



COURT OF APPEAL FOR ONTARIO

CITATION: Vogler v. Allstate Insurance Company of Canada,
    2014 ONCA 825

DATE: 20141120

DOCKET: C58646

Cronk, Gillese and Rouleau JJ.A.

BETWEEN

Edward Randall Vogler

Plaintiff (Appellant)

and

Allstate
    Insurance Company of Canada

Tom
    Lemieux

Defendant

and

Allstate
    Insurance Company of Canada

Statutory
    Third Party added by order pursuant to s. 258(14)

of the
Insurance
    Act
, R.S.O. 1990 c. I.8, as amended

Statutory third party (respondent)

Alan L. Rachlin, for the appellant

R. Shawn Stringer, for the respondent

Heard and released orally: November 13, 2014

On appeal from the order of Justice Ian F. Leach of the
    Superior Court of Justice, dated July 8, 2013, sitting on appeal as a single
    judge of the Divisional Court from the order of Master Lou Ann M. Pope of the
    Superior Court of Justice, dated March 15, 2012.

ENDORSEMENT

[1]

The proceeding below was an appeal to a single judge of the Divisional Court
    from a Masters decision denying the appellants motion under rules 1.04,
    5.04(2) and 26.01 of the
Rules of Civil Procedure
for an order adding
    the respondent insurer as a named party defendant in the main action.

[2]

The appeal judge upheld the Masters ruling, albeit for different
    reasons.  In so doing, the appeal judge, without prior notice to the parties,
    determined a key contractual interpretation issue under various factual
    scenarios that he posited.  If accepted, the appeal judges interpretation was
    conclusive of the coverage dispute between the parties.

[3]

With respect, the appeal judge erred by proceeding in this fashion.  The
    proper focus of the inquiry before him was whether the requested amendment
    should be allowed based on the governing principles for a pleadings amendment
    of this kind.  Although it was open to him to determine whether the appellants
    proposed coverage claim against the respondent was tenable at law, it was not
    open to him to finally adjudicate on a novel question of law under a paradigm
    not disclosed to the parties and where the underlying relevant facts had yet to
    be determined.  See for example,
Royal Laser Corp. v. Rivas
, 2011 ONCA
    655.  As a result, the appeal judges decision cannot stand.

[4]

Similarly, the Masters ruling on the amendment motion cannot stand. 
    The Master ruled that the appellants proposed claim against the respondent is
    untenable at law.  As we have said, the appeal judge agreed, although for
    different reasons.  In the unusual circumstances of this case, the claim sought
    to be advanced appears to be novel.  Neither party could point to any
    authorities directly on point during this appeal hearing.  At this early stage
    of the proceedings, when material facts remain contested, in our view it cannot
    be said that the proposed claim is unsound or that it is clearly impossible
    that the claim could succeed at trial.

[5]

The parties accept that if the decisions below are set aside, this court
    should determine the question of the requested pleadings amendment.

[6]

There is no suggestion that the respondent insurer will suffer any
    prejudice as a result of the proposed amendment that cannot be compensated for
    in costs.  Nor does the respondent any longer claim that the applicable
    limitation period has expired.  In light of these considerations and the
    unusual nature of the claim raised in this case, the requested pleadings
    amendment should be allowed.

[7]

Accordingly, the appeal is allowed, the appeal judges and the Masters
    orders are set aside, and the appellant is granted leave to amend his statement
    of claim to restore the respondent insurer as a named party defendant.  Of
    course, this relief is without prejudice to any defences that the respondent
    insurer may wish to raise and any other motions available to it under the
Rules
    of Civil Procedure
.  The appellant is entitled to his costs of the appeal
    and both proceedings below, fixed in the aggregate amount of $22,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

E.E. Gillese J.A.

Paul Rouleau J.A.


