Court of Appeal for Ontario

Citation: Nguyet v. King, 2011 ONCA 297

Date: 20110413

Docket: C52950

Before: Doherty, Moldaver and Feldman JJ.A.

Between

Thi Anh Ton Nguyet

Plaintiff

and

Virginia King

Defendant (Appellant)

and

Hertz Canada Limited

Defendant (Respondent)

Counsel: Angelo G. Sciacca, for the defendant (appellant), King Marcus A. Knapp, for the defendant (respondent), Hertz Canada Limited

Heard: April 11, 2011

On appeal from the order of Justice Belobaba of the Superior Court of Justice dated October 18, 2010.

APPEAL BOOK ENDORSEMENT

[1] The motion judge appears to have assumed that it followed automatically from his determination that King’s insurer was obliged to respond first under s. 277(1.1) of the Insurance Act, (a finding both parties accept on appeal), that King’s insurer was obliged to defend on behalf of Hertz and to indemnify Hertz. With respect, those issues were not before the motion judge and he should not have addressed them.

[2] We have heard argument on both points. We are satisfied that s. 277(1.1) imposes no duty on King’s insurer to defend on behalf of Hertz. There is no contractual relationship between the two parties. Section 277(1.1) speaks to the priorities of payment of losses by third party plaintiffs and not to an obligation to defend on behalf of others.

[3] With respect to the indemnity issue, we do not think that it can be resolved on this record. The plaintiff in the underlying action may well have an interest in the question of indemnity and the matter should not be resolved in the context of a dispute between the two insurers. The question of indemnity will not be addressed. To that extent, paragraph 2 of the order below will be varied.

[4] Costs to the appellant in the amount of $2,000, inclusive of disbursements and HST.