Two recent Ontario decisions demonstrate the importance of
investigating potential limitation period issues early and taking
action from the outset. In Stechyshyn v. Domljanovic, 2015 ONCA
889, the plaintiff obtained the driver's licence number,
insurance information and license plate of other driver on the date
of the accident (June 8, 2006) and provided this information to
police. Plaintiff counsel was retained on June 6, 2008 and issued a
claim on June 20, 2008 naming John Doe as the defendant driver. On
January 5, 2010, plaintiff counsel requested a copy of the police
report. Over 18 months later, on July 22, 2011, plaintiff counsel
was provided with a copy of the police file which the
plaintiff's insurer had obtained on a motion. This file
identified the defendant driver and a motion was brought seeking to
substitute the driver for John Doe. This motion was not
After the defendant driver had been added, a motion for summary
judgment was brought on the basis that the limitation period had
expired. While the motion was granted at first instance, it was
overturned on appeal. The Court of Appeal held that the motion for
summary judgment was an indirect or collateral attack on the
unopposed motion for substitution. In proceeding in such a manner,
the defendant driver wasted "money, time, energy and judicial
In contrast, in Brown-Vidal v Doe, 2015 ONSC 3362,
the plaintiff had the license plate number on the date of the
accident (November 22, 2010). An action was commenced on December
23, 2013, well beyond the two year limitation period, naming John
Doe as the defendant driver. Plaintiff counsel conducted a licence
plate search on December 30, 2013 and identified the defendant
driver. A motion was brought on March 19, 2015 seeking to
substitute the driver for John Doe on the basis of misnomer. This
motion was opposed by the defendant driver.
At first instance, the Master denied the motion finding that the
plaintiff had information to discover the identity of the defendant
driver since the date of the accident and failed to exercise due
diligence in this regard. This finding was upheld on appeal by the
Divisional Court (Brown-Vidal v Doe, 2016 ONSC
While there may have been factual strengths and weakness in each
of the above cases, the opposing outcomes still highlight a
valuable lesson for defendants: Do not ignore a motion to correct a
misnomer to substitute a defendant after a limitation period! An
argument regarding the plaintiff's lack of due diligence should
be made in response to a misnomer motion, not on a later summary
judgment motion. Defendants should investigate limitations defences
early and challenge any motions to substitute as this opportunity
may not be available later. This may also require an earlier
referral to counsel in these circumstances.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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