Schmitz et al. v. Lombard General Insurance Co. of Canada, 2014 ONCA 88

JudgeHoy, A.C.J.O., Cronk and Epstein, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJanuary 16, 2014
JurisdictionOntario
Citations2014 ONCA 88;(2014), 315 O.A.C. 187 (CA)

Schmitz v. Lombard Ins. (2014), 315 O.A.C. 187 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. FE.014

Eckhart Schmitz, Louise Darling and Erika Schmitz and Kristian Schmitz by their litigation guardian, Louise Darling (plaintiffs/respondents) v. Lombard General Insurance Company of Canada (defendant/appellant)

(C56587; 2014 ONCA 88)

Indexed As: Schmitz et al. v. Lombard General Insurance Co. of Canada

Ontario Court of Appeal

Hoy, A.C.J.O., Cronk and Epstein, JJ.A.

February 4, 2014.

Summary:

Schmitz was hit by a vehicle being driven by Bakonyi in July 2006. In June 2007, Schmitz sued Bakonyi for damages in excess of $1,000,000 for injuries that he sustained in the accident. In June 2010, Bakonyi's automobile insurance coverage was limited to $1,000,000. Schmitz therefore brought an action against his own insurance company (Lombard) for indemnity under the underinsured motorist provisions (OPCF 44R) of his policy. Schmitz brought a motion to have a question of law determined before trial. At issue was (1) whether the 12 month limitation period in s. 17 of the OPCF 44R was displaced by the two year limitation period in s. 4 of the Limitations Act, 2002, and (2) when the limitation period began to run in respect of claims for underinsurance coverage pursuant to the OPCF 44R.

The Ontario Superior Court ruled that the two year limitation period in s. 4 of the Act began to run when a claimant made a request for compensation provided by the OPCF 44R. Lombard appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 4112

Automobile insurance - Uninsured or underinsured motorist coverage - Limitation period - In July 2006, Schmitz was injured in a motor vehicle accident allegedly caused by Bakonyi - In June 2007, Schmitz sued Bakonyi for damages in excess of $1,000,000 - In June 2010, Bakonyi's automobile insurance coverage was limited to $1,000,000 - Schmitz therefore brought an action against his own insurer (Lombard) for indemnity under the underinsured motorist provisions (OPCF 44R) of his policy - Schmitz moved to have a question of law determined before trial - At issue was (1) whether the 12 month limitation period in s. 17 of the OPCF 44R was displaced by the two year limitation period in s. 4 of the Limitations Act, 2002, and (2) when the limitation period began to run in respect of claims under the OPCF 44R - The motion judge ruled that the two year limitation period in s. 4 of the Act began to run when a claimant made a request for compensation provided by the OPCF 44R - He reasoned that this commencement date met the requirement in ss. 5(1)(ii) and (iii) of the Act that the loss be "caused" by the "omission" of Lombard - Lombard appealed - Lombard accepted that the applicable limitation period was governed by the Act, but argued that the definition of discoverability in s. 17 of the OPCF 44R applied rather than that set out in s. 5 of the Act - The Ontario Court of Appeal rejected this argument - As a matter of statutory interpretation, once it was acknowledged that s. 4 of the Act applied, so too did s. 5 - The two provisions had to be read together to determine the commencement date of the limitation period provided for under s. 4 - A claimant suffered a loss "caused by" the insurer's omission in failing to satisfy a claim for indemnity the day after the demand for indemnification was made - This interpretation did not prejudice underinsurers - There were a number of ways that they could protect their interests, including those provided for in s. 14 of the OPCF 44R and through a provision requiring the insured to provide timely notice to the insurer when he knew or ought to have known he was underinsured - See paragraphs 15 to 21.

Insurance - Topic 4112

Automobile insurance - Uninsured or underinsured motorist coverage - Limitation period - In July 2006, Schmitz was injured in a motor vehicle accident allegedly caused by Bakonyi - In June 2007, Schmitz sued Bakonyi for damages in excess of $1,000,000 - In June 2010, Bakonyi's automobile insurance coverage was limited to $1,000,000 - Schmitz therefore brought an action against his own insurer (Lombard) for indemnity under the underinsured motorist provisions (OPCF 44R) of his policy - Schmitz moved to have a question of law determined before trial - At issue was (1) whether the 12 month limitation period in s. 17 of the OPCF 44R was displaced by the two year limitation period in s. 4 of the Limitations Act, 2002, and (2) when the limitation period began to run in respect of claims under the OPCF 44R - The motion judge ruled that the two year limitation period in s. 4 of the Act began to run when a claimant made a request for compensation provided by the OPCF 44R - He reasoned that this commencement date met the requirement in ss. 5(1)(ii) and (iii) of the Act that the loss be "caused" by the "omission" of Lombard - Lombard appealed - Lombard argued that if s. 5 of the Act was the operative discoverability provision, on proper application of s. 5 to the unique circumstances involving claims under the OPCF 44R, the limitation period started to run when a claimant had accumulated a body of evidence that would permit him a reasonable chance of persuading a judge that his claims would exceed the limits of his policy - The Ontario Court of Appeal rejected this argument - Starting the limitation period with reference to when the demand for indemnification was made did not limit when that demand could or should have been made - The motion judge's order was amended to provide that the limitation period started to run the day after the demand for indemnity was made - The limitation period did not start to run when the demand for indemnity was made as a default had to occur first - See paragraphs 22 to 26.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See both Insurance - Topic 4112 ].

Limitation of Actions - Topic 2344

Actions in contract - Contract of indemnity - When time begins to run - [See both Insurance - Topic 4112 ].

Cases Noticed:

Markel Insurance Co. of Canada v. ING Insurance Co. of Canada - see Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada.

Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada (2012), 290 O.A.C. 75; 109 O.R.(3d) 652; 2012 ONCA 218, folld. [para. 7].

Counsel:

William S. Chalmers and Roseanna R. Ansell-Vaughan, for the appellant;

William S. Zener, for the respondents.

This appeal was heard on January 16, 2014, before Hoy, A.C.J.O., Cronk and Epstein, JJ.A., of the Ontario Court of Appeal. The following endorsement was delivered by the court on February 4, 2014.

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26 practice notes
  • Court Of Appeal Summaries (May 25-28, 2021)
    • Canada
    • Mondaq Canada
    • June 2, 2021
    ...Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v.......
  • THE SUPER PANEL DOCTRINE.
    • Canada
    • University of British Columbia Law Review Vol. 54 No. 1, September 2021
    • September 10, 2021
    ...the Court rejected the argument that a decision of the Court of Appeal for Ontario (Schmitz v Lombard General Insurance Company of Canada, 2014 ONCA 88) had been overturned by a subsequent decision of that Court (Lingard v Milne-McIsaac, 2015 ONCA 213) in part on the basis that the latter c......
  • Daverne v. Switzer (John) Fuels Ltd. et al., (2015) 344 O.A.C. 123 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • November 2, 2015
    ...235; 181 B.C.A.C. 179; 298 W.A.C. 179; 2003 SCC 25, refd to. [para. 30]. Schmitz et al. v. Lombard General Insurance Co. of Canada (2014), 315 O.A.C. 187; 2014 ONCA 88, refd to. [para. Markel Insurance Co. of Canada v. ING Insurance Co. of Canada - see Federation Insurance Co. of Canada v. ......
  • Rooplal v. Fodor,
    • Canada
    • Court of Appeal (Ontario)
    • May 28, 2021
    ...She also referred to the decision of this court in Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143, a case involving an insured’s claim against their own insurer under the OPCF-44R endorsement. ......
  • Request a trial to view additional results
14 cases
  • Daverne v. Switzer (John) Fuels Ltd. et al., (2015) 344 O.A.C. 123 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • November 2, 2015
    ...235; 181 B.C.A.C. 179; 298 W.A.C. 179; 2003 SCC 25, refd to. [para. 30]. Schmitz et al. v. Lombard General Insurance Co. of Canada (2014), 315 O.A.C. 187; 2014 ONCA 88, refd to. [para. Markel Insurance Co. of Canada v. ING Insurance Co. of Canada - see Federation Insurance Co. of Canada v. ......
  • Rooplal v. Fodor, 2021 ONCA 357
    • Canada
    • Court of Appeal (Ontario)
    • May 28, 2021
    ...She also referred to the decision of this court in Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143, a case involving an insured’s claim against their own insurer under the OPCF-44R endorsement. ......
  • Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725
    • Canada
    • Court of Appeal (Ontario)
    • September 4, 2018
    ...of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652 and Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143, this court held that for the purposes of s. 5(1)(a)(ii) and (iii) of ......
  • Rooplal v. Fodor, 2019 ONSC 7211
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 11, 2019
    ...Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652; and Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143). The defendants argued that the July line of cases sets out the proper ......
  • Request a trial to view additional results
11 firm's commentaries
  • Court Of Appeal Summaries (May 25-28, 2021)
    • Canada
    • Mondaq Canada
    • June 2, 2021
    ...Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v.......
  • Limitation Periods: Claims Against Insurers When You Don't Know What Hit You
    • Canada
    • Mondaq Canada
    • October 22, 2021
    ...in Markel Insurance Company v ING Insurance Company of Canada, 2012 ONCA 218 and Schmitz v Lombard General Insurance Company of Canada, 2014 ONCA 88 are binding in that respect. In Markel, which dealt with a loss-transfer claim between two insurers, the Court of Appeal held that the party d......
  • Limitation Periods: Claims Against Insurers When You Don't Know What Hit You
    • Canada
    • Mondaq Canada
    • October 22, 2021
    ...in Markel Insurance Company v ING Insurance Company of Canada, 2012 ONCA 218 and Schmitz v Lombard General Insurance Company of Canada, 2014 ONCA 88 are binding in that respect. In Markel, which dealt with a loss-transfer claim between two insurers, the Court of Appeal held that the party d......
  • Uninsured And Underinsured Motorist Coverage: 2014 Update
    • Canada
    • Mondaq Canada
    • September 18, 2014
    ...on the date the plaintiff demands payment from their insurer under the OPCF 44R: Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88. In July 2006, the plaintiff was hit by a car driven by Mr. Bakonyi. The plaintiff had automobile insurance with Lombard which included the O......
  • Request a trial to view additional results
1 books & journal articles
  • THE SUPER PANEL DOCTRINE.
    • Canada
    • University of British Columbia Law Review Vol. 54 No. 1, September 2021
    • September 10, 2021
    ...the Court rejected the argument that a decision of the Court of Appeal for Ontario (Schmitz v Lombard General Insurance Company of Canada, 2014 ONCA 88) had been overturned by a subsequent decision of that Court (Lingard v Milne-McIsaac, 2015 ONCA 213) in part on the basis that the latter c......

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