Lively v. Thompson-Hatt, (2006) 245 N.S.R.(2d) 163 (SC)

• Judge: Haliburton, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: Wednesday June 14, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 245 N.S.R.(2d) 163 (SC);2006 NSSC 195

Lively v. Thompson-Hatt (2006), 245 N.S.R.(2d) 163 (SC);

    777 A.P.R. 163

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JN.045

Michael Lively (plaintiff) v. Tina Thompson-Hatt (defendant) and Aviva Canada Inc., added pursuant to the Insurance Act, R.S.N.S. 1989, c. 231, s. 133, ss. (14) (third party)

Tina Thompson-Hatt (plaintiff) v. Michael Lively (defendant) and Aviva Canada Inc., added pursuant to the Insurance Act, R.S.N.S. 1989, c. 231, s. 133, ss. (14) (third party)

(S.H. 165810; 165864; 2006 NSSC 195)

Indexed As: Lively v. Thompson-Hatt et al.

Nova Scotia Supreme Court

Haliburton, J.

June 20, 2006.

Summary:

Lively and Thompson-Hatt were involved in a single car accident in Thompson-Hatt's car. They commenced actions against each other, each alleging that the other was the driver. Aviva Canada Inc., Thompson-Hatt's insurer, was joined as a third party and the actions were consolidated. A preliminary hearing of the driver issue was scheduled. Lively and Thompson-Hatt both applied for orders for defence cost indemnification.

The Nova Scotia Supreme Court allowed the applications, ordering Aviva to fully fund each party's defence regarding the preliminary determination of the driver issue.

Insurance - Topic 725

Insurers - Duties - Duty to defend - Lively and Thompson-Hatt were involved in a single car accident in Thompson-Hatt's car which was insured by Aviva Canada Inc. - Lively and Thompson-Hatt commenced actions against each other, each alleging that the other was the driver - Aviva was joined as a third party - The actions were consolidated - A preliminary hearing of the driver issue was scheduled - Lively and Thompson-Hatt both applied for orders for defence cost indemnification to be paid directly by Aviva to their independent solicitors - The Nova Scotia Supreme Court allowed the applications - Lively and Thompson-Hatt's interests were diametrically opposed - Aviva counsel could not represent both without being in a conflict of interest - If the actions had proceeded separately, Aviva would have had to retain two counsel to defend the respective actions - To be required to provide additional counsel was not a significant departure from the obligations Aviva would have faced in separate actions - However, in light of Aviva's contractual right to control the defence, the order related only to the preliminary hearing of the driver issue.

Insurance - Topic 725.1

Insurers - Duties - Duty to defend - Costs of defence and other expenses - [See Insurance - Topic 725].

Cases Noticed:

Marshall v. Adamson, [1936] O.R. 103 (C.A.), refd to. [para. 12].

MacCulloch and MacCulloch's (Frank) Auto Services Ltd. v. Dominion of Canada General Insurance Co. (1991), 102 N.S.R.(2d) 136; 279 A.P.R. 136 (C.A.), refd to. [para. 12].

Cummings v. Budget Car Rentals Toronto Ltd. et al. (1996), 91 O.A.C. 174; 1996 CanLII 1629 (C.A.), refd to. [para. 12].

Parlee v. Pembridge Insurance Co. (2005), 283 N.B.R.(2d) 75; 740 A.P.R. 75 (C.A.), refd to. [para. 12].

Drane v. Optimum Frontier Insurance Co. (2003), 263 N.B.R.(2d) 138; 689 A.P.R. 138; 2003 NBQB 192, affd. (2004), 272 N.B.R.(2d) 241; 715 A.P.R. 241; 2004 NBCA 52, refd to. [para. 12].

Mahar's Transfer Express v. Ferretti (1970), 1 N.S.R.(2d) 996; 11 D.L.R.(3d) 381 (T.D.), refd to. [para. 12].

Brockton (Municipality) v. Cowan (Frank) Co. et al. (2002), 154 O.A.C. 125; 2002 CanLII 7392 (C.A.), refd to. [para. 16].

Roman Catholic Episcopal Corp. of St. George's v. Insurance Corp. of Newfoundland (2003), 232 Nfld. & P.E.I.R. 65; 690 A.P.R. 65 (C.A.), refd to. [para. 16].

Authors and Works Noticed:

Hilliker, Gordon, Liability Insurance Law in Canada (2nd Ed. 1996), generally [para. 15].

Counsel:

Shawn Scott, for the plaintiff/defendant, Michael Lively;

Robert Carter, for the defendant/plaintiff, Tina Thompson-Hatt;

Colin D. Piercey, for the third party, Aviva Canada Inc.

These applications were heard on June 14, 2006, in Halifax, Nova Scotia, by Haliburton, J., of the Nova Scotia Supreme Court, who delivered the following written decision on June 20, 2006.