Court File and Parties

CITATION: Schiafone v. Pembridge, 2015 ONSC 6093

COURT FILE NO.: CV-13-116029-Al

DATE: 20151001

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Irma Schiafone, Plaintiff

-and-

Sana Qamar, Qamar B. Ahmad, Defendants

-and-

Pembridge Insurance Company of Canada and Co-Operators Insurance Company, Third Party

-and-

Pembridge Insurance Company, added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990 c. I. 8, Statutory Third Party

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL: Sandi J. Smith, for the Third Party, Pembridge Insurance Company

HEARD: September 28, 2015

Endorsement

Overview

[1] The third party in these proceedings, Pembridge Insurance Company (hereinafter Pembridge), moves pursuant to Rule 21 of the Rules of Civil Procedure to strike out the defendants’ third party claim on the basis that the defendants cannot seek contribution and indemnity from Pembridge, as Pembridge is not a joint tort feasor and any claim against the statutory third party is dependent upon section 258(1) of the Insurance Act.

The Facts

[2] The action as between the plaintiff and the defendants arises out of a motor vehicle accident which occurred on October 7, 2011. The plaintiff’s vehicle is insured by the Co-operators Insurance Company. The defendants’ vehicle is insured by Pembridge. The driver of the defendants’ vehicle, the defendant Sana Qamar, was apparently convicted of failing to comply with the required conditions of her driver’s licence and, as such, was in violation of the conditions of her G1 licence by operating a vehicle without an appropriately licenced and experienced driver in the front passenger seat.

[3] As a result of the aforesaid actions of the defendant, Sana Qamar, Pembridge had itself added as a statutory third party pursuant to an Order made by Bale J. on June 10, 2014.

[4] The defendants, Samar Qamar and Qamar Ahmad, brought a third party claim against Pembridge seeking contribution and indemnity with respect to any amounts for which the defendants may be found liable to the plaintiff.

The Issue

[5] The sole issue this court has to determine on the Rule 21 motion brought by Pembridge, is whether the third party claim discloses a reasonable cause of action against Pembridge. The test under Rule 21.01(1)(b) is whether it is plain and obvious that the third party claim discloses a reasonable cause of action.

Analysis

[6] The question of whether or not a defendant can bring a third party claim against an insurer, who has been added as a statutory third party, was addressed by Leitch J. in Chapman v. Ghesquiere (1998), 1998 CanLII 14831 (ON SC), 39 O.R. (3d) 687. After a review of the jurisprudence in this area, Leitch J. came to the conclusion that once an insurer acquires the status of a statutory third party in the action by reason of section 258(14) of the Insurance Act, a defendant cannot issue a third party claim against it.

[7] The facts before this court are very similar to the facts that were before Leitch J. in Chapman, supra. There is nothing to distinguish this case from Chapman. No one appeared on behalf of the defendants to take a contrary position. An order shall issue striking out the third party claim as against Pembridge.

Costs

[8] As to the question of costs, Pembridge has been entirely successful on its motion to strike. I am fixing costs in the amount of $2,000.00 all inclusive, payable by the defendants within 30 days.

Justice M.L. Edwards

Released: October 1, 2015