The plaintiffs brought a motion to amend their statement of claim to add their own automobile insurer as a defendant after learning during discoveries that the defendants were uninsured.
The proposed insurer argued the limitation period under the Limitations Act, 2002 had expired and that the plaintiffs failed to exercise due diligence in discovering the lack of insurance.
The court held that the plaintiffs had provided some evidence of due diligence in attempting to determine whether the defendants were insured, including inquiries to potential insurers and communications with the defendants.
Applying the principles governing amendments and the discoverability doctrine, the court concluded there was a triable issue as to when the plaintiffs discovered or ought to have discovered the lack of insurance.
The amendment was permitted, with leave granted to the insurer to plead a limitations defence.
