COURT FILE NO.: 07-CV-9756 CM

MOTION HEARD: 20111024

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Edward Randall Vogler, Plaintiff

AND:

Tom Lemieux, Defendant, and

Allstate Insurance Company of Canada, Statutory Third Party

BEFORE: Master Lou Ann M. Pope

COUNSEL:
William Chapman, for the Plaintiff

R. Shawn Stringer, for the Respondent Allstate Insurance Company of Canada

HEARD: October 24, 2011

REASONS FOR DECISION

[ 1 ] This action is based in negligence against Tom Lemieux (“Lemieux”) for damages as a result of injuries the plaintiff sustained in a motor vehicle accident which occurred on February 18, 2006. The plaintiff moves to amend the statement of claim to add Alllstate Insurance Company of Canada (“Allstate”) as a party defendant pursuant to the OPCF 44R, family protection coverage endorsement of his standard automobile insurance policy, on the basis that Lemieux is an inadequately insured motorist as defined in the endorsement. Allstate opposes the motion on two grounds; namely, that the proposed claim is not tenable in law and that statutory and contract limitation periods bar the plaintiff from suing Allstate at this time.

[ 2 ] Two preliminary issues arose at the commencement of the hearing that requires rulings.

[ 3 ] First, plaintiff’s counsel sought leave to late file the Supplementary Affidavit of Melanie A. Gardin, sworn on October 20, 2011, and served on counsel for Allstate that same day. Allstate’s objections included the fact that the supplementary affidavit was not only delivered late under the Rules of Civil Procedure, but it was also delivered after Allstate delivered its material and after cross-examinations were held of Ms. Gardin on her first affidavit in December 2010. I have been persuaded based on the objections by Allstate and therefore leave is not granted to the plaintiff.

[ 4 ] Second, plaintiff’s counsel sought leave to late file a document entitled “TIME LINE” which was served on Allstate with the supplementary affidavit. Plaintiff’s counsel maintained that the document was merely a chronology of the steps in this action. Allstate objected primarily on the same grounds as it objected to late filing of the supplementary affidavit. Again, I am persuaded by Allstate’s arguments and therefore I refuse to grant leave to the plaintiff to late file this document.

[ 5 ] The facts giving rise to this action are unusual. They arise out of a single vehicle motor vehicle accident which occurred on February 18, 2006. Immediately after the accident the plaintiff was found alone in the vehicle in the front passenger seat. He claims to have no recollection of what happened in the hours leading up to the accident, or immediately following the accident. He maintains that someone else was driving his vehicle. The plaintiff was charged with impaired driving.

[ 6 ] This action, commenced on August 31, 2007, was initially brought against Allstate, the plaintiff’s insurer, pursuant to the unidentified motorist provisions contained in the plaintiff’s policy. That policy has third party liability limits of $1,000,000. On May 3, 2008, Lemieux came forward and admitted that he was the driver of the plaintiff’s vehicle. Ultimately, the impaired driving charge against the plaintiff was dismissed based primarily on Lemieux’s testimony. Consequently, on July 9, 2008, the statement of claim was amended to replace Allstate with Lemieux as defendant. On November 18, 2008, Allstate added itself as a statutory third party. In its defence, Allstate pled that Vogler himself was the driver of his vehicle at the time of the accident and that the accident was caused by his negligence in that, inter alia, he was driving while impaired by alcohol and/or drugs. In the alternative, Allstate pled that if Lemieux was found to be the driver, it took an off-coverage position based on the fact that Lemieux’s license had been suspended for many years and, therefore, he was in breach of Statutory Condition 4 – Authority to Drive of the standard automobile policy – OAP1.

[ 7 ] The proposed amendments include the following statement at paragraph 4.5:

Allstate is being sued under its contract of insurance between the Plaintiff and the Defendant. The Plaintiff states that should Mr. Lemieux be found to be an inadequately insured motorist under the terms of OPCF 44R, the Plaintiff would be entitled to access the family protection coverage, as defined in OPCF 44R, from Allstate. As a result, the Plaintiff seeks recovery from Allstate for damages found as against Mr. Lemieux, as an inadequately insured motorist, pursuant to the terms of the OPCF 44R.

[ 8 ] The plaintiff’s evidence explains why he is seeking to add Allstate at this time. Until the summer of 2010, plaintiff’s counsel operated under the belief that only the statutory minimum liability limits of $200,000 would be available to the plaintiff because Lemieux was unlicensed at the time of the accident which resulted in a statutory breach of the policy. Sometime after the mediation took place on May 26, 2010, plaintiff’s counsel further researched the possibility of a way to avoid the court finding that Lemieux had violated the plaintiff’s policy with Allstate by not being licensed at the time of the accident. If the plaintiff was successful on that issue, then it was plaintiff’s counsel’s belief that $1 million of insurance coverage would be available to the plaintiff. If not successful, only the statutory minimum of $200,000 would be available. At the pre-trial conference on September 16, 2010, plaintiff’s counsel requested that the pre-trial be adjourned in part to allow the plaintiff time to consider whether or not to bring a motion in respect of an issue of law; that is, whether Lemieux had violated the plaintiff’s policy by not having a license at the time of the accident. Plaintiff’s counsel further advised the court at the pre-trial conference that if the plaintiff was successful on that motion, the plaintiff would need to obtain numerous expert reports as, it was believed, the plaintiff did not have enough evidence to prove damages over $200,000. Following the pre-trial, plaintiff’s counsel determined that the plaintiff would have to access his underinsured coverage on the basis that a violation of the O.A.P. 1 Ontario Automobile Policy by Lemieux for being unlicensed would not disentitle the plaintiff access to his OPCF 44R Family Protection Coverage.

[ 9 ] The plaintiff’s evidence is that this motion has been brought at this time because it is unclear whether the provisions of the OPCF 44R Endorsement requires that the plaintiff bring this claim before or after the tort action is resolved. The plaintiff’s evidence is that it would be more beneficial to wait until after the tort action is resolved before seeking coverage under the OPCF 44R because if the plaintiff is not successful in his tort action, the OPCF 44R claim will have been totally unnecessary.

[ 10 ] The rule that applies to this motion is rule 5.04(2) of the Rules of Civil Procedure which reads as follows:

Adding, Deleting or Substitution Parties

(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such grounds as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[ 11 ] Rule 26.01 is the general rule regarding amendment of pleadings which states that:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[ 12 ] The first issue raised by Allstate is that the proposed claim pursuant to the OPCF 44R Family Protection Endorsement is not tenable in law. Allstate relies on the decision of A. Mantella & Sons Ltd. v. Ontario Realty Corp. (2008), 91 O.R. (3d) 449 (S.C.J.), aff’d on appeal 2009 ONCA 115, for the proposition that an amendment ought not to be allowed where it is plain and obvious that the proposed claim is not tenable in law.

[ 13 ] The plaintiff relies of the case of Golic v. ING Insurance Company of Canada (2008), 94 O.R. (3d) 446 (S.C.J.), aff’d on appeal (2009) 98 O.R. (3d) 394 (C.A.), which stands for the same proposition as in Mantella.

Case law establishes that the court should not refuse a pleading amendment as legally untenable except where it is clearly impossible that the claim will succeed or where prejudice would result that could not be compensated for by costs or by an adjournment. The burden lies on the moving party to show the absence of prejudice, or that costs or an adjournment will adequately compensate the responding party. Where the moving party meets that threshold, amendment under the rule is mandatory. As long as the pleadings amendment can be made without causing injustice to the other party, it should be allowed no matter how careless the omission or how late the application.

[ 14 ] The plaintiff submits that proposed amendment is tenable in law.

[ 15 ] Allstate submits that the proposed claim is not tenable in law because the plaintiff will not be able to establish that Lemieux was an “inadequately insured motorist”.

[ 16 ] As set out in s. 3 of the OPCF 44R Endorsement, the insured must show that he is “legally entitled to recover from an inadequately insured motorist”.

[ 17 ] The provisions of s. 3 are as follows:

In consideration of a premium of $__ or as stated in the Certificate of Automobile Insurance to which this change form is attached, the insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.

[ 18 ] “Inadequately insured motorist” is defined in s. 1.5(a) as:

the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage; or

(b) the driver or owner of an uninsured automobile or unidentified automobile as defined in Section 5, “Uninsured Automobile Coverage” of the Policy.

PROVIDED THAT

(A) where an eligible claimant is entitled to recover damages from an inadequately insured motorist and the owner or operator of any other automobile...

[Sections continue exactly as in original text.]

[ 34 ] It is my view that the proposed amendment is not tenable in law because, and for the above reasons, the plaintiff will not be able to establish, based on either scenario regarding who was driving the vehicle, that Lemieux was an “inadequately insured motorist” as defined in s. 1.5(a) in order to trigger the insuring provision of s. 3 of the OPCF 44R Endorsement.

[ 35 ] I have not been persuaded that the decision in Van Bastelaar and the other similar cases relied on by the plaintiff assists him on this motion.

[ 36 ] As such, this motion cannot succeed and it is hereby dismissed.

[ 37 ] The second issue raised in this motion is, if the proposed amendment is tenable in law, whether s. 17 of OPCF 44R sets out a limitation period with respect to Family Protection Coverage.

[ 38 ] Given my finding that the proposed amendment is not tenable in law, I do not propose to address the second issue.

[ 39 ] If the parties cannot agree on the costs of this motion, they may make submissions in writing within 14 days of the release of this decision.

Original signed “Master Pope”

Master Lou Ann M. Pope

Date: March 15, 2012

[1] Factum of the plaintiff, paragraph 37.