Lingard v. Milne-McIsaac et al.

[Indexed as: Lingard v. Milne-McIsaac]

Ontario Reports

Court of Appeal for Ontario,

Lauwers, Hourigan and Pardu JJ.A.

March 31, 2015

125 O.R. (3d) 118 | 2015 ONCA 213

Case Summary

Limitations — Discoverability — Plaintiff injured in motor vehicle accident — Motor vehicle accident report identifying owner of other vehicle and owner's insurer — Plaintiff commencing action within limitation period but subsequently being informed that vehicle was uninsured at time of accident — Plaintiff bringing motion for leave to amend statement of claim to claim uninsured motorist coverage from his own insurer — Motion judge erring in dismissing motion — Plaintiff acting with due diligence in relying on information in motor vehicle accident report until he received actual notice that vehicle was uninsured.

The plaintiff was injured when his vehicle was rear-ended by another car. The motor vehicle accident report ("MVA report") identified the owner of the car and the owner's insurer, and the plaintiff commenced an action within the limitation period. He was subsequently advised that the car was uninsured at the time of the accident. He brought a motion for leave to amend his statement of claim to claim uninsured motorist coverage from his own insurer. The motion judge dismissed the motion on the basis that the plaintiff had not acted with due diligence in discovering the factual basis of his claim against his insurer. The plaintiff appealed.

Held, the appeal should be allowed.

The plaintiff acted with due diligence by relying on the information in the MVA report until he received actual notice that the vehicle was uninsured.

Bremer v. Foisy, [2009] O.J. No. 3678, 82 C.P.C. (6th) 133, 180 A.C.W.S. (3d) 234 (S.C.J.); Burtch v. Barnes Estate (2006), 2006 CanLII 12955 (ON CA), 80 O.R. (3d) 365, [2006] O.J. No. 1621, 209 O.A.C. 219, 27 C.P.C. (6th) 199, 20 M.P.L.R. (4th) 160, 147 A.C.W.S. (3d) 581 (C.A.); Patterson (Litigation guardian of) v. Ontario (Minister of Transportation), [2014] O.J. No. 2980, 2014 ONCA 487, 97 E.T.R. (3d) 171, 241 A.C.W.S. (3d) 456; Toneguzzo v. Cornerz (2009), 2009 CanLII 17981 (ON SCDC), 94 O.R. (3d) 795, [2009] O.J. No. 1565, 75 C.P.C. (6th) 165, 176 A.C.W.S. (3d) 982 (Div. Ct.); Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 106 O.R. (3d) 332, [2011] O.J. No. 3314, 2011 ONCA 522, 282 O.A.C. 372; Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, [2005] O.J. No. 2746, [2005] O.T.C. 572, 19 C.P.C. (6th) 13, 140 A.C.W.S. (3d) 745 (S.C.J.), consd [page119]

Other cases referred to

Abarca v. Vargas (2015), 123 O.R. (3d) 561, [2015] O.J. No. 37, 2015 ONCA 4, 380 D.L.R. (4th) 120, 72 M.V.R. (6th) 181, 248 A.C.W.S. (3d) 677 (C.A.); Tomescu v. Sarhan (2013), 115 O.R. (3d) 396, [2013] O.J. No. 1059, 2013 ONSC 1358 (S.C.J.)

APPEAL from the order of P. Douglas J. of the Superior Court of Justice dated January 14, 2014 dismissing a motion for leave to amend a statement of claim.

Mireille Dahab and Niyousha Ghomashchi, for appellant.

Jasvinder K. Singh, for respondent Wawanesa Insurance Company.

1BY THE COURT: -- We are of the view that the appeal must be allowed.

2The appellant was injured when his vehicle was rear-ended by another car on October 28, 2008. The motor vehicle accident report (the "MVA report") prepared by police at the scene of the accident identified Shawn McIsaac as the owner of the other vehicle (the "McIsaac vehicle") and his son, Jesse Milne-McIsaac, as the driver. The MVA report listed Security National Insurance Company as the insurer for Mr. McIsaac.

3On June 29, 2010, the appellant met with a doctor who determined he needed back surgery. The surgery occurred on July 23, 2010. The appellant issued a statement of claim on September 24, 2010 seeking damages from Mr. McIsaac and Mr. Milne-McIsaac.

4The appellant received an e-mail from Mr. McIsaac on January 25, 2011, stating that Mr. Milne-McIsaac owned the McIsaac vehicle at the time of the accident and was likely insured by State Farm Insurance Company. Security National confirmed that Mr. McIsaac's policy had been cancelled before the accident, but a Ministry of Transportation search revealed he still owned the vehicle at that time.

5Since the McIsaac vehicle was uninsured, on February 16, 2012, the appellant brought a motion for leave to amend his statement of claim to claim uninsured motorist coverage from his insurer, the respondent Wawanesa Insurance Company ("Wawanesa").

6The motion judge framed the issue before him as whether the appellant had acted with due diligence in discovering the factual basis of his claim against Wawanesa. The motion judge found that the appellant should have taken "additional steps" such as making inquiries with the insurer listed in the MVA report. He found that the evidence of due diligence fell short of the standard set out in Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, [2005] O.J. No. 2746 (S.C.J.) [page120] and dismissed the motion for leave to add Wawanesa as a party.

7In our view, decisions after Wakelin v. Gourley have clarified the principle of due diligence in discovering claims.

8In Toneguzzo v. Corner (2009), 2009 CanLII 17981 (ON SCDC), 94 O.R. (3d) 795, [2009] O.J. No. 1565, 75 C.P.C. (6th) 165 (Div. Ct.), the plaintiff relied on the identity of the vehicle's owner set out in the police report. The individual identified as the owner delivered a statement of defence. The identified owner's insurer provided the plaintiff with a certificate of insurance that identified Lakes Leasing Corporation as a lessor. The Divisional Court held, at para. 17, that receipt of this document did not trigger an obligation for the plaintiff to conduct further inquiries into the vehicle's ownership. The courts in Bremer v. Foisy, [2009] O.J. No. 3678, 82 C.P.C. (6th) 133 (S.C.J.) and Burtch v. Barnes Estate (2006), 2006 CanLII 12955 (ON CA), 80 O.R. (3d) 365, [2006] O.J. No. 1621 (C.A.) reached similar conclusions.

9In Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 106 O.R. (3d) 332, [2011] O.J. No. 3314, 2011 ONCA 522, the plaintiff relied on the identification of the other vehicle's owner set out in the motor vehicle accident report. The plaintiff's counsel later received a 732-page Crown brief, which contained a page revealing that the real owner was a car dealership. Although counsel had possession of this information, the identity of the real owner did not come to counsel's attention until two years later during preparation for discovery. The plaintiff then issued a statement of claim against the car dealership. This court concluded, at para. 9, that the plaintiff's counsel had acted with "reasonable diligence" in continuing to rely on the identification of the owner set out in the police report until information to the contrary actually came to their attention; it was not until then that the limitation period began to run.

10Most recently, in Patterson (Litigation guardian of) v. Ontario (Minister of Transportation), [2014] O.J. No. 2980, 2014 ONCA 487, 97 E.T.R. (3d) 171, this court held, at para. 5, that while it may not be wise for plaintiff's counsel to rely on police accident reports for vehicle ownership information, there is no iron-clad rule that failure to conduct an ownership search is fatal on the issue of discoverability, in the light of the decision of this court in Velasco. The court went on to note, at para. 6, that the motion judge properly took into account "all the circumstances relevant to the issue of discoverability in a manner consistent with the approach in Velasco". We consider that this reasoning applies, with necessary modifications, to the existence of insurance.

11The motion judge erred in imposing a standard of reasonable diligence that was significantly higher than that in Velasco, [page121]

Toneguzzo, Bremer and Burtch. By relying on the statement in the MVA report that the McIsaac vehicle defendant was insured, until receiving actual notice that it was not, the appellant acted reasonably. It was reasonable for the appellant to assume that the police officer who completed the MVA report asked Mr. Milne-McIsaac for proof of insurance. There was no reason for the appellant to treat insurance coverage as a live issue until the appellant became aware of a potential coverage issue when he received Mr. McIsaac's e-mail on January 25, 2011. The fact that the McIsaac vehicle was uninsured was not confirmed until February 3, 2011. The limitation period in respect of Wawanesa therefore began on January 25, 2011 or alternatively, on February 3, 2011. The appellant brought his motion well within this limitation period.

12Wawanesa does not, and could not, claim prejudice in having to provide uninsured vehicle coverage to the appellant, which is precisely what he purchased from Wawanesa with his insurance premium: see Abarca v. Vargas (2015), 123 O.R. (3d) 561, [2015] O.J. No. 37, 2015 ONCA 4, 380 D.L.R. (4th) 120, at para. 42. Wawanesa has been fully engaged as the appellant's statutory accident benefits provider since the accident occurred, as acknowledged by counsel: see Tomescu v. Sarhan (2013), 115 O.R. (3d) 396, [2013] O.J. No. 1059, 2013 ONSC 1358 (S.C.J.), at para. 28.

13The appeal is allowed, with costs to the appellant in the amount of $9,000, all-inclusive. The costs order in the court below of $5,000 plus HST is reversed, and the respondent shall pay the same amount to the appellant.