Paul R. Sweeny

The plaintiffs brought a motion for leave to amend their statement of claim to add their own automobile insurer as a defendant for unidentified and underinsured motorist coverage following a collision in which a previously undisclosed unidentified vehicle may have contributed to the accident.

The insurer argued the claim was statute‑barred because the two‑year limitation period ran from the accident date.

Relying on Court of Appeal authority interpreting the Limitations Act and OPCF 44R coverage, the court held that a claim against an insured’s own insurer is contractual and the limitation period does not begin until a demand for indemnification is made and the insurer fails to respond.

As no such demand had yet been made, the limitation period had not been triggered.

The plaintiffs were granted leave to amend the claim to add the insurer for unidentified and underinsured motorist coverage.

The defendant brought a motion at a status hearing to dismiss the plaintiffs' medical malpractice action for delay.

The action was commenced in 2000 and the statement of defence was filed in 2002, resulting in an 11-year delay before the status notice was issued.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, noting that the test under Rule 48.14 is disjunctive and requires both a reasonable explanation and a lack of non-compensable prejudice.

The action was dismissed.

The plaintiff sought to amend the statement of claim to either substitute or add the automobile insurer of the vehicle in which she was travelling when injured in a motor vehicle accident allegedly caused by an unidentified driver.

Although the claim initially named only the plaintiff’s own insurer and her son as defendants, the plaintiff had notified the proposed insurer at an early stage of a potential unidentified motorist claim and provided ongoing information regarding the claim.

The court held that the plaintiff always intended to name that insurer and that it had been on notice of the claim and therefore suffered no prejudice despite the expiry of the limitation period.

Applying Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002, the court concluded the circumstances justified amendment.

The proposed insurer was added as a defendant rather than substituted because both insurers could potentially provide coverage.

The plaintiff brought a motion to amend the statement of claim to substitute the correct limousine company and driver as defendants after initially naming the wrong company and a John Doe driver.

The proposed defendants opposed the amendment on the basis that the limitation period had expired.

The court considered whether the amendment constituted the correction of a misnomer under s. 21(2) of the Limitations Act, 2002.

Finding that the statement of claim clearly intended to sue the owner and driver of the limousine involved in the accident and that the insurer for both entities had knowledge of the claim, the court held the amendment corrected a misdescription rather than adding a new party.

The court also declined to exercise its discretion to refuse the amendment, finding no inordinate delay and no prejudice to the responding parties.