In a motor vehicle action, the limitation period for the plaintiff to make a claim for uninsured motorist coverage to his own insurer did not start to run until he was alerted that the driver and insurance information in the police report regarding the accident might be incorrect and it was reasonable for him to have relied on the information in the police report until that time

Insurance law – Automobile insurance – Policies and insurance contracts – Limitation of actions – Running of limitation period – Uninsured motorist

Lingard v. Milne-McIsaac, [2015] O.J. No. 1569, 2015 ONCA 213, Ontario Court of Appeal, March 31, 2015, P.D. Lauwers, C.W. Hourigan and G.I. Pardu JJ.A.

The appellant was injured when his vehicle was rear‑ended by another vehicle on October 28, 2008. On September 24, 2010, he commenced an action seeking damages in relation to the injuries he suffered. He subsequently applied to amend his statement of claim to claim uninsured motorist coverage from his own insurer.

At the time of the accident, the police at the scene prepared a motor vehicle accident report which identified Shawn McIsaac as the owner of the vehicle which rear‑ended the appellant’s vehicle and listed Security National Insurance Company as his insurer. The driver was identified as Jesse Milne‑McIsaac. After he commenced the action, the appellant received information on January 25, 2011 suggesting that Milne‑McIsaac was the owner of the vehicle, not McIsaac, and Milne-McIsaac was likely insured by a different insurer. Further inquiries revealed that in fact McIsaac was still the owner of the vehicle at the time of the accident but his policy with Security National Insurance Company had been cancelled before the accident. As the vehicle was uninsured, the appellant brought a motion on February 16, 2012 for leave to amend his statement of claim to claim uninsured motorist coverage from his own insurer.

The motion judge framed the issue before him as whether the appellant had acted with due diligence in discovering the factual basis of his claim against his own insurer. The motion judge found that the appellant should have taken additional steps such as making inquiries with the insurer listed on the motor vehicle accident report and that the evidence of due diligence fell short of the required standard. In the result, the motion was dismissed.

On appeal, it was held that the motion judge erred in imposing a standard of reasonable diligence that was significantly higher than the required standard established by more recent authority. It was reasonable for the appellant to assume that the police officer who completed the motor vehicle accident report had asked the driver for proof of insurance and to rely on the information contained in the report until he received notice that the vehicle was uninsured. There was no reason for the appellant to treat insurance coverage as a live issue until he became aware of a potential coverage issue when he received the information on January 25, 2011. The fact that the vehicle was uninsured was not confirmed until February 3, 2011. Therefore, the limitation period with respect to the claim against his own insurer for uninsured motorist coverage did not begin until either January 25, 2011 or February 3, 2011 and the motion was brought well within the limitation period. The Court of Appeal noted that the appellant’s insurer did not, and could not, claim prejudice in having to provide uninsured vehicle coverage to the appellant, which was precisely what he purchased with his insurance premium. In the result, the appeal was allowed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.