The Court of Appeal for Ontario has affirmed that the limitation period in section 17 of the OPCF 44R (Family Protection Endorsement) starts from when the plaintiff has a body of evidence accumulated that would give him a “reasonable chance” of persuading a judge that his claims would exceed $200,000.
In Roque v. Pilot Insurance, the plaintiff issued the claim against his insurer well beyond the two-year anniversary of the accident. The motions judge found that the plaintiff’s claim was barred by section 17 of the OPCF 44R:
17. Every action or proceeding against the insurer for recovery under this change form shall be commenced within 12 months of the date that the eligible claimant or his or her representative knew or ought to have known that the quantum of claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred, but this requirement is not a bar to an action which is commenced within 2 years of the date of the accident.
The Court of Appeal agreed with the motions judge. The Court rejected the plaintiff’s argument that the section should be interpreted to mean that the limitation period begins to run when the plaintiff’s damages have been quantified by settlement or judgment. It also rejected the plaintiff’s argument that the limitation period does not begin to run until the plaintiff knows that the quantum of the claim is greater than the tortfeasor’s insurance coverage.