DATE: 20060217
DOCKET: C44171
COURT OF APPEAL FOR ONTARIO
RE:
IROQUOIS FALLS COMMUNITY CREDIT UNION LIMITED (BY ITS LIQUIDATOR, THE DEPOSIT INSURANCE CORPORATION OF ONTARIO) (Plaintiff/Respondent) v. CO-OPERATORS GENERAL INSURANCE COMPANY and CUMIS GENERAL INSURANCE COMPANY (Defendants) v. RUTH E. PARISI and ROSS, POPE & COMPANY (Third Parties/Appellants) v. DONNA SIMMONS, ALINE LEPAGE, LANA TREMBLAY, BEVERLY DEVINE, JACKIE DELAURIER, JOHN MOON, RALPH WILKINS, LARRY PORTER, FRANK LACHANCE, RON TROTTIER, RAYMOND MARTINEAU, SERGIO FESTARINI, GERALD POIRIER, and EDWARD FLEMING (Fourth Parties)
BEFORE:
DOHERTY, MOLDAVER and JURIANSZ JJ.A.
COUNSEL:
Sean Lawler
for the third parties/appellants
Bryan Carroll
for the plaintiff/respondent
HEARD & RELEASED ORALLY:
February 14, 2006
On appeal from the order of Justice D.J.A. Rutherford of the Superior Court of Justice dated September 15, 2005.
E N D O R S E M E N T
1The appellants have the benefit of the finding of the motion judge that the defendants’ third party proceeding is, in effect, a subrogated claim and that the appellants can raise any defence they have to the subrogated claim within the third party proceeding, including a claim of contributory negligence under s. 3 of the Negligence Act.
2Given the motion judge’s view of the nature of the third party proceeding, which is not challenged by the respondents, the appellants are in virtually the same position as they would be if the fourth party proceeding were permitted. As the appellants are unable to demonstrate any benefit from the proposed fourth party proceeding, they are unable to establish any grounds for leave pursuant to s. 298(1) of the Credit Unions and Caisses Populaires Act.
3The appeal is dismissed.
4Costs to the respondent on a partial indemnity basis in the amount of $10,000.
“Doherty J.A.”
“M.J. Moldaver J.A.”
“R.G. Juriansz J.A.”