The Plaintiff was successful in adding the OAP 1 Insurer as a defendant six years after the accident.
Date Heard: July 20, 2018 | Full Decision [PDF]
The action arises from a motor vehicle accident which occurred on July 5, 2012 in the USA. The Plaintiff was driving his brother’s vehicle, which was insured by TD Insurance. The Plaintiff was insured by Traders General Insurance. The vehicle driven by Zachary Taylor crossed the centre line and collided with the Plaintiff’s vehicle. Zachary Taylor was uninsured at the time of the accident.
The action was commenced on July 3, 2014, which included Aviva Canada Insurance as a defendant for the OPCF 44R coverage. By letter dated November 23, 2016, the Plaintiff put the proposed defendant, TD Insurance, on notice of his intention to add it as a named defendant in the action. The motion was heard on July 20, 2018.
TD Insurance argued that the limitation period had expired, as the Plaintiff knew or ought to have known that the OAP 1 endorsement was material at the time of either the accident or the issuance of the claim. Sutherland J. acknowledged that there were factual differences between this case and past cases relating to limitation periods for suing OPCF 44R insurers. The Plaintiff knew that his brother was the owner of the vehicle he was operating, that his brother’s vehicle had insurance, and that there was an issue of an uninsured vehicle at the time that the action was commenced. However, Sutherland J. found that these differences were not material.
Sutherland J. concluded that the Plaintiff was a “person insured under the contract” as an occupant in an insured vehicle. The amendment requested was not against a tortfeasor, but rather against the insurer of the vehicle in which the Plaintiff was an occupant/driver. What is relevant is that the endorsement, OAP 1, is contained within a valid policy of insurance for the vehicle. Sutherland J. found no reason to apply a different scheme of reasoning between an OPCF 44R endorsement and that of an OAP 1 when both are valid obligations within a legally enforceable policy of insurance. Accordingly, applying the reasoning in Markel and Schmitz by the Court of Appeal, Sutherland J. held that the date of discovery is the day after the Plaintiff delivered the notice letter to the proposed defendant and therefore the limitation period had not yet expired.
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