Our Newsletter

We are very excited about our firm’s ongoing success. We are continuing to grow with more lawyers and support staff joining us …read more
We are delighted to announce that Rose Leto has been offered Partnership with our firm. Congratulations Rose, we look forward to your many years of continued success …read more
Called to the bar in 1970, Gary Neinstein has been practicing almost exclusively in personal injury law from the start. He has always been a champion for the underdog. He has fearlessly advocated for survivors of trauma, and earned a reputation as a tenacious trial lawyer…read more
Greg Neinstein chaired another successful event. On June 14, 2012, legal and rehabilitation professionals, caregivers, family and friends gathered to raise awareness of brain injury by participating in the 8th Annual Mix and Mingle for Brain Injury…read more
We are proud to announce Stacy Koumarelas as the newest partner at Neinstein. Stacy has established herself as a diligent lawyer, skilled negotiator and dedicated mentor…read more
As the year ends, we wish for you and your family much health and happiness. May you have a festive season and great success in the New Year…read more
Once again, the Liberal government has quietly, without any input or debate from various stakeholders, such as plaintiff lawyers, health care providers and above all accident victims passed legislation that radically changes and restricts our clients’ ability to claim Attendant Care and Medical & Rehabilitation Benefits…read more
In “Brown and Commonwell Mutual Insurance Group”, the insurer demanded 5 in person assessments in response to our client’s application for catastrophic benefits (OCF­19). Greg Neinstein and Sebastian Gallagher rejected this approach and stated that this was a legal test…read more
This year’s holiday initiative was inspired by the spirit of doing a Mitzvah, the Hebrew word meaning a good deed or an act of human kindness. The idea was simple: to spread warmth to those who would be needing it most this season…read more
Neinstein LLP is excited to announce that Duncan Embury has joined the partnership and will be heading our Medical Malpractice Group…read more
Once again, Neinstein LLP is honoured to be nominated by Canadian Lawyer Magazine as one of Canada’s Top 10 Personal Injury Law Firms. This survey highlights firms from across Canada who have showed exemplary service throughout the years…read more
Yesterday, Finance Minister Charles Sousa announced further restrictions to Accident Benefits coverage in Ontario…read more
The Ontario government is proposing reducing accident benefits. Victims of a car accident will face more suffering if the Ontario government’s changes to cut auto insurance benefits are made…read more
Neinstein is proud to announce our partners recommended by the Canadian Legal Lexpert Directory…read more
Neinstein LLP wishes you a warn holiday seasons and a prosperous New Year…read more
Neinstein Personal Injury Lawyers is excited to announce the launch of our new website! We are very proud of our team of lawyers and the quality of work that we provide.…read more

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Limitation Periods for Uninsured, Underinsured & Unidentified Claims

For many years lawyers on both sides of the personal injury bar debated the applicable limitation period, and when it begins to run, for claims made by a Plaintiff against their own insurer arising from motor vehicle accidents involving either uninsured, unidentified or underinsured defendants. In the past, insurers have sought to rely on the twelve month limitation period contained in an insured’s personal automobile policy, found in paragraph 17 of the OPCF-44R of that policy. In contrast, Plaintiff counsel has long argued that s. 4 and 5 of the Limitations Act, 2002, should apply and override this provision. The Limitations Act imposes a basic two-year limitation period on all claims arising in the Province of Ontario, beginning on the date at which a claim is said to have been ‘discovered’.

The debate on this question was put before the Courts in the case of Schmitz v. Lombard and some much needed clarification was provided. In Schmitz, the Plaintiff was injured in a car accident in 2006. The initial claim was issued in 2007 and claimed damages from the Defendant in excess of $1 million. The Defendant’s automobile insurance third-party coverage was limited to $1 million. However, the Plaintiff’s own policy of insurance with Lombard included underinsured motorist coverage to a maximum of $2 million. In June 2010, approximately four years post-accident, the Plaintiff sought to access this policy and issued a claim against Lombard for underinsured coverage. In response, Lombard brought a motion before the Court to have the action dismissed on the basis that the claim was commenced after the expiry of the twelve-month limitation period contained in section 17 of the OPCF-44R.

The lower court dismissed the motion and the decision was appealed by the Defendant. At the Court of Appeal, the Defendant agreed that s. 4 of the Limitations Act was the appropriate limitations period. Instead, the Defendant argued that s. 5’s discoverability principles applied and the limitation period began to run from the time the Plaintiff knew or ought to have known that his claim would exceed the $1 million coverage limits. The Court of Appeal rejected this argument and dismissed the appeal. In its reasoning, the Court ruled that limitation period did not start running until the Plaintiff demanded payment from the Defendant. Put another way, a Plaintiff suffers a loss from the moment the insurer can be said to have failed to satisfy its legal obligation under the policy.

While the Lombard decision provided much needed clarification for the application of principles of discoverability in cases involving underinsured coverage, questions still remained as to the applicability of its principle to claims involving unidentified drivers. This issue was addressed in the Chahibe v. Grybas decision. The decision involved a motion by the Plaintiffs to add their own insurer, Primmum, as a Defendant under the unidentified provisions of their policy.

The Plaintiffs were involved in a collision on December 16, 2010, at which time their vehicle was rear-ended. At that time, the Plaintiffs had no knowledge of the involvement of any other vehicles as they were taken immediately to hospital. Following issuance of the Statement of Claim, in July 2013, counsel for the named Defendant advised of the involvement of an unidentified third party in the accident as evidenced by a copy of the complete police report. The Plaintiffs brought this motion in July 2014 and it was contested by Primmum on the basis that the limitation period had expired. In support of its position, Primmum argued that the Plaintiff had failed to satisfy its onus of due diligence to obtain the necessary information to include the proposed Defendant within two years of the accident.

The Court in its decision found that the reasoning in Schmitz applied in this case stating that:

…unlike the claim of an injured party against a tortfeasor when the limitation period commences to run when the injury occurs or when the Plaintiff knew or ought to have known of the injury, the claim of an insured against his own insurer is a claim under a contract. There is no claim until the insurer has breached its contract to indemnify the Plaintiff by refusing to pay the Plaintiff’s claim.

 

The reasoning in Schmitz applies in this case. The Plaintiffs do not know they have a claim against the insurer until they know: that the accident was caused by an unidentified vehicle; that there is no other third party liability section of a policy under which they could recover; and a demand is made of the insurer and that the insurer has denied the claim.

A second decision involving the limitation period for adding one’s own insurer for unidentified coverage is Platero v. Pollock. In this decision, the Defendants St. Paul Fire and Marine Insurance Company moved for an order for summary judgment dismissing the Plaintiff’s claim against it on the basis that the claim was barred by the Limitations Act.

In this case, the Plaintiff was injured in a motor vehicle accident on August 11, 2007, while riding as a passenger in a bus. The Plaintiff commenced an action by way of notice of action on August 10, 2009. The Plaintiff sought to amend her claim on August 22, 2012, to add St. Paul’s for unidentified coverage. Evidence provided at the motion by the proposed Defendant indicated that the Plaintiff and her counsel were aware of the possible involvement of an unidentified defendant well in advance of the motion.

In the decision, Justice Leich reviewed the decisions in both Schmitz and Chahine and adopted the principle coming from those decisions, stating

…the plaintiff suffers a loss when St. Paul fails to satisfy its legal obligation under the policy. Putting it another way and again paraphrasing the Court of Appeal in Markel and Schmitz, the plaintiff will suffer a loss caused by St. Paul’s omission in failing to satisfy the claim under its policy the day after demand is made of St. Paul provided at that time there is no other third-party liability section of a policy under which she could recover (there being no issue that the plaintiff knows that the accident was caused by an unidentified vehicle).

For Plaintiffs, these decisions provide some much needed guidance on limitation periods for indemnification claims against their own insurers. It is important for individuals seeking to bring a claim arising from a motor vehicle accident to consult with an experienced lawyer to help determine what limitation periods are applicable to their action.

Does The New Statutory Deductible Apply to Current Actions?

When a Plaintiff is involved in a motor vehicle accident, the damages received for pain and suffering are subject to a statutory deductible. The deductible was put in place to ensure that only the most serious cases are litigated, given the influx of personal injury matters on limited court resources.

On August 1, 2015, the Ontario government implemented a new regulation to increase the deductible from $30,000 to $36,540 until December 31, 2015. Thereafter, the deductible amount is to be revised annually according to a prescribed formula, indexed for inflation.  However, the regulation and statute are silent on whether the increased deductible should be applied retrospectively, meaning for accidents occurring after August 1, 2015.

To determine this important question, the courts have queried whether the change is considered substantive or procedural in nature. If the law is deemed substantive, the change is not retrospective and the new deductible applies for motor vehicle accidents occurring after August 1, 2015. Should the courts deem the new legislation as a procedural change, then the new deductible will be invoked for all accidents occurring prior to August 1, 2015.

In November 2015, the court in Cobb v. Long Estate held that the statutory change was a matter of substantive law and therefore cannot be applied retrospectively. However, following the Cobb decision, in March 2016, the court in Corbett v. Odorico held that the legislative increase was procedural and as such, deemed to apply retrospectively.

Given the conflicting case law on this matter, it is currently unclear whether the new deductible applies retrospectively. We look forward to comments from the Court of Appeal to settle this matter moving forward.

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