When a potential claim could have been brought is generally a matter of fact for purposes of determining limitation periods

Axa Insurance Company (‘Axa’) sought a summary judgment to dismiss an action using a limitation period defence filed against it by its insured under unidentified vehicle coverage policy following a 68 vehicle pile-up. The motion for summary judgment was dismissed.

Mawji v. Axa Insurance Co., [2009] O.J. No. 3621, September 2, 2009, Ontario Superior Court of Justice, D.G. Price J.

In April 2003, the Mawjis were involved in a 68 car pile-up on Highway 401 in Toronto.  Their lawyer received a Motor Vehicle Accident Report stating the Mawjis were involved in a single car collision with a vehicle driven by Mr. Christiaans. The Mawjis commenced an action against Mr. Christiaans in April 2005, and served it in May 2005.

A Statement of Defence and Counterclaim were delivered in December 2005, that stated Mr. Christiaans had been struck by a driver and or operator of vehicles unknown or unnamed in this lawsuit. Enclosed with the pleading was a Statement of Claim by the estate of Mr. Amayo naming Mr. Christiaans, Mawji, a number of other defendants including John and Jane Doe from the same multi car pile-up.

Mr. Christiaans’ lawyer suggested to Mawji’s lawyer that he should consider adding other defendants. Mawji’s lawyer responded by saying no other vehicle was involved, and that he would consider adding other defendants when he was given some evidence suggesting Mr. Christiaans was not at least 1% liable.

In January 2006, Mr. Christiaans’ lawyer sent Mawji an Ontario Provincial Police Technical Report showing other vehicles were involved in the collision, including Mr. Amayo in his maroon Mazda. In March 2006, Mawji commenced an action against Mr. Amayo.

In January 2007, Mr. Chriastiaans stated in his examination for discovery that he had been struck by an unidentified beige car. Mawji’s lawyer then wrote to Axa in May 2007 giving notice there was a potiential claim under the unidentified vehicle coverage of the policy.

In April 2008, the Mawjis commenced an action against Axa under the unidentified vehicle coverage of their policy, five years after the collision.

The issues for the court were: a) when was the claim against Axa discoverable, b) if the claim was outside the limitation period, were there special circumstances to allow it, c) would Axa suffer prejudice, and, d) was there a genuine issue for trial as to whether the action was statute barred.

The court held that the Mawjis must possess sufficient knowledge before bringing the action or it could be dismissed as having no reasonable prospect of success. There was a genuine issue for trial with respect to when the Mawjis knew or ought to have known the necessary facts to add Axa to the proceedings. Axa did not suffer actual prejudice as it had been aware of the claim as of at least May 2007.

The judge dismissed the motion as the question as to when the Mawjis would have had sufficient information to maintain a successful action against Axa was a question of fact and beyond the role of a motions judge.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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