Miller v. State Farm Mutual Automobile
[Indexed as: Miller v. State Farm Mutual Automobile Insurance Co.]
2018 ONSC 7150
Superior Court of Justice, Rady J. November 30, 2018
Insurance — Automobile insurance — Statutory accident benefits
(“SABs”) — Plaintiff suing for statutory accident benefits in December
2015 — Plaintiff moving to amend his statement of claim to plead entitlement to medical and rehabilitation benefits denied since claim was
issued and for declaration that he suffered catastrophic impairment —
Motion brought after Insurance Act was amended to remove insured’s
right to bring action with respect to insurer’s SABs decisions — Motion
granted — Proposed amendments particularizing claims already
pleaded and not adding new claims that arose after Act was amended —
Defendant not suffering non-compensable prejudice if amendments allowed — Insurance Act, R.S.O. 1990, c. I.8.
After certain statutory accident benefits were denied by the defendant, the
plaintiff commenced an action in December 2015. The Insurance Act and Regulations were amended in 2016 to remove an insured’s right to bring an action
with respect to an insurer’s SABs decisions. The plaintiff subsequently brought
a motion to amend his statement of claim to plead entitlement to medical and
rehabilitation benefits denied since the claim was issued and for a declaration that
he suffered from a catastrophic impairment.
Held, the motion should be granted.
Read with a generous eye, the proposed amendments were simply a particularization of claims advanced in the original claim. The original claim stated
that the full particulars of the claim were within the defendant’s knowledge.
Further particulars were promised before or at trial. The implication was that
claims until the time of trial were contemplated. It was therefore reasonable
to conclude that the pleading was sufficiently broad to include post-amendment
claims. The defendant would not suffer non-compensable prejudice if the
amendments were permitted.
Charway v. TD General Insurance Co.,  O.J. No. 3945, 2017 ONSC 4593,
70 C.C.L.I. (5th) 203, 282 A.C. W.S. (3d) 392 (Master); Lucas-Logan v. Certas Direct
Insurance Co.,  O.J. No. 790, 2017 ONSC 828 (S.C.J.), consd
Other cases referred to
Marks v. Ottawa (City),  O.J. No. 1445, 2011 ONCA 248, 280 O.A.C. 251,
81 M.P.L.R. (4th) 161, 200 A.C. W.S. (3d) 329
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138
Insurance Act, R.S.O. 1990, c. I.8, s. 281 [as am.], (1)(a), (b)
Interpretation Act, R.S.O. 1990, c. I.11 [rep.]
Rules and regulations referred to
Automobile Insurance, R.R.O. 1990, Reg. 664, s. 21(2)2
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03(1), 26, 26.01, 48.04(1)