Rooplal v. Fodor, 2018 ONSC 399 (CanLII)
Unidentified Carrier Added to Claim Five Years Post-Accident.
Date Heard: June 13, 2017 | Full Decision [PDF]
The plaintiff was injured while a passenger on a TTC bus. It was alleged that an unidentified vehicle attempted to change lanes and moved in front of the bus, causing the bus to brake forcefully. This caused the plaintiff to fall and strike her head on a pole in the bus.
The plaintiff sued the driver of the bus, the TTC, and her own auto insurer, Novex Insurance Company. Her auto insurance policy included a Family Protection Endorsement (OPCF 44R).
In its Statement of Defence, Novex pled that it was not the plaintiff’s insurer for the purposes of uninsured/unidentified coverage under section 265 of the Insurance Act. It further pled that the insurer of the TTC bus – TTC Insurance – was the insurer for that purpose, as the plaintiff was an occupant of the TTC bus at the time of the accident.
Five years after the accident, the plaintiff brought a motion seeking to add TTC Insurance as a defendant to the action. TTC Insurance opposed.
TTC Insurance argued that it should not be added as a defendant as the limitation period had passed and noted that the plaintiff appeared to have been aware of an unidentified vehicle’s involvement in the accident for the duration of those five years.
The plaintiff argued that the claim against TTC Insurance for section 265 coverage is a claim in contract, not in tort, and that the cause of action does not arise until the plaintiff makes a claim for indemnification and TTC Insurance breaches the contract by refusing to pay.
Master Pope allowed the amendments and added TTC Insurance to the claim five years post-accident. In his analysis, Master Pope relied on the decision of Master Rogers in Williams v. Pintar, 2014 ONSC 1606, and on section 16(1) of the Limitations Act. Interestingly, neither the Williams v. Pintar decision nor section 16(1) was addressed by the plaintiff or TTC Insurance.
Master Pope cited the decision of Williams v. Pintar, in which Master Roger granted leave to the plaintiff to amend the Statement of Claim to add the defendant’s insurer as a defendant to the action because the proposed claims were in the form of declaratory relief related to insurance coverage.
Master Pope noted that, like in Williams v. Pintar, the proposed claims in the present case were also declaratory in nature. He found that the amendments were meant to resolve issues of coverage before a judgment was obtained, which enabled a process that was “proportionate, timely, and affordable.” Master Pope also noted that Master Rogers had emphasized the importance of requiring the disclosure of insurance issues well in advance of trial.
Master Pope also cited section 16(1) of the Limitations Act, which provides that there is no limitation period for a declaration, if no consequential relief is sought.
Read the full decision [PDF]