



COURT OF APPEAL FOR ONTARIO

CITATION: Lingard v.
    Milne-McIsaac, 2015 ONCA 213

DATE: 20150331

DOCKET: C59414

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Timothy Nicholas Lingard

Plaintiff (Appellant)

and

Jesse Dalton Milne-McIsaac and Shawn W. McIsaac

Defendants

Mireille Dahab and Niyousha Ghomashchi, for the
    appellant

Jasvinder K. Singh, for the respondent Wawanesa
    Insurance Company

Heard: March 6, 2015

On appeal from the order of Justice Peter Douglas of the Superior
    Court of Justice, dated January 14, 2014.

By the Court:

[1]

We are of the view that the appeal must be allowed.

[2]

The appellant was injured when his vehicle was rear-ended by another car
    on October 28, 2008. The Motor Vehicle Accident Report (MVA Report) prepared
    by police at the scene of the accident identified Shawn McIsaac as the owner of
    the other vehicle (the McIsaac vehicle) and his son, Jesse Milne-McIsaac, as
    the driver. The MVA Report listed Security National Insurance Company as the
    insurer for Mr. McIsaac.

[3]

On June 29, 2010, the appellant met with a doctor who determined
    he needed back surgery. The surgery occurred on July 23, 2010. The appellant
    issued a statement of claim on September 24, 2010 seeking damages from Mr. McIsaac
    and Mr. Milne-McIsaac.

[4]

The appellant received an email from Mr. McIsaac on January 25, 2011
    stating that Mr. Milne-McIsaac owned the McIsaac vehicle at the time of the
    accident and was likely insured by State Farm Insurance Company. Security
    National confirmed that Mr. McIsaacs policy had been cancelled before the
    accident, but a Ministry of Transportation search revealed he still owned the
    vehicle at that time.

[5]

Since the McIsaac vehicle was uninsured, on February 16, 2012, the
    appellant brought a motion for leave to amend his statement of claim to claim
    uninsured motorist coverage from his insurer, the respondent Wawanesa Insurance
    Company (Wawanesa).

[6]

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 Wawanesa. The motion judge found that the appellant should have taken
    additional steps such as making inquiries with the insurer listed in the MVA
    Report. He found that the evidence of due diligence fell short of the standard
    set out in
Wakelin v. Gourley
(2005), 76 O.R. (3d) 272 (S.C.), and
    dismissed the motion for leave to add Wawanesa as a party.

[7]

In our view, decisions after
Wakelin v. Gourley
have clarified
    the principle of due diligence in discovering claims.

[8]

In
Toneguzzo v. Corner
, (2009), 75 C.P.C. (6th) 165 (Ont. Div.
    Ct.), the plaintiff relied on the identity of the vehicles owner set out in
    the police report. The individual identified as the owner delivered a statement
    of defence. The identified owners insurer provided the plaintiff with a
    certificate of insurance that identified Lakes Leasing Corporation as a lessor.
    The Divisional Court held, at para. 17, that receipt of this document did not
    trigger an obligation for the plaintiff to conduct further inquiries into the
    vehicles ownership. The courts in
Bremer v. Foisy
(2009), 82 C.P.C.
    (6th) 133 (Ont. S.C.), and
Burtch v. Barnes Estate

(2006), 80
    O.R. (3d) 365 (C.A.),

reached similar conclusions.

[9]

In
Velasco v. North York Chevrolet Oldsmobile Ltd.
, 2011 ONCA
    522,
106 O.R.
    (3d) 332
, the plaintiff relied on the identification of the other
    vehicles owner set out in the motor vehicle accident report. The plaintiffs
    counsel later received a 732-page Crown brief, which contained a page revealing
    that the real owner was a car dealership. Although counsel had possession of
    this information, the identity of the real owner did not come to counsels
    attention until two years later during preparation for discovery. The plaintiff
    then issued a statement of claim against the car dealership. This court concluded,
    at para. 9, that the plaintiffs counsel had acted with reasonable diligence
    in continuing to rely on the identification of the owner set out in the police
    report until information to the contrary actually came to their attention; it
    was not until then that the limitation period began to run.

[10]

Most
    recently, in
Patterson (Litigation guardian of) v. Ontario (Minister of
    Transportation)
, 2014 ONCA 487, 97 E.T.R. (3d) 171, this court held, at
    para. 5, that while it may not be wise for plaintiffs counsel to rely on
    police accident reports for vehicle ownership information, there is no
    iron-clad rule that failure to conduct an ownership search is fatal on the
    issue of discoverability, in the light of the decision of this court in
Velasco
.
The court went on to note, at para. 6, that the motion judge properly took into
    account all the circumstances relevant to the issue of discoverability in a
    manner consistent with the approach in
Velasco
. We consider that this
    reasoning applies, with necessary modifications, to the existence of insurance.

[11]

The
    motion judge erred in imposing a standard of reasonable diligence that was
    significantly higher than that in
Velasco
,
Toneguzzo
,
Bremer
and
Burtch
. By relying on the statement in the MVA Report that the
    McIsaac vehicle defendant was insured, until receiving actual notice that it
    was not, the appellant acted reasonably. It was reasonable for the appellant to
    assume that the police officer who completed the MVA Report asked Mr. Milne-McIsaac
    for proof of insurance. There was no reason for the appellant to treat
    insurance coverage as a live issue until the appellant became aware of a
    potential coverage issue when he received Mr. McIsaacs email on January 25,
    2011. The fact that the McIsaac vehicle was uninsured was not confirmed until
    February 3, 2011. The limitation period in respect of Wawanesa therefore began
    on January 25, 2011, or alternatively, on February 3, 2011. The appellant
    brought his motion well within this limitation period.

[12]

Wawanesa
    does not, and could not, claim prejudice in having to provide uninsured vehicle
    coverage to the appellant, which is precisely what he purchased from Wawanesa
    with his insurance premium:. See
Abarca v. Vargas
,

2015 ONCA 4, 380 D.L.R. (4th)
    120, at para. 42. Wawanesa has been fully engaged as the appellants statutory
    accident benefits provider since the accident occurred, as acknowledged by
    counsel: See
Tomescu v. Sarhan
,
2013 ONSC 1358,
115 O.R.
    (3d) 396
, at para. 28.

[13]

The
    appeal is allowed, with costs to the appellant in the amount of $9,000,
    all-inclusive. The costs order in the court below of $5,000 plus HST is
    reversed, and the respondent shall pay the same amount to the appellant.

Released:  March 31, 2015 PL                    P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


