Delay excused in injury case arising from 2013 motor vehicle accident

The Ontario superior court found that the facts of a recent personal injury case rooted in a 2013 vehicular accident in Minnesota, US, justified setting aside an administrative dismissal and granting leave to serve a statement of claim.

In July 2013, a vehicle driven by Stuart Oberg, who was allegedly intoxicated, struck the plaintiff’s car in a parking lot in Grand Portage, Minnesota.

The plaintiff’s injuries due to the accident allegedly included disc bulging that required spinal fusion, drop foot, mild traumatic brain injury, post-traumatic stress disorder, major depressive disorder, lacerations, sprains, tears, and injuries to his shoulders, neck, back, spine, arms, and legs.

Oberg and vehicle owner Lorraine Wipson both lived in Grand Portage. Metropolitan Life Insurance Company (MetLife) defended on behalf of Oberg and Wipson. Allstate Insurance Company of Canada insured the owner of the vehicle that the plaintiff was driving.

The plaintiff, who hired counsel in Minnesota, retained Mr. Potestio as counsel in Ontario. In July 2015, the first statement of claim was issued. In August 2018, the plaintiff instead retained Trianta Longo LLP (Longo Lawyers), with Mr. Antman taking over the file from Mr. Potestio.

In June 2019, MetLife resolved the claims against its insured parties. The plaintiff signed a release in exchange for US$100,000, MetLife’s policy limit.

Unaware of the July 2015 action, Longo Lawyers issued a second statement of claim against Allstate in December 2019. It then filed a solicitor’s negligence action against Mr. Potestio for failing to serve the first statement of claim six months after its issuance.

Mr. Antman explained that he missed the first action amid the voluminous materials received, that key correspondence was missing from the file, and that he failed to properly diarize the action, which led to the administrative dismissal of the first claim for delay.

The plaintiff moved to set aside the March 2021 administrative dismissal and to extend the time to serve the first statement of claim. He asserted that the inadvertence of two lawyers caused the delay and the initial failure to serve it.

Delay excused

In Belisle v Allstate Insurance Company et al., 2023 ONSC 2338, the Ontario Superior Court of Justice granted the motion, set aside the administrative dismissal, and ordered the plaintiff to deliver the first statement of claim by May 1.

The plaintiff always intended to pursue his claim against Allstate but failed to do so due to solicitor negligence, the court held, given the following findings:

• The plaintiff’s affidavit, read as a whole, showed that he took the necessary steps to retain counsel in Minnesota and Ontario who would address the legal issues and claims arising from the accident
• The plaintiff regularly contacted and reasonably relied upon his counsel to guide him through the claims
• Mr. Potestio’s inadvertence led to the failure to serve the first action, at least from the plaintiff’s perspective
• There was no evidence that the plaintiff caused the delay or no longer wished to proceed with his claim
• The plaintiff’s decision to proceed with the second action suggested an ongoing intention to pursue his claims

The court accepted the explanation for the delay. The court noted that LawPro investigated once the issue was discovered, communicated with the lawyers involved, and moved promptly amid the pandemic restrictions.

The court rejected Allstate’s argument that it experienced actual prejudice due to the 2019 settlement and release in the US action and presumed prejudice due to the passage of time and the expiry of the limitation period.

Allstate had an opportunity to protect its interests, the court concluded. The court said Allstate, which was not a party to the US action, was promptly advised about the settlement and was dealing with the claims in some form or another. The court added that the case did not remain dormant for the entire time.