Sean Oostdyk

The plaintiff sued her accident benefits insurer for breach of contract and bad faith after the insurer refused to pay non-earner benefits following a motor vehicle accident.

The insurer moved for summary judgment on the basis that the claim was statute‑barred under the two‑year limitation period in the Insurance Act and the Statutory Accident Benefits Schedule.

The court held that the limitation period began when the insurer clearly refused the non‑earner benefit in 2004, or alternatively when income replacement benefits were discontinued in 2006.

A subsequent application for non‑earner benefits years later could not restart the limitation period.

The court also found no evidentiary basis for claims of bad faith or mental distress in the administration of the claim.

The plaintiffs moved under the Rules of Civil Procedure for leave to amend their statement of claim to add three individuals associated with the Ontario Soccer Association as personal defendants and to plead breach of fiduciary duty.

The action arose after a soccer player was rendered a partial quadriplegic during an association-sanctioned game and alleged inadequate insurance coverage for catastrophic injuries.

Applying the “plain and obvious” test for pleadings, the court held it was arguable that the proposed individual defendants may have owed a duty of care in relation to the procurement and communication of insurance coverage for association members.

Leave was therefore granted to add the individuals as defendants and to amend the negligence claims.

However, the court found it plain and obvious that a fiduciary relationship could not exist between the individual defendants and the injured member, and that proposed fiduciary duty claims against them should be struck, though such a claim against the association itself could proceed.

The fourth party insurer moved to strike a fourth party claim brought by mortgage defendants in an action commenced by a lender seeking repayment of a defaulted mortgage.

The defendants alleged their default resulted from an insurer’s failure to pay benefits following a motor vehicle accident and attempted to claim indemnity from that insurer.

The court held the claim for contribution and indemnity was statute‑barred under the two‑year limitation period in the Limitations Act, 2002, which runs from the date the defendants were served with the main claim.

The court further found the claim duplicated existing litigation against the insurer and therefore constituted an abuse of process.

In addition, the pleadings disclosed no reasonable cause of action because the insurer could not be liable for the lender’s loss in the mortgage action.