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Identifying Proper Parties Prior to Commencing Your Claim

By: David Himelfarb

Identifying Proper Parties

When commencing a legal action, it is imperative that the proper parties are named. A recent trip to the Ontario Superior Court of Justice reiterates the obligation to identify proper parties and underscores the consequences for failing to do so. In the unfortunate event that you are involved in a motor vehicle accident, some of the most important pieces of information that need to be obtained are the names of the owners and insurers of all vehicles involved.

In Velasco et al. v. North York Chevrolet Oldsmobile Ltd, 2011 ONSC 85 (S.C.J.), the defendants sought an Order for summary judgment dismissing the plaintiff’s claims on the basis that the claims were commenced outside the two year limitation period. The accident occurred in July 2005 and involved multiple vehicles. When the lawyers for the plaintiff were preparing their statement of claim, they named Steven Denyer as the defendant-owner of the vehicle and Royal and Sun Alliance his insurer. As it turned out, North York Chevrolet Oldsmobile Ltd. and/or North York Chevrolet Ltd. were the true owners of the vehicle, not Denyer.

While preparing the statement of claim, the plaintiff’s lawyers relied on the Motor Vehicle Accident report provided by the police officer
investigating the scene. Unfortunately, the report mistakenly identified Denyer as the owner. Royal and Sun Alliance contributed to the confusion by delivering a pleading wherein Denyer was named as owner. Because multiple vehicles were involved, companion actions were commenced, all of which improperly named Denyer as the defendant-owner.

At the motion for summary judgment, the plaintiff acknowledged that it had two documents which identified the true owners of the defendant’s vehicle. A law clerk employed by the plaintiff reviewed both documents but failed to identify the error. It was only during preparation for examinations for discovery in January 2009, that the plaintiff’s lawyers noticed the documents revealing the true owners of the defendant-vehicle. Denyer confirmed that his vehicle was leased during his discovery on January 12, 2009, as did Royal and Sun Alliance in May 2009 via its counsel. The statement of claim naming the proper parties was issued May 29, 2009, almost four years after the accident occurred.

As a general rule, civil actions ought to be commenced no later than two years after the cause of action is discovered. The Limitations Act states that:


4. UNLESS THIS ACT PROVIDES OTHERWISE, A PROCEEDING SHALL NOT BE COMMENCED IN RESPECT OF A CLAIM AFTER THE SECOND ANNIVERSARY OF THE DAY ON WHICH THE CLAIM WAS DISCOVERED.
5.(1) A CLAIM IS DISCOVERED ON THE EARLIER OF,
          (A) THE DAY ON WHICH THE PERSON WITH THE CLAIM FIRST KNEW,
                    (I) THAT THE INJURY, LOSS OR DAMAGE HAD OCCURRED,
                    (II) THAT THE INJURY, LOSS OR DAMAGE WAS CAUSED BY OR CONTRIBUTED TO BY AN ACT OR OMISSION,
                    (III) THAT THE ACT OR OMISSION WAS THAT OF THE PERSON AGAINST WHOM THE CLAIM IS MADE, AND
                    (IV) THAT, HAVING REGARD TO THE NATURE OF THE INJURY, LOSS OR DAMAGE, A PROCEEDING WOULD BE AN APPROPRIATE MEANS TO SEEK TO REMEDY IT; AND
          (B) THE DAY ON WHICH A REASONABLE PERSON WITH THE ABILITIES AND IN THE MATTERS REFERRED TO IN CLAUSE (A).
(2) A PERSON WITH A CLAIM SHALL BE PRESUMED TO HAVE KNOWN OF THE MATTERS REFERRED TO IN CLAUSE (1)(A) ON THE DAY THE ACT OR OMISSION ON WHICH THE CLAIM IS BASED TOOK PLACE, UNLESS THE CONTRARY IS PROVED.

Accordingly, the question in Velasco was whether the action was properly commenced against the proper parties pursuant to the two year limitation period as stipulated under the Limitations Act. In its reasons, the Superior Court of Ontario held that despite having great sympathy for the plaintiffs, it was not of the opinion that reasonable diligence was exercised to discover the information that would have led to the identity of the owner of the Denyer vehicle within the two year limitation period.

The Court held that lawyers should not rely solely on the motor vehicle accident report when preparing the statement of claim, and that in each and every case, the plaintiff’s counsel should obtain a motor vehicle licence plate search to determine ownership. As a result of the foregoing, the Court granted the Order for summary judgment dismissing the action against the defendants.

Velasco serves as a stark reminder to obtain proper information about the parties involved in an action. In this case, a timely Ministry of Transportation database search would have gone a long way to prevent the action from being disposed of via summary judgment in favour of the defendants. Counsel ought not to close their minds to the issue of ownership on the basis of a Motor Vehicle Accident report to the extent that further documents coming into possession concerning true owners of vehicles are given a cursory glance-over.

For assistance with a personal injury or insurance claim, please email David at dhimelfarb@himprolaw.com. To be contacted immediately call 1-855-446-7765 for a free case evaluation.

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