Ruling notes injured party disregarded requests to add her daughter as defendant
In a case arising from a motor vehicle accident, the Ontario Superior Court of Justice dismissed the claim, which alleged negligence against an unidentified driver and the insurer of another driver, for failing to disclose a reasonable cause of action.
During the accident on July 24, 2020, the plaintiff in Khan v. Primmum Insurance Company et al., 2026 ONSC 1201, was a passenger in a vehicle driven by her daughter. The plaintiff allegedly sustained severe, painful, permanent physical and psychological injuries. Her husband, who was also a passenger, passed away.
In a statement of claim issued on Feb. 13, 2023, the plaintiff alleged negligence against:
Primmum argued that it had no independent duty of care to the plaintiff and no relation to the unknown driver. The TD defendants unsuccessfully requested an amendment of the plaintiff’s claim to add her daughter, as the insured party, as a defendant.
On Feb. 25, 2025, in an amended statement of claim, the plaintiff sought to include her daughter as another plaintiff, not as a defendant.
The TD defendants, which did not consent to the proposed amended claim, moved to strike the plaintiff’s claim for failing to disclose a reasonable cause of action under r. 21.01(1)(b) Rules of Civil Procedure R.R.O. 1990, Reg. 194. Alternatively, they moved for summary judgment under r. 20.04 based on a lack of a genuine issue for trial and a statutory bar.
Granting the TD defendants’ motion, the Ontario Superior Court of Justice dismissed the plaintiff’s action and entirely struck her claim and proposed amended claim for failing to disclose a reasonable cause of action under r. 21.01(1)(b).
Alternatively, the court granted the plaintiff summary judgment for the lack of a genuine issue for trial under r. 20.04(2)(a). The court also found the action statute-barred.
The court denied the plaintiff’s request for an adjournment of the hearing. The court determined that an adjournment would be meritless in the circumstances, further delay the proceeding, and prejudice the TD defendants.
According to the court, apart from naming the TD defendants in the title of the proceeding, the plaintiff’s claim failed to disclose a reasonable action against the TD defendants, including any information about or basis for their liability for the accident.
The court explained that any liability on the part of the TD defendants would likely only flow from a finding that the plaintiff’s daughter wholly or partly caused the accident.
The court acknowledged that a party could name an insurer in a lawsuit without identifying the vehicle’s owner or operator in certain cases, such as those involving an unknown owner or operator. However, the court did not consider this such a case, as the plaintiff’s daughter was the known owner and operator of the vehicle insured by the TD defendants.
The court noted that the plaintiff’s claim or proposed amended claim failed to explain how the TD defendants caused the accident or contributed to the plaintiff’s injuries and failed to pursue a claim for coverage of the unidentified motorist.
The court considered this a clear case in which it should deny leave to amend. The court noted that the plaintiff did not file a cross-motion for leave. The court added that granting leave would result in non-compensable prejudice to the TD defendants.
The court pointed out that the plaintiff failed to amend her claim or show an intent to do so, despite counsel for the TD defendants repeatedly asking her to add her daughter as a defendant.
Next, the court saw no genuine issue for trial under r. 20.04 and the test for summary judgment in Hryniak v. Mauldin, 2014 SCC 7. The court reiterated that the claim and proposed amended claim failed to assert any basis for the TD defendants’ factual or legal liability that would have contributed to the plaintiff’s damages.
Lastly, regarding the statutory bar, the court noted that the plaintiff issued her claim six months after the expiration of the limitation period and two years and seven months after the accident.
