The insurer’s failure to provide written notice of the applicable limitation period to the insured did not cause the limitation period for commencing an action to be waived or suspended on the bases of either promissory estoppel or the Fair Practices Regulation, Alta Reg 128/2001. However, section 5.3(2) of the Fair Practices Regulation, which requires insurers to provide claimants with written notice of the applicable limitation period within 60 days of becoming aware of a claim, is now in force. Consequently, insurers will be required to provide insureds with written notice of applicable limitation periods in claims brought after July 1, 2012.

[2014] A.J. No. 1110

2014 ABQB 609

Alberta Court of Queen's Bench

Master A.R. Robertson (In Chambers)

October 3, 2014

The insured was involved in a motor vehicle accident on March 24, 2011. The limitation period for commencing the action would normally have expired on or sometime shortly after March 24, 2013. The insured did not file a statement of claim until October 2, 2013. The defendant’s insurer brought an application for summary dismissal of the action on the grounds that the claim was brought outside of the applicable limitation period.

The insured argued for an extension of the limitation period on two potential grounds. First, the insured argued that section 5.3(2) of the Fair Practices Regulation required the insurer to notify the insured in writing of the applicable limitation period. Second, the insured argued that the doctrine of promissory estoppel barred the insurer from relying on the limitation period.

On the first ground, the Alberta Court of Queen’s Bench considered section 5.3(2) of the Fair Practices Regulation. The section came into force on July 1, 2012, after the insurer became aware of the insured’s claim, but before the two year limitation period expired. The section requires that an insurer provide a claimant with written notice of the applicable limitation period within 60 days of becoming aware of the claim. If the insurer fails to provide written notice, the limitation period may be extended.

The Court held that section 5.3(2) did not apply retroactively to require insurance companies to give written notice in ongoing claims, as it would have been impossible for insurance companies to meet the notice requirement deadline retroactively. In the absence of express transition provisions stating that the Fair Practices Regulation would apply to ongoing claims, the presumption was that it was not intended to apply retrospectively.

On the second ground, the insured invoked the doctrine of promissory estoppel to say that the limitation period was extended. The insured argued that because the insurer had made an offer to settle shortly after the accident, it was clear to the insurer that the claim would be settled. The discussions and requests for further information that followed allowed him to rely on the fact that he need not sue.

The Court considered the Supreme Court of Canada decision in Maracle v. Travelers Indemnity Co. of Canada, [1991] S.C.J. No. 43, and determined that for promissory estoppel to apply, there must be some evidence that the defendant intended to affect the parties’ legal relations. Something in the nature of a promise was required. In this case, the insurer had made no promise to settle and no offer was on the table. While a settlement offer had been advanced early in the claim, the plaintiff could not rely on this as an admission of liability. After the insured rejected the offer, the insurer requesting more information was not a promise to extend the applicable limitation period, but merely suggested that if the information should change, then perhaps further settlement discussions would be had. The insured could not rely on promissory estoppel to avoid the limitation period. Accordingly, the insured’s action was dismissed.