Williams v. Pintar; Jevco Insurance Company, Third Party

[Indexed as: Williams v. Pintar]

Ontario Reports

Ontario Superior Court of Justice,

Master Roger

March 14, 2014

119 O.R. (3d) 447 | 2014 ONSC 1606

Case Summary

Insurance — Actions against insurer — Plaintiff pedestrian suing defendant motorist for damages arising out of motor vehicle accident — [page448] Defendant's insurer denying coverage on ground that defendant was not covered for new vehicle he was driving at time of accident — Defendant not defending action and being noted in default — Plaintiff granted leave to amend statement of claim to add defendant's insurer as defendant and to seek declaratory relief with respect to insurance coverage — Absence of direct cause of action against insurer under s. 258(1) of Insurance Act not dispositive as plaintiff was seeking declaratory relief rather than suing for payment — Insurance Act, R.S.O. 1990, c. I.8, s. 258(1).

The plaintiff suffered injuries when she was struck by the defendant's vehicle as she was crossing the street. Jevco, the defendant's automobile insurer, denied coverage on the ground that the defendant was not covered for the new vehicle he was driving at the time of the accident. The defendant did not defend the action and was noted in default. The plaintiff had no available automobile insurance coverage and therefore could not add her insurer for any uninsured or underinsured coverage. She brought a motion for leave to amend the statement of claim to add Jevco as a defendant and to seek declaratory relief related to insurance coverage.

Held, the motion should be granted.

The fact that the plaintiff had not yet obtained a judgment against the defendant and therefore had no cause of action against Jevco under s. 258(1) of the Insurance Act was not dispositive as the plaintiff was seeking declaratory relief rather than suing for payment. A judge of the Superior Court of Justice has a general power to make a declaration, whether or not there is a cause of action, at the instance of any party who is interested in the subject matter of the declaration. The amendments sought by the plaintiff were not inconsistent with s. 258(1). Unless she was granted leave to amend, the plaintiff would not be able to resolve the issue of coverage until after she had obtained a judgment in what might be a long and complex personal injury trial. Allowing the amendments would allow the issue of coverage to be resolved by way of motion for summary judgment or other fair process.

Martin v. Travellers Indemnity Co., 1943 362 (ON SC), [1943] O.W.N. 28 (H.C.), distd

Arora v. Whirlpool Canada LP (2013), 118 O.R. (3d) 113, [2013] O.J. No. 5384, 2013 ONCA 657, 6 C.C.L.T. (4th) 1, 44 C.P.C. (7th) 223, 311 O.A.C. 203; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., 1999 654 (SCC), [1999] 3 S.C.R. 108, [1999] S.C.J. No. 48, 176 D.L.R. (4th) 257, 245 N.R. 88, [1999] 9 W.W.R. 380, 127 B.C.A.C. 287, 67 B.C.L.R. (3d) 213, 50 B.L.R. (2d) 169, 11 C.C.L.I. (3d) 1, 47 C.C.L.T. (2d) 1, [1999] I.L.R. I-3717, 90 A.C.W.S. (3d) 786; Kozel v. Personal Insurance Co. (2014), 119 O.R. (3d) 55, [2014] O.J. No. 753, 2014 ONCA 130, 315 O.A.C. 378, consd

Other cases referred to

Andersen Consulting Ltd. v. Canada (Attorney General), 2001 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177, 13 C.P.C. (5th) 251, 107 A.C.W.S. (3d) 759 (C.A.); Canada v. Solosky, 1979 9 (SCC), [1980] 1 S.C.R. 821, [1979] S.C.J. No. 130, 105 D.L.R. (3d) 745, 30 N.R. 380, 50 C.C.C. (2d) 495, 16 C.R. (3d) 294, 4 W.C.B. 177; Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641; Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034, [2003] O.T.C. 715, 39 C.P.C. (5th) 323, 124 A.C.W.S. (3d) 661 (S.C.J.); Royal Securities Corp. v. Montreal Trust Co., 1966 173 (ON SC), [1967] 1 O.R. 137, [1966] O.J. No. 1078, 59 D.L.R. (2d) 666 (H.C.J.); Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 100 (SCC), [1994] 2 S.C.R. 490, [1994] S.C.J. No. 59, 115 D.L.R. (4th) 478, 168 N.R. 381, [1994] 7 W.W.R. 37, J.E. 94-1053, 20 Alta. L.R. (3d) 296, 155 A.R. 321, 23 C.C.L.I. (2d) 161, [1994] I.L.R. Â1-3077 at 2913; [page449] Seaway Trust Co. v. Markle, [1992] O.J. No. 1602, 11 C.P.C. (3d) 62, [1992] I.L.R. Â1-2885 at 2044, 34 A.C.W.S. (3d) 1072 (Gen. Div.); Winch v. Keogh, 2006 26576 (ON CA), [2006] O.J. No. 3182, 269 D.L.R. (4th) 396, 40 C.C.L.I. (4th) 51, [2006] I.L.R. 4529, 150 A.C.W.S. (3d) 470 (C.A.), affg (2005), 2005 40561 (ON SC), 78 O.R. (3d) 468, [2005] O.J. No. 4759, [2005] O.T.C. 953, 33 C.C.L.I. (4th) 102, [2006] I.L.R. I-4463, 143 A.C.W.S. (3d) 745 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 97 [as am.], 138

Insurance Act, R.S.O. 1990, c. I.8, ss. 205, 258(1), 258(14), 258.5(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 5.04, 5.04(2), 14.05(3)(d), 21.01(b), 26.01, 30.02(3), 31.06(4)

MOTION for leave to amend a statement of claim.

Christopher A. Obagi, for plaintiff (moving party).

Ashlee L. Barber, for third party (responding party).

Reasons for Decision

[1] MASTER ROGER: — The plaintiff brings this motion seeking an order granting her leave to amend the statement of claim to add Jevco Insurance Company as a defendant to the main action and to seek against Jevco declaratory relief related to insurance coverage.

(Decision continues verbatim in full as provided in the source document.)

...

Motion granted.

Notes

1 Rules of Civil Procedure.

End of Document