Court File and Parties

NEWMARKET COURT FILE NO.: CV-20-00000663-00A1 DATE: 20241219 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ABBAS BENDER and GANGADAI SUKHDEO, Plaintiffs AND: JOHN DOE, WTH CAR RENTAL ULC, INTACT INSURANCE and PAFCO INSURANCE, Defendants

BEFORE: THE HON. MR. JUSTICE J.R. McCARTHY

COUNSEL: Mikhail Shloznikov ( mikhail.shloznikov@intact.net ), for the Plaintiffs Bridgette Morrison ( bam@bmorrisonpc.com ), for the Defendants

HEARD: December 18, 2024

Endorsement

[1] The moving party, the Defendant Intact Insurance (“Intact”), brings a motion for leave to amend its Third-Party Claim (“the TPC”) in favour of the Fresh As Amended Third-Party Claim (“the Amended TPC”).

[2] The Defendant in the main action WTH Car Rental ULC (“WTH”) opposes the motion.

[3] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides, “On motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[4] The action arises out of a claim for damages for injuries sustained by the Plaintiff in a motor vehicle accident which took place on February 19, 2018 (“the MVA”). Initially, the driver of the at fault vehicle was undetermined as it appeared that she left the scene of the MVA. “John Doe” was named as a Defendant “driver” of the at-fault vehicle with WTH named as owner. As the circumstances raised the possibility of an uninsured/underinsured claim, the Plaintiff named its own auto insurers, including Intact, as Defendants pursuant to provisions of the Plaintiff’s policy of automobile insurance.

[5] On April 23, 2021, Intact issued the TPC against the Defendants Ashley Zenguele (AZ) and Justyne Burger-Samuels (“JBS”). At the time the TPC was issued, the full details of MVA and the identity of the driver of the at-fault vehicle remained undetermined.

[6] The TPC claim was served but no defences were served or filed. Intact noted AZ and JBS in default, then proceeded to defend and ultimately settle the main action in May 2024. In doing so, it obtained an assignment of rights from the Plaintiff against AZ and JBS.

[7] Intact then moved for default judgment and leave to amend the TPC.

[8] I am not persuaded that the Defendant has standing to oppose the sought after amendment. It is not a party to the TPC and is not being added as a party in the Amended TPC.

[9] Regardless, there is no doubt that the Amended TPC is tenable in law. Like its predecessor, the Amended TPC sounds in negligence against AZ and JBS. Intact continues to pursue its rights to seek contribution and restitution from those whom it alleges to have been the operator of the at-fault vehicle.

[10] Moreover, there is no new cause of action advanced. The proposed Amended TPC contains information gleaned from disclosure and discovery. Intact seeks to simply update its pleading to pursue the claim against AZ and JBS. The allegations therein are common in motor vehicle litigation. There is nothing frivolous, vexatious or outrageous about them. The amendments clearly arise from the same factual matrix pleaded in the statement of claim, the statement of defence and the TPC.

[11] As a non-party to the TPC and the Amended TPC, WTH has failed to adduce any specific evidence of actual or non-compensable prejudice arising from the sought after amendment to the TPC. There is no evidence that AZ or JBS are unavailable to provide evidence even if they failed and might still fail to defend the TPC.

[12] As for the prejudice arising from WTH’s potential exposure to judgment as lessor of the at fault vehicle (and its insurer’s potential obligation to afford coverage and indemnify to its insured), this is a prejudice arising from the potential outcome of the Amended TPC rather than from the amendment itself.

[13] This “prejudice” can be alleviated by a term of the order whereby WTH is to be put on notice of the default judgment motion. This will provide WTH with an opportunity to resist or challenge any deemed admissions which might compromise its position or expose it to judgment. As well, this will afford WTH the opportunity to seek an order adding it to the Amended TPC as an interested or necessary party with the capability of defending the action. Needless to say that WTH and its insurer would be necessary parties to any coverage application under s. 258 of the Insurance Act.

[14] Leave is therefore granted to Intact to amend the TPC in accordance with the Amended TPC found at Exhibit 9 of the Affidavit of Rachel Hansen dated August 2, 2024. As a condition of this order, the Defendant WTH is to be kept informed of the status of the Amended TPC and in particular, is to be put on notice of any default judgment proceedings.

[15] The Plaintiff has been successful in its motion and is entitled to costs against the responding party which I would fix at $5,000. Those costs are payable forthwith.

J.R. McCARTHY J. Date: December 19, 2024