John M. Farant

The defendant insurer brought a motion for leave to appeal a decision refusing summary judgment in an action for statutory accident benefits.

The underlying action had been commenced more than four years after the insurer’s initial denial of benefits, despite a statutory two‑year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The motion judge declined summary judgment due to concerns about a subsequent denial form containing an error and a later medical report suggesting fibromyalgia related to the accident.

The court held that the law is well settled that the two‑year limitation runs from the insurer’s refusal and is not subject to discoverability.

Leave to appeal was granted because the decision appeared inconsistent with other Ontario authorities and clarification of the limitation rule was important.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside an administrative order dismissing the action as abandoned pursuant to Rule 48.15(1).

The court applied the four‑factor test from Reid v. Dow Corning Corp., considering explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendant.

The court found the delay was largely attributable to procedural missteps and indulgences between counsel, and that the plaintiff had always intended to proceed with the action.

The defendant failed to demonstrate actual prejudice arising from the delay.

The administrative dismissal order was therefore set aside and no costs were awarded.