Coombe v. Constitution Insurance Co.*

29 O.R. (2d) 729

115 D.L.R. (3d) 499

ONTARIO

COURT OF APPEAL

DUBIN, ZUBER AND WILSON, JJ.A.

15TH SEPTEMBER 1980.

* Leave to appeal to the Supreme Court of Canada refused, February 3, 1981. S.C.C. File No. 16391.

Insurance -- Automobile insurance -- "No-fault" benefits -- Permanent and total disability established -- Whether successive actions required to enforce payment -- Insurance Act, R.S.O. 1970, c. 224, Sch. E.

Judgments and orders -- Prospective effect -- Motion to carry a judgment or order into operation -- Insured entitled to indefinite disability payments under "no-fault" automobile insurance coverage -- Whether successive actions required to enforce payment -- Rule 529 (Ont.).

Where an order has been made entitling a permanently and totally disabled claimant to indefinite disability insurance benefits under Sch. E (enacted 1971, Vol. 2, c. 84, s. 26) of the Insurance Act, R.S.O. 1970, c. 224, incorporated in an automobile insurance policy, the claimant may enforce payment by motion under Rule 529 "to carry a judgment or order into operation". The claimant is not required to bring a separate action, since the initial order has an ongoing effect and it is for the insurer to show that disability has ceased, not for the claimant to show that it continues.

Per Zuber, J.A., dissenting: A judgment cannot operate prospectively, and consequently a new action is required in respect of claims accruing after judgment. The prospect of multiplicity of actions can be reduced by awarding fully compensatory costs in an appropriate case.

[Grainger v. Order of Canadian Home Circles (1918), 44 O.L.R. 53, apld; Hoffman v. McCloy (1917), 38 O.L.R. 446, 33 D.L.R. 526, distd; Fraser v. Maritime Life Ass'ce Co. (1974), 52 D.L.R. (3d) 204, 19 N.S.R. (2d) 412; Lefebvre v. C.N.A. Ass'ce Co. (1978), 20 O.R. (2d) 37, 86 D.L.R. (3d) 555, [1978] I.L.R. 1197; T.W. Thompson Ltd. v. Simcoe & Erie General Ins. Co. (1975), 8 O.R. (2d) 455, 58 D.L.R. (3d) 327; affd 12 O.R. (2d) 184, 68 D.L.R. (3d) 240; Blackstone v. Mutual Life Ins. Co. of New York, [1944] O.R. 607, [1945] 1 D.L.R. 165; Mutual Life Ins. Co. of New York v. Lessard, [1943] Que. K.B. 361, 10 I.L.R. 252, refd to]

APPEAL from a judgment of Rutherford, J., dismissing a motion to enforce a claim to disability insurance benefits.

Raymond G. Colautti, for appellant, plaintiff.

Lee Samis, for respondent, defendant.

DUBIN, J.A., concurs with WILSON, J.A.

The defendant is his insurer who paid him "no-fault" benefits under Sch. E of his policy for a period of 98 weeks following the accident but refused to pay him any more. The plaintiff claimed that he was entitled to receive those benefits for so long as he was permanently and totally disabled and that he continued to be so up to the date of trial. The learned trial Judge agreed with him and made an order, para. 1 of which reads as follows:

1. This Court doth declare that the Plaintiff is entitled to recover from the Defendant weekly benefits under Schedule E for the period commencing with the week of the 20th of June, 1976 and continuing for such period during which the Plaintiff is permanently and totally disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, and doth order and adjudge the same accordingly.

Schedule E to the Insurance Act, R.S.O. 1970, c. 224, as amended by 1971, Vol. 2, c. 84, s. 26, and 1972, c. 66, s. 18, so far as it is relevant to the plaintiff's claim against his insurer, provides as follows:

SCHEDULE E

. . . . .

The Insurer agrees to pay to or with respect to each insured person ... who sustains bodily injury ... by an accident arising out of the use or operation of an automobile:

. . . . .

(Part II)

A weekly benefit for the period during which the injury shall wholly and continuously disable such insured person; provided,

. . . . .

(c) no benefit shall be payable for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury permanently and totally disabled such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, the Insurer agrees to pay such weekly benefit for the duration of such disability;

In his reasons for judgment [summarized [1978] 2 A.C.W.S. 381] Mr. Justice Cromarty made the following statements:

There can be no doubt that he has a permanent disability and that for the first 104 weeks it was such that "it prevents him from performing any and every duty pertaining to his occupation or employment".

(Page 4 reasons.)

Coombe's right to weekly benefit payments after 104 weeks ceases unless he establishes under Part II(c) above "that such injury permanently and totally disabled such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience ...".

(Page 6 reasons.)

From the accident on June 20, 1974 to June 19, 1976, the defendant does not dispute Coombe's entitlement to $70 per week under Part II(b) so it may be assumed that his injury prevented him "from performing any and every duty pertaining to his occupation or employment" during that period. On the wording of the Act the onus is on Coombe to show his entitlement to a continuation of the weekly benefit beyond the 104 weeks. To succeed he must "establish that such injury permanently and totally disabled" him "from engaging in any occupation or employment for which he is reasonably suited by education, training or experience for the duration of such disability". This need only be done to the usual civil standard of proof.

(Page 10 reasons.)

In my opinion, the rather limited amount of work shown by the evidence to have been done by Coombe in the motorcycle business does not disentitle him to a continuance of the weekly benefit beyond the 104-week initial period.

(Pages 12-3 reasons.)

The learned trial Judge therefore made the order in the terms already quoted. He then went on to assess the amount owing to the plaintiff up to and including the week of July 2, 1978, although the trial took place on February 16 and 17, 1978. He released his reserved judgment on July 6, 1978.

The insurer appealed to the Court of Appeal from the learned trial Judge's finding of permanent and total disability but was unsuccessful. This Court did, however, vary his order to limit the plaintiff's recovery to the date of trial.

The parties are before us once more in connection with these "no-fault" benefits and raise an issue of some difficulty. The insurer made the payments required by the order of Mr. Justice Cromarty as amended by this Court but has paid nothing since. The plaintiff takes the position that he continues to be permanently and totally disabled and that Mr. Justice Cromarty's order has ongoing effect in that it provides for the plaintiff's entitlement "for such period during which the plaintiff is permanently and totally disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience". Accordingly, he brought a motion for execution of the judgment which, after several adjournments, was heard by Mr. Justice Rutherford on October 24, 1979. The relief claimed on that motion is important and I quote the notice of motion verbatim:

a) to allow the Plaintiff to issue and file a writ of execution in the amount of $5,880.00 representing disability benefits due to the Plaintiff to date as against the Defendant pursuant to the judgment of the Honourable Mr. Justice Cromarty pronounced the 6th day of July 1978 as varied by the order of the Court of Appeal made the 28th day of March 1978 to date;

b) in the alternative and only if necessary, to amend the aforesaid judgment in any particular on which the Court did not adjudicate pursuant to Rule 528 of the Consolidated Rules of Practice, to wit: that the Plaintiff do recover continuing disability payments from the Defendant until such time as the Defendant shall affirmatively prove that the Plaintiff is no longer permanently and totally disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience;

c) in the further alternative, and only if necessary, to vary the aforesaid judgment or vary such judgment into operation pursuant to Rule 529 of the Consolidated Rules of Practice by ordering that the Defendant continue to pay to the Plaintiff disability payments specified in the aforesaid judgment so long as or until the Defendant shall affirmatively prove that the Plaintiff is no longer permanently and totally disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Rutherford, J., dismissed the application without written reasons but on appeal from his order of dismissal the Court was advised by counsel that he had expressed the view orally that the relief the plaintiff was seeking could be obtained only by the institution of a fresh action. The narrow issue before us then is: does an insured who has been found permanently and totally disabled at the end of the 104-week period and has obtained a Court order which appears on its face to have ongoing effect, have to sue for each successive payment to which he alleges he is entitled under the order? The wider issue is: is the form of order made by Mr. Justice Cromarty an appropriate form of order under the statute, the language of which is echoed in the policy, and if it is what is the procedural mechanism for its enforcement?

Part II of Sch. E is not felicitously worded but I think its meaning is clear. The insured is to be entitled to a weekly benefit for the period during which he is "wholly and continuously disabled" by his injury but this right is limited by the proviso which specifies that no benefits shall be payable after the expiry of 104 weeks unless "it has been established" that the injury "permanently and totally disabled" the insured "from engaging in any occupation or employment for which he is reasonably suited by education, training or experience". In other words, two different tests are set out in the section, the first that the insured be "wholly and continuously disabled" from doing the work he was doing at the date of the accident, and the second that he be "permanently and totally disabled" from doing any kind of work for which he has the requisite training and skill. If he meets the first test he receives the weekly payment for as long as he meets it, which may be for the full 104 weeks or it may be for less than that. At the end of the 104-week period, if he is still in receipt of payments, his payments will stop unless "it is established" that he meets the second test in which case he will continue to receive his payments for as long as he meets that test.

The learned trial Judge found that the plaintiff met both tests. He was not only "wholly and continuously disabled" from doing what he was doing prior to the accident so as to be entitled to the weekly benefits for the 104 weeks following the accident, but he was also at the end of the 104-week period "permanently and totally disabled" from doing anything for which he was trained. The defendant was therefore obligated to continue the payments.

The difficulty with the proviso in para. (c) is that it is open-ended and the learned trial Judge has accordingly made an open-ended order echoing the language of the section. I think the order is a completely appropriate one. Having found that the plaintiff was, at the end of the 104-week period, "permanently and totally disabled", the learned trial Judge made a declaration as to the plaintiff's entitlement under para. (c) of the proviso. This finding triggered the insurer's promise in the concluding words of the paragraph to pay the weekly benefit to the insured for the duration of his disability.

How then is this declaration of entitlement to be given effect? Counsel for the respondent submits that the factual basis of his client's ongoing liability under Cromarty, J.'s order must be established by the plaintiff in a subsequent action. Nothing, he submits, is payable under the declaration itself. It becomes payable only when the plaintiff proves in an action that he continues to be permanently and totally disabled during the period in respect of which he claims. The respondent relies on the judgment of this Court in Hoffman v. McCloy (1917), 38 O.L.R. 446, 33 D.L.R. 526.

In that case the plaintiff and defendant had an agreement under which the plaintiff was to receive 20% of the royalties received by the defendant from a U.S. patent. The plaintiff had obtained judgment for the arrears then owing and also a declaration that he was entitled to a percentage of all royalties thereafter received. He subsequently brought a motion in the action for the appointment of a receiver and an accounting. Boyd, C., made the order sought but was reversed on appeal, Masten, J., stating at p. 451 O.L.R., p. 529 D.L.R.:

The claims now sought to be enforced are new claims which have arisen since the judgment. To enforce them the plaintiff must commence some action or proceeding in the Court.

The Court held that Rule 529 (then Rule 523), which was relied on by the plaintiff, was not "intended to provide for the granting of relief in respect to a new cause of action which has arisen subsequently to the issue of the judgment".

Rule 529 reads as follows:

529. A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter arising subsequent to the making thereof or subsequently discovered, or to impeach a judgment or order on the ground of fraud, or to suspend the operation of a judgment or order, or to carry a judgment or order into operation, or to any further or other relief than that originally awarded, may move in the action for the relief claimed.

Chief Justice Meredith delivered a strong dissenting opinion in the Hoffman case. He said at p. 453 O.L.R., pp. 531-2 D.L.R.:

It was adjudged at the trial of this action that the plaintiff is entitled to "twenty percent." of all royalties received by the defendant, in respect of a certain patent right; and it is not denied that, since that judgment, the defendant has received a considerable sum of money for such royalties ...

But it is said that, although all that is quite true, the plaintiff cannot have any relief in this action; that he must be delayed, and both parties be put to the expense of another action ...

If that be so, the sooner the practice in that respect is brought into line with common sense the better; for such enforced circumlocution could have no reasonable excuse.

The Hoffman case was distinguished in Grainger v. Order of Canadian Home Circles (1918), 44 O.L.R. 53. In that case, the plaintiff was a participant in an insurance benefits society under the terms of which (as amended by statute) he became entitled to receive $100 annually for 10 years. The sixth payment was in arrears. He obtained judgment ordering the sixth payment to be made and declaring that $100 be paid in each of the next four years. The Court held that, while the declaration of entitlement did not permit execution to issue when the remaining payments fell due, it did entitle the plaintiff to an order by way of supplementary relief under Rule 529 (then Rule 523) directing payment of the four sums. Middleton, J., said at pp. 56-7:

Hoffman v. McCloy (1917), 38 O.L.R. 446, 33 D.L.R. 526, shews that Rule 523 cannot be invoked for the purpose of giving effect to a new cause of action arising subsequent to the cause of action sued upon, merely because it is similar to that actually dealt with in the action. Here the Court has not only dealt with the claim for the $100 which accrued before the action was brought, but has made a declaration which determines the right of both parties as to the growing instalments of the annuity, unless, as is contended, this right has been displaced by the subsequent legislation. To refuse to implement this declaratory judgment by now directing payment of sums falling due in the 4 years since the judgment, would be unduly to narrow the scope of the Rule.

It seems to me that the instant case is more analogous to Grainger than to Hoffman. In Hoffman it was a condition precedent to the plaintiff's right to recover any payments in addition to those due at trial that royalties be earned in the future. Accordingly, a claim for future royalties had to be the subject of a fresh cause of action once those royalties were earned. In Grainger, as in this case, there was only one cause of action and it was fully determined at trial. The continuation of the plaintiff's state of permanent and total disability found by the learned trial Judge to exist at the end of the 104-week period is not a condition precedent to the plaintiff's right to the weekly benefits. His right to those benefits stems from Cromarty, J.'s order. It does not, as in Hoffman, depend upon the contingent happening of an event subsequent to the judgment. To put it another way, the cessation of the plaintiff's state of permanent and total disability, if established, would terminate the plaintiff's right to weekly benefits under Cromarty, J.'s order but, in the absence of proof of such cessation, the right continues and the plaintiff is entitled to payment. Hoffman, in other words, involved a condition precedent to entitlement whereas Grainger and this case involve conditions subsequent to entitlement. There is no fresh cause of action where the plaintiff's rights are declared by the Court to continue for so long as he is permanently and totally disabled.

It follows from this analysis of the statute and of Mr. Justice Cromarty's order that the insurer cuts off weekly benefits to the insured at its own risk. It is not, in my view, for the plaintiff to establish that he continues week by week to be permanently and totally disabled. It is for the defendant to establish that he has ceased to be so and that Mr. Justice Cromarty's order is therefore no longer binding on it. Paragraph (c) of the proviso lays the burden on the plaintiff to establish that he is permanently and totally disabled at the end of the 104-week period but, once he has discharged that burden, then it requires the defendant to pay him the weekly benefit so long as that condition obtains. It is, in my view, unthinkable that an insured be put under an ongoing burden to establish his permanent and total disability and I cannot think that the Legislature could have intended it. The legislation was designed for the protection of the insured and should be construed in the way most favourable to him.

I find some support for this approach to the onus of proof in Fraser v. Maritime Life Ass'ce Co. (1974), 52 D.L.R. (3d) 204, 19 N.S.R. (2d) 412 (N.S.S.C.). In that case the insured claimed a monthly income benefit under a group insurance policy. The policy provided that monthly payments would commence at a specified time following the event causing total disability and would continue "for each succeeding month or partial month that such disability continues ...". The policy further provided that written proof of the continuance of such disability must be furnished to the insurer at such intervals as it might reasonably require. Despite this latter clause in the policy Mr. Justice Dubinsky held, at p. 208, that:

The plaintiff having established that he was entitled to total disability benefits under the policy and the defendant having recognized this by having made payments to him ... the onus is upon the insurance company to show that he has ceased to be entitled thereto.

The Fraser case was applied in Lefebvre v. C.N.A. Ass'ce Co. (1978), 20 O.R. (2d) 37, 86 D.L.R. (3d) 555, [1978] I.L.R. 1197 (Ont. H.C.). In that case payments had been made under a disability insurance policy and then discontinued by the insurer on the ground that evidence existed to show that his continuing disability was the result of factors other than his original accident. The Court in Lefebvre considered itself to be governed by two general principles of law in construing insurance policies:

(1) The contra proferentem rule as expressed by Zuber, J.A., in T.W. Thompson Ltd. v. Simcoe & Erie General Ins. Co. (1975), 8 O.R. (2d) 455 at p. 458, 58 D.L.R. (3d) 327 at p. 330 [affirmed 12 O.R. (2d) 184, 68 D.L.R. (3d) 240]:

I am inclined to accept the construction advanced [herein], but at the very least the clause is ambiguous and in such a case the clause must be construed in a manner favourable to the insured.

(2) The onus principle as expressed by Hogg, J., in Blackstone v. Mutual Life Ins. Co. of New York, [1944] O.R. 607 at p. 613, [1945] 1 D.L.R. 165 at p. 171 (Ont. H.C.):

I have therefore concluded that the onus rests upon the defendant to show that the plaintiff, in so far as any right he may have under the first six policies is concerned, is not suffering from any impairment of mind or body which continuously renders it impossible for him to follow a gainful occupation ...

The Court in Lefebvre applied these two principles to the facts of that case and held that the insurer should pay to the insured the benefits to which he had been entitled but which were denied to him by the insurer and directed that the insurer would continue to make such monthly payments to the insured until "he ... is no longer totally disabled ...".

In the Blackstone case the insured sought to recover a monthly income benefit under several insurance policies. The policies provided that a total disability which existed continuously for 90 days would be presumed to be a permanent disability but that the insurer could require, no more often than annually, proof of the continuance of the total and permanent disability. Disability on the part of the plaintiff, which entitled him to the benefit granted by the policies, was recognized by the defendant company for a period of six months. The Court found [at p. 612 O.R., p. 170 D.L.R.] that the presumption that the disability was total and permanent was established in favour of the insured and that once it had been brought into existence "the approval of the defendant company [was] not a condition precedent to his right to claim relief by action". The Court went on to cite with approval the following conclusion of Barclay, J., in Mutual Life Ins. Co. of New York v. Lessard, [1943] Que. K.B. 361 at pp. 364-5, 10 I.L.R. 252:

Once the permanency of the absolute incapacity is established by this presumption, the right of the company is limited to require proof of its continuation -- in other words, proof that there has been no change. After 90 days of continuing incapacity the absolute incapacity is presumed to be permanent until it is shown to have ceased. It is not for the insured to prove that his incapacity has ceased. If the company suspects that it has, it may require valid proof of its continuation. If it is not satisfied with such proof, it can refuse to pay and take the consequences of its refusal.

. . . . .

The company's undertaking to pay under certain conditions is absolute and permanent, not conditional, and any failure to comply with its obligation can undoubtedly be enforced by action, if the insured has in fact complied with the terms of his policy.

On the evidence, including medical testimony, before it, the Court found that the plaintiff was totally and permanently disabled and gave judgment for the plaintiff as claimed for refund of premiums and disability benefits, income and costs. The Court noted in obiter that the plaintiff had not made efforts to find other employment, but stated that it was not incumbent on him to do so, the onus having been placed upon the defendant company to establish that it was justified in discontinuing the benefits under the policy.

It would appear to me on the basis of these authorities that the plaintiff was entitled to move under Rule 529 for the relief he was claiming against his insurer. This is the route he chose to follow rather than commence a fresh action, which it would, of course, have been open to him to do. He was asking, in effect, that the order of Cromarty, J., be "carried into operation" within the meaning of the Rule. The defendant stopped payment at its own risk and the onus is on it to establish that it had the right to do so. In my opinion, it would have been open to the defendant to move under the Rule if it thought it could discharge the onus since it would be seeking to "suspend the operation" of the order as opposed to the plaintiff's seeking to "carry it into operation". Indeed, I believe that this would have been the proper course for the defendant to follow rather than taking the unilateral action it did and thereby putting the plaintiff to the necessity of instituting proceedings to enforce its order.

I would accordingly allow the appeal, set aside the order of Rutherford, J., and direct payment of no-fault benefits to the appellant up to the date of the appellant's notice of motion before Rutherford, J. If it is necessary to do so, I would give the appellant leave to issue execution for his weekly payments as and when they fall due, including those which have fallen due since the date of his notice of motion, until the order of Cromarty, J., is suspended.

I would grant the appellant his costs both here and before Rutherford, J.

The plaintiff was injured in an accident which occurred on June 20, 1974. The defendant who insured the plaintiff paid him certain no-fault benefits but declined to pay beyond 104 weeks (June 20, 1976) from the date of the accident. The defendant's liability to pay no-fault benefits depends upon the following term in the policy of insurance:

(c) no benefit shall be payable for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury permanently and totally disables such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, the Insurer agrees to pay such weekly benefit for the duration of such disability.

The plaintiff brought action against the defendant and the matter came on for trial before Cromarty, J., in February of 1978. The learned trial Judge found as a fact that the plaintiff was permanently and totally disabled. Judgment was released in July of 1978. The judgment took the form described in the reasons of Wilson, J.A., awarding a sum of money for payments past due and declaring that the plaintiff was entitled to recover weekly benefits for such period during which the plaintiff is permanently and totally disabled.

I observe at this point that the term "permanent" as here used does not mean perpetual but only lasting or enduring as opposed to temporary: see McMartin v. Liberty Mutual Ins. Co. (1976), 12 O.R. (2d) 666, 70 D.L.R. (3d) 66, [1977] I.L.R. 492. In my respectful opinion this judgment does nothing more than determine the plaintiff's rights as of the date of trial. The money judgment represents accumulated arrears; the declaratory portion which merely echoes the rights of the plaintiff pursuant to his contract of insurance, does not by itself operate to compel future payments since such future payments are contingent upon continuing permanent and total disablement. The view that this judgment cannot operate prospectively is, I believe, confirmed by the judgment of this Court which heard the appeal from the judgment of Cromarty, J.: see Coombe v. Constitution Ins. Co., Court of Appeal, unreported, released May 4, 1979 [summarized [1979] 2 A.C.W.S. 80]. In his judgment [summarized [1978] 2 A.C.W.S. 381], Cromarty, J., had awarded a sum of money which included arrears of no-fault payments from June 20, 1976, to the date of the judgment, i.e., July, 1978. This Court, while upholding the judgment, cut back the amount to include arrears only to the date of trial.

In my opinion, the rights of the plaintiff to no-fault payments accrue to him from week to week according to the terms of the policy. He does not have a single cause of action but rather contractual rights which mature if the conditions prescribed in the contract exist. In New York Life Ins. Co. v. Handler, [1937] S.C.R. 127, [1937] 1 D.L.R. 481, 4 I.L.R. 99, the Supreme Court of Canada dealt with a similar insurance policy. Crocket, J., said at pp. 133-4 S.C.R., pp. 486-7 D.L.R.:

We are of the opinion that, upon the true construction of this insurance policy, in so far as it relates to the total disability benefits sued for, the risk insured against was the continuance of a condition of total and presumably permanent disability on the part of the insured, resulting from bodily injury or disease ...

. . . . .

These provisions and the others above quoted, we think, conclusively show that the existence and uninterrupted continuance of total disability as defined by the insurance policy alone affords a ground of action for the recovery of any of the unpaid indemnity contracted for.

(See also Dowhaniuk v. Western Union Ins. Co., [1977] 1 W.W.R. 553, [1977] I.L.R. 495.)

I turn now to Rule 529 which reads as follows:

It is argued that even if the original judgment in this matter has no prospective effect, Rule 529 can be the vehicle whereby the judgment is from time to time brought forward to compel payments which are said to have become due since the pronouncement of the original judgment. In my view, however, this Rule does not entitle a plaintiff to engraft new claims onto old judgments. In Hoffman v. McCloy (1917), 38 O.L.R. 446, 33 D.L.R. 526, Masten, J.A., said of Rule 523 (now Rule 529) at p. 451 O.L.R., p. 530 D.L.R.:

It is suggested that under the concluding words of Rule 523 jurisdiction is conferred upon the Court to make the order now in appeal. The words referred to are as follows: "A party entitled to ... any further or other relief than that originally awarded may move in the action for the relief claimed." The words quoted were added to the Rule on the last consolidation, and appear to have been so added for the purpose of conferring jurisdiction on the Court to add to the provisions of a judgment any clause or direction which ought to have been inserted in it or which might have been inserted in it when it was originally drawn, but which, by mistake, inadvertence, or other cause, were omitted from the judgment. But I do not think that the words are intended to provide for the granting of relief in respect to a new cause of action which has arisen subsequently to the issue of the judgment.

And, more recently, Laskin, J.A. (as he then was), said in Carvell v. Carvell, [1969] 2 O.R. 513 at p. 520, 6 D.L.R. (3d) 26 at p. 33:

Rule 529 prescribes a more summary form of procedure by which a judgment or order already obtained may be shown to be impeachable or vulnerable. It does not relate to the establishment of a fresh basis for a variation with prospective effect and where the propriety of the judgment or order originally made is not called into question. It is enough to cite in support of this view, if support is needed, Glatt v. Glatt, [1936] O.R. 75, [1936] 1 D.L.R. 387, 17 C.B.R. 219; affd [1937] S.C.R. 347, [1937] 1 D.L.R. 794, 19 C.B.R. 14; and see also Davis v. Davis, [1949] O.W.N. 683.

With respect to the contrary opinion of Madam Justice Wilson, I think that the case of Grainger v. Order of Canadian Home Circles (1918), 44 O.L.R. 53, is of little help. In that case, the sum of $1,000 became payable as a result of the death of the insured. The insurer was permitted to pay the amount in instalments but the instalment payments were dependent on no further facts or any other contingency except the effluxion of time.

I conclude, therefore, that the plaintiff's judgment cannot operate prospectively, nor can it be updated by the utilization of Rule 529. It would appear that the plaintiff's only remedy is a second action.

I wish only to add that I have no desire to encourage a multiplicity of actions. A plaintiff in a second action will, of course, enjoy the evidentiary advantage resulting from the first judgment. He may even seek damages beyond the accrued payments and will no doubt seek costs on a fully compensatory scale. I therefore doubt that an insurer will lightly or often expose itself to a second action.

I would dismiss this appeal with costs.

Appeal allowed.