DATE: 20041202

DOCKET: C41572

COURT OF APPEAL FOR ONTARIO

RE:

MARIANO GERONIMO (Plaintiff) – and – LYTON SHANNON and CANADA CARTAGE LTD. (Defendants (Appellants)) – and – LINAMAR CORPORATION carrying on business as TRAXLE MFG. and CO-OPERATORS LIFE INSURANCE COMPANY (Third Parties (Respondents))

BEFORE:

GOUDGE, SHARPE AND GILLESE JJ.A.

COUNSEL:

Alan L. Rachlin

for the appellant

Rusty J. McLay

for the respondent Linamar Corporation carrying on business as Traxle Mfg.

Paul V. McCallen

for the respondent Co-Operators Life Insurance Company

HEARD:

November 24, 2004

On appeal from the order of Justice A. Karakatsanis of the Superior Court of Justice dated February 23, 2004.

E N D O R S E M E N T

[1] The appellant argues that the motion judge erred in setting aside its third party claims. It argues that pursuant to Rule 29.01(c) there are issues that will be decided in its litigation with the plaintiff the determination of which should bind the third parties to prevent inconsistent findings in subsequent litigation between either the appellant and the third parties or perhaps the plaintiff and the third parties.

[2] We did not call on the third party employer to respond. The appellant has no cause of action against that third party. Any claim by the plaintiff for the tort of negligent misrepresentation against this third party is not something which will be adjudicated in the main action here. Nor is such a claim now anything more than highly speculative. The plaintiff has shown no indication to date to commence such an action.

[3] As to the third party disability insurer, we disagree with the appellant’s submissions. In the circumstances of this case, the possibility of an inconsistent determination in any subsequent proceeding against this third party of an issue that may be decided in the main action is far too speculative and contingent to compel this third party to join this action.

[4] The issues to be determined in the main action are as yet unclear. Even more uncertain therefore is how these issues will be resolved at trial. Hence whether their determination could possibly affect this third party is even more murky. Indeed whether there will ever be any subsequent litigation is unknown. Subsequent litigation brought by the appellant is contingent on the two factors just referred to and on whether the appellant will obtain a statutory assignment of the plaintiff’s rights at the conclusion of the main action. Any subsequent litigation brought by the plaintiff is equally uncertain particularly since to date he has shown no inclination to sue this third party. And finally the issues in any subsequent litigation and whether they will mirror any issues that might be determined in the main action is most uncertain of all.

[5] In summary the appellant has not shown a sufficient basis to find that the third parties should be bound by the determination of an issue in the main action.

[6] The appeal is dismissed. Costs to each respondent on a partial indemnity basis fixed at $5000 each inclusive of disbursements and G.S.T.

“S.T. Goudge J.A.

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”