{"id":763,"date":"2018-06-04T17:41:49","date_gmt":"2018-06-04T21:41:49","guid":{"rendered":"http:\/\/limitations.ca\/?p=763"},"modified":"2018-07-05T09:33:08","modified_gmt":"2018-07-05T13:33:08","slug":"ontario-the-limitation-of-claims-for-unidentified-motorist-coverage","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=763","title":{"rendered":"Ontario: the limitation of claims for unidentified motorist coverage"},"content":{"rendered":"

The decision in Sukhu v. Bascombe <\/em><\/a>holds that the limitation period for a claim for the unidentified motorist coverage in OPCF 44R<\/a> does not run until the responding insurer refuses to satisfy a demand to indemnify.<\/p>\n

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[17]\u00a0\u00a0 \u00a0\u00a0\u00a0In\u00a0Schmitz v. Lombard General Insurance Company of Canada<\/i>,\u00a02014 ONCA 88 (CanLII)<\/span><\/a><\/span>; leave to appeal refused, [2014] SCCA No. 143, the Court of Appeal was dealing with the question of when the limitation period began to run for an indemnity claim under the underinsured motorist coverage provided by OPCF 44R optional endorsement to the standard form automobile insurance policy in Ontario. The Court of Appeal applied the reasoning in\u00a0Markel\u00a0<\/i>and concluded that the limitation period does not begin to run until a demand to indemnify has been made and the responding insurer has failed to satisfy the claim. See\u00a0Schmitz<\/i>\u00a0at paragraphs 22 to 26.<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0\u00a0The reasoning behind\u00a0Markel\u00a0<\/i>and\u00a0Schmitz\u00a0<\/i>was applied in the decision of Justice Lofchik in\u00a0Chahine v. Grybas<\/i>,\u00a02014 ONSC 4698 (CanLII)<\/span><\/a><\/span>. Justice Lofchik was faced with a motion involving facts very similar to the facts before the court on this motion. The plaintiff was involved in an accident and sued the other driver. After the claim was issued, the defendant\u2019s lawyer advised the plaintiff\u2019s lawyer that there was an unidentified motorist involved who may have been responsible for the accident. The plaintiff later confirmed this by obtaining a complete copy of the police report.<\/p>\n

[19]\u00a0\u00a0 \u00a0\u00a0\u00a0The plaintiff then brought a motion to add his own insurer pursuant to the unidentified motorist coverage in OPCF 44R of his policy. Justice Lofchik considered the provisions of the Limitations Act and the decisions of the Court of Appeal in\u00a0Markel\u00a0<\/i>and\u00a0Schmitz<\/i>. He concluded that the same reasoning applied to unidentified motorist coverage. The limitation period for unidentified motorist coverage does not begin to run until a demand to indemnify has been made and the responding insurer has failed to satisfy the claim. See\u00a0Chahine<\/i>\u00a0at paragraphs 36 to 39.<\/p>\n

[20]\u00a0\u00a0 \u00a0\u00a0\u00a0The plaintiffs also rely on the decision of Justice Leitch in\u00a0Platero v. Pollock<\/i>,\u00a02015 ONSC 2922 (CanLII)<\/span><\/a><\/span>\u00a0which followed the decision in\u00a0Chahine<\/i>\u00a0and also relied on the analysis of the Court of Appeal in\u00a0Markel\u00a0<\/i>and\u00a0Schmitz<\/i>. See\u00a0Platero\u00a0<\/i>at paragraphs 33 to 35.<\/p>\n

[21]\u00a0\u00a0 \u00a0\u00a0\u00a0TTC Insurance relies primarily on four decisions of the Court of Appeal. Those decisions are\u00a0July v. Neal<\/i>,\u00a01986 CanLII 149 (ON CA)<\/a>,\u00a0[1986] OJ No. 1101 (CA)<\/span><\/span>;\u00a0Johnson v. Wunderlich<\/i>,\u00a01986 CanLII 2618 (ON CA)<\/a>,\u00a0[1986] OJ No. 1251 (CA)<\/span><\/span>;\u00a0Hier v. Allstate Insurance Co. of Canada<\/i>,\u00a01988 CanLII 4741 (ON CA)<\/a>,\u00a0[1988] OJ No. 657 (CA)<\/span><\/span>\u00a0and\u00a0Chambo v. Musseau<\/i>,\u00a01993 CanLII 8680 (ON CA)<\/a>,\u00a0[1993] OJ No. 2140 (CA)<\/span><\/span>. Those decisions stand for the proposition that the limitation period for a claim under the unidentified motorist coverage of a policy of insurance begins to run when a plaintiff knew or ought to have discovered the accident involved the negligence of an unidentified motorist. TTC Insurance argues that these cases are binding authority and have represented the law of Ontario for decades.<\/p>\n

[22]\u00a0\u00a0 \u00a0\u00a0\u00a0The difficulty I have with the argument of TTC Insurance is that all of the Court of Appeal cases it relies upon were decided prior to the enactment of the current Limitations Act. They were also obviously decided before the decisions of the Court of Appeal in\u00a0Markel\u00a0<\/i>and\u00a0Schmitz<\/i>.<\/p>\n

[23]\u00a0\u00a0 \u00a0\u00a0\u00a0The decisions in\u00a0Chahine\u00a0<\/i>and\u00a0Platero\u00a0<\/i>considered specific provisions and language of the current Limitations Act within the context of the\u00a0Markel\u00a0<\/i>and\u00a0Schmitz\u00a0<\/i>decisions. Both judges came to the conclusion that the limitation period for unidentified motorist coverage indemnity claims does not begin to run until a demand to indemnify has been made and the responding insurer has failed to satisfy the claim. I am unable to distinguish those decisions from the case before the court on this motion. They appear to be binding on this court.<\/p>\n

[24]\u00a0\u00a0 \u00a0\u00a0\u00a0TTC Insurance cited the contrary decision of Justice Sosna in\u00a0Wilkinson v. Braithwaite<\/i>,\u00a02011 ONSC 2356 (CanLII)<\/span><\/a><\/span>\u00a0which held that the limitation period began to run when the plaintiff knew or ought to have discovered that the accident involved the negligence of an unidentified motorist. Although that decision involved the application of the current Limitations Act, it was decided before the Court of Appeal made its decisions in\u00a0Markel\u00a0<\/i>and\u00a0Schmitz<\/i>. For this reason, the decisions in\u00a0Chahine\u00a0<\/i>and\u00a0Platero<\/i>\u00a0are to be preferred.<\/p>\n

[25]\u00a0\u00a0 \u00a0\u00a0\u00a0TTC Insurance also relies on the decision of Master McAfee in\u00a0Bhatt v. Doe<\/i>,\u00a02018 ONSC 950 (CanLII)<\/a>,\u00a02018 ONSC 950 (Master)<\/span><\/span>\u00a0in which she applied the\u00a0July\u00a0<\/i>decision. The decisions in\u00a0Chahine\u00a0<\/i>and\u00a0Platero<\/i>\u00a0are not mentioned by Master McAfee and nor are the\u00a0Markel\u00a0<\/i>and\u00a0Schmitz\u00a0<\/i>Court of Appeal rulings. I do not know whether those cases were considered by her. In any event, the decision of another master is of persuasive value only. I am not bound to follow it, especially in the face of contrary decisions of a judge.<\/p>\n

[26]\u00a0\u00a0 \u00a0\u00a0\u00a0Counsel for TTC Insurance also suggested that the\u00a0Chahine\u00a0<\/i>and\u00a0Platero<\/i>\u00a0decisions were simply incorrect. TTC Insurance submits that the judges hearing those motions did not have the benefit of the earlier Court of Appeal decisions cited by TTC Insurance on this motion. If they had those decisions, those cases might have been decided differently. That may or may not be the case. I do not know. However, it is not the role of this court to question those decisions or the basis on which they were decided. Justices Lofchik and Leitch decided precisely the same issue as the one before me, having regard to specific provisions of the current Limitations Act and within the context of\u00a0Markel\u00a0<\/i>and\u00a0Schmitz<\/i>. Decisions of a judge are binding on a master. In my view, I am bound to follow the decisions of Justices Lofchik and Leitch.<\/p>\n<\/blockquote>\n

The decision also underscores the futility of relying on s. 16(1)(a) to avoid a limitations defence.\u00a0 This is not an especially clever argument, has been made many times, and I’m pretty sure never succesfully:<\/p>\n

\u00a0<\/em>[<\/a>12]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0I do not accept the plaintiffs\u2019 first argument involving section 16 of the Limitations Act. Section 16(1)(a) states that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought. This is not the situation on this motion. The proposed pleading states that TTC Insurance must pay Ms. Sukhu\u2019s damages in the event they are found to have been caused by the negligence of the unidentified motorist. This is obviously consequential relief, namely the payment of damages. See\u00a0Tapak v. Non-Marine Underwriters, Lloyd\u2019s of London<\/i>,\u00a02018 ONCA 168<\/span>\u00a0(CanLII)<\/a>\u00a0at paragraph 14<\/span>. The Court of Appeal has also emphasized that declaratory relief must be read narrowly so that section 16(1)(a) is not used as a means to circumvent a limitation period. See\u00a0Alguire v. Manufacturers Life Insurance Company (Manulife Financial)<\/i>,\u00a02018 ONCA 202<\/span>\u00a0(CanLII)<\/a>\u00a0at paragraph 28<\/span>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The decision in Sukhu v. Bascombe holds that the limitation period for a claim for the unidentified motorist coverage in OPCF 44R does not run until the responding insurer refuses to satisfy a demand to indemnify. [17]\u00a0\u00a0 \u00a0\u00a0\u00a0In\u00a0Schmitz v. Lombard General Insurance Company of Canada,\u00a02014 ONCA 88 (CanLII); leave to appeal refused, [2014] SCCA No. … Continue reading Ontario: the limitation of claims for unidentified motorist coverage<\/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":[92,21,463,253,465,464],"class_list":["post-763","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-motor-vehical-accident","tag-ontario-act-s-161a","tag-opcf-44r","tag-personal-injury","tag-ride-the-rocket","tag-unidentified-motorist-coverage"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/763","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=763"}],"version-history":[{"count":1,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/763\/revisions"}],"predecessor-version":[{"id":764,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/763\/revisions\/764"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=763"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=763"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=763"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}