The court cited improper service and insufficient evidence
In a recent personal injury case, the Ontario Superior Court of Justice adjourned a motion to amend the claim to add an insurer as a defendant, citing improper service and insufficient evidence.
In Nganga and Macharia v. Hussain, 2024 ONSC 2508, the plaintiffs sought to amend their statement of claim by adding Economical Mutual Insurance Company (now Definity Insurance Company) as a defendant and increasing the damages claimed.
The plaintiffs' claims stemmed from a collision between a vehicle driven by one of the plaintiffs and another vehicle owned and driven by the defendant. The plaintiffs alleged they sustained injuries and losses as a result of the collision. The defendant’s vehicle was insured with third-party liability limits of $1 million, while the plaintiffs’ vehicle had a policy with third-party liability limits of $2 million, including an OPCF 44R Family Protection Endorsement.
The plaintiffs requested the court’s permission to amend their claim to include Economical as a defendant, increase the damages claimed from $500,000 to $2 million and add allegations related to the OPCF 44R endorsement.
The Superior Court identified issues with the plaintiffs’ service of motion documents to Economical. The method of service did not comply with the Rules of Civil Procedure, and there was no evidence that Economical had accepted service of the documents. Consequently, the court could not proceed with the motion without proper service.
The defendant opposed the motion, citing the potential expiration of the limitation period, inadequate explanation for the plaintiff’s delay in bringing the motion, and potential prejudice to the defendant. The defendant argued that had she known the claim could exceed her insurance limits, she might have defended the action differently. She also requested that the plaintiffs pay her legal costs if the amendment were allowed if the final award fell below $1 million.
The court acknowledged the deficiencies in the plaintiffs’ supporting evidence, particularly the lack of documentation proving the existence of the OPCF 44R endorsement. The court ordered the plaintiffs to provide better evidence, including a copy of the endorsement and allowed them to submit a revised motion record and factum.
The court adjourned the balance of the motion to allow the plaintiffs to correct the identified deficiencies. The plaintiffs must deliver a supplementary motion record, including a copy of the OPCF 44R endorsement and a second factum. The defendant may respond with a new factum or rely on her existing one.
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Due to procedural issues, including improper service and an articling student’s appearance on behalf of the defendant, the court ruled that no costs would be awarded for the motion to date.
Ultimately, the court highlighted the importance of proper procedure and evidence in legal motions. The plaintiffs must now address the court’s requirements to proceed with their amended claims.
