[43] Since s. 5 contains no other condition that would disentitle a claimant to coverage where the vehicle is driven, or permitted to be driven, by a person not authorized by law to drive,
I conclude that uninsured automobile coverage is available to
the plaintiff. The motion of CAA seeking the summary dismissal of the claims and cross-claims on this ground must, therefore, fail.
The Limitations Act Issue
[44] The timeline of this action can be summarized as follows:
— statement of claim issued on December 4, 2008;
— the defendant Kyle Cresswell was served with the statement of claim on January 27, 2009;
— pleadings were noted closed against the defendant Kyle
Cresswell on October 6, 2009;
— a notice of default as required under the Motor Vehicle
Accident Claims Act, R.S.O. 1990, c. M.41 was sent to the
fund by courier on November 5, 2009;
— on December 4, 2009, counsel for the fund responded by letter, and advised that they had been retained to represent
the fund’s interests in the matter. However, they were unable to file a defence because it appeared that both defendants were represented by their own counsel, thereby
precluding intervention by the fund;
— over the months that followed, correspondence was exchanged
among all involved counsel as to whether the defendants
would continue to be represented by private counsel. According to a letter from Ms. Sargeant-Kerr, for the plaintiff,
dated July 22, 2010, it was the intention of defence counsel,
Mr. Parker, to remove himself as lawyer of record in order
that the fund could become involved;
— on March 25, 2011, counsel for the fund forwarded to other
counsel, by fax and regular mail, a statement of defence and
cross-claim on behalf of the defendant Kyle Cresswell,
which formally launched the cross-claim against CAA;
— on April 4, 2011, a requisition was filed by counsel for the
fund, requesting that the noting of default of the defendant
Kyle Cresswell be set aside on the grounds that the Minister of Finance intends to defend the action in his name. The
