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Personal Injury Claims and Limitation Period for Underinsured OPCF 44R Policy Claims

Ontario Personal Injury Lawsuits and Statutes of Limitations

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by: Brent Meadows

The Supreme Court of Canada has denied leave to the Lombard General Insurance Company in a case involving the determination of the limitation period with respect to OPCF 44R claims.

OPCF 44R Family Protection Coverage is an optional endorsement to the standard Ontario automobile insurance policy in Ontario. It provides protection to the named insured and her/his spouse or dependant relative in the event that they are faced with a situation where there is an insufficient amount of insurance proceeds to compensate for injuries sustained as a result of a motor vehicle accident. A shortfall in insurance proceeds typically occurs when someone is catastrophically injured and the policy limit amount is insufficient to fully compensate the injured party. Other scenarios that give rise to a situation where there is an insufficient amount of proceeds occur when the other driver is uninsured, or where the driver of another vehicle flees the accident and their identity is unknown to the injured party making the claim (ie. a ‘hit and run’ scenario).

Ontario Court of Appeal and limitation periods

Earlier this year the Ontario Court of Appeal in Schmitz v Lombard released its decision on the issue of when the limitation period begins to run for claims under the underinsured motorist coverage provided by the OPCF 44R. The limitation period is the period of time that a person may commence a legal proceeding. Ordinarily, under the Limitations Act, 2002 the limitation period is two years from the date of the accident. Once the limitation period expires a person is statute barred and can no longer pursue their claim. The OPCF 44R does however create a limitation period of 12 months and it is very important to recognize when the limitation ‘clock’ begins to run.
Lombard in its statement of defence pleaded that the plaintiff commenced the claim after the expiry of the OPCF 44R’s 12 month limitation period. The parties brought a Rule 21 motion for the determination of the limitation issue. The Court of Appeal held that the OPCF 44R’s 12 month limitation period begins to run the day after the demand for indemnity was made. Lombard sought leave to appeal the decision to the Supreme Court of Canada but was denied this month.
It is crucial that you and/or counsel understand when the OPCF 44R limitation ‘clock’ begins to run. Getting this wrong might be fatal to your claim. If you have been seriously injured in an accident and the other driver is uninsured, has minimum policy limits, or their identity is unknown it is very important to recognize any limitation issue that might arise. If you are unsure , we recommend you contact an Ottawa personal injury lawyer . Our lawyers are happy to offer you free advice. Consult any of our lawyers and we would be happy to assist. Email david@ottawainjury.ca and we can help.

 

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