{"id":339,"date":"2015-11-07T17:17:42","date_gmt":"2015-11-07T21:17:42","guid":{"rendered":"http:\/\/limitations.ca\/?p=339"},"modified":"2015-11-07T17:20:08","modified_gmt":"2015-11-07T21:20:08","slug":"ontario-no-schmitz-v-lombard-hasnt-been-overturned","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=339","title":{"rendered":"Ontario: no, Schmitz v. Lombard hasn’t been overturned"},"content":{"rendered":"

For the insurance bar, two points are\u00a0worth noting in Justice Faieta’s decision in Buurman v. The Dominion of Canada General Insurance Company<\/a><\/em>.<\/p>\n

First, the limitation periods in\u00a0section 5.9.3 of OAP 1, section 8(3) of the Schedule to Ontario Regulation 676, and section 17 of OPCF 44R don\u2019t trump the basic section 4<\/a> limitation period in the Limitations Act<\/a>.\u00a0 This is because these limitation periods are not included in the Limitations Act’s\u00a0section 19 schedule.\u00a0 This seems self-evident, but the defendant apparently\u00a0thought\u00a0it was an argument worth venturing.<\/p>\n

Second, unsurprisingly, Justice Faieta found that the Court of Appeal decision in Lingard v. Milne-McIsaac<\/a> <\/em>didn’t overturn its decision\u00a0Schmitz v. Lombard<\/a>,<\/em> which remains binding: \u00a0\u00a0<\/em><\/p>\n

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[17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Dominion submits that the last sentence of paragraph 11 of the Lingard<\/i> decision should be read as deciding that the limitation period for a claim for indemnity against an insurer under OCPF 44R begins when the insured discovers that the other vehicle was uninsured …<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 It is my view that Schmitz <\/i>was not overturned in Lingard<\/i> for at least two reasons. \u00a0First, the focus of the Lingard<\/i> decision was not whether the limitation period had expired.\u00a0 The issue before the Court was whether the Plaintiff had acted diligently in seeking to add its insurer as a Defendant. \u00a0Accordingly, the Court\u2019s findings regarding the commencement of the limitation period appear to be obiter<\/i>. \u00a0On the other hand, in Schmitz<\/i> the sole issue before the Court was the time at which the limitation period begins to run for an indemnity claim under OCPF 44R. \u00a0Second, unlike Schmitz<\/i>, in Lingard<\/i> the Court\u2019s finding regarding the commencement of the limitation period is unsupported by any analysis.\u00a0 Nor does it appear that Schmitz<\/i> was drawn to the Court\u2019s attention in Lingard<\/i>.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

For the insurance bar, two points are\u00a0worth noting in Justice Faieta’s decision in Buurman v. The Dominion of Canada General Insurance Company. First, the limitation periods in\u00a0section 5.9.3 of OAP 1, section 8(3) of the Schedule to Ontario Regulation 676, and section 17 of OPCF 44R don\u2019t trump the basic section 4 limitation period in … Continue reading Ontario: no, Schmitz v. Lombard hasn’t been overturned<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[33,173,172],"class_list":["post-339","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-insurance","tag-insurance-esoterica","tag-ontario-act-s-19"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/339","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=339"}],"version-history":[{"count":4,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/339\/revisions"}],"predecessor-version":[{"id":343,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/339\/revisions\/343"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=339"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=339"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=339"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}