Lambrinos v. Certas Home and Auto Insurance Company, 2016 ONSC 6129

Lambrinos v. Certas Home and Auto Insurance Company

CITATION: Lambrinos v. Certas Home and Auto Insurance Company, 2016 ONSC 6129

DIVISIONAL COURT FILE NO.: 129-16 DATE: 20160929

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

NIKOLAOS LAMBRINOS, 1187310 ONTARIO LTD., and LISA LAMBRINOS Plaintiffs (Appellants)

– and –

CERTAS HOME AND AUTO INSURANCE COMPANY Defendant

COUNSEL: Lawrence Pick and Chris Housser, for the Plaintiff (Appellants) Jeffrey Kukla, for the proposed Defendant (Respondent), Home Trust Company No one appearing for the defendant, Certas Home and Auto Insurance Company

HEARD at Toronto: September 29, 2016

ORAL REASONS FOR JUDGMENT

NORDHEIMER J. (orally)

1The appellants appeal from the order of Master Abrams dated February 16, 2016 which dismissed the appellants’ motion to add Home Trust Company as a defendant to this action and to amend the statement of claim accordingly. While there is an issue between the parties over the standard of review to be applied, I do not need to resolve that issue since, even applying the higher standard of correctness, I do not see any error in the conclusion reached by the Master.

2This action involves a dispute between the appellants and their insurer regarding two properties that were extensively damaged by fire. The insurer has refused to make payment under the insurance policy. Home Trust holds a mortgage on one of the two properties. It has started enforcement proceedings against one of the appellants on that mortgage. The appellants seek to add Home Trust as a defendant for the sole purpose of obtaining an injunction against Home Trust’s enforcement proceeding.

3The fundamental problem with the appellants’ proposed addition of Home Trust as a defendant is that the proposed amended statement of claim does not disclose any cause of action against Home Trust. An injunction is not a cause of action. It is a remedy that the court may grant but that remedy first requires that there be a cause of action advanced.

4Similarly, under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in order to add a party to a proceeding, there must be a tenable cause of action advanced. Again, there is none advanced in this case. A simple reading of the proposed amended statement of claim makes that clear. No cause of action is pleaded against Home Trust. There is simply a claim for an injunction with nothing more.

5The appellants rely heavily, if not exclusively, on the decision in Farmers’ Mutual Insurance Co. v. Pinder (2009) 2009 ONCA 831, 100 O.R. (3d) 200 (C.A.) for their assertion that an insured has some right against his/her mortgagee when the mortgagee chooses not to seek payment of the mortgage amount from the insurer. The decision in Farmers does not stand for that proposition nor does it even suggest that such a right exists. The appellants are unable to point to any other authority that would sustain their assertion.

6The appellants cannot take refuge in the law regarding novel causes of action, as reflected in decisions such as Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, because, as I have said, there is no cause of action pleaded, novel or otherwise. Any claims to equity suffer from that same fundamental flaw.

7I appreciate the dilemma that the appellants face, trying to hold off enforcement of the mortgage, while the insurance proceeds issue gets determined. However, that dilemma cannot be solved by adding someone into an action as a defendant where there is no legal basis for doing so. Insofar as there is a concern that there may be some issue down the road regarding the proper amount due under the mortgage, that issue could have been addressed either by a motion to stay Home Trust’s action pending the outcome of the Certas action or, more reasonably, by a motion that the two proceedings be tried together. Another solution to that perceived problem would have been to seek a simple declaration in the Certas action, that Certas is bound to pay whatever amount is properly owing under the mortgage. However, none of those routes were taken.

8What is not available to the appellants is adding Home Trust as a defendant to an action in which no cause of action is advanced against it.

9The appeal is dismissed.

COSTS

10I have endorsed the appellants’ appeal book and compendium as follows: “For oral reasons delivered today, the appeal is dismissed. The respondent is entitled to its costs on a substantial indemnity basis which I fix at $15,000.00 all inclusive. I have signed the order.”

___________________________ NORDHEIMER J.

Date of Reasons for Judgment: September 29, 2016

Date of Release: September 30, 2016

CITATION: Lambrinos v. Certas Home and Auto Insurance Company, 2016 ONSC 6129

DIVISIONAL COURT FILE NO.: 129-16 DATE: 20160929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

NIKOLAOS LAMBRINOS,

1187310 ONTARIO LTD., and