Matthew A. Caldwell

The plaintiffs sought leave to add Viking Insurance Company of Wisconsin as a defendant in a motor vehicle accident tort claim more than five years after the accident.

Viking opposed the motion, arguing the claim was statute-barred.

The court found that the plaintiffs failed to exercise due diligence to ascertain Viking's potential liability within the limitation period, despite having access to information indicating Viking insured the plaintiff's husband's vehicle.

The motion to add Viking as a party was dismissed pursuant to section 21(1) of the Limitations Act, 2002.

The plaintiff was injured in a motorcycle accident caused in part by an unidentified driver.

He failed to report the accident to the police or his insurer within the time limits prescribed by the Uninsured Automobile Coverage regulation.

The trial judge granted the plaintiff relief from forfeiture under s. 129 of the Insurance Act and apportioned liability 60% to the plaintiff and 40% to the unidentified driver.

The insurer appealed the relief from forfeiture and the liability apportionment, while the plaintiff cross-appealed the liability apportionment.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that failure to give timely notice constitutes imperfect compliance for which relief from forfeiture is available, and that the trial judge's liability findings were supported by the evidence.