Lingard v. Milne-McIsaac, 2015 ONCA 213 – This Court of Appeal case arises from a motor vehicle accident which occurred on October 28, 2008. The plaintiff sustained injuries when his vehicle was rear-ended by an uninsured vehicle. The Motor Vehicle Accident Report (MVA Report) prepared by the police at the scene of the accident listed the driver, owner and insurance company. On June 29, 2010, the plaintiff’s doctor determined that he would require back surgery as a result of the accident. The plaintiff commenced a Statement of Claim on September 24, 2010 seeking damages from both the driver and owner of the vehicle.
On or about January 25, 2011, the plaintiff learned that the defendant vehicle was uninsured and the insurance was cancelled prior to the subject accident. As a result, the plaintiff brought a motion for leave to amend his Statement of Claim to claim uninsured motorist coverage from his insurer, Wawanesa Insurance Company. The motion judge denied the plaintiff leave, finding that the plaintiff’s due diligence fell short of the standard set out in Wakelin v. Gourley (2005), claiming that he should have taken “additional steps” to make inquiries with the insurer listed in the MVA Report.
It was determined on appeal that the motion judge erred in imposing a standard of reasonable diligence that was significantly higher than what was applied in the preceding case law. Here it was found that the plaintiff acted reasonably by relying on the statement in the Motor Vehicle Report which stated that the defendant vehicle was insured. Thus, it was reasonable for the plaintiff to assume that the police officer, who completed the report, asked the driver for proof of insurance. Further, the Court found that there was no reason for the plaintiff to treat insurance coverage as a live issue until the plaintiff became aware of a potential coverage issue in 2011. Therefore, the Court found that the plaintiff brought his motion well within the limitation period. Wawanesa could not claim prejudice in having to provide uninsured vehicle coverage to the plaintiff, which is precisely what he had purchased from Wawanesa with his insurance premium and that they had been fully engaged as the plaintiff’s accident benefits provider since the accident occurred.
The Court granted the plaintiff’s appeal with costs in the amount of $9,000, all inclusive.
What the insurer should know
The limitation period for a plaintiff to make a claim on their own insurance for uninsured motorist coverage does not commence until the plaintiff becomes aware that the defendant may not have coverage. Due diligence does not lie with the plaintiff to investigate further proof of insurance of a defendant. Thus, it is reasonable for the plaintiff to rely on information provided by the police at the accident for the purposes of commencing a claim.
By Mitch Kitagawa of Kelly Santini and Shannon O’Toole