Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of the pleadings against the TD Defendants, including failure to articulate any specific duty of care, standard of care, or causative conduct on their part
• Question of whether an insurer and related banking entity can be sued directly in negligence when the insured driver (the plaintiff’s daughter) is known but not named as a defendant
• Plaintiff’s attempt to amend the claim by adding the insured driver and others as plaintiffs instead of defendants, creating a potential conflict of interest for counsel
• Whether leave to amend should be granted where no tenable cause of action is pleaded and the defendants have repeatedly flagged the deficiencies over an extended period
• Availability of summary judgment on the basis that there is no genuine issue for trial because the pleadings disclose no viable theory of liability against the TD Defendants
• Limitation period defence under the Limitations Act, 2002, including the effect of the COVID-19 suspension of limitation periods and the plaintiff’s failure to explain the late commencement of the action

Background and parties

The case arises out of a tragic motor vehicle accident involving the plaintiff, Anoara Khanam Ali Khan, who was a passenger in a vehicle driven by her daughter, Tashrifa Khanan. The accident allegedly caused severe, permanent physical and psychological injuries to the plaintiff, and her husband, who was also a passenger, died as a result of the collision. The other vehicle involved was driven by an unidentified motorist referred to as “John Doe.”
The plaintiff sued John Doe for negligence, and she also sued Primmum Insurance Company and TD Canada Trust (collectively, the “TD Defendants”) in negligence. Primmum was the insurer of the vehicle owned and operated by Ms. Khanan, while TD Canada Trust is a banking entity within the TD Bank Group. Primmum and TD Canada Trust are separate corporate entities but subsidiaries of TD Bank Group. The original Statement of Claim was issued on February 13, 2023.

The motor vehicle accident and the original pleading

In the initial pleading, the plaintiff alleged that she was a passenger in a vehicle driven in Hawkesbury in the province of Quebec, and that an unidentified driver, John Doe, was operating another vehicle carelessly and at high speed. The claim asserted that “the Plaintiff tried her best to brake to avoid an accident, however, the brakes failed, and an accident ensued,” even though, in fact, the plaintiff was not the driver; her daughter was.
A proposed Amended Statement of Claim later corrected some of these factual errors. It clarified that the accident occurred in Hawkesbury, Ontario rather than Quebec, and that it was Ms. Khanan, not the plaintiff, who attempted to brake. The proposed pleading alleged that an unidentified driver violently tried to take over Ms. Khanan’s vehicle, that she tried to brake but the brakes failed, causing the vehicle to land in a ditch, and that the unidentified driver then left the scene.

The TD Defendants’ position and lack of pleaded duty

Primmum acknowledged that it insured the vehicle driven by Ms. Khanan but maintained it had no independent duty of care to the plaintiff and no relationship with the unidentified driver, John Doe. The TD Defendants consistently took the position that any liability on their part would flow only from the conduct of their insured, Ms. Khanan, as owner and driver of the vehicle. On that basis, they repeatedly requested that plaintiff’s counsel amend the claim to name Ms. Khanan as a defendant.
Despite these warnings, the original Claim and the proposed Amended Claim did not explain what specific duties the TD Defendants allegedly owed to the plaintiff, what standard of care they breached, or how their conduct—distinct from that of the driver—caused or contributed to the accident and injuries. Other than being named in the style of cause and briefly described as an insurer and bank, the TD Defendants’ alleged role in the accident was not articulated in factual terms.

Proposed amendment, additional plaintiffs, and conflict concerns

On February 25, 2025, the plaintiff filed a proposed Amended Statement of Claim. Instead of adding Ms. Khanan as a defendant, the plaintiff added her and two others as additional plaintiffs. The TD Defendants did not consent to this amendment. This created a structural problem: the person who may have contributed to the accident—the driver and insured, Ms. Khanan—was now joined on the same side as the injured passenger, Ms. Khan.
The TD Defendants highlighted a potential conflict of interest: plaintiff’s counsel was purporting to act at once for the injured passenger and for the driver whose conduct might be at issue in establishing liability. Despite the repeated correspondence from May 26, 2023 to February 25, 2025, raising both the liability theory problem and the conflict concern, the plaintiff did not take any steps to amend the claim to add the driver as a defendant or to clarify the basis of the TD Defendants’ liability.

Procedural motions: adjournment request, motion to strike, and summary judgment

The TD Defendants brought a motion to strike the Claim under Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it disclosed no reasonable cause of action against them. In the alternative, they sought summary judgment under Rule 20.04, arguing there was no genuine issue requiring a trial and that the claim was statute-barred.
At the hearing, plaintiff’s counsel sought an adjournment, explaining they had been unable to access the motion materials sent via a secure portal as part of TD Bank’s security processes. The court rejected this request, noting that counsel had acknowledged receipt of the materials on November 28, 2025 but failed to contact opposing counsel for assistance, even after the motion confirmation form was filed on December 2, 2025. Counsel only reached out minutes before the hearing began. The court held that unfamiliarity with an electronic portal was not a sufficient reason to delay the hearing and that an adjournment would further prejudice the TD Defendants.

Analysis on the motion to strike and leave to amend

In considering the Rule 21 motion, the court applied the standard that a pleading must set out all essential elements of a cause of action and that pleadings are to be read generously with allowances for drafting deficiencies. On such a motion, no evidence is admitted; the pleaded facts are assumed to be true unless they are absurd or incapable of proof.
Despite applying this generous reading, the court concluded that the Claim and proposed Amended Claim did not disclose any reasonable cause of action against the TD Defendants. There was no explanation of what they allegedly did or failed to do that caused the accident or contributed to the plaintiff’s injuries. While the law may, in some circumstances, permit an insurer to be named directly when the owner or operator of a vehicle is unknown, this was not such a case: the insured owner and operator was known—namely, the plaintiff’s daughter, Ms. Khanan. The TD Defendants’ potential liability could only arise from a finding that the driver contributed to the accident. Since the pleadings did not advance any coherent theory tying the TD Defendants to the negligent acts or omissions, the claim was found wanting.
On the issue of amendment, the court applied the principle that leave to amend should only be refused in the clearest cases—where there is plainly no tenable cause of action, where the proposed pleading is scandalous or vexatious, or where non-compensable prejudice would result. Here, the court held it was such a “clear case” and refused leave. The plaintiff had not brought a cross-motion for leave to amend, there was plainly no tenable cause of action even under a generous reading, and repeated warnings from the TD Defendants had gone unheeded for more than two years. The court also accepted that allowing further amendment at this stage would cause non-compensable prejudice: key evidence was likely stale or unavailable, and the TD Defendants, who could not third-party their own insured, had been hampered in defending the action.

Policy terms and insurance issues

The decision identifies Primmum as the insurer of the motor vehicle driven by Ms. Khanan and notes that TD Canada Trust is a related but distinct banking entity. The court’s reasoning assumes that any liability of the TD Defendants would arise, if at all, from their role as insurer in relation to the conduct of the insured driver. However, there is no detailed discussion of specific insurance policy clauses, such as uninsured or unidentified motorist coverage provisions, and no particular policy wording is analyzed or cited.
The court points out that if the plaintiff intended to advance a claim for coverage relating to an unidentified motorist, that theory was never properly pleaded. The Claim and the proposed Amended Claim did not identify any contractual basis for recovery under the policy, nor did they spell out how the insurer’s obligations were triggered or breached. Thus, while the case sits in the context of automobile insurance and potential coverage for an unidentified driver, the judgment does not turn on interpretation of named clauses; instead, it turns on the absence of a properly pleaded cause of action connecting the insurer’s obligations to the facts.

Summary judgment, limitation period, and statute-barred claim

The court proceeded to consider the alternative request for summary judgment under Rule 20.04, applying the Hryniak v. Mauldin standard that summary judgment is appropriate where there is no genuine issue requiring a trial. It held that, even if the pleadings deficiencies alone were somehow insufficient to strike the claim, there was still no genuine triable issue because the Claim and proposed Amended Claim did not disclose any factual or legal foundation for liability against the TD Defendants.
The limitation defence provided an independent basis for dismissal. The accident occurred on or around July 25, 2020. Under the Limitations Act, 2002, a two-year limitation period would normally begin when the plaintiff first knew or ought to have known of her injury and its cause, which, on the pleadings, would be the date of the accident. During the COVID-19 pandemic, limitation and other procedural periods were suspended from March 16, 2020 until September 14, 2020. Taking that suspension into account, the limitation period for issuing the claim expired around September 14, 2022. The plaintiff did not issue the Claim until February 13, 2023—roughly six months after the expiry of the extended limitation period.
The TD Defendants had, on two occasions—May 26, 2023 and November 4, 2024—requested an explanation for the late commencement of the action. The plaintiff never provided a satisfactory explanation or supporting medical or affidavit evidence, even though counsel suggested that her health and recovery might have affected timing. In the absence of any evidence, the court inferred there was no valid reason for missing the limitation deadline and held that the action was statute-barred.

Outcome and implications

The court dismissed the plaintiff’s request for an adjournment, granted the TD Defendants’ motion to strike, and, in the alternative, granted summary judgment. The plaintiff’s action against the TD Defendants was dismissed in its entirety, without leave to amend. The court held both that the Claim and proposed Amended Claim failed to disclose any reasonable cause of action and that there was no genuine issue requiring a trial because the claim was out of time and no justification had been provided for the delay.
As the successful party, the TD Defendants were found presumptively entitled to their costs of the motion, with the judge inviting short written submissions from both sides if they could not agree and setting deadlines for those submissions. The decision does not fix any specific figure for costs, nor does it award any damages to the plaintiff, whose claim was dismissed. Accordingly, while the TD Defendants clearly prevailed, the exact monetary amount of costs or any other financial award in their favour cannot be determined from this judgment.