MacDonald v Personal Insurance Company, 2016 ABQB 548

Court of Queen’s Bench of Alberta Citation: MacDonald v Personal Insurance Company, 2016 ABQB 548 Date: 20160930 Docket: 1301 15158 Registry: Calgary Between: Raymond A. MacDonald Plaintiff - and - The Personal Insurance Company Defendant _______________________________________________________ Reasons for Judgment of J.T. Prowse , Q.C., Master in Chambers _______________________________________________________ [ 1 ] The defendant, The Personal Insurance Company ("The Personal"), brings this application for

summary dismissal of the claim brought against it by the plaintiff Raymond MacDonald on the basis that it is entitled to immunity from liability by virtue of the Limitations Act , RSA 2000, c. L-12. [ 2 ] The Personal denied coverage for damage to Mr. MacDonald’s automobile on June 15, 2012. It takes the position that Mr. MacDonald did not advance his remedial claim against it until he issued an amended statement of claim on December 23, 2014, which is more than 2 years after the denial of coverage was made. Accordingly The Personal argues that it is immune from liability pursuant to

section 3 of the Limitations Act , which states, in part: 3(1) ... if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and

(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, ... the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 3 ] The Personal would not be immune from liability in either of the following circumstances: (

a) if the remedial claim was originally brought when the original statement of claim was filed on December 24, 2013, within the relevant 2 year period, and the amended statement of claim of December 23, 2014 is merely a clarification of the claim originally brought within 2 years, or (

b) if the claim brought on December 23, 2014 is an “added claim” within the meaning of

section 6 of the Limitations Act , and the added claim is “related to the conduct, transaction or events” described in the original statement of claim. [ 4 ] For the reasons which follow I find that The Personal has not met the onus on it as an applicant for

summary dismissal to show that the likelihood it will establish immunity from liability is very high such that that issue should be determined summarily in its favour. (

a) Is the claim asserted in the amended statement of claim an “added claim”? [ 5 ] The decision in Canadian Natural Resources Ltd. v. Arcelormittal Tubular Products Roman S.A. , 2012 ABQB 679 , 2012 CarswellAlta 2257, at para. 397 , dealt with an amended third party notice, but the following comment is equally applicable to the amended statement of claim which we are considering here: An initial question is whether the amended third party claims "add claims".

An added claim is one that is based on different and distinct events giving rise to different and distinct loss, when compared to the allegations made and loss claimed in the pleadings filed as of right. Added claims can be distinguished from amendments that simply characterize the same facts differently. [ 6 ] In my view, Mr. MacDonald has an arguable position that the amended statement of claim he filed is not an “added claim” but simply a clarification of the claim made in the original statement of claim, which was filed within 2 years of the denial of coverage.

Here are the reasons for that conclusion. [ 7 ] A collision occurred between Mr. MacDonald’s vehicle and a vehicle driven by his ex-wife on December 28, 2011. This collision caused approximately $24,000 in damage to Mr. MacDonald’s car. [ 8 ] On April 30, 2012, some four months after the accident, Mr. MacDonald provided his insurer, The Personal, with a ‘non- waiver agreement’ in which Mr. MacDonald was described as the insured and The Personal was described as the insurer. [ 9 ] The non-waiver agreement refers to Mr.

MacDonald’s Policy of Insurance # K4084620 with The Personal: under which policy the Insured alleges the Insured has coverage, which the Insurer does not admit, and whereas the Insurer requires further information to determine if the Insured is entitled to coverage under the policy, whether for defence or indemnity, [ 10 ] About six weeks later The Personal sent Mr. MacDonald a letter dated June 15, 2012, stating: We have completed our investigation of your claim. We regret to inform you that no payment can be made for the damages reported to us.

This decision was made in accordance with the provisions of your insurance policy. Specifically, we would like to draw your attention to the following: INTENTIONAL ACT, NOT ACCIDENTAL We reserve the right to rely on other reasons for denial of coverage that may be revealed as a result of any further investigation. Please find enclosed a “Proof of Loss” form in accordance with the Insurance Act. Please be advised, under the terms and conditions of your policy, you have two years from the date of this incident to commence legal action.

If you have any further questions, please do not hesitate to contact me at the number indicated below. Sincerely, [name omitted] Claims Advisor • Physical Damage [ 11 ] The letter in question rejected Mr. MacDonald’s claim for coverage for $24,000 of damages suffered by Mr. MacDonald’s vehicle. [ 12 ] Mr. MacDonald then drafted and filed his original statement of claim on December 24, 2013. It named The Personal as the sole defendant. It was filed within two years of the date of the collision, and within two years of denial of coverage by The Personal. It was never served on The Personal as Mr.

MacDonald chose to serve only the amended statement of claim. [ 13 ] I set out the full wording of the original statement of claim below. I have underlined the wording which, in my view, may have misled a reader with no knowledge of the background to conclude that The Personal was the insurer for the vehicle driven by Mr. MacDonald’s ex-wife. In other words, a reader with no background would not realize that The Personal was Mr. MacDonald’s insurer.

[ 14 ] Here is the content of the original statement of claim: 1. That on or about December 28th, 2011, Sonya Hall and Richard Hall made false statements to The City of Calgary, Calgary Police Service, Alberta Child and Family Services and the Personal Insurance Company accusing the plaintiff of endangering the life of [Mr. MacDonald’s son]. 2. Accusing the plaintiff of intentionally striking the vehicle insured by the defendant with his vehicle. 3. That the plaintiff was being involved in a Hit and Run and left the scene of the accident. 4.

That the report provided to The Personal Insurance company by the Calgary Police Service was inaccurate. 5. That the Personal Insurance company failed to properly investigate the statements of Calgary Police Service, Sonya Hall and Ken Hall and based there conclusion on inaccurate information. 6. That Calgary Police Service Officers based on information supplied by the Sonya Hall and Richard Hall investigating the accident of December 28 th , 2011, did wrongly state and where signatory to a false statement that road conditions where clear and dry. 7.

That Calgary Police Service Officers investigating the accident of December 28th, 2011, did fail to investigate the accident with competence and wrongly informed the representative of The Personal Insurance Company of road conditions, potential involvement of alcohol by the defendants. 8.

That the Personal Insurance Company's ruling against the plaintiff of INTENTIONALLY STRIKING there (sic) clients vehicle was incorrect and used by Sonya Hall and Richard Hall to mislead, slander, defame, libel the plaintiff with The City of Calgary, City of Calgary Police, in Family Court, with Alberta Child and Family Services and in efforts to have plaintiff wrongful convicted of various indictable criminal charges which have since been dismissed or stayed. 9.

That the Personal Insurance Company having been provided with court documentation proving the charges where stayed and letter from my council have refused to provide a settlement offer to conclude this matter. 10. That the plaintiff has suffered tremendous stress, anxiety and personal depression from the afore mentioned false accusations and has not yet had contact with his children based on the incidents mentioned and the Personal Insurance company's support of the false claims.

Remedy sought: 1. costs in this action in the amount of $2,000 2. damages in the amount of $24,000 for liability. [ 15 ] It is noteworthy that the statement of claim seeks damages of $24,000, which is the amount of property damage to his car that Mr. MacDonald had sought from The Personal. [ 16 ] If the statement of claim had been served on The Personal, given its relationship with and previous dealings with Mr. MacDonald, it would have realized that Mr.

MacDonald was claiming against it for failure to provide $24,000 in coverage to him under his policy with The Personal. [ 17 ] As indicated, the original statement of claim was never served on The Personal. They retrieved it from the courthouse after being served with the amended statement of claim. The amended statement of claim [ 18 ] On December 23, 2014, Mr.

MacDonald, now utilizing the services of a lawyer, filed an amended statement of claim, deleting and replacing the entirety of the allegations in the original statement of claim. [ 19 ] The allegations in the amended statement of claim can be summarized as follows: - Mr. MacDonald was the owner of a vehicle which was insured by The Personal under a standard automobile policy of insurance; - The insurance policy contained terms and conditions that The Personal would indemnify Mr.

MacDonald for damage to his vehicle and that The Personal would properly adjust and investigate a loss upon receiving a Notice of Claim; - On or about December 28, 2012 [sic], the vehicle sustained physical damage and loss in an accident; - Mr. MacDonald caused a claim to be reported to The Personal for the approximate sum of $24,000 in accordance with the terms and conditions of the insurance policy; - The Personal owed Mr.

MacDonald a duty of good faith to treat him as an insured and to treat him fairly; - The Personal breached the terms and conditions of the Policy and its duty of good faith and fair dealing by: - Failing to properly investigate the nature and circumstances of the claim; - Relying upon statements and representations furnished by Richard Hall and Sonya Hall when The Personal knew or ought to have known that such statements were inaccurate, untrue or misleading; and - Improperly denying coverage to the Plaintiff for the damage and loss to the Vehicle.

- The Personal treated Mr. MacDonald in a callous, oppressive and prejudicial manner, entitling him to the $24,000 in coverage plus punitive damages in the amount of $25,000. [ 20 ] In my view, it is arguable that the amended statement of claim is merely a clarification of the claim which The Personal would have recognized in the original statement of claim as being a claim against it as his insurer for coverage for the $24,000 in damage suffered by his car. [ 21 ] If I am wrong in that conclusion, then I will comment on whether that added claim qualifies for an extension of time under

section 6 of the Limitations Act . (

a) Was the claim in the amended statement of claim filed on December 23, 2014 an “added claim” within the meaning of

section 6 of the Limitations Act ? [ 22 ] If the amended statement of claim is an “added claim” then it will only extend the relevant limitations period under

section 6 of the Limitations Act , as follows: 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings , the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied.

(2) When the added claim … (

b) does not add or substitute a claimant or a defendant, or change the capacity in which a claimant sues or a defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding …

(5) Under this section, (

a) the claimant has the burden of proving (

i) that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding, … [ 23 ] And so, at trial, Mr. MacDonald will have the burden of proving that the added claim, contained in the amended statement of claim, is related to the conduct, transaction or events described in the original statement of claim. [ 24 ] The leading case on this topic is the Alberta Court of Appeal decision in DeSoto Resources Limited v.

EnCana Corp. , 2010 ABCA 110 , 2010 CarswellAlta 616, where the Court observed at para 8: Whether a new pleading arises from the same "conduct, transaction or events" must be based on an assessment of the whole factual and legal context. No firm line can be drawn between an unrelated new claim, and what has previously been pleaded. Too general a definition would give the plaintiff an unlimited ability to add statute barred claims. [ 25 ] In this situation, the original statement of claim is a claim for $24,000 (which is the amount of damage caused to Mr.

MacDonald’s car); it mentions an incident on December 28, 2011; it speaks of a striking together of two vehicles, a failure of The Personal to properly investigate and the failure of The Personal to “provide a settlement offer to conclude this matter”. [ 26 ] The allegations contained in the amended statement of claim, namely, that Mr. MacDonald’s vehicle sustained damage in an incident occurring on or about December 28, 2012 (an obvious typographical error meaning to refer to December 28, 2011), that Mr.

MacDonald reported a claim to be reported to The Personal, his insurer, for $24,000; and that The Personal improperly denied coverage to Mr. MacDonald for the damage and loss to his vehicle, are arguably allegations which are “related to the conduct, transaction or events described in the original pleading in the proceeding” so as to deny The Personal immunity from liability to Mr. MacDonald’s claim. [ 27 ] In considering this issue, the policy goals of the Limitations Act , and in particular

section 6 of the Act should be considered. As stated in DeSoto , supra , at paragraph 10:

Section 6 allows the addition of new claims because the defendant will not be prejudiced or surprised since they arise out of the same conduct, transactions and events. [ 28 ] If The Personal had been served with the original statement of claim on December 23, 2014, it would have understood that the original statement of claim was intended to be a claim for coverage under the policy it issued to Mr. MacDonald. How can The Personal be prejudiced or surprised by having that same claim advanced by means of the amended statement of claim filed and served on it on December 23, 2014? [ 29 ] I find that Mr.

MacDonald has a reasonable argument that the claims made in the amended statement of claim are related to the conduct, transaction or events described in the original pleading in the proceeding. Conclusion [ 30 ] For the reasons set out above, I decline to summarily dismiss Mr. MacDonald’s claim against The Personal. Costs [ 31 ] If the parties cannot agree on the costs of this application they may seek a ruling from me in that regard.

Heard on the 1 st day of September, 2016. Dated at the City of Calgary, Alberta this 30 th day of September, 2016. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Michael A. Corbett MJM LLP for the Plaintiff Shannon Kelley Parlee McLaws LLP for the Defendant