She was hit by a car during a bike ride for cancer. Her insurance says the charity is liable

As It Happens6:07She was hit by a car during a bike ride for cancer. Now her insurance is going after the charity — and her dad

As far as Erin Townley is concerned, the only person responsible for her physical and emotional scars is the man who hit her with his car during a charity bike ride more than five years ago.

Not other drivers on the street that day. Not the cancer charity she was raising money for. And certainly not her own father, who helped organize the event.

But while the driver who struck her was convicted and jailed in 2021, the civil case is dragging on because her insurance company has filed documents suggesting that third parties — including dad and the cancer charity — may be liable for her injuries. 

"I can't see resolution on the horizon. All I see is that this is going to consume years more of my life, that I have to continue to be in this liminal space, this unknown, this uncertainty,"  Townley told As It Happens host Nil Köksal. 

"I just want to be done with it."

TD Insurance, the parent company of Townley's insurance provider, said it could not comment on ongoing litigation. In an email, it told CBC it is "focused on supporting our customers and providing coverage per their policy."

Why is she battling her own insurance?

In May 2018, a group of cyclists called People On Bikes organized a seven-day group bike ride around Lake Ontario to raise money for Pancreatic Cancer Canada. 

Townley, who lives in Calgary, was there to support her father, People On Bike's founder, and honour her grandmother, who died of pancreatic cancer in 2011.

One of the cyclists hit a pothole near Kingston, Ont., and fell off his bike. His fellow riders moved him to the side of the road to take care of him. 

A van passed by and slowed down to give the cyclists room. But a speeding car passed the van, swerved onto the side of the road, and struck several cyclists, killing one man, Jeff Vervaeke. Townley, who was also in the group, wound up with eight broken ribs, a collapsed lung, a mild traumatic brain injury and a fractured humerus, or upper arm bone.

The driver, Robert Saunders, was convicted in 2021 of dangerous driving causing bodily harm and dangerous driving causing death, and given two consecutive four-year sentences.

It was an emotional moment for Townley, a 35-year-old family lawyer.

"I truly thought that this was going to be done, that I was going to have that closure," she said. 

After the collision, Townley filed a civil lawsuit against the driver for $3 million.

There was just one problem. Saunders was uninsured.

So Townley filed what's called a 44R claim — also known as "family protection endorsement" — against her own insurance company, Security National Insurance Company, a subsidiary of TD.

It's an optional, but common, clause in insurance policies, designed to protect a client if the at-fault party is uninsured, or underinsured. Under 44R, a client's insurance company pays the claim as if it was the provider for the at-fault party.

Security National is fighting Townley's claim. In 2022, the company filed what's called a third-party claim — adding the two people in the van and Pancreatic Cancer Canada as defendants. The civil claim accused the charity of "failing to adequately protect event participants" by ensuring the route was safe.

It's now seeking to add three more names to that third-parties list — the provincial government, because of the pothole, People On Bikes, the cycling advocacy and fundraising organization that organized the charity bike ride and its founder Gord Townley —  who is Erin Townley's father

"I'm really struggling with many of these people who have been listed, and obviously my father, who rode up onto the scene and who witnessed me covered in my own blood with my arm hanging off of my body," Townley said. 

Under the policy, if any of these people or organizations is found even one per cent liable for Townley's injuries, they — or their insurance companies — could be forced to pay 100 per cent of the damages.

"I had an insurance policy that was supposed to be there for me in the event something like this ever happened," Townley said. "It's proven more difficult than what I understood the policy to be."

Gord Townley, People on Bikes, Pancreatic Cancer Canada and Ontario's transportation ministry all declined to comment for this story. 

Insurance company is playing by the rules 

Townley is not accusing TD or Security National Insurance of breaking any rules or laws, but says the system has failed her.

Her lawyer, Warren WhiteKnight, says the insurance company has made the case unnecessarily complicated and lengthy, compounding his client's trauma. 

"Any average person off the street could learn the facts of the case and agree that the driver is responsible. Whereas it would be very difficult to explain to an average person off the street why, you know, the Pancreatic Cancer Foundation or the government ought to be responsible for what that driver did," WhiteKnight said. 

"If it's not explainable to an average Joe or Jane on the street, then I think it ought not to be advanced to such a degree where we can't have our court system functioning properly because of backlogs."

Bronwyn Martin, an insurance litigator who is not involved with the case, says that it's not unusual for an insurance company to defend itself against a 44R claim by suing third parties.

"I can see how it comes across as very unfair to the plaintiffs because this is dragging out. But the insurance company does have certain rights. And one of those rights is to go after anybody else who may or may not be liable for the accident," Martin told CBC.

"Thinking about it from the insurance company's perspective, their lawyer has an obligation to advance a strong defence on behalf of their client, who is the insurance company."

But she says it's not good for anyone involved for a case to go on this long without resolution. 

"There's problems with delay in every single civil case. And that's not necessarily the problem of the parties. That's a problem with the system," she said. 

"Quite frankly, I would ask every single person in Canada to write to their [provincial lawmakers] and say, 'Please appoint more judges, so we can deal with this backlog.'"

In February, a court will hear the company's request to add Townley's father, People on Bikes, and the provincial government to the claim. 

In September, the case will hit its five-year mark, which means that, under Ontario law, a trial date must be set, or the lawsuit gets tossed entirely. 

But even then, says WhiteKnight, there's no clear end in sight. The actual trial date, he says, will likely be years in the future because each defendant must be interviewed and have a chance to make their case. 

Townley, meanwhile, says she just wants to move on. 

"It's incredibly disappointing that almost six years later … I'm still here and I'm still talking about this, and I'm still dwelling on this and that it still consumes a large portion of my life," she said.