



COURT OF APPEAL FOR ONTARIO

CITATION:
Roque v. Pilot
    Insurance Company, 2012 ONCA 311

DATE: 20120514

DOCKET: C52997

Juriansz, LaForme and Epstein JJ.A.

BETWEEN

Fernando Roque

Plaintiff (Appellant)

and

Pilot Insurance Company

Defendant (Respondent)

William G. Scott, for the appellant

Stephen Brogden, for the respondent

Heard: April 16, 2012

On appeal from the judgment of Justice Joseph R.
    Henderson of the Superior Court of Justice, dated October 28, 2010.

Juriansz
    J.A.:

[1]

This appeal requires the court to decide when the limitation period begins
    to run for commencing an action against an insureds own insurer under the
    inadequately insured motorist endorsement of an automobile insurance policy.

[2]

On December 5, 1996, the appellant was injured by a motorist. He
    commenced an action against the motorist, claiming $1,000,000 in general damages
    and $750,000 in special damages. The appellant is insured by the respondent.
    His insurance policy includes OPCF 44, the Family Protection Endorsement. OPCF
    44 provides an insured person with coverage against harm caused by an
    inadequately insured motorist. Section 17 of OPCF 44 reads as follows:

Every action or proceeding against the
insurer for recovery under this change form shall be commenced within 12 months
    of the date that the eligible claimant or his or her representative knew or
    ought to have known that the quantum of claims with respect to an insured
    person exceeded the minimum limits for motor vehicle liability insurance in the
jurisdiction in which the accident occurred, but this requirement is not a bar
    to an action which is commenced within 2 years of the date of the accident.

[3]

The appellant submits that s. 17 of OPCF 44 should be interpreted to
    mean that the limitation period begins to run when the
plaintiffs
    damages have been quantified by settlement or judgment. Only then can it be
    said that
the plaintiff knows for certain that the available insurance
    under the defendants policy is less than that available under his own
    coverage.

[4]

This interpretation was adopted by Gordon J. in
Hampton v. Traders
    General Insurance Company
(1996), 27 O.R. (3d) 285 (Gen. Div.). Gordon J.
    explains why it is difficult to apply the limitation period from the date the
    plaintiff knew or ought to have known that the quantum of the claim exceeded
    the minimum limits in the jurisdiction, at p. 288:

The application, in my view, would be difficult indeed. The
    progression of a personal injury action produces not unusually a series of
    crests and troughs on quantum and liability as evidence becomes known and
    medical reports unfold. It may be quite elusive, vague and blurred as to what
    point on this sine curve a reasonably competent civil litigator objectively or
    subjectively fixes as probably that where minimum limits are attracted. Nor can
    the complications introduced by subsequent highs and lows be disregarded.

[5]

On this reasoning, Gordon J. found, at p. 288, that [t]he
    discoverability application in all but catastrophic cases of clear liability
    must, in my view, be the date of the judicial determination of award as against
    the primary tortfeasor.

[6]

While applying discoverability in this way has some advantages, it is
    inconsistent with the text of the provision. If the limitation period begins
    when the plaintiff knows the quantum of the claim with certainty, the phrase or
    ought to have known in the provision is left without meaning.

[7]

In his factum, the appellant advances a different argument. That
    argument is the limitation period does not begin to run until the plaintiff
    knows that the quantum of the claim is greater than the tortfeasors insurance
    coverage. This interpretation would avoid creating a multiplicity of
    proceedings, as it would reduce the need for injured parties to sue their own
    insurers.

[8]

I do not accept either of the plaintiffs submissions. The words of the
    provision are clear. The motion judge was correct to find that that proper
    approach was expressed by Master Dash in
McCook v. Subramaniam
(2008),
    172 A.C.W.S. (3d) 344 (S.C.)

at

para. 5
:

The plaintiffs case runs from when he has a body of evidence
    accumulated that would give him a reasonable chance of persuading a judge
    that his claims would exceed $200,000.

[9]

In this case, the appellant does not take issue with the motion judges
    finding that more than two years had passed since he knew or ought to have
    known that the quantum of his claims exceeded $200,000, the minimum coverage
    allowed in Ontario. The motion judge noted that the appellant had medical
    reports, a DAC assessment report and an economic loss report going back to June
    1998. Unfortunately, the plaintiffs solicitors did not learn until April or
    May of 2002 that the defendant had only $200,000 of coverage. The appellant
    commenced an action against the respondent on March 28, 2002.

[10]

The
    inevitable conclusion is that the plaintiffs action against the respondent was
    not brought in time and was properly dismissed.

[11]

In
    my view, the appellant overstates the concern that applying the limitation
    period in s. 17 of OPCF 44 according to its ordinary grammatical meaning will
    lead to a multiplicity of proceedings. Section 258.4 of the
Insurance Act
,
    R.S.O. 1990, c. I.8 obligates an insurer who receives a notice under s.
    258.3(1)(b) to promptly inform the plaintiff whether there is a motor vehicle
    liability policy issued by the insurer to the defendant and, if so, the
    liability limits under the policy, as well as whether the insurer will respond
    under the policy to the claim. Section 258.4 is intended to avoid the situation
    that arose in this case, where the defendants insurer did not comply with s.
    258.4. Where a defendants insurer fails to comply with its obligations under s.
    258.4, it would be prudent for plaintiffs counsel to commence an action
    against their own insurer and discontinue it later if necessary.

[12]

I
    would therefore dismiss the appeal with costs to the respondent fixed in the
    amount of $7500 all inclusive, as agreed by counsel.

R.G. Juriansz J.A.

I agree H.S. LaForme
    J.A.

I agree G.J. Epstein
    J.A.

Released: May 14, 2012


