M. Lefave

The respondent insurer sought costs after successfully bringing a summary judgment motion to dismiss the applicant Estate's proceeding for lack of jurisdiction.

The underlying dispute involved the enforcement of a $350,000 accident benefits settlement reached before the claimant's death.

The court declined to award costs to the successful respondent, finding that the jurisdictional issue was novel, the applicant was not wrong to seek enforcement (only wrong in its choice of forum), and there was effectively divided success as the work could be reused at the Licence Appeal Tribunal.

The applicant estate sought to enforce a settlement of a statutory accident benefits claim reached at mediation before the insured died.

The insured died before personally signing the Settlement Disclosure Notice and Release.

The court held that under s. 280 of the Insurance Act, the Licence Appeal Tribunal has exclusive jurisdiction to determine the enforceability of the settlement, as it constitutes a dispute in respect of an insured person's entitlement to statutory accident benefits.

The application was dismissed for lack of jurisdiction, though the court noted in obiter that the settlement would have been enforceable despite the lack of a personal signature.

The plaintiffs brought a motion to amend their statement of claim to add their own automobile insurer as a defendant after learning during discoveries that the defendants were uninsured.

The proposed insurer argued the limitation period under the Limitations Act, 2002 had expired and that the plaintiffs failed to exercise due diligence in discovering the lack of insurance.

The court held that the plaintiffs had provided some evidence of due diligence in attempting to determine whether the defendants were insured, including inquiries to potential insurers and communications with the defendants.

Applying the principles governing amendments and the discoverability doctrine, the court concluded there was a triable issue as to when the plaintiffs discovered or ought to have discovered the lack of insurance.

The amendment was permitted, with leave granted to the insurer to plead a limitations defence.