CITATION: Platero v. Pollock, 2015 ONSC 2922
COURT FILE NO.: 63431
DATE: 2015/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Doris Platero
C. Nicolis, for the plaintiff
Plaintiff
- and -
Gregory Pollock, London Transit Commission, John Doe, York Fire & Casualty Insurance, and St. Paul Fire and Marine Insurance Company
T. Pollitt, for the defendants, St. Paul Fire and Marine Insurance Company
Defendants
HEARD: February 9, 2015
LEITCH J.:
[1] The defendants St. Paul Fire and Marine Insurance Company (“St. Paul”) moves for an order for summary judgment dismissing the plaintiff's claim against it on the basis that the claim is barred by the Limitations Act, 2002, S.O. 2002 c. 24.
Background Facts
[2] The plaintiff was injured in a motor vehicle accident that occurred August 11, 2007. The plaintiff was a passenger in a bus operated by the defendant, Gregory Pollock, an employee of the defendant London Transit Commission.
[3] The plaintiff commenced the action by way of notice of action dated August 10, 2009. The statement of claim was issued September 9, 2009, against Mr. Pollock, the London Transit Commission and York Fire & Casualty Insurance, the insurer of the plaintiff’s parents.
[4] The plaintiff amended her claim on August 22, 2012, to add St. Paul as a defendant. St. Paul is the insurer of the defendant London Transit Commission.
[5] The plaintiff alleges that St. Paul is liable to the plaintiff for damages arising from the accident pursuant to the unidentified/uninsured/underinsured motorist provisions of Ontario.
[6] On this motion, St. Paul relies on Rule 20 of the Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1), s. 265 of the Insurance Act R.S.O. 1990 . I.8 and ss. 4 and 5 of the Limitations Act. These statutory provisions are set out in schedule B of the factum filed on behalf of St. Paul, which is attached to these reasons as an appendix.
The Evidence filed on the motion by St. Paul
[7] The motion record filed on behalf of St. Paul includes a copy of the files of London Police Services who investigated the accident.
[8] The statement of Officer Schmutz is included in the investigation file. In his statement, he indicates that he was dispatched to the scene of the accident and “the call notes indicated that London Transit bus number 466 had been struck by a dark green mid-sized vehicle and had damage to the front left bumper. The suspect vehicle was last seen westbound on Horton Street.”
[9] Officer Schmutz “observed a dark green paint chip which was left behind by the suspect’s vehicle.” Officer Schumtz concluded his statement by indicating he removed the dark green paint chip from the bus and placed it on the hit and run form.
[10] St. Paul also included copies of correspondence dated June 24, 2009, from Mr. Armour, who as counsel for the plaintiff, informed St. Paul as follows:
It would appear from the accident report that the said accident may have been caused by the negligence of another driver. We are unable to locate this driver, as the police file is now closed as an unresolved hit and run.
In the event we are unable to locate this other driver who may have been at-fault for this accident, Ms. Platero, will make a claim against your policy of insurance pursuant to the provisions dealing with an unidentified or uninsured driver. Ms. Platero, did not drive, own a car, and therefore did not have her auto insurance policy at the time of the above noted accident.
[11] St. Paul also included in its motion record a memorandum dated June 29, 2009, authored by Mr. Armour discussing the issue of whether the plaintiff’s claim should be advanced against both York Fire & Casualty Insurance and St. Paul. Mr. Armour’s recommendation was that her claim be pursued against both insurers out of an abundance of caution.
[12] St. Paul also referenced excerpts from the plaintiff’s examination for discovery in October 2012. At page 30, in response to question 171, she stated that she heard the bus driver say it was a hit-and-run and she did not see the other vehicle. At page 40, at question 232, the plaintiff agreed that she first became aware that the bus hit another vehicle when the bus driver said that on the day of the accident.
[13] Mr. Fickling, the claims adjustor for Mr. Pollock and London Transit Commission, filed an affidavit in support of St. Paul's motion in which he deposed that he spoke with Mr. Armour on June 25, 2009, in response to a fax he received from Mr. Armour that day seeking confirmation whether the insurance policy of London Transit Commission covered uninsured as well as underinsured motorists.
[14] Mr. Fickling deposed that he confirmed with Mr. Armour that the London Transit Commission had a liability policy with uninsured coverage.
[15] Mr. Fickling also sent correspondence to Mr. Armour providing a copy of the certificate of insurance and confirming there was uninsured automobile coverage.
Evidence filed on behalf of the Plaintiff
[16] Mr. Wiseman filed an affidavit on behalf of the plaintiff indicating that he reviewed the file and concluded as follows as set out in paras. 3, 4, 5 and 6 of his affidavit:
Based on my review of the file, I conclude that at the time Eric Armour of our office sent his letter of June 24, 2009, to St. Paul Fire & Marine Insurance Company (St. Paul), we were unable to determine whether the August 11, 2007, MVA occurred solely as a result of the negligence of an unidentified driver. The letter of June 24, 2009, clearly states our position that the unidentified driver may have been at-fault for the accident. The aforesaid letter does not constitute a demand for payment on the part of the plaintiff. No demand was made of St. Paul prior to September 2012.
As of September 14, 2012, when the plaintiff served her motion to add St. Paul as a party to the action, she and her counsel could not have known whether the accident was caused solely as a result of the negligence of the unidentified driver.
At that time, the plaintiff and her counsel could not rule out the possibility of a recovery under a third party liability section of a policy, specifically that of the defendant, LTC. The examination for discovery of the plaintiff took place on October 25, 2012. The examination for discovery of the defendant, Gregory Pollock, took place on October 31, 2012. These examinations took place after the Statement of Claim was amended to include St. Paul as a defendant. The plaintiff’s former lawyer did not order a transcript of Pollock’s examination for discovery.
Assuming that Pollock made no admissions as to any negligence on his part, there is no way the plaintiff could have known prior to this examination that there was no other third party liability section of a policy under which she could recover.
Position of St. Paul on this motion
[17] St. Paul’s primary position is that the limitation period in relation to the claim against it began to run on August 11, 2007, when the plaintiff knew that the accident involved a driver who did not remain at the scene and who was not identified.
[18] St. Paul’s alternate position is that at the latest, the plaintiff knew, or ought to have known, a claim could be made against St. Paul by June 24, 2009. In other words, the plaintiff had the facts available to make allegations against St. Paul by June 24, 2009. Therefore, the limitation period began to run at the latest on June 25, 2009.
[19] Accordingly, the limitation period against St. Paul expired before a claim was made against it and it is entitled to summary judgment dismissing the plaintiff’s claim.
The position of the Plaintiff on this motion
[20] The plaintiff’s counsel notes that St. Paul's position that the plaintiff knew that the accident was caused by an identified driver early on after the accident is based on hearsay – that is, she relayed what the bus driver told her and similarly the statements in the police report are hearsay. The position of plaintiff’s counsel is that even though the plaintiff knew it was possible or likely there was an unidentified vehicle involved in the accident that is inadequate to satisfy the evidentiary requirements of a summary judgment motion.
[21] In addition, counsel for the plaintiff emphasizes that in September 2012 when the plaintiff brought her motion to amend the statement of claim to add St. Paul as a defendant, she did not and could not know that there was no third-party coverage available to her and it was possible that Mr. Pollock was partly liable for the accident.
[22] The plaintiff's position is that given that the discoveries occurred in October 2012, it cannot be said that the plaintiff knew or ought to have known of her claim against St. Paul before that time. The plaintiff asserts that she only became aware that the accident was solely caused by the unidentified driver as a result of the discovery in October 2012. Further, there is nothing unfair or prejudicial to St. Paul that they were not added as defendants before September 2012 given its involvement from the outset as insurers for Mr. Pollock and London Transit Commission.
Disposition
[23] While St. Paul referenced and distinguished cases dealing with misnomer (for example, Jackman v. John Doe, 2011 ONSC 957), the plaintiff did not argue that that doctrine is applicable to these circumstances.
[24] Instead, the sole contentious issue argued on the motion was whether the limitation period in relation to the plaintiff’s claim against St. Paul pursuant to s. 265 of the Insurance Act had expired.
[25] I note that in the case law referred to me by counsel, this type of issue has been addressed on a Rule 21 motion or on a motion to add a defendant pursuant to Rule 5. However, this motion was brought pursuant to Rule 20 on the basis that St. Paul was seeking an order dismissing the claim against it based on the expiry of the limitation period. There was no issue that the question raised by St. Paul could not be addressed on this Rule 20 motion. In other words, although not framed as a Rule 21 motion, counsel requested a determination as to whether the limitation period in relation to the plaintiff’s claim against St. Paul had expired.
[26] Two decisions from the Court of Appeal are critical to the issue on this motion. The first is the 2012 decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, where, as described in para. 1, the court was asked to determine when the limitation period begins to run for a loss transfer claim brought pursuant to s. 275 of the Insurance Act by one insurer against another for indemnification for statutory accident benefits paid to an insured.
[27] It was noted in Markel in paragraph 13 that it was agreed that the limitation period for loss transfer claims is two years and that the date the two-year limitation period starts to run was the day the claim was “discovered” by the first-party insurer in accordance with section 5 of the Limitations Act. The court held that the first insurer suffered a loss caused by or contributed to by an omission of the second insurer when the second insurer failed to satisfy the claim the day after the request for indemnification was made. The court also held that it would be “appropriate” – that is legally appropriate - to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act the first day after the indemnification claim was made.
[28] Markel was found to be dispositive of the issue before the court in Schmitz (Litigation Guardian of) v. Lombard General Insurance Co of Canada, 2014 ONCA 88. At para. 1, the Court of Appeal described the issue in that case as the question of “when the limitation period begins to run for an indemnity claim under the uninsured motorist coverage provided by the O.P.C.F. 44 R., an optional endorsement to the standard form automobile insurance policy in Ontario”. As noted by the Court, the answer to that question involved a consideration of the discoverability provisions in the O.P.C.F. 44 R. and s. 5 of the Limitations Act.
[29] At para. 20 in Schmitz, the court concluded that the reasoning in Markel applied with “equal force” to the issue on appeal and held that “once a valid claim for indemnification under the OPCF 44R is asserted, the underinsured coverage insurer is under a legal obligation to respond to it.” To paraphrase and adapt Sharpe J.’s observations at para. 27 of Markel, the claimant for indemnity under the OPCF 44R “suffers a loss from the moment [the insurer] can be said to have failed to satisfy its legal obligation [under the OPCF 44R]”. Thus, the claimant suffers a loss “caused by” the underinsured coverage insurer’s omission in failing to satisfy the claim for indemnity the day after the demand for indemnification is made.
[30] The reasoning in Schmitz was applied by Lofchik J. in Chahine v. Grybas, 2014 ONSC 4698, in dealing with a motion by a plaintiff to add their own insurer as defendant under the unidentified motor vehicle coverage provisions. Lofchik J. observed the following at paras. 35 and 36 in relation to Schmitz and found it applicable to the circumstances he was considering:
The reasoning applied in the Schmitz case is, that unlike the claim of an injured party against a tortfeasor when the limitation period commences to run when the injury occurs or when the plaintiff knew or ought to have known of the injury, the claim of an insured against his own insurer is a claim under a contract. There is no claim until the insurer has breached its contract to indemnify the plaintiff by refusing to pay the plaintiff’s claim.
The reasoning in Schmitz applies in this case. The plaintiffs do not know they have a claim against the insurer until they know: that the accident was caused by an unidentified vehicle; that there is no other third party liability section of a policy under which they could recover; and a demand is made of the insurer and that the insurer has denied the claim.
[31] It was argued in Chahine that the question of when the plaintiff knew or ought to have known about the unidentified motorist was a question for the trial judge. However, Lofchik J noted at para. 38 that “the proper question to be asked is not when the plaintiff either knew or ought to have known about the unidentified motorist, but when did the plaintiff either know or ought to have known it suffered a loss, “caused” by an “omission” of Primmum [the insurer]”.
[32] Lofchik J. found in Chahine that the limitation period had not yet been triggered because there had been no claim for indemnification. He noted at para. 39 that the insurer was “not prejudiced, as it is protected by the requirements for notice and has rights with respect to that notice”.
[33] Counsel for St. Paul sought to distinguish Chahine from these circumstances on the basis that the Chahine plaintiff was an occupant of the vehicle and not its operator and did not immediately know of the involvement of an unidentified driver. I cannot accept this position advanced by St. Paul and find that this claim should be considered in accordance with the reasoning of the Court of Appeal in Markel and Schmitz.
[34] Pursuant to the Insurance Act, the plaintiff, as an occupant of the vehicle, is for the purposes of s. 265 within the definition of a “person insured under the contract”. The analysis in Markel and Schmitz must be applied on this motion.
[35] I agree with Lofchik J. that, paraphrasing the Court of Appeal in Markel and Schmitz, the plaintiff suffers a loss when St. Paul fails to satisfy its legal obligation under the policy. Putting it another way and again paraphrasing the Court of Appeal in Markel and Schmitz, the plaintiff will suffer a loss caused by St. Paul’s omission in failing to satisfy the claim under its policy the day after demand is made of St. Paul provided at that time there is no other third-party liability section of a policy under which she could recover (there being no issue that the plaintiff knows that the accident was caused by an unidentified vehicle).
[36] Although St. Paul’s alternate position was that if the “Chahine criteria” are applicable those criteria are satisfied, I cannot accept this submission. I agree with the position advanced on behalf of the plaintiff that it is not clear that the plaintiff knew or ought to have known that the unidentified driver was solely at fault for the accident prior to the examinations for discovery. Furthermore, I agree with plaintiff’s counsel’s characterization of Mr. Armour’s correspondence to St. Paul in June 2009 as communication that the unidentified driver “may have been at-fault” and that if this other driver is not located, the plaintiff may pursue a claim against St. Paul. I do not consider that correspondence as being a demand or a claim for indemnification.
[37] I note further that although the notice requirements, prescribed by the regulations to the Insurance Act were not part of the motion materials, there may be an issue as to whether the plaintiff has provided proper notice to St. Paul. Indeed, counsel for the plaintiff acknowledged at the hearing of this motion that there could be a “notice issue” but that issue is not before the court.
[38] Therefore, I reach a conclusion similar to that reached by Lofchik J. in Chahine who found that the insurer could not raise a limitations defence in its statement of defence. I find that St. Paul is not entitled to succeed on its motion for summary judgment based on its submission that the claim against it is statute barred by the provisions of the Limitations Act.
[39] For these reasons, St. Paul's motion for summary judgment is dismissed.
[40] If the issue of costs cannot be resolved, counsel may make brief submissions within the next 30 days.
“Justice L.C. Leitch”
Justice L. C. Leitch
Released: May 19, 2015
CITATION: Platero v. Pollock, 2015 ONSC 2922
COURT FILE NO.: 63431
DATE: 2015/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Doris Platero
Plaintiff
- and -
Gregory Pollock, London Transit Commission, John Doe, York Fire & Casualty Insurance, and St. Paul Fire and Marine Insurance Company
Defendants
REASONS FOR JUDGMENT
LEITCH J.
Released: May 19, 2015