



COURT OF APPEAL FOR ONTARIO

CITATION: Tree-Techol Tree Technology and Research Company
    Inc. v. VIA Rail Canada Inc., 2017 ONCA 876

DATE: 20171116

DOCKET: C63445

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Tree-Techol Tree Technology and Research Company
    Inc., 1374007 Ontario Ltd. And Bryan M. McNair

Plaintiffs (Respondents)

and

VIA Rail Canada Inc. and Canadian National
    Railway Company

Defendants (Respondents)

Bronwyn Martin and B. Robin Moodie, for the appellant
    Intact Insurance Company

Thomas Hanrahan, for the respondents VIA Rail Canada
    Inc. and Canadian National Railway Company

E. Savas, for the respondents Tree-Techol Tree
    Technology and Research Company Inc., 1374007 Ontario Ltd. And Bryan M. McNair

Heard and released orally: October 26, 2017

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, dated February 1, 2017.

REASONS FOR DECISION


[1]

An insured is under no obligation contractually or statutorily to
    include an insurers subrogated claim in its action. Only if an insurer chooses
    to pursue such a claim is an insured then required to cooperate and not
    compromise the insurers claim. Were it otherwise, there would no need to give
    an insurer a right to subrogate. Here, the insurer was well aware of all the
    facts. The insureds had had to commence a claim against Intact Insurance
    Company (their insurer) to recover all their losses covered by the policy, they
    were adverse in interest and may still be in respect of certain aspects of the
    claim.

[2]

The fact that the insurer missed the limitation period cannot be cured
    by an application for intervenor status. Intact had the right to commence a
    subrogated claim, but just as the motion judge put it, forgot to do so. Its
    claim was out of time and the appeal is dismissed. Costs to the respondents VIA
    Rail and Canadian National Railway fixed in the sum of $12,000 and to the
    respondents Tree-Techol Tree Technology and Research Company Inc., 1374007
    Ontario Ltd. and Bryan M. McNair in the sum of $8000  both inclusive of
    disbursements and HST.

J. MacFarland J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


