CIVIL PROCEDURE - Limitation of actions - Time - When time begins to run

Appeal by the plaintiffs from summary judgment dismissing their action as statute barred. The appellants were injured on a Greyhound bus in 2000 when passenger D grabbed the steering wheel of the bus, forcing it across the highway where it rolled onto its side into a ditch. They commenced an action in 2001. The respondent was the insurer for Greyhound and provided the defence for Greyhound and the bus driver. At the end of trial in 2012, only D was found liable. D died in 2014. In January 2016, counsel for the plaintiffs contacted the respondent seeking payment of the plaintiffs' damages under the Insurance Act. When the respondent denied that they were the insurer for D, the appellants commenced this action against the respondent in February 2016. The motions judge found that the determination of whether or not D was an insured under the respondent’s policy was a question that should have been determined at the latest, no later than two years after the 2012 trial decision.

HELD: Appeal dismissed. The factual findings made by the motion judge that triggered the commencement of the limitation period are entitled to deference. There was no palpable and overriding error in the conclusion that the motion judge reached based on the record that was before her. The appellants were well aware that the respondent had provided the insurance coverage for the Greyhound bus and therefore any argument that that insurance provided coverage for the judgment against D was known to the appellants by that time, at the latest. There was no basis on which to extend the limitation period.

Tapak v. Non-Marine Underwriters, [2018] O.J. No. 866, Ontario Court of Appeal, C.W. Hourigan, L.B. Roberts and I.V.B. Nordheimer JJ.A., February 20, 2018. Digest No. TLD-Mar122018008