COURT OF APPEAL FOR ONTARIO

DATE: 20001215

DOCKET: C34493

RE: CORNELIUS VANDEN TOP (Plaintiff/Appellant) v. WEST WAWANOSH MUTUAL INSURANCE COMPANY AND SLADE INSURANCE BROKERS INC. (Defendants/Respondents)

BEFORE: DOHERTY, MOLDAVER & MACPHERSON JJ.A.

COUNSEL: William Dunlop and

Richard Campbell

for the appellant

James R. Adams

for the respondent, Wawanosh Mutual Insurance Company

HEARD: December 11, 2000

On appeal from the order of Justice R. Jeffrey Flinn dated June 1, 2000.

E N D O R S E M E N T

[1] In oral argument, counsel for the appellant limited his submissions to the motion judge’s refusal to permit the amendments alleging negligence and those referring to the bad faith of the defendant (respondent).

[2] It is unclear how, if at all, the proposed negligence claim expanded the cause of action already pleaded or the factual basis upon which the appellant could recover from the insurer. To the extent that the negligence amendments sought to set up a cause of action apart from that arising out of the insurer’s alleged failure to perform its statutory duty, and to the extent that the negligence claim was not subject to the one-year limitation period in the statutory conditions of the policy, it was subject to the six-year limitation period applicable to negligence actions. The amendment was sought more than six years after the acts constituting the alleged negligence. The appellant was, therefore, obligated to show “special circumstances” justifying the amendment.

[3] The motions judge found no such special circumstances. We are not persuaded that we can interfere with that finding.

[4] The proposed bad faith amendments refer either to matters that are properly considered on costs and should not be pleaded, or as pleaded do not provide a proper basis in law for a bad faith claim.

[5] The appeal is dismissed with costs.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”