Vogler v. Lemieux, 2014 ONCA 825

Vogler v. Lemieux; Allstate Insurance Company of Canada, Statutory Third Party

[Indexed as: Vogler v. Lemieux]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Gillese and Rouleau JJ.A.

November 20, 2014

123 O.R. (3d) 718 | 2014 ONCA 825

Case Summary

Civil procedure — Appeals — Master dismissing motion for order adding insurer as named party defendant — Appeal judge upholding master's ruling for different reasons — Appeal judge erring by adjudicating on novel question of law without prior notice to parties and where underlying relevant facts had yet to be determined. [page719]

Civil procedure — Parties — Adding or substituting parties — Plaintiff bringing motion for order adding insurer as named party defendant — Master erring in dismissing motion on ground that proposed claim against insurer was untenable at law — Claim being novel but it could not be said at this stage of proceedings that it was unsound or that it was clearly impossible that claim could succeed at trial.

The master dismissed the appellant's motion under rules 1.04, 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order adding the respondent insurer as a named party defendant. The appeal judge upheld the master's ruling, but for different reasons. The appellant appealed.

Held, the appeal should be allowed.

The appeal judge, without prior notice to the parties, determined a key contractual interpretation issue under various factual scenarios that he posited. He erred in proceeding in that fashion. Although it was open to him to determine whether the appellant's proposed coverage claim against the respondent was tenable at law, it was not open to him to finally adjudicate on a novel question of law under a paradigm not disclosed to the parties and where the underlying relevant facts had yet to be determined. Similarly, the master's ruling that the proposed claim against the respondent was untenable at law could not stand. The claim appeared to be novel, and at this early stage of the proceedings, when material facts remained contested, it could not be said that the proposed claim was clearly unsound or that it was clearly impossible that it could succeed at trial.

Cases referred to

Royal Laser Corp. v. Rivas, [2011] O.J. No. 4596, 2011 ONCA 655, 96 C.C.E.L. (3d) 57, 207 A.C.W.S. (3d) 430

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 5.04(2), 26.01

APPEAL from the order of Leach J. (2013), 2013 ONSC 4512, 116 O.R. (3d) 513, [2013] O.J. No. 3213 (Div. Ct.), sitting on appeal as a single judge of the Divisional Court, from the order of Master Pope, [2012] O.J. No. 1262, 2012 ONSC 1692 (S.C.J.).

Alan L. Rachlin, for appellant.

R. Shawn Stringer, for respondent.

1Endorsement BY THE COURT: -- The proceeding below was an appeal to a single judge of the Divisional Court from a master's decision denying the appellant's motion under rules 1.04, 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order adding the respondent insurer as a named party defendant in the main action.

2The appeal judge upheld the master's ruling, albeit for different reasons. In so doing, the appeal judge, without prior notice to the parties, determined a key contractual interpretation issue under various factual scenarios that he posited. [page720] If accepted, the appeal judge's interpretation was conclusive of the coverage dispute between the parties.

3With respect, the appeal judge erred by proceeding in this fashion. The proper focus of the inquiry before him was whether the requested amendment should be allowed based on the governing principles for a pleadings amendment of this kind. Although it was open to him to determine whether the appellant's proposed coverage claim against the respondent was tenable at law, it was not open to him to finally adjudicate on a novel question of law under a paradigm not disclosed to the parties and where the underlying relevant facts had yet to be determined. See, for example, Royal Laser Corp. v. Rivas, [2011] O.J. No. 4596, 2011 ONCA 655. As a result, the appeal judge's decision cannot stand.

4Similarly, the master's ruling on the amendment motion cannot stand. The master ruled that the appellant's proposed claim against the respondent is untenable at law. As we have said, the appeal judge agreed, although for different reasons. In the unusual circumstances of this case, the claim sought to be advanced appears to be novel. Neither party could point to any authorities directly on point during this appeal hearing. At this early stage of the proceedings, when material facts remain contested, in our view it cannot be said that the proposed claim is unsound or that it is clearly impossible that the claim could succeed at trial.

5The parties accept that if the decisions below are set aside, this court should determine the question of the requested pleadings amendment.

6There is no suggestion that the respondent insurer will suffer any prejudice as a result of the proposed amendment that cannot be compensated for in costs. Nor does the respondent any longer claim that the applicable limitation period has expired. In light of these considerations and the unusual nature of the claim raised in this case, the requested pleadings amendment should be allowed.

7Accordingly, the appeal is allowed, the appeal judge's and the master's orders are set aside, and the appellant is granted leave to amend his statement of claim to restore the respondent insurer as a named party defendant. Of course, this relief is without prejudice to any defences that the respondent insurer may wish to raise and any other motions available to it under the Rules of Civil Procedure. The appellant is entitled to his costs of the appeal and both proceedings below, fixed in the aggregate amount of $22,000, inclusive of disbursements and all applicable taxes.