Rooplal v. Fodor
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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The Facts
On May 4, 2012, Bibi Saffora Rooplal was a passenger on a Toronto Transit Commission bus that braked sharply and threw her against an interior pole. She was told that another car had cut the bus off, and that car was never found. In March 2014 she sued the bus driver, the TTC, the unknown driver and owner, and her own insurer, Novex, which carried family protection coverage. Novex later said that any claim for an unidentified driver should be directed at the TTC's insurer, TTC Insurance. In 2017 she moved to add TTC Insurance as a defendant, seeking a declaration that it must cover damage caused by the unidentified driver under section 265 of the Insurance Act. TTC Insurance said the claim was out of time. The motion judge and the Divisional Court allowed the claim to proceed.
What the Court Decided
The Court of Appeal dismissed the appeal. It held that the Limitations Act, 2002 governs, and under it a claim is discovered only when the person knows the loss was caused by an act or omission of the party being sued. A claim against the section 265 insurer is a claim in contract against the insurer, not a claim in negligence against the phantom driver, so the relevant omission is the insurer's failure to indemnify as the policy requires. The court relied on its earlier decisions about claims against insurers and declined to follow the older approach, under which learning of the unidentified driver's fault started the clock. Since no demand for indemnity had been made, the two years had not begun. The court explained that the regulation's notice rules guard against stale claims: the insured must report the accident to police promptly and give the insurer written notice within thirty days or as soon as practicable, and an insurer can start the clock by refusing to pay after receiving timely notice. The court did not decide whether Ms. Rooplal had met those notice requirements.
Insurers sometimes argue that a hit-and-run claim is out of time because two years have passed since the collision. This case makes the point that the clock for the insurance claim usually starts later. It does not remove the need to give notice quickly, and it leaves the injured person at risk on the separate notice conditions and on the rule that coverage can be lost if another insured party bears even a small share of fault.
“…the failure to indemnify her for the damage caused by the unidentified driver as required by the policy of insurance.”— Rooplal v. Fodor, 2021 ONCA 357, para. 95
Does This Affect You?
- ✓You were injured by an unidentified driver more than two years ago and are worried your insurance claim is barred.
- ✓You sued the identified parties first and want to add an insurer under unidentified-automobile coverage later.
- ✓You were a passenger in a bus, taxi or another person's car when an unknown vehicle caused the crash.
Key Takeaways
- The two-year period for the insurance claim generally starts after a demand for indemnity is refused or not met, which is later than the date of the crash.
- The regulation still requires prompt police reporting and written notice to the insurer, so do not rely on the later limitation date to delay.
- If another insured party is even slightly at fault, the unidentified-automobile coverage may not respond, which affects who you sue.