





CITATION:
Cecile v.
Retrofoam
of Canada Incorporated, 2011 ONCA 199



DATE: 20110314



DOCKET: C52716



COURT OF APPEAL FOR ONTARIO



MacPherson, Rouleau and Epstein JJ.A.



BETWEEN



Robert
          Cecile, Michelle Cecile, Gerald Patrick Doyle, Stanley Lawton, Stanislao
          Calandra, Bruce Andrew MacLellan, Jeffrey Michael Simpson, Simone Marisa Cupid, Cindy Ruth
          Armstrong, Jaime Batista and Susan Huntley




Plaintiffs (Respondents)



and



Retrofoam
          of Canada Incorporated, Retrofoam Holdings Inc., Retrofoam Windsor Inc.,
          Retrofoam of Southern Ontario Inc., Retrofoam of Eastern Ontario Ltd.,
          Polymaster Inc., Enerliv Inc., Paul John Weigel, Northern Retrofoam
          Inc., Enwise Power Solutions Inc., Enwise Building Science Inc., Gary Zavaros,
          756882 Ontario Ltd. C.O.B. as Lambton Insulation Ltd., The Attorney
          General of Canada, National Research Council of Canada, Attie Enterprises Ltd., I-Gen
          Energy Inc. and
Foam Comfort Inc.




Defendants (
Respondent
)



and



Federated
          Insurance Company of Canada



Non-party (Appellant)



Donald Dacquisto, for the appellant
          Federated Insurance Company of Canada



David Zuber, for the respondent Foam
          Comfort Inc.

William V. Sasso, for the plaintiff-respondents



Heard
&
          released orally: March 4, 2011



On appeal from the order of Justice Terrence L.J. Patterson of
          the Superior Court of Justice dated September 1, 2010.



ENDORSEMENT



[1]

This is an appeal from the order of Justice Patterson
    of the Superior Court of Justice dated September 1, 2010, requiring the
    Federated Insurance Company of Canada to defend Foam Comfort Inc. in a class
    action and to file a statement of defence within 30 days.

[2]

Neither the plaintiffs nor Foam Comfort requested that
    Federated Insurance be involved in the litigation.  Indeed, at the hearing of the motion from
    which this order arose, Foam Comfort sought leave to represent itself.  Federated Insurance was not a party to the
    motion.

[3]

Since that order, the class action against Foam Comfort
    has been dismissed pursuant to the agreement of the parties and the court has
    approved the dismissal by order dated January 6, 2011.

[4]

Foam Comfort has therefore abandoned its cross-appeal
    seeking leave to represent itself.  Federated Insurance nonetheless wishes to
proceed
with its appeal from the September 1, 2010, order against it.

[5]

In response to the respondents preliminary issue of
    mootness, Federated Insurance argues that the appeal is not moot and that there
    remains a live controversy that may affect the rights of the parties in the
    future because the dismissal of the claim against Foam Comfort was subject to
    the following terms and conditions:

1)

Foam Comfort would consent to a dismissal without costs;

2)

If the plaintiff Batista is not made whole in the class
    proceeding, he may in his discretion bring an action against Foam Comfort; and

3)

Foam Comfort will not raise a
Limitations Act, 2002
defence.

[6]

It is Federated Insurances position, therefore, that
    there remains a tangible and concrete dispute between the parties as the
    dispute can be revived if the plaintiff, Mr. Batista, decides to pursue a
    separate claim against Foam Comfort in the future.  Should that happen, the order of Patterson J.
    dated September 1, 2010, will remain in effect requiring Federated Insurance to
    defend Foam Comfort.  Therefore, a
    decision by this court will serve a purpose in determining whether Federated
    Insurance has a duty to defend Foam Comfort, should the issue arise in the
    future.

[7]

We disagree.  As
    a result of the dismissal, with prejudice, of the present action against Foam
    Comfort, the order of Patterson J. is no longer of any relevance.  If a new claim is later issued against Foam
    Comfort, the issue of whether Federated Insurance will be required to defend on
    behalf of Foam Comfort will need to be decided in the context of that later
    action.  As conceded by counsel for the respondents,
    the order of Patterson J. will have no relevance whatsoever to that
    determination.  In our view, therefore,
    the appeal is moot.

[8]

As a result we dismiss the appeal.  In the circumstances, we make no order as to
    costs.

J.C. MacPherson J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


