Jensen et al. v. Guardian Insurance Co. of Canada et al., (1997) 39 O.T.C. 71 (GD)

• Judge: Belleghem, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: July 03, 1997
• Jurisdiction: Ontario
• Citations: (1997), 39 O.T.C. 71 (GD)

Jensen v. Guardian Ins. Co. (1997), 39 O.T.C. 71 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. JL.060

Mabel Elizabeth Jensen, Cheryl Turner Zammitt, Darlene McCrabb, Darlene McCrabb as Litigation Guardian for Matthew Eamon Allen Turner-Walsh and Eamon N. Walsh (plaintiffs) v. Guardian Insurance Company of Canada and Joao John Machado (defendants)

Guardian Insurance Company of Canada (plaintiff by counterclaim) v. Eamon N. Walsh and J. Pedro Madeira, Joao John Machado and the Corporation of the County of Dufferin (defendants by counterclaim)

(Court File No. 618/89)

Indexed As: Jensen et al. v. Guardian Insurance Co. of Canada et al.

Ontario Court of Justice

General Division

Belleghem, J.

July 3, 1997.

Summary:

Walsh's vehicle collided head on with Madeira's vehicle. Walsh's passenger was killed. Machado may have been racing with Madeira. Walsh's insurers issued third party claims against Machado in actions brought on behalf of the deceased's next of kin. The plaintiff added Machado as a defendant. Machado moved to dismiss the action against him on the basis of expiry of the limitation period.

The Ontario Court (General Division) considered the issues of prejudice and special circumstances and dismissed the motion. Machado was named a third party within the limitation period and was served within three months of expiry of the limitation period. Moreover, he was aware throughout of allegations suggesting his implication and there was a possibility of collusion between Madeira and Machado in an attempt to defeat the plaintiff's claim.

Limitation of Actions - Topic 3051

Actions in tort - Fatal accidents - Adding defendant after expiry of limitation period - See paragraphs 1 to 30.

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Considerations - Prejudice to parties - See paragraphs 17 to 30.

Limitation of Actions - Topic 9616

Enlargement of time period - Application for - Special circumstances - See paragraphs 17 to 30.

Cases Noticed:

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 17].

Glassman et al. v. Honda Canada Inc. et al. (1996), 4 O.T.C. 221; 29 O.R.(3d) 359 (Gen. Div.), refd to. [para. 17].

Thoman v. Fleury and State Farm Mutual Automobile Insurance Co. et al. (1996), 90 O.A.C. 227; 28 O.R.(3d) 398 (C.A.), refd to. [para. 23].

Counsel:

B.D. Barrie, for the plaintiffs;

Vern Rogers, for the defendant and plaintiff by counterclaim, Guardian;

Vance H. Cooper, for the defendant, Machado;

Brian Bangay, for the defendant by counterclaim Madeira;

Geoff Adair, for Peterson Howell.

This motion was heard before Belleghem, J., of the Ontario Court (General Division), who delivered the following judgment on July 3, 1997.