Making the Case

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Ontario Trial Lawyers Association Case Summaries – April 20, 2015

Veronica S. Marson
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Singer Kwinter’s Veronica Marson highlights important facts and outcomes in the Ontario Courts.

Click here to read more about these important cases.


Case Summaries 

Case summaries originally distributed in OTLA April 20th, 2015 newsletter. 

Lingard v. Milne-McIsaac, 2015 ONCA 213
Released March 31, 2015

This case from the Court of Appeal involved a plaintiff who was rear-ended by an uninsured vehicle on October 28, 2008. The motor vehicle accident report listed the owner and driver of the defendant motor vehicle as well as the name of the insurer for same. On June 29, 2010, the plaintiff was advised by a doctor that he needed back surgery which was completed a short time later. A statement of claim was issued on September 24, 2010 against the driver and the owner of the defendant motor vehicle. Between January 25 and February 3, 2011, the plaintiff learned that the owner’s policy had been cancelled prior to the subject accident. On February 16, 2012, the plaintiff brought a motion to amend the statement of claim to claim uninsured motorist coverage from his own insurer, Wawanesa. The motions judge found that the plaintiff failed to complete his due diligence and should have taken additional steps such as inquiring with the insurer listed in the MVA report. At issue was whether the plaintiff had acted with due diligence in discovering the factual basis of his claim against Wawanesa.

The Court found that the motions judge had erred in imposing a standard of reasonable diligence which was significantly higher than that applied in recent caselaw. The Court found it was reasonable for the plaintiff to assume that the police officer who attended the accident scene asked the defendant driver for proof of insurance. The Court also found it was reasonable to rely upon the MVA report indicating that the defendant motor vehicle was insured. It found that there was no reason for the plaintiff to treat insurance coverage as a live issue until he became aware of a potential coverage issue in 2011. As such, the Court ultimately decided that the plaintiff’s motion was brought well within the applicable limitation period. It also found that Wawanesa could not claim prejudice in having to provide uninsured vehicle coverage to the plaintiff since that was what the plaintiff paid for and Wawanesa was already providing the plaintiff with statutory accident benefits. The Court granted the plaintiff’s appeal with costs payable to the plaintiff.

Read the full decision on CanLii.


Naipaul v. State Farm Mutual Insurance Company, 2015 ONSC 2186
Released April 8, 2015

This was a summary judgment motion brought by State Farm to have the plaintiffs’ claim dismissed as statute-barred pursuant to the Limitations Act. The plaintiffs brought a cross-motion to amend the Statement of Claim to plead that the action was timely given that it was commenced within two years of the plaintiffs fulfilling the statutory threshold requirements. On May 21, 2010, the plaintiffs were injured in a motor vehicle accident by an uninsured driver/owner. On August 17 and 18, 2010, notice letters were sent to the defendant driver/owner’s insurer. On May 7, 2012, an action was commenced by the plaintiffs against the defendant driver/owner. The plaintiffs’ own insurer, State Farm, was not named as a defendant in the statement of claim due to inadvertence on the part of the plaintiffs’ lawyer. Once the error was noticed, counsel for the plaintiffs commenced an action on September 19, 2012 against State Farm, approximately two years and one month after the notice letters had been sent to the defendant driver/owner’s insurer.

In its analysis, the Court confirmed that the limitation period for an insured motorist to sue his or her own insurance company starts to run on the day they know or ought to have known of a claim based on the fault of an uninsured motorist. In light of the circumstances of the case, the Court found that it did not follow that the plaintiffs knew or ought to have known they had a claim that would satisfy the statutory threshold as consequence of having sent notice letters advising of their intention to sue State Farm. The Court also found that it did not follow that the September 2012 claim was untimely just because counsel admitted that State Farm was not joined in the original action due to inadvertence. The Court concluded that the limitation period was not triggered when the notice letters were sent since there was not sufficient available evidence at that time to persuade a judge that the plaintiffs could meet the statutory threshold. The Court ultimately granted the plaintiffs motion and declared that the plaintiffs’ claim was not statute-barred.

Read the full decision on CanLii.

Ontario Trial Lawyers Asssociation Case Summaries by Veronica S. Marson – April 20, 2015

Case summaries originally distributed in OTLA April 20th, 2015 newsletter. 

The content of this article or blog posting is of a general nature and does not constitute legal advice. It is not intended to be a full or complete analysis of the topic. Before applying the concepts or any content of this article or blog it is imperative that you consult your legal advisor.

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