Iroquois Falls Community Credit Union Limited v. Co-Operators General Insurance Company, 2008 ONCA 318
DATE: 20080428
DOCKET: M36254
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O.
BETWEEN:
IROQUOIS FALLS COMMUNITY CREDIT UNION LIMITED (BY ITS LIQUIDATOR, THE DEPOSIT INSURANCE CORPORATION OF ONTARIO)
Plaintiff (Respondent)
and
CO-OPERATORS GENERAL INSURANCE COMPANY AND CUMIS GENERAL INSURANCE COMPANY
Defendants (Appellants)
and
RUTH E. PARISI and ROSS, POPE & COMPANY
Third Parties
and
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 and CREDIT UNION CENTRAL OF ONTARIO LIMITED
Fourth Parties
and
CUMIS GENERAL INSURANCE COMPANY
Fifth Party
Christopher McKibbin for the Defendants (Appellant)
Jane M. Bachynski for the Plaintiff (Respondent)
Sara J. Erskine for the Fourth Parties
Heard: April 22, 2008
ENDORSEMENT
[1] The respondent, a credit union, claimed it had suffered substantial losses, due to the dishonest and/or fraudulent acts of one or more of its employees. It made a claim against its insurers, the appellants, who did not accept the respondent’s characterization of the cause of the losses and denied coverage under the terms of the insurance policy. An action by the respondent against the appellants eventually expanded to include third, fourth and fifth parties. The fourth parties included employees of the respondent.
[2] The respondent brought a motion under rules 20 and 21 seeking summary judgment against the appellants. That motion did not seek an order against the fourth parties. It is common ground that the fourth parties chose not to participate in the motion. The validity of their reasons for not participating was a matter of dispute before me on this motion. The motion judge granted summary judgment in favour of the respondent. That judgment is the subject of the within appeal.
[3] Four of the fourth parties have brought this motion seeking to intervene on the appeal as added parties. Non-participation in the matter under appeal is a factor to be considered in determining whether to permit intervention. It is not an absolute bar to intervention, however, should the circumstances justify a different result.
[4] I am satisfied that the moving parties should be allowed to intervene on the terms set out in para. 10 below.
[5] The moving parties submit that in dealing with the liability of the appellants, the motion judge made unanticipated, unwarranted and impermissible findings of credibility and fact against them. Further, they submit that those findings may prejudice their position in the forthcoming trial between the remaining parties. The moving parties assert that they have not made any admissions of liability and that there was no evidence in the record on the summary judgment motion of wrongdoing on their part.
[6] The motion judge was alive to the concern that his judgment should not adversely affect the parties to the action who did not participate in the summary judgment motion. He directed that his judgment was binding only as between the respondent and the appellants.
[7] One of the grounds of appeal is that the motion judge erred in holding that his findings do not bind the third, fourth and fifth parties. The moving parties clearly have an interest in upholding the motion judge’s direction on this issue. Moreover, the moving parties also argue that the motion judge’s direction may not be broad enough to protect their interests from findings adverse to their interest. Thus, they submit that they have a similar interest to the appellants on some of the issues raised in the notice of appeal.
[8] While the moving parties and the appellants share some issues in common, their perspectives and interests are not wholly identical. The court could benefit in its analysis of the issues from these different perspectives.
[9] I am satisfied that the intervention of the moving parties on the appeal can be structured so as not to unfairly prejudice the respondent. To start, the moving parties, as intervenors, will not be entitled to raise new issues or to broaden the lis before the court. In addition, the intervention by the moving parties should not delay the hearing of the appeal. Moreover, while the respondent may be obliged to reply to two factums, such effort could be accommodated in any costs order made in its favour.
[10] In the result, I am satisfied that the moving parties should be added as parties to this appeal on the following conditions:
They take the record as it exists and not seek to augment the record,
They may serve and file a factum, not to exceed 15 pages in length, on or before May 7, 2008,
They may participate in the oral argument of the appeal within the time allocated to them by the court and, as much as possible, not duplicate the oral argument made by the appellants,
They may seek costs and will be liable for costs in the discretion of the court.
[11] As to costs of this motion, I note that the moving parties became more flexible and realistic as to the terms of the proposed intervention only during the oral argument of the motion. Some of their arguments for intervention changed or were softened from their earlier positions. In the circumstances, there will be no order for costs of this motion.
“D. O’Connor A.C.J.O.”