In the Adlo/ Malhfotra scenario, we sought to schedule a motion to dismiss the claim as spurious and vexatious litigation that disclosed no case to answer. Our request for available dates to schedule the Motion did not meet with a collegial and professional response. For this, we have received apologies while the matter met with complaints as made by certain undisclosed onlookers within the profession and those individuals who did not respond to the request for available dates are now being dealt with by the Professional Regulatory Body for the breach of the professional rules of conduct. People like the claimant who violate HTA laws as a pedestrians and who cause scenarios deliberately that threaten the lives of motorists while attempting to take their own are not tortious victims and are not entitled to claim they were owed a duty of care that was breached by any motorist. It is the passenger in this scenario who walked out into the roadway illegally. As relevant to the Adlo vs. Malhfotra case that appeared in the news some time ago, see Rooplal vs. Fodor. Click here. Rooplal et al. v. Fodor et al. This is an interest case. Litigation and adding the TTCICL to the suit via a motion was not entirely necessary but it may have been only if; that is only if the statutory obligation to indemnify and provide coverage to the passenger who suffered the accident on TTC vehicle was denied by the TTCICL. They never made the indemnity claim directly with the TTCICL insurer but brought the Motion instead to add them as a defendant. Yet, the TTCICL is obligated to cover the plaintiff who was a passenger. The Motion was not statute barred. As a Litigant, her opportunity to sue had not entered into any Limitation period as an adverse, litigious issue had not arisen yet and nor would it unless her claim for indemnity was denied.

Rooplal v. Fodor, 2018 ONSC 4985 (CanLII) Date: 2018-08-20 File number: CV-14-500906 Citation: Rooplal v. Fodor, 2018 ONSC 4985 (CanLII) HEARD: August 15, 2018

V.R. CHIAPPETTA J.

Overview

[1]               This matter is a de novo motion for an order granting the plaintiff leave to amend her statement of claim and to add TTC Insurance Company Limited (“TTCICL”) as a defendant in this action. This matter is heard before me pursuant to my endorsement, the parties’ consent, and in accordance with rr. 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants Leslie Patrick Fodor, Toronto Transit Commission, and the proposed defendant TTCICL (the “defendants”) oppose the motion. Novex Insurance Company takes no position on the motion.

[2]               The issue before the court is narrow: is the claim against TTCICL for unidentified motorist coverage under Insurance Act, R.S.O. 1990, c. I.8, s. 265 statute barred in accordance with the Limitations Act, S.O. 2002, c. 24, Sch. B? If so, the amendments are properly refused in accordance with the Court of Appeal’s direction in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469(CanLII), 90 O.R. (3d) 401, at paras. 27 and 28.

[3]               The Court of Appeal has considered a limitation period and unidentified motorist coverage issue before. However, the Court of Appeal’s analysis took place before the Limitations Act entered into force (July v. Neal (1986), 1986 CanLII 149 (ON CA), 32 D.L.R. (4th) 463 (Ont. C.A.); Johnson v. Wunderlich (1986), 1986 CanLII 2618 (ON CA), 34 D.L.R. (4th) 120 (Ont. C.A.); Hier v. Allstate Insurance Co. of Canada(1988), 1988 CanLII 4741 (ON CA), 51 D.L.R. (4th) 1 (Ont. C.A.); Chambo v. Musseau (1993), 1993 CanLII 8680 (ON CA), 15 O.R. (3d) 305 (C.A.)). The Court of Appeal directed that limitation period time begins to run when the material facts on which the claim is based have been discovered or ought to have been discovered by the plaintiff’s exercise of reasonable diligence.

[4]               After the Limitations Act entered into force,  the Court of Appeal considered the statute in the context of a loss transfer claim pursuant to Insurance Act, s. 275 and in the context of a claim for indemnity under the underinsured motorist coverage provided by an OPCF 44R optional endorsement to the standard form automobile insurance policy in Ontario (Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652; Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88 (CanLII), 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143). In those circumstances, the Court of Appeal concluded that the limitation period does not begin until the plaintiff makes an indemnification demand and the responding insurer fails to satisfy that demand. The Superior Court has adopted the reasoning in Markel and Schmitz in the context of unidentified motorist coverage pursuant to Insurance Act, s. 265 (Chahine v. Grybas, 2014 ONSC 4698 (CanLII), 38 C.C.L.I. (5th) 282; Platero v. Pollock, 2015 ONSC 2922 (CanLII), 49 C.C.L.I. (5th) 212). Chahine concluded that the limitation period for unidentified motorist coverage does not begin until the plaintiff makes an indemnification demand and the responding insurer fails to satisfy the claim (paras. 36-39). Platerofollowed Chahine’s reasoning.

[5]               The parties agree that the basic limitation period set out at Limitations Act, s. 4 applies: a proceeding for a claim shall not be commenced after the second anniversary of the day on which the claim was discovered. The parties disagree however about when a claim for indemnity pursuant to statutorily mandated unidentified motorist coverage is “discoverable”. The defendants argue that the July line of cases sets out the proper discoverability analysis, while the plaintiff argues that the Markel line of cases sets out the proper analysis.

[6]               Since the Limitations Act has entered into force, the determination of when a claim is “discovered” for a limitation period governed by Limitations Act, s. 4 depends entirely on examining the four criteria in Limitations Act, s. 5(1)(a).  The Court of Appeal’s discoverability analysis in Markeland Schmitz binds this court. The Markel and Schmitz reasoning applies equally to indemnity claims under Insurance Act, s. 265 for unidentified motorist coverage. It follows then that enumerated factors ss. 5(1)(a)(ii) and (iii) of the Limitations Actcannot be satisfied until the plaintiff has asserted a claim against the unidentified insurer to trigger a legally enforceable obligation. Once the plaintiff asserts a legally valid claim for indemnification, the unidentified coverage insurer has a legal obligation to respond to the claim. The indemnity claimant only suffers a loss caused by the unidentified coverage insurer’s omission in failing to satisfy the indemnity claim on the day after the demand for indemnification is made. Therefore, the limitation period begins on the first day of default after the indemnification demand is made.