GM and FTI as this would unfairly reduce the judgment amount
available to the class.
 In summary, I am of the view that the PPSA has no application to the first charge obtained under the CPA. The language
of the CPA establishes a super-priority, and so the CPA first
charge should take priority over the perfected interest under the
PPSA. Following Tots and Teens, class counsel should rank as
a secured creditor with an inchoate interest arising at the moment
the costs award becomes available through class counsel’s work.
Given my findings, I need not address the submission of GM and
FTI that s. 73 of the PPSA applies to resolve any conflict between
the CPA and the PPSA in favour of GM.
 GM is entitled to its order adjudging Trillium bankrupt.
Class counsel, however, shall receive the costs award pursuant to
the first charge against that fund. The costs award is to be
applied to class counsel’s fees and disbursement as per the prior
approval of this court. If the parties cannot agree on the issue of
costs with respect to this and the other related motions, or the
appointment of a trustee, I can be spoken to at a 9:30 appointment to set a schedule for submissions.
Application allowed in part.
Western Life Assurance Company of Canada v. Penttila
[Indexed as: Western Life Assurance Co. of Canada v. Penttila]
2019 ONSC 14
Superior Court of Justice, Divisional Court, Morawetz R.S.J., Aitken and
January 7, 2019
Limitations — Discoverability — Insurer informing insured in February
2013 that her long-term disability benefits would be discontinued in
March 2013 and that she had right of appeal — Insured appealing —
Two-year limitation period not starting to run until insurer finally
communicated to insured in either October 2014 or June 2015 that her
appeal had been rejected — Insured not knowing that proceeding would
be appropriate means to seek to remedy her loss until October 2014
at earliest — Action commenced within two years of that date — Motion
judge properly dismissing insurer’s motion to dismiss action as statute-barred.
The insurer informed the insured by letter dated February 19, 2013 that her
long-term disability benefits would be denied as of March 7, 2013 and that she had