relevant material on
the record for a possible appeal. However, the fact that the judge does not,
before giving reasons for sentence, state concerns he has with respect to the
joint proposal does not mean that an appeal court must find the sentence to be
unfit and reduce it to that proposed in the joint submission.

[21]

An additional reason for the sentencing judge to advise counsel of his
or her concerns with a joint submission, as was noted by Madam Justice Saunders
in
Penney
at para. 8, is to permit the offender to consider whether he
or she should make an application for withdrawal of his or her guilty plea(s).

[22]

Ultimately, however, the sentencing judge has the duty of imposing what
he or she believes to be a fit sentence after considering the circumstances of
the offences, the circumstances of the offender, and the purpose and principles
of sentence as codified in ss. 718 to 718.2 of the
Criminal Code.

[23]

The appellant contends that s. 718.2(b) if the
Criminal Code
requires
that a sentence should be similar to sentences imposed on similar offenders
for similar offences committed in similar circumstances. In that regard, he
relies on
Cooper
in support of his position that this Court has endorsed
a sentence of two months for the offence of obstruction of justice (the
proposed sentence for that offence in the joint submission) and therefore the
proposed sentence was a fit one. With respect, I do not agree with that
analysis of
Cooper.

[24]

Cooper
involved an appeal of a six-month jail sentence that was
imposed by a provincial court judge in regard to seven offences committed by
the offender between June and December 2007. The offender had pleaded guilty to
criminal harassment, assault, mischief (wilful damage to a vehicle), attempting
to obstruct justice, breaches of an undertaking and breaches of a recognizance,
all in regard to conduct toward his estranged wife. He was also found guilty of
assault causing bodily harm to a stranger who had simply asked his wife for a
dance. Counsel made a joint submission for a 15-18 month conditional sentence
order for the six offences to which Mr. Cooper had pleaded guilty, and one day
for the offence of assault causing bodily harm for which Mr. Cooper was
convicted, based on the roughly double time he had spent in pre-disposition
custody that amounted to about seven months. Mr. Cooper, age 52, had a criminal
record dating back some years that included offences of violence, weapons
offences and breaches of court orders. The central issue on appeal in that case
was whether the sentencing judge had erred in principle by rejecting the joint
submission for a conditional sentence order and in imposing a jail sentence in
circumstances where the appellant alleged that he had a negotiated deal that
resulted in his guilty pleas on the first six offences.

[25]

The Court dismissed the appeal noting that neither counsel had advised
the trial judge that the appellants guilty pleas were the result of negotiated
admissions of guilty. In the result, the Court found no error in principle in
the trial judges rejection of the joint submission for a conditional sentence
order, stating:

[25]      The trial judge was not prepared to give effect to
the joint submission and gave his reasons for departing from the bargain. The
judge recognized, correctly in my view, that a sentence emphasizing
denunciation and deterrence was required in this case and to impose a
conditional sentence would not have been in accord with the purposes and
principles of sentencing to which he referred. Moreover, the appellants many
past breaches of probation and recognizance of bail demonstrated that, in any
event, the appellant was unlikely to adhere to the terms of a conditional
sentence if the terms did not suit his purposes.

[23]      In summary, I am of the
view that the trial judges rejection of a conditional sentence in this case
was not unreasonable and that the six-month sentence he imposed for various
offences to which the appellant had pleaded guilty was not unfit.

[26]

While the circumstances in this case were similar in some respects to
those in
Cooper,
they were also more serious in that they involved two
spousal victims. On the other hand, the appellants personal circumstances
were not as egregious as the offender in
Cooper,
in that he was a first
offender and potentially met all of the conditions for a conditional sentence
order under s. 742.2 of the
Criminal Code.

[27]

More significantly,
Cooper
involved a sentence appeal by an
offender. The Court was not asked to vary the sentence for the appellants
conviction for attempted obstruction of justice and given the limited
jurisdiction for appellate intervention as outlined in
M.(C.A.)
would
not have had any basis to interfere with the trial judges exercise of
discretion in that regard in the absence of a demonstrated error in principle.
Consequently, the dismissal of the appeal did not amount to an affirmation by
the Court of a sentence of two months for the offence of obstruction (or rather
an attempted obstruction) of justice but reflected a finding that the appellant
had failed to demonstrate any error of principle that would have permitted the
Court to intervene and vary the sentence.

[28]

While the crafting of an appropriate sentence is very much an
individualized process unique to the circumstances of each case and each
offender, the authorities relied upon by the Crown suggest that the global
sentence imposed in this case was well within the range of sentences imposed
on similar offenders for similar offences committed in similar circumstances.

[29]

In my view, the sentencing judge correctly followed the recommended
procedure outlined in
Pretty
and the other authorities on joint
submissions before imposing a sentence that the appellant has failed to
demonstrate was unfit. I would grant leave to appeal, but dismiss the appeal.

[30]

NEWBURY J.A.
: I agree.

[31]

HALL J.A.
: I agree.

[32]

NEWBURY J.A.
: The extension of time is granted. Leave is granted
and the appeal is dismissed.

The
Honourable Madam Justice D. Smith


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Sander v. Sun Life Assurance Company of Canada
,

2011 BCCA 3

Date: 20110106

Docket: CA037572

Between:

Kenneth Sander

Appellant

(Plaintiff)

And

Sun Life Assurance
Company of Canada

Respondent

(Defendant)

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Saunders

The Honourable Madam Justice Neilson

On appeal from:
Supreme Court of British Columbia, September 24, 2009
(
Sander v. Sun Life Assurance Company of Canada
, 2009 BCSC 1301)

Counsel for the Appellant:

M. Clemens, Q.C.

Counsel for the Respondent:

V.R.K. Orchard, Q.C.,
  A.M. Gunn

Place and Date of Hearing:

Vancouver, British
  Columbia

October 15, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2011

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable
Chief Justice Finch:

I.
Introduction

[1]

Dr. Sander appeals from the judgment of the Supreme Court of British
Columbia pronounced 24 September 2009 following a summary trial under Rule 18A,
holding that the action he commenced by writ of summons filed on 9 November
2004 was barred by s. 22(1) of the
Insurance Act
, R.S.B.C. 1996, c. 266
(the
Act
).  The section mandates that ... every action on a contract
[of insurance] must be commenced within one year after the furnishing of a
reasonably sufficient proof of loss or claim under the contract ....  The summary
trial judge held that the one year limitation period was triggered when the
respondent insurer provided Dr. Sander with clear and unequivocal notice of
denial by letter dated 29 June 2001.  The limitation period for issuing a writ
therefore expired on 29 June 2002, and the writ issued 9 November 2004 was out
of time.

[2]

Dr. Sander contends that by the terms of the policy of insurance the
limitation period did not begin to run until his counsel provided the insurer
with proof of loss or claim by letter of 23 April 2004.  He says that the
writ of 9 November 2004 was therefore well within that one year statutory
limitation.

[3]

Dr. Sander further submits that in this case, the governing limitation
period is that contained in the policy of insurance, which is two years after
the date the insurance money became payable ... (the Policy Limitation).  He
says that because this policy provided for periodic income replacement benefits
there was a continuing cause of action with a rolling limitation period that
applies to each monthly benefit payable.  He says the date the limitation was
triggered cannot be determined until there is a finding on the merits of his
case, and whether he had a valid continuing claim after 14 June 2001, the date
of the insurers last payment.

[4]

For the reasons that follow, I am of the view that the learned summary
trial judge erred in law in failing to apply the two year limitation period
contained in the policy, rather than the one year limitation period provided by
s. 22(1) of the
Act
.  When that two year limitation period commenced to
run cannot be determined until there is a determination on the merits as to the
time during which Dr. Sander had (or has) a valid claim under the policy.  I
would allow the appeal.

II.
Background

[5]

Dr. Sander, a former dentist, was diagnosed as having cataracts in both
eyes in early 1998.  The cataracts interfered with his ability to carry on the
practice of dentistry.

[6]

On 13 July 1998, Dr. Sander filed a claim for disability benefits under
a group insurance policy between Sun Life and the Canadian Dental Association
(the Insurance Policy) which provided for income replacement benefits to be
paid if a participant (as defined by the Insurance Policy) became unable to
perform the essential duties of the practice of dentistry.  Dr. Sanders claim
was approved and on 31 July 1998, he began receiving monthly benefits.

[7]

On 20 September and 30 October 2000, Sun Life wrote to Dr. Sander
advising him that it would not continue to pay benefits indefinitely and that
it expected him to undergo corrective cataract surgery.  If he elected not to
do so, Sun Life stated that it would extend payment for a time frame equivalent
to what would have been expected had he proceeded with the surgery and then it
would close his claims file.

[8]

Dr. Sander took issue with Sun Lifes position that the terms of the
Insurance Policy required him to undergo corrective surgery.  Dr. Sanders
position was that corrective surgery was not a precondition to coverage.

[9]

On 2 February 2001, Dr. Sander commenced a petition in the Supreme Court
to resolve the issue.  By consent, the petition was converted into an action
around March 2001 at the request of Sun Lifes counsel in order that an
examination for discovery of Dr. Sander could be conducted.  An application for
summary judgment pursuant to 18A, brought by Dr. Sander, was heard by Madam
Justice Dillon on two days in June 2001, with reasons for judgment released on 24
October 2001:
Sander v. Sun Life Assurance Company of Canada
, 2001 BCSC
1445.  Dillon J. denied Dr. Sanders application and, at para. 36, found his
refusal to undergo corrective surgery unreasonable within the terms of the
Insurance Policy.

[10]

While the judgment was under reserve, Sun Lifes counsel wrote Dr.
Sanders counsel the following letter dated 29 June 2001:

We are writing to confirm that Sun Life Assurance Company of
Canada (Sun Life) will be discontinuing benefits payable to Dr. Sander under
the long term disability coverage.

As you are aware, Sun Life informed Dr. Sander by letters
dated September 20, October 25 and 30, 2000 that it was prepared to continue
payment of benefits for a period within which Dr. Sander could make
arrangements to undergo cataract surgery and also for a period of
post-operative recovery.  Copies of those letters are enclosed for your
reference.

As we understand matters, Dr. Sanders surgery was scheduled
for March 13 or 14, 2001.  If Dr. Sander had proceeded with the surgery, one
would have expected a period of recovery not to exceed three months.

Dr. Sander has received payments
up to May 31, 2001.  Accordingly, Sun Lifes final payment will be for the
period June 1 to June 14, 2001.

[11]

In accordance with the above letter, Sun Life ceased monthly benefit
payments to Dr. Sander as of 14 June 2001.

[12]

Dr. Sander commenced an appeal from the judgment of Dillon J. in
November 2001.  On 29 January 2003, the Court of Appeal dismissed his appeal:
2003 BCCA 55.

[13]

Following dismissal of his appeal, Dr. Sander underwent corrective
cataract surgery to his right eye on 27 February 2003 and to his left eye on 18
December 2003.  Despite the surgeries, Dr. Sander maintains he still does not
possess the required visual acuity to practice dentistry.

[14]

On 9 November 2004, Dr. Sander commenced an action against Sun Life for
a declaration that he was entitled to disability payments.  On 24 September 2009,
Sun Life was successful in its application under Rule 18A to dismiss the action
as outside the limitation period.

III.
Summary Trial Judges Decision

[15]

The summary trial judge first considered the commencement of the
limitation period.  He considered and dismissed the limitation period provided
for in the Insurance Policy, which states:

No action or proceeding against
the Company for recovery of a claim under this policy shall be commenced more
than two years after the date the insurance money became payable or would have
become payable if it had been a valid claim.

[16]

The summary trial judge held that applying this limitation period to Dr.
Sanders case would produce an absurd result.  He said at para. 19: Dr. Sander
would have had to sue by July 31, 2000, even though he was then receiving
benefits and continued to receive benefits until June 14, 2001.

[17]

The summary trial judge then addressed s. 22(1) of the
Act
which
provides:

Every action on a contract must
be commenced within one year after the furnishing of reasonably sufficient
proof of a loss or claim under the contract and not after.

[18]

The summary trial judge held that s. 22(1) similarly produced an absurd
result if it were read literally as Dr. Sander would have had to commence his
action against Sun Life by 13 July 1999, one year after the furnishing of
reasonably sufficient proof of a loss ....

[19]

Relying on this Courts decision in
Balzer v. Sun Life Assurance Co.
of Canada
, 2003 BCCA 306, 15 B.C.L.R. (4th) 6, he held that s. 22(1) of the
Act
has been interpreted to mean that the limitation period on filing a
claim commences to run at the point that the insurer provides the insured with
clear and unequivocal notice of denial of coverage or cessation of benefits.

[20]

The summary trial judge then considered the question of whether Dr.
Sander was clearly put on notice by the 29 June 2001 letter that the limitation
period to commence an action had started to run.  He considered the context of
events both before and at or about the date of the letter.  He canvassed the
discussions of Dr. Sanders counsel, Mr. Dives, and Sun Lifes counsel, Mr.
Samuels, regarding a proposed standstill agreement (which was never completed)
that would have preserved the payment of benefits to Dr. Sander while at the
same time preserving the rights of Sun Life in the event that Dr. Sanders
claim was dismissed and the surgery was eventually successful.  He also
reviewed various correspondences after Dr. Sanders unsuccessful appeal between
counsel for Sun Life and Dr. Sander and his counsel noting that Sun Lifes
position had been steadfast throughout.

[21]

In light of all the circumstances leading up to and after the 29 June 2001
letter, the summary trial judge noted
Balzer
provides that any doubt or
ambiguity in the giving of clear and unequivocal notice must be resolved in
favour of the insured.  However, upon review of the relevant jurisprudence, he
held that even taken in context with the surrounding circumstances of the
outstanding litigation and discussions between counsel which were continuing at
the time, including the standstill agreement, the 29 June 2001 letter
constituted clear and unequivocal notice to Dr. Sander that his benefits were
being terminated and his file closed.

[22]

The summary trial judge concluded:

[63]      In this case, I do not find there is anything in
the conduct of the defendant which derogates from or lessens the import of the
June 29, 2001 letter advising Dr. Sander of its intention to cease payments and
close its file after June 14, 200[1]. In my view, the notice (the effect of
which was that benefits had ceased) contained in the letter should have been
more, not less, clear given the surrounding circumstances. Sun Life, had made
its position clear from the outset and had been consistent. It insisted Dr.
Sander have corrective eye surgery and have it within a reasonable period of
time. It advised him and his counsel that if he did not have surgery within
such reasonable time, it would set a notionally reasonable period of time for
him to have it and recover and then stop the payment of benefits.

[64]      While Sun Life entered into negotiations for a
standstill agreement, no such agreement was concluded. In any event, during the
negotiations for such agreement the terms sought by Sun Life were consistent
with its position.

[65]      ... I accept all
parties contemplated the issue would be resolved in the summary trial. No one
contemplated that there would be an appeal. It was assumed by all involved that
the litigation as well as the possibility of surgery (in the event the
litigation found against Dr. Sander) would occur well within the one-year
limitation period which commenced June 29, 2001.

[23]

Based on the above reasons, the summary trial judge concluded that the
latest Dr. Sander could have commenced his action was one year after 29 June 2001.
Thus, his claim was statute barred.

IV.
Issues on Appeal

[24]

This appeal raises the following issues:

(1)     Which limitation period
governs Dr. Sanders claim, the Policy Limitation or s. 22(1) of the
Act
?

(2)     If the Policy Limitation
applies, was Dr. Sanders claim commenced out of time?

(3)     If s. 22(1) of the
Act
applies,
should the section be interpreted literally or should the clear and
unequivocal notice test, as set out in
Balzer
,

govern Dr.
Sanders claim?

V.
Position of the Parties

A.  Dr. Sanders Position

[25]

Dr. Sander argues that the summary trial judge erred in applying the
statutory limitation period in s. 22(1) of the
Act
instead of the Policy
Limitation.  Dr. Sanders position is that s. 22(1) of the
Act
does not
displace the Policy Limitation as the
Act
only sets minimum requirements
and the insurer may choose contractual terms that are more favourable to the
insured than those provided by the statute.

[26]

Dr. Sander says the summary trial judge further erred by concluding that
insurance money became payable for the purposes of applying the Policy
Limitation on only a single occasion.  According to the Policy Limitation,
insurance money becomes payable when the participant has entitlement to it.
Relying on this Courts decision in
Holme Estate v. Unum Life Insurance Co.
of America
, 2000 BCCA 627, 83 B.C.L.R. (3d) 108, insurance money becomes
payable, and the limitations period triggered anew, at each successive time
benefits are to be paid.  Accordingly, Dr. Sander was well within the
applicable Policy Limitation when he issued a writ of summons in November 2004
because the monthly benefits payable following his unsuccessful cataract
surgeries raise a continuing cause of action with a rolling limitation that
applies to each monthly benefit instalment.

[27]

If this Court determines that the appropriate limitation period is that
found in s. 22(1) of the
Act
, Dr. Sander argues that the summary trial
judge erred in applying the clear and unequivocal notice test enunciated in
Balzer
rather than applying the section literally.  In Dr. Sanders case, the
reasonably sufficient proof of a loss or claim for the post cataract surgery
disability benefits was provided to Sun Life on 23 April 2004 by Dr. Sanders
counsel.  The writ of summons was issued on November 9, 2004, well within the
limitation period provided for in s. 22(1) of the
Act
.

[28]

Dr. Sander did not advance the preceding arguments in the Court below.
Rather, Dr. Sander argued that Sun Life had not met its onus to establish that
it had given clear and unequivocal notice to him that his benefits were being
discontinued.  Dr. Sander takes this position again as an alternative in this
appeal.

[29]

According to Dr. Sander, if the clear and unequivocal notice test
applies, there is no evidence reasonably capable of supporting the summary
trial judges conclusion that Sun Life issued a clear and unequivocal denial of
further benefits in the 29 June 2001 letter.  The 29 June 2001 letter was
nothing more than a suspension of benefits.  Dr. Sander supports this position
by emphasizing the context in which the letter was sent, and the conduct of the
parties after Dillon J. dismissed Dr. Sanders application, specifically the
fact that Sun Life defended the appeal from Dillon J.s order after the alleged
limitation period had passed.

B.  Sun Lifes Position

[30]

Sun Life argues the summary trial judge correctly interpreted and
applied s. 22(1) of the
Act
rather than the Policy Limitation.  However,
even if the Policy Limitation prevails, Sun Life maintains that Dr. Sanders
claim is time-barred.  According to Sun Life, the 29 June 2001 letter denied
entitlement not only to the next scheduled payment of benefits but also to any
future payment of benefits.  Dr. Sanders entitlement to benefits terminated on
that date and any rolling entitlement under the Insurance Policy stopped
rolling on that date.

[31]

In response to Dr. Sanders position that
Balzer
should be
distinguished from this proceeding because the wording of s. 22(1) of the
Act
would not create the same absurdity here as it did in
Balzer,
Sun
Life argues Dr. Sanders counsels letter of 23 April 2004 was merely an
attempt to resume discussions regarding Dr. Sanders alleged ongoing
disability.  Reasonably sufficient proof of loss for that claim was furnished six
years ago, on 13 July 1998.  Accordingly, a literal interpretation of s. 22(1)
leads to Dr. Sanders action being time-barred, but only by way of the
absurdity identified by the summary trial judge that the action would have had
to have been commenced while Dr. Sander was still receiving benefits.

[32]

Sun Lifes position is that the clear and unequivocal notice test
applies and that the determination of whether clear and unequivocal notice
had been given by Sun Life is a question of fact.  The summary trial judge was
correct to conclude on the evidence that the circumstances surrounding the 29 June
2001 letter met the test.

VI.
Analysis

A.  Preliminary Matters

[33]

Dr. Sander raises two issues on appeal that were not raised below:  first,
that his action is governed by the Policy Limitation; and secondly, that if s.
22(1) displaces the Policy Limitation, Dr. Sander provided reasonably
sufficient proof of claim for his post cataract surgery disability benefits to
Sun Life on 23 April 2004 by way of a letter from his counsel to Sun Life.

[34]

In its written and oral submissions, Sun Life did not oppose Dr. Sander
raising the first issue of whether his action is governed by the Policy
Limitation, provided the issue could be adjudicated as a pure question of law.
To the extent that adjudication of the issue required additional findings on
entitlement not made below, Sun Life opposed the issue being raised in this
Court.

[35]

Sun Life did not take a position with respect to whether the second
issue may be raised.  Given my reasoning on this appeal, I need not deal with
whether this Court could properly address the issue and therefore make no
comment on it.

[36]

Sun Life relies on
Athey v. Leonati
, [1996] 3 S.C.R. 458 at
478-479, 140 D.L.R. (4th) 235 in support of its position that Dr. Sander should
not be allowed to raise a new issue that requires additional findings of fact
for the first time in this Court.

[37]

In my view, whether Dr. Sanders action is governed by the Policy
Limitation or s. 22(1) of the
Act
is a pure question of law.  Because
the summary trial judge held that s. 22(1) applied, he did not address the
meaning of the Policy Limitation.  Its interpretation, like the question of
which limitation period applies, is also a question of law.  In my opinion, it
is open to this Court to interpret the policy language and then to apply it to
the facts as found by the summary trial judge.

[38]

Insurance policies are a special category of contracts.  Where ambiguity
in the terms of a policy of insurance exist, interpretation will involve a
combination of general contractual interpretive principles and special
interpretive principles unique to the insurance context:
Jesuit Fathers of
Upper Canada v. Guardian Insurance Co. of Canada
, 2006 SCC 21, [2006] 1
S.C.R. 744 at para. 27;
Co-operators Life Insurance Co. v. Gibbens
, 2009
SCC 59, [2009] 3 S.C.R. 605 at paras. 20-28.  Given the standard form nature of
most insurance policies and a preference for uniformity, courts are reluctant
to depart from authoritative judicial precedent interpreting the terms of a
policy in a particular way: see
Gibbens
at para. 27.

[39]

As noted by the learned author G.R. Hall in
Canadian Contractual
Interpretation Law
(Markham, Ont.: LexisNexis, 2007) at pp. 182-183,
relying on
David Polowin Real Estate Ltd. v. Dominion of Canada General
Insurance Co.
, 76 O.R. (3d) 161 at para. 110 (Ont. C.A.), leave to appeal
to S.C.C. refused [2005] S.C.C.A. Nos. 388-395:

The case for the application of
precedent is even stronger in the case of interpretation of statutory
conditions which must be included in all contracts of insurance, as it would be
anomalous for conditions which are mandated by statute to mean one thing in one
contract and something else in another. [Citation omitted.]

[40]

As indicated in the next section of these reasons, the statutory
conditions found in Part 4 of the
Act
do not apply to the Insurance
Policy.  However, the relevant wording of statutory condition 12 in Part 4 of
the
Act
relating to limitations of actions is exactly the same as the
wording found in the Policy Limitation, except for the term of two years
instead of one.  Extending the reasoning found in the passage from Hall above,
it would be anomalous given the preference in insurance law for uniformity to
interpret the same wording differently simply because in one case it is
mandated by statute and in the other by contract.

[41]

Interpretation of a statute is undoubtedly a question of law.
Interpretation of a contract may involve questions of law, questions of fact
and questions of mixed fact and law:
Keefer Laundry Ltd. v. Pellerin Milnor
Corp.
, 2009 BCCA 273, 94 B.C.L.R. (4th) 205 at para. 58.

[42]

Given the similarity in wording between statutory condition 12 and the
Policy Limitation, it is my opinion that if the Policy Limitation governs, its
interpretation in this case is a question of law.  I agree with the insurer
that the application of the Policy Limitation in this case would necessarily
involve a review of the facts, but in my view it would not require this Court
to make any new findings.

B.  Applicable Limitation
Period

[43]

The first step in determining the
applicable limitation period is to classify the insurance policy in question.
Specific classes of insurance are not defined in the
Act
.  Rather,
pursuant to section 1(2) of the
Act
,

the Lieutenant Governor in
Council may make regulations defining what is deemed to be a class of
insurance.  The
Insurance Classes Regulation
, B.C. Reg. 337/90 provides
the following definitions:

disability insurance

means insurance undertaken by an insurer as part of a
life insurance contract whereby the insurer undertakes to pay insurance money
or to provide other benefits in the event that the insured becomes disabled as
a result of bodily injury or disease;

...

sickness insurance means
insurance against loss resulting from the illness or disability of a person and
against expenses incurred for dental care, other than illness or disability or
dental care arising from accident, but does not include disability insurance;

[44]

In this case, the Insurance Policy
is a group policy providing for income replacement benefits upon disability
with no life insurance component and thus is properly categorized as sickness
insurance.  Part 4 of the
Act
governs Accident and Sickness Insurance
and contains statutory conditions deemed to be part of every contract:

89   Subject to section 90 the
conditions set out in this section are deemed to be part of every contract
other
than a contract of group insurance
, and must be printed on or attached to
the policy forming part of the contract         with the heading
"Statutory Conditions".

STATUTORY CONDITIONS

...

Limitation of actions

12.   An action or proceeding
against the insurer for the recovery of a claim under this contract must not be
commenced more than one year after the date the insurance money became payable
or would have become payable if it had been a valid claim.

[Emphasis added.]

[45]

Because the Insurance Policy is a
group policy, the statutory conditions under Part 4 of the
Act
,
including the statutory condition for the limitation of actions, do not apply.
Despite not being applicable, the language in statutory condition 12 is
relevant in this case because, as noted in para. 40 of these reasons, it is the
same as the Policy Limitation, except for the term.

[46]

According to Part 2, section 3, of
the
Act
, in the absence of other provisions under the
Act
dealing
with a subject matter, the general provisions of Part 2 apply:

3.   This Part has effect,
despite any law or contract to the contrary, except that

(a)   if any section
or statutory condition contained in Part 3, 4, 5 or 7 is applicable and deals
with a subject matter that is the same as or similar to any subject matter
dealt with by this Part, this Part does not apply, ...

[47]

As the Insurance Policy is not
covered by the specific limitation period provision in Part 4, the limitation
period of general application found in Part 2, section 22(1), would apply:

Every action on a contract must
be commenced within one year after the furnishing of reasonably sufficient
proof of a loss or claim under the contract and not after.

[48]

Dr. Sander relies upon
K.P. Pacific Holdings Ltd. v. Guardian
Insurance Co. of Canada
, 2003 SCC 25, [2003] 1 S.C.R. 433, revg 2001 BCCA
469, 202 D.L.R. (4th) 235 for the proposition that s. 22(1) of the
Act
acts
as a floor of protection beneath which an insurance contract cannot descend.
Accordingly, Dr. Sander argues it is open to an insurer to exceed the minimum
period prescribed in the
Act
and include a more generous limitation
period in the policy, should it choose to do so.

[49]

K.P. Pacific
concerned the limitation period applicable to an
all-risks insurance policy, which included fire insurance.  The question was
whether statutory condition 14 of Part 5, the Fire Insurance Part, or the
general provisions of Part 2 applied to the policy.  Chief Justice McLachlin
writing for the Court determined that a tangled historical thicket guards
entry to Part 5 and that, absent contrived reinterpretation and anomalous
consequences, statutory condition 14 could not apply.  Rather, Part 2,
although not ideal, applied.

[50]

This interpretation left an alternative argument that even if Part 2
applied, the shorter limitation period found in the contract of insurance, superseded
the longer period in Part 2.  In addressing this argument, McLachlin C.J.C.
stated:

21        ... I cannot accept this argument. The issue is
governed by s. 3(a) of the Act, which provides:

This Part has effect, despite any
law or contract to the contrary, except that

(a)   if any
section or statutory condition contained in Part 3, 4, 5, 6 or 7 is applicable
and deals with a subject matter that is the same as or similar to any subject
matter dealt with by this Part, this Part does not apply....

This provision does not permit
the insurer to substitute harsher terms than those provided in Part 2. The
plain language of the section indicates the Legislatures intent that the
provisions in Part 2 operate as a floor of protection beneath which insurance
contracts cannot descend. If a contract falls within one of the enumerated
Parts, then that Part is engaged and provides a different floor. Otherwise, the
insured is guaranteed, at a minimum, the statutory protections contained in
Part 2. The insurers attempt to argue that the shorter limitation period is
more advantageous to the insured because it is more certain verges on the
disingenuous.

[51]

Sun Life seeks to distinguish
K.P. Pacific
from this case on two
grounds.  First, it says
K.P. Pacific
dealt with an all-risk policy and
Part 5 of the
Act
.  Second, it says the argument advanced was that a
less generous contractual limitation period displaced the more generous
statutory limitation period rather than the other way around: a more generous
contractual limitation period displacing a less generous statutory limitation
period.

[52]

In my view, while
K.P. Pacific
dealt with a different Part of the
Act
, the interpretation of the wording in section 3(a) of the
Act
is
still applicable to this case.  It is clear from the decision of McLachlin
C.J.C. that the limitation period in Part 2 of the
Act
guarantees a
minimum level of protection.  The question that arises is whether section 3(a)
permits insurers to offer a more generous level of protection than that
required by the
Act
.

[53]

The reasoning in
K.P. Pacific
does not specifically address
replacing section 22(1) of the
Act
with more favourable contractual
terms, but it also does not foreclose the possibility that a contract of
insurance may vary the provisions of Part 2 of the
Act
.  McLachlin
C.J.C. describes the provisions in Part 2 as a floor beneath which insurance
contracts cannot descend and reasons that unless a different Part of the
Act
is engaged and provides a different floor, an insured is guaranteed at a
minimum, the statutory protections of Part 2.  Flowing from the use of the
word floor and the idea of minimum protection is the inference that Part 2
leaves it open to an insurer to exceed that standard if it chooses to do so.

[54]

In my view, Sun Life must be held to the terms of the contract it provided
in this case, as they are more favourable to its participant than the
provisions of the statute.  Insurers are only prohibited from providing a less
generous limitation period than that which is prescribed in Part 2.  Nothing in
section 3(a) prevents an insurer from stipulating for a limitation period
greater than that in the
Act
itself.

[55]

In my respectful opinion, the summary trial judge erred in law by
applying the wrong limitation period to Dr. Sanders claim.  The summary trial
judge dismissed the Policy Limitation because he found it resulted in
absurdity.  This finding stems from the trial judges interpretation of the
Policy Limitation as being triggered upon the occurrence of a single event:
i.e.
Dr. Sander becoming disabled as defined in the Insurance Policy.  Dr.
Sander challenges this interpretation.

[56]

I will now turn to the proper interpretation of the Policy Limitation
and to its application to Dr. Sanders claim.

C.  Interpretation of the
Policy Limitation

[57]

For convenience I set out the Policy Limitation again:

No action or proceeding against
the Company for recovery of a claim under this policy shall be commenced more
than two years after the date the insurance money became payable or would have
become payable if it had been a valid claim.

[58]

Dr. Sander argues that the wording in the Policy Limitation has been
interpreted in cases involving continuous entitlement to benefits as creating a
rolling limitation period where the cause of action accrues at each
successive interval at which benefit instalments are to be paid.  In other
words, so long as Dr. Sander continues to be entitled to benefit payments as a
result of his continuous disability, his cause of action against Sun Life is
renewed every time a benefit becomes payable.

[59]

Dr. Sander relies on
Holme Estate
as establishing that the words
the date that the insurance money became payable refer to the entitlement to
benefits.  In
Holme Estate
, Mr. Justice Donald, writing for

this
Court, was concerned with the interpretation of s. 89 statutory condition 12 of
the
Act
,

which as explained in para. 45 of these reasons, does
not apply to this case.  However, as discussed, the relevant wording of the
Policy Limitation is exactly the same as the wording in statutory condition 12,
except for the term, two years instead of one.  Despite the fact that the
policy in
Holme Estate
was not a group policy, both that policy and the group
policy in this case were sickness insurance and insured against the same
risk: continuous total disability as defined in the respective policy.  As
discussed above in para. 40, the interests of uniformity in insurance law weigh
in favour of interpreting the words in the Policy Limitation in the same manner
as statutory condition 12.  Therefore, Donald J.A.s interpretation of
statutory condition 12 is equally applicable to the Policy Limitation.

[60]

In determining when the limitation period began to toll, Donald J.A.
stated at para. 34:

The benefits under the policy
thus initially became payable at the end of the limitation period, and were
then payable on a bi-monthly basis thereafter. The limitation period required
the action to be commenced one year from that date or from the date when each
payment became payable.

[61]

It appears to me that the reference to limitation period in the first
sentence of para. 34 of the decision may be a typographical error and should
read elimination period.  Reading this passage with the suggested correction,
it is clear that each benefit payment gives rise to its own limitation period.

[62]

Donald J.A. concluded that the insured had a continuing claim through
the period of disability and it was not extinguished by the failure to sue
within one year of the commencement of that continuum.  The only effect of the
limitation clause was to bar recovery of insurance money payable earlier than
one year prior to the action being commenced.

[63]

This approach was affirmed by this Court in
Balzer
at para. 38
where Madam Justice Huddart stated:

While the reasoning in
Holme
Estate
,
supra
, will always be appropriate where the cause of action
accrues monthly and the limitation period is determined by the date the
insurance money becomes payable, as is apparent from my reasons in the
companion appeal
Watterson v. Sun Life Assurance Co. of Canada
, 2003
BCCA 305 (B.C. C.A.), I would not apply s. 22(1) as a general rule to limit
recovery under disability coverage to benefits for the year preceding the
action. I agree with Pitfield J. to do so would be to ignore the wording of s.
22(1).

D.  Applying the Policy
Limitation to this Case

[64]

Upon review of the Insurance Policy, it is clear that a participant has
a right to monthly benefit payments so long as the participant meets the
conditions of the Insurance Policy with regard to total disability. The
Insurance Policy provides for income replacement benefits upon total
disability, which is defined as: the inability to perform the essential duties
of dentistry; be under the regular care of a physician; and, not be engaged in
any gainful employment by reason of sickness or injury (also both defined in
the Insurance Policy).  Benefits are payable under the following conditions:

INCOME REPLACEMENT
BENEFIT

1.   If a participant becomes Totally Disabled, the Company
will make income replacement payments in accordance with the following
conditions and provisions of his policy:

a)   Total Disability must
commence while insurance under this Income Replacement Benefit is in force on
behalf of the relevant Participant;

b)   Total Disability must exist
for not less than the applicable Elimination Period while the relevant
Participant is alive; and

c)   during Total
Disability, the Participant must be under the continuing care of a Physician.

2.   So long as a Participant is Totally
Disabled, the amount payable each month under his Income Replacement Benefit
will be the Monthly Income applicable to such Participant, subject to any
reduction by the other provision of the policy.

[65]

So long as Dr. Sander continued to satisfy the above conditions and any
other relevant provisions included in the Insurance Policy, he was entitled to
income replacement benefits.  The risk insured against was continuing total
disability and in that sense insurance money was also payable on a continuing
basis after the prescribed elimination period.  Dr. Sanders claim therefore
accrued monthly and the limitation period, in light of the jurisprudence, must
be viewed as commencing anew on each successive entitlement.

[66]

This case differs from
Holme Estate
in that a determination of continuous
disability beyond 14 June 2001 has not been made and is in dispute.  However,
in my view, interpreting the Policy Limitation as giving rise to a rolling
limitation period is correct and accords with precedent.  Following the
reasoning of Donald J.A., the Policy Limitation should be applied so as to bar
Dr. Sanders claim for the recovery   of insurance money payable earlier than two
years preceding the date on which he issued the writ of summons.

[67]

I do not agree with Sun Life that Dr. Sanders claim is time-barred
under the Policy Limitation despite the recurring cause of action because the 29
June 2001 letter denied entitlement not only to the next scheduled payment of
benefits but also to any future payment of benefits.  In my view, this position
cannot be sustained as it ignores the wording in the latter part of the Policy
Limitation: would have become payable if it had been a valid claim.

[68]

Whether Dr. Sander has a valid claim is yet to be determined.  In my
respectful opinion, the summary trial judge erred in viewing the Policy
Limitation as being triggered by a single occurrence and in applying instead s.
22(1) of the
Act
.  As a result of the summary trial judges approach, no
determination was made as to whether Dr. Sander continued to be disabled and
therefore entitled to benefits after 14 June 2001.  It must be remembered that
Dr. Sander may have continued to be disabled as a result of his refusal to
undergo the corrective surgery, which, as found by Dillon J. and affirmed by
this Court, was required by the Insurance Policy.  The resulting unanswered question
is whether Dr. Sander continued to be entitled to benefits despite his initial
refusal to have corrective surgery until after the court gave its opinion that
such surgery was reasonably required under the terms of the Insurance Policy.
This question requires a determination of the merits of Dr. Sanders claim.

VII.
Disposition

[69]

In my opinion, the appeal should be allowed and the order of the learned
summary trial judge set aside.

[70]

The action should be remitted to the trial court for a determination of
whether Dr. Sander is entitled to benefits under the Insurance Policy for the
period of two years preceding the date on which he issued the writ of summons
and anytime thereafter.

The
Honourable Chief Justice Finch

I agree:

The Honourable Madam Justice
Saunders

I agree:

The Honourable Madam Justice
Neilson