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

[1] The 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.

[2] Given 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.

[3] The appeal is dismissed.

[4] Costs 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.”