



COURT OF APPEAL FOR ONTARIO

CITATION: Morgan v. Economical Mutual
    Insurance Group, 2013 ONCA 369

DATE: 20130605

DOCKET: C56415

Goudge, Gillese and Pepall JJ.A.

BETWEEN

Yvonne Morgan

Plaintiff (Appellant)

and

Economical Mutual Insurance Group

Defendant (Respondent)

Isaac Zisckind and David Fenicky, for the appellant

Joshua J.A. Henderson, for the respondent

Heard: May 23, 2013

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated September 18, 2012.

By the
    Court:

[1]

As a result of a motor vehicle accident in which she was involved, the
    appellant issued a statement of claim on November 25, 2008 against the
    respondent, her own insurer.

[2]

The appellants policy with the respondent included coverage for an
    accident involving an uninsured automobile, pursuant to s. 265 of the
Insurance
    Act
, R.S.O. 1990, c. I.8.  Her policy also included the OPCF-44R Family
    Protection Coverage endorsement covering an accident involving an underinsured
    automobile.

[3]

On October 11, 2011, after the applicable limitation period had expired,
    the appellant moved to amend her claim to plead that her damages were caused
    by the negligence of the underinsured/
uninsured
motorist.  She sought to clarify that she was raising an uninsured motorist
    claim after learning that the respondent took the position that her statement
    of claim did not raise such a claim.

[4]

The Master found that the unamended claim contained sufficient details
    to allow it to be read to extend to uninsured coverage.  She permitted the
    amendment sought in order to make that claim even clearer.

[5]

On appeal, the Superior Court judge reversed, finding nothing in the
    four corners of the claim that set forth a claim for uninsured coverage.

[6]

For the reasons that follow, we agree with the Master and would
    therefore allow the appeal.

[7]

While there is a dispute about what claims it raises, there is no
    dispute that the appellants action is not statute-barred.  This case is
    therefore quite different from
Joseph v. Paramount Canadas Wonderland
,
2008 ONCA 469, 90 O.R. (3d) 401
, where the
    action itself was commenced after the limitation period expired.  Here, the
    debate is whether the proposed amendment clarifies a claim in a timely action
    or sets out a cause of action that is time-barred.

[8]

There is also no doubt that this claim is inelegantly, even poorly,
    drafted.  However, it must be read as generously as possible, with a view to
    accommodating any inadequacies in the form of the allegations due to drafting
    deficiencies.  See
Doe v. Metropolitan Toronto (Municipality) Commissioners
    of Police
(1990), 74 O.R. (2d) 225 (C.A.).

[9]

As we read the appellants claim, as a whole, it reasonably communicates
    to the respondent that the appellant is advancing an uninsured motorist claim
    along with an underinsured motorist claim.  We say this for several reasons.

[10]

First,
    the appellant pleads that both the owner and the driver of the at-fault vehicle
    were insufficiently insured at the time of the accident.  This is not a term
    of art in insurance law.  In this context it could reasonably encompass someone
    who had no insurance because such a person would be insufficiently insured.

[11]

More
    importantly, paragraph 3 of the claim clearly pleads provisions of the
Insurance
    Act
, specifically those providing coverage for accidents involving uninsured
    automobiles.

[12]

Paragraph
    7 pleads that an underinsured motorist caused the appellants damages.  However,
    paragraph 7 also pleads that the appellant is entitled to claim damages against
    the respondent, consistent with the provisions of the
Insurance Act
referred
    to in paragraph 3 of the claim.  These provisions refer only to an uninsured
    automobile.  In our view, therefore, part of paragraph 7, read together with
    paragraph 3, sustains an uninsured motorist claim.

[13]

While
    the claim is not completely free of ambiguity, paragraphs 3 and 7 of the claim together
    reasonably communicate to the respondent that the appellant is advancing both
    an underinsured and uninsured claim.

[14]

We
    therefore conclude that the amendments purpose is to clarify, rather than to
    assert a new cause of action.

[15]

We
    would allow the appeal and restore the Masters order.

[16]

As
    agreed, costs of $2500 are ordered to the appellant for the appeal to the Superior
    Court.  Costs for this appeal are to the appellant, fixed at $4000.  Both are
    inclusive of disbursements and applicable taxes.

Released: June 5, 2013 (S.T.G.)

S.T. Goudge J.A.

E.E. Gillese
    J.A.

S.E. Pepall J.A.


