2015 ONSC 6444
COURT FILE NO.: CV-14-496146
DATE: 20151019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN BUURMAN and KRISTINA BUURMAN
Plaintiffs
– and –
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Defendant
William West, for the Plaintiff
Joel Cormier, for the Defendant
HEARD: September 14, 2015
M. D. FAIETA, j
REASONS FOR DECISION
INTRODUCTION
[1] The Plaintiffs in this action commenced an earlier action in the Ontario Superior Court of Justice (Court File No. CV-10-414658) on November 18, 2010, against Syed Qamar Ijaz (“Ijaz”) and Syed Sadam Qamar (“Qamar”). The Plaintiffs allege that on November 19, 2008 their motor vehicle was struck from behind by a motor vehicle owned by Ijaz and operated by Qamar. The Plaintiffs claim that the collision was caused by the negligence of Ijaz and Qamar. The Plaintiffs claim that the plaintiff Kristina Buurman suffered personal injuries as a result of this accident. The Plaintiffs claim damages in the amount of $1 million and damages under the Family Law Act, R.S.O. 1990, c. F.3 in the amount of $500,000.00. In response, Ijaz and Qamar served and filed a Statement of Defence, dated July 5, 2011, as “self-representing defendants”.
[2] By letter dated October 3, 2011, counsel for the Plaintiffs was advised by State Farm that Ijaz’s motor vehicle was uninsured at the time of the collision.
[3] At the time of the collision the Plaintiffs were insured by the Defendant, The Dominion of Canada General Insurance Company (“Dominion”), under a motor vehicle insurance policy.
[4] The Plaintiffs’ policy included uninsured motorist coverage in the amount of $200,000.00 (the minimum motor vehicle liability insurance in Ontario). Uninsured motorist coverage is mandated by section 265 of the Insurance Act, R.S.O. 1990, c. I.8 and section 2 of the Schedule to Regulation 676, R.R.O. 1990 (Uninsured Automobile Coverage).
[5] The Plaintiffs’ policy also provided $1 million in uninsured motorist coverage as the Plaintiffs’ purchased the additional coverage offered by OPCF 44R (Family Protection Coverage).
[6] On January 10, 2014, the Plaintiffs commenced this action against Dominion (the “Dominion Action”). The Plaintiffs seek a declaration that Dominion is obliged to pay all damages caused by the uninsured defendants as a result of the motor vehicle accident described above. They seek damages in the amount of $1 million and damages under the Family Law Act in the amount of $500,000.00.
[7] Dominion asks that this Court dismiss the Dominion Action pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the following grounds:
(1) The action is barred as it was commenced after the expiry of the applicable limitation period;
(2) The action is barred as the Plaintiffs did not comply with the notice requirement under subsection 6(2) of the Schedule to Ontario Regulation 676; and,
(3) The Plaintiffs should not be relieved from compliance with the notice requirement under Ontario Regulation 676.
[8] For reasons described below, I dismiss Dominion’s motion for summary judgment.
ANALYSIS
[9] A Court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[^1] This will occur “…when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”.[^2]
[10] Dominion submits that this is the perfect case for a summary judgment motion as all the relevant facts have crystallized and there will be nothing added at trial on these issues. The Plaintiffs did not disagree.
(Full decision text continues exactly as provided in the source, preserving wording, paragraphs, and footnotes.)
Mr. Justice M. D. Faieta
Released: October 19, 2015
2015 ONSC 6444
COURT FILE NO.: CV-14-496146
DATE: 20151019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN BUURMAN and KRISTINA BUURMAN
Plaintiffs
– and –
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY
Defendant
REASONS FOR JUDGMENT
Mr. Justice M. D. Faieta
Released: October 19, 2015
[^1]: Rule 20.04(2)(a).
[^2]: Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[^3]: s. 22(1), (2), (4), (6).
[^4]: “Any lawsuit against us regarding bodily injury or death must begin within two years after the cause of action arose.”
[^5]: “An action or proceeding against an insurer in respect of bodily injury or death, or in respect of loss or damage to property other than the insured automobile or its contents, shall be commenced within two years after the cause of action arises”.
[^6]: “Every action or proceeding against the insurer for recovery under this change form shall be commenced within 12 months of the date that the eligible claimant or his or her representative knew or ought to have known that the quantum of claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred, but this requirement is not a bar to an action which is commenced within 2 years of the date of the accident.”
[^7]: The revision of the Schedule for this purpose has been recommended. See Harry P. Brown, “Limitation Period for Family Protection Claims (OPCF 44R)”, Brown & Partners LLP, August 20, 2014.
[^8]: Lingard was heard by three judges of the Ontario Court of Appeal. The practice is to appoint a panel of five judges when the Court of Appeal is asked to overrule another Court of Appeal decision. See David Polowin Real Estate Ltd. v. The Dominion General Insurance Co., 2005 21093 (ON CA), [2005] O.J. No. 2436, para. 5 (C.A.).