Canadian Underwriter

Lawsuit arising from 1982 vehicle accident dismissed in 2021

December 20, 2021   by Greg Meckbach

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A negligence lawsuit against a plaintiff’s lawyer by an Ontario claimant who was injured in a 1982 motor vehicle accident has been thrown out of court.

The claimant settled his accident benefits and tort claims in 1999, when he was 17. At that time, he got about $400,000 in funding towards structured settlements. He needs a prosthetic leg in order to walk.

In 2017, the Ontario Health Insurance Program denied the claimant’s request to pay for a procedure called “osseointegration.” The claimant’s parents then contacted a lawyer about the possibility of suing the lawyer who had originally advised the claimant in the 1990s on both his accident benefits and tort settlements. Allegations of negligence on the part of the original lawyer in the case were never proven.

The lawsuit against the original lawyer filed on Dec. 17, 2018, was dismissed in Fryday v. Pilot Insurance, released Dec. 14, 2021.

Justice John R Sproat ruled the two-year limitation period had passed. Key to that ruling was Justice Sproat’s finding that the claimant “discovered” his claim prior to Dec. 17, 2016.

By the time the lawyer in the original 1999 settlement received a complaint, the files from the 1999 settlements had been destroyed.

Before settling his accident benefits claim, the plaintiff had received $106,343 in benefits. With the 1999 settlement, the claimant got a $100,000 lump sum, a structured settlement funded by $215,000 and $25,000 for costs. The tort settlement provided an additional $185,000 to fund a structured settlement and $10,000 to be paid to the claimant when he turned 18.

If those settlements were inadequate to support the plaintiff’s needs, that should have been plain and obvious to the plaintiff, Justice Sproat wrote in his 2021 ruling. The claimant had not discussed the possibility of suing his lawyer until 2017, but a reasonable person would not need a lawyer to tell him whether or not his income is adequate to meet his needs, Justice Sproat reasoned.

“If he lacked even the basic ability to compute or comprehend whether his expenses and unmet needs exceeded his income that would be a relevant circumstance,” Justice Sproat added. By the same token, had the claimant’s parents assumed responsibility for his finances so that he did not have access to financial information, that would be a relevant circumstance, wrote Justice Sproat.

Further, if the claimant’s needs were being met up until Dec. 17, 2016 (two years before filing the lawsuit) but then additional needs became apparent, that would be a relevant circumstance.

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