A Nova Scotia judge has revived an underinsured-motorist claim against The Personal Insurance Company, even though the injured lawyer filed years late.
The decision, Avery v. The Personal Insurance Company, 2026 NSSC 181, released June 3, 2026, by Justice Christa M. Brothers of the Supreme Court of Nova Scotia, is a clinic in how SEF 44 limitation periods work, and how forgiving courts can be when one is missed.
Sharon Avery, a lawyer employed by RBC Wealth Management, was injured as a passenger in a June 12, 2017 motor vehicle accident. She sued the at-fault driver in 2019. The driver was insured by Economical, which eventually offered its $500,000 policy limit. Because Avery valued her losses far higher, she looked to her own Family Protection Endorsement, the SEF 44 excess coverage on her policy with The Personal.
There was a problem. Avery never told The Personal about the accident or the lawsuit until August 22, 2024, more than seven years later. Her counsel had instead notified the wrong insurer, TD/Primmum, which held an SEF 44 endorsement on her partner's policy. That claim was dismissed by consent in April 2025 after Avery was found not to meet the policy's common-law partner definition.
The Personal moved for summary judgment, arguing the claim was time-barred.
The court's analysis turned on when the limitation clock starts. SEF 44 coverage tops up compensation when an at-fault driver is inadequately insured, and Nova Scotia's minimum liability limit is $500,000. Justice Brothers confirmed that the period runs not from when a claimant learns the tortfeasor's limits, but from when the insured has enough evidence for a "reasonable chance" of persuading a judge that the claim exceeds those limits.
That distinction matters for insurers. Because Nova Scotia drivers need not disclose their policy limits, the court held that claimants must assume the statutory minimum and put their SEF 44 insurer on notice once the threshold is met. Waiting for the tort claim to settle, the judge wrote, would leave insurers exposed to notice years after an accident.
Justice Brothers found Avery's claim was discoverable by December 8, 2021, when she received a medical report describing her accident-related symptoms as permanent. With a two-year limitation period, not the 12 months stated in the endorsement, because her annually renewed policy postdated 2015 legislation, the deadline expired December 8, 2023. The August 2024 filing was about eight months late.
That was not the end. Under section 12(3) of the Limitation of Actions Act, the court can disallow a limitation defence where doing so is just. Weighing the hardship to each side, Justice Brothers noted The Personal filed no evidence of prejudice, already had the full medical and discovery record from the tort action, and could still examine Avery and order its own medical assessment.
Finding the balance favoured the policyholder, the court disallowed the defence and let the claim proceed to be resolved on its merits. The judge also noted Avery may have a negligence claim against her own counsel for notifying the wrong insurer.
