Marie Sydney

The Personal Insurance Company sought leave to appeal a motion judge's denial of summary judgment in a tort action.

The motion judge had found the summary judgment motion premature, requiring evidence of "other uninsured vehicles" and deferring coverage issues until trial.

The Superior Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision because the evidence sought was irrelevant to the issues and deferring coverage issues until trial was problematic.

The court also found the appeal involved matters of province-wide importance regarding uninsured coverage under the Insurance Act.

The plaintiff brought a motion to set aside Notices of Discontinuance previously filed against an insurer and the Superintendent of Financial Services in a motor vehicle accident action.

The discontinuances had been filed after another insurer accepted priority for accident benefits, leading the parties to believe it would also be responsible for uninsured motorist coverage.

Years later, that insurer reversed its position, creating uncertainty as to coverage and potential recovery.

The court held that although the discontinuances were not filed through inadvertence, they were based on a shared misapprehension of the factual circumstances regarding insurance responsibility.

Given the lack of significant prejudice to the former defendants and the risk of severe prejudice to the plaintiff, the court exercised its inherent jurisdiction to set aside the discontinuances.

The action was permitted to proceed against the insurer and the Superintendent.