D. C. 1908 ATKINSON บ. DOMINION OF CANADA GUARANTEE AND ACCIDENT Meredith, C.J. MEREDITH, C.J.C.P.:-I agree with the conclusion of my brother MacMahon that the case was properly left to the jury, and that neither their findings, nor the finding of the learned Judge on the issue as to the settlement, ought to be set aside. The question of the effect of the conditions as to proofs of death, and that as to the time within which an action on the policy must be brought, present more difficulty. By the terms of the policy, the appellant's liability to pay is subject to conditions which the policy declares to be "conditions precedent to the right of the insured to recover under" the policy. The conditions which affect the questions for decision are the following: and "(5) That written notice of any accident or injury, with full particulars thereof and full name and address of the insured, shall be given to the company immediately and under no circumstances later than five days after the accident, by leaving. affirmative proof of death. and that the same falls within the terms of this policy shall be furnished to the company in the manner aforesaid, and to the satisfaction of the directors, within four months from the sustaining of the injury, when claim is made under clauses F." (the one under which the claim is made in this case). "(9) That no moneys shall be payable under this policy unless and until all the terms, provisions, conditions and directions contained in this policy shall have been complied with and a period of three months shall have elapsed from the time when the affirmative proof aforesaid shall have been furnished to the satisfaction of the directors, and no action shall be brought on this policy unless within three months from the time when right of action shall accrue." That the onus of proving performance of all conditions precedent rested upon the respondent, and that if she failed to prove performance of them, except so far as any requirement of the conditions was waived by the appellants, her action failed and should have been dismissed, is not open to question: The Home Life Association v. Randall, 30 S.C.R. 97. The respondent did not at the trial offer any evidence to prove that she had complied with the requirement of the condition as to furnishing proofs of death. That requirement was, however, in my opinion, expressly waived by Mr. McKay, who was of counsel for the appellants at the trial. The following is an extract from the stenographer's notes of the evidence and proceedings at the trial, and it follows upon the reading by my brother Clute of the questions which he proposed to submit to the jury: "Any other questions suggested? I suppose there is no dispute, Mr. McKay, there is no dispute as to the formal particulars, that is the policy and the proof and the action being brought within time? "Mr. McKay: There is dispute as to the action being brought within time, my Lord. "HIS LORDSHIP: Do you want that submitted to the jury? "Mr. McKay: My Lord, I submit there is no contest on it. It is for your Lordship to determine, but I want it determined in the action. "HIS LORDSHIP: It has not been mentioned. "Mr. McKay: No, my Lord, the times are mentioned, proved." What occurred as thus detailed was, I think, an assent by Mr. McKay to the suggestion of my brother Clute that there was no dispute as to the proof, meaning, of course, the furnishing of proofs of death, and appears to me to have been a clear waiver of the requirement of the condition as to proofs of death. Although this gets rid of one difficulty in the way of the respondent, there remains the question whether the condition as to the action being brought within three months from the time when the respondent's right of action accrued is a condition precedent, or a provision which must have been pleaded to entitle the appellants to the benefit of it, and the further questions whether the action was brought in time, and if not, whether the respondent is entitled to succeed because of the provisions of the enactments, to which I shall afterwards refer, and of the order of my brother Clute extending the time for bringing the action. In my opinion the provision of the policy as to the time within which action must be brought is a condition precedent which the appellants were not bound to plead, and if it did not appear that the action was brought in time, that is to say, within the three months or any extension of it properly granted under the authority of the enactments referred to, the action failed and should have been dismissed. D. C. 1908 ATKINSON V. DOMINION OF CANADA GUARANTEE AND ACCIDENT Meredith, C.J. D. C. 1908 ATKINSON v. DOMINION OF CANADA GUARANTEE AND ACCIDENT Co. Meredith, C.J. The next question is whether the action was brought within three months from the time when the respondent's right of action accrued. If no proofs of death were furnished, a right of action had not accrued to the respondent when the action was begun. What then is the effect of the appellants' waiver of the requirement of the conditions as to furnishing proofs of death? The policy in effect says that it is granted on condition that no action shall be brought under it unless within three months from the time when the right of action shall accrue. It appears to me that the respondent cannot be heard to say that the waiver of the condition as to the proofs of death amounted to any more than an admission that proofs had been furnished in accordance with the requirement of the condition, that is to say, within four months after the happening of the injury to the insured, and as by the terms of the policy the action must be brought within three months from the time when right of action shall accrue, the action was commenced too late and the respondent must fail, unless her right of action is saved by the enactments to which I have referred. I come now to the enactments. Section 148 of ch. 203, R.S.O., provides as follows: "(2) Notwithstanding any stipulation or agreement to the contrary, any action or proceeding against the insurer for the recovery of any claim under or by virtue of a contract of insurance of the person may be commenced at any time within the term of one year next after the happening of the event insured against, or within the further term of six months, by leave of a Judge of the High Court, or the Master in Chambers, upon its being shewn to his satisfaction. that there was a reasonable excuse for not commencing the action or proceeding within the first mentioned term." And by 1 Edw. VII. ch. 21, sec. 2, sub-sec. 3, the following provision was added to sub-sec. 2 of sec. 148: "Provided that no such action or proceeding shall be commenced after the expiration of the said year and six months." I have had doubt as to the meaning of the expression "happening of the event insured against," and was at first inclined to think that as applied to this case it meant "the accident" which occurred to the insured and according to the finding of the jury caused his death, but upon further consideration I have come to the conclusion that the event insured against was, in this case, an event compounded of two things, the accident and the resulting death, and in this view the periods mentioned in the statute ran from the death of the insured. D. C. 1908 ATKINSON v. DOMINION OF CANADA AND ACCIDENT Co. The purpose of this enactment of the revised statute undoubtedly was to protect persons insured against provisions of the insurance GUARANTEE contract unreasonably limiting the time within which an action. must be brought, and the Legislature appears to have considered that in ordinary cases a year, and under special circumstances Meredith, C.J. eighteen months after the happening of the event insured against was a reasonable time to allow, and it therefore in effect varies the contract of insurance by substituting for the period of limitation which it contains the periods mentioned in the enactment. The amendment of 1st Edward is a statute of limitations pure and simple. The respondent's action was begun on the 31st October, 1906, and the death of the insured occurred on the 5th June, 1905. The action was therefore begun after the expiration of a year, but within eighteen months from the happening of the event insured against, but leave was not obtained to bring it until it was given at the trial on the 14th January, 1907, when my brother Clute made an order giving the leave as of a date prior to the issue of the writ, and the question is whether in these circumstances the respondent's right of action is preserved and enforceable in this action. The statute apparently contemplates that the leave must be given before the action is begun, but I desire to leave open for discussion when it arises the question whether, where the application for leave is made within the eighteen months, the leave may not be granted nunc pro tunc so as to save an action begun without leave. Much may be said in favour of the view that this may be done, for if not the result would be that a plaintiff must abandon the action. which he had begun without leave and bring a new action. In the case at bar, when the leave was given the eighteen months had expired, and the respondent's right of action by the terms of the contract, as varied by the revised statute, was gone, besides being barred by the amending Act. The practice as to the renewal of a writ of summons is against the respondent's contention, for though the Court has power to enlarge the time for renewal, the practice is not to do so where if D. C. 1908 ATKINSON V. DOMINION OF CANADA GUARANTEE AND ACCIDENT the summons is not renewed the plaintiff's claim would be barred by the Statute of Limitations: Doyle v. Kaufman (1877), 3 Q.B.D. 340; Hewett v. Barr, [1890] 1 Q.B. 98. If this be the practice where the time is fixed by a rule, and not by statute, it is a fortiori applicable where the time is fixed by statute as it is in this case. Authority is, not needed for the proposition that where the time is fixed by statute and the statute confers no power on the Court Meredith, C.J. to extend it, the rules as to enlarging time can have no application. Attempts have, however, been made to apply the rules in such cases: Flower v. Bright (1862), 2 J. & H. 590; Morris v. Richards (1881), 45 L.T. 210; McLean v. Pinkerton (1882), 7 A.R. 490. I am of opinion that my brother Clute had no jurisdiction to give the leave which he assumed to give, and that the respondent's action failed because it was not begun in time. I regret that I am compelled to reach this conclusion in a case such as this, and I regret also that the legislation was not so framed as to save the rights of a person claiming under an insurance contract where his action is begun within eighteen months and he satisfies the trial Judge that there was reasonable excuse for not bringing it within the year. I have not referred to the contention of Mr. McClemont that the conditions are confined in their operation to claims by the insured, and do not therefore apply to a claim by the beneficiary named in the policy, nor to his contention that the insurance moneys were by the effect of sec. 159 of the Ontario Insurance Act constituted a trust fund in the hands of the appellants, and that they cannot therefore defeat the beneficiary's claim by any statute of limitations. The policy no I am unable to agree with either contention. doubt contains in the earlier part of it a definition of the term "insured," the words "hereinafter called the insured" being inserted after the name of the deceased, and the statement of the proviso introducing the conditions is that they are conditions precedent to the right of the insured to recover, but as I have already pointed out, the proviso also states that "the policy is granted upon the following express conditions," one of which is that "no moneys shall be payable under this policy unless and until |