Canada: When Does The Limitation Period Start Running For Uninsured Coverage?

Last Updated: August 27 2015
Article by Sudevi Mukherjee-Gothi

Kaushal v. Ampabeng and Aviva Canada Inc., and the application of Schmitz v. Lombard General Insurance Co. of Canada

In Kaushal v. Ampabeng, a 2015 decision of Ontario Superior Court of Justice, the Plaintiff was seeking to have his own insurer added to the action as a defendant, given that the Defendant driver had no insurance at the time of the accident. The insurer Aviva brought a summary judgment motion to dismiss the Plaintiff's action. Aviva's position was that the Plaintiff's claim was statute barred by virtue of the Limitations Act and that the Plaintiff failed to add Aviva to the action as a defendant within the limitation period.

The Plaintiff's position was as follows:

1. The claim was not statute barred as it was commenced within the appropriate limitation period.

2. Alternatively, the claim was advanced once he discovered that his injury crossed the threshold requirement pursuant to section 267.5(5) of the Insurance Act.

3. Alternatively, the claim as against Aviva did not commence until the Plaintiff made a legally valid demand for payment.

In response, the Plaintiff brought a cross motion to obtain leave to deliver a Reply to Aviva's Statement of Defence and to amend the Amended Statement of Claim to plead discoverability pursuant to section 5 of the Limitations Act.

Tzimas J ordered that the motion for summary judgment be dismissed and the Plaintiff was granted leave regarding the pleadings.

Here is the chronology:

1. The Plaintiff was rear-ended on November 27th, 2007. The Plaintiff suffered soft tissue injuries to his neck and lower back. The Defendant driver Thompson Ampabeng indicated at the Collision Reporting Centre that he was insured through Unifund Assurance. A policy number was provided. However, it appears that the Plaintiff was under the impression that the defendant driver was charged for failure to be insured.

2. The Plaintiff saw his family doctor on December 6th, 2007 and an orthopaedist on December 12th, 2007. He was excused from work for 4-6 weeks.

3. He was a welder and he returned to work in March 2008 where he was on light duties and then left his employment in August 2008.

4. January – October 2008 – he continued to receive chiropractic care and physiotherapy. Both caregivers made recommendations for continued rehabilitation programs to develop core and spinal stability.

5. Aviva terminated coverage for physiotherapy on October 30th, 2008. However, the Plaintiff continued with physiotherapy. On July 7th, 2009, the Plaintiff was examined by another physiotherapist who concluded that the lower back symptoms had worsened. An MRI was done on September 28th, 2009 which demonstrated multi level degenerative disc and facet changes.

6. The Plaintiff then retained a lawyer on November 10th, 2009. Prior to this, he had the assistance of a paralegal.

7. On November 24th, 2009, the Plaintiff was assessed by Dr. Sawa, a neurologist who concluded that the Plaintiff's problems were caused by mechanical lower back pain. Anti inflammatories were prescribed and surgery was ruled out.

8. On November 26th, 2009, the Plaintiff issued a claim as against the Defendant driver, as counsel determined that there had been no conviction under the Highway Traffic Act, arising of the November 27th, 2007 accident.

9. On January 22nd, 2010, the Defendant's alleged insurer indicated that the Defendant did not possess valid insurance with the company at the time of the accident.

10. May 2010 – the Plaintiff was assessed by a vocation specialist who concluded that the Plaintiff suffered a substantial inability to perform the essential tasks of pre-accident employment

11. November 2010 – the Plaintiff had a follow up visit with Dr. Sawa who recommended physiotherapy and painkillers. It was at this point, that the Plaintiff appreciated that there would be no surgical solution to his condition and that his symptoms were permanent.

12. Aviva was added as a defendant to the action on September 22, 2011. Aviva noted that as early as January 27th, 2010, counsel for the Plaintiff gave instructions to his articling student to bring a motion to add Aviva as a defendant to the action pursuant to the uninsured motorist provisions. On February 24th, 2011, Plaintiff's counsel wrote to Aviva stating that the Plaintiff would be commencing an action as against Aviva pursuant to section 258.4 of the Insurance Act. The motion was not brought until August 30th, 2011. In the motion materials, the explanation provided to add Aviva was that in January 2010, the Plaintiff learned that the Defendant Driver was not insured.

It is interesting that Plaintiff's counsel made the demand for payment pursuant to section 258.4 of the Insurance Act, and not under OPCF 44R.

The Court found that the issue of the applicable limitation period is a genuine issue for trial. There appeared to be the possibility of at least 2 and possibly 3 discoverability dates that may apply to the limitation analysis and when the limitation period started to run.

Accordingly, the Court stated that even taking into consideration that the Plaintiff stopped working as of August 2008, that this did not start the clock running on the Limitation period. In terms of the threshold claim, the Court did determine that after the first visit with Dr. Sawa in November 2009, it is likely that this is when the Plaintiff should have known that injuries were of a serious and permanent nature. Therefore, adding Aviva to the action in September 2011 was within the permitted time period.


It is interesting that the Court does not comment on the argument that the claim as against Aviva did not commence until the Plaintiff made a legally valid demand for payment, which is one of the alternative arguments proposed by the Plaintiff in their response to the summary judgment motion. One wonders how this case is reconciled with the rationale in the recent Court of Appeal decision in Schmitz (Litigation guardian of) v. Lombard General Insurance Co. of Canada 2014 ONCA 88. In Schmitz, the Court of Appeal held that once a legally valid claim for indemnification under the endorsement was asserted, the underinsured coverage insurer was under a legal obligation to respond to it and that the limitation period applicable to a claim for indemnity did not start to run until the day after the demand for indemnity was made. Using the chronology in Kaushal, an argument can be made that Plaintiff's counsel did not make their demand to Aviva until February 24th, 2011. Accordingly, the two year limitation period would not have started running until February 25th, 2011. However, in Kaushal, no request for indemnification was being made under OPCF 44R. The claim was being made pursuant to section 258.4 which states:

258.4 An insurer that receives a notice under clause 258.3 (1) (b) shall promptly inform the plaintiff whether there is a motor vehicle liability policy issued by the insurer to the defendant and, if so,

(a) the liability limits under the policy; and

(b) whether the insurer will respond under the policy to the claim. 1996, c. 21, s. 22

Typically, claims under section 258.4 are made when trying to determine limits and coverage under the Defendant driver's policy. Perhaps in Kaushal, the demand for payment should have been made under OPCF 44R. If so, then the decision in Schmitz would have provided a quick response to this summary judgment motion regarding the limitation period.

Furthermore, based on Schmitz, the limitation period is only triggered with the demand for payment. A demand for payment to the Insurer can be brought at any point of time during the litigation, and the limitation period will only commence the day after the request was made. This will make for some interesting law going forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Sudevi Mukherjee-Gothi
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.