Meisels v. Lawyers Professional Indemnity Co., 2015 ONCA 406

• Judge: Weiler, Cronk and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 11, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 406;(2015), 336 O.A.C. 67 (CA)

Meisels v. Lawyers Prof. Indemnity (2015), 336 O.A.C. 67 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.014

Alvin Meisels (applicant/respondent) v. Lawyers Professional Indemnity Company (respondent/appellant)

(C59723; 2015 ONCA 406)

Indexed As: Meisels v. Lawyers Professional Indemnity Co.

Ontario Court of Appeal

Weiler, Cronk and Pepall, JJ.A.

June 8, 2015.

Summary:

Meisels, a lawyer licensed to practice law in Ontario, was an undischarged bankrupt. He was being sued for professional negligence in a class action in Colorado. He applied pursuant to rule 14.05(3) of the Rules of Civil Procedure for a declaration that his professional liability insurer (LawPro) was required to indemnify him, "for all sums that he may be liable to pay for any settlement or judgment in the Colorado class action ... including reimbursement for the defence costs in relation thereto". LawPro moved to strike his application pursuant to rule 21.01(3)(b). A motion judge dismissed LawPro's motion. LawPro appealed.

The Ontario Court of Appeal allowed the appeal and set aside the motion judge's decision.

Bankruptcy - Topic 427

Property of bankrupt - Particular property - Right or cause of action - [See Practice - Topic 224 ].

Practice - Topic 224

Persons who can sue and be sued - Individuals and corporations - Status or standing - Bankrupts - Meisels, a lawyer licensed to practice law in Ontario, was an undischarged bankrupt - He was being sued for professional negligence in a class action in Colorado - He applied pursuant to rule 14.05(3) of the Rules of Civil Procedure for a declaration that his professional liability insurer (LawPro) was required to indemnify him, "for all sums that he may be liable to pay for any settlement or judgment in the Colorado class action ... including reimbursement for the defence costs in relation thereto" - LawPro moved to strike his application pursuant to rule 21.01(3)(b) - A motion judge dismissed LawPro's motion - LawPro appealed - The Ontario Court of Appeal allowed the appeal and set aside the motion judge's decision - The motion judge erred in holding that Meisels had standing to bring the application - Meisels' claim against LawPro was not a personal claim - His application for a declaration that LawPro had to indemnify him under his insurance policy was a claim in breach of contract that was solely about money and vested in the trustee - See paragraphs 11 to 19.

Practice - Topic 5461

Judgments and orders - Finality of judgments and orders - General - Meisels, a lawyer licensed to practice law in Ontario, was an undischarged bankrupt - He was being sued for professional negligence in a class action in Colorado - He applied pursuant to rule 14.05(3) of the Rules of Civil Procedure for a declaration that his professional liability insurer (LawPro) was required to indemnify him, "for all sums that he may be liable to pay for any settlement or judgment in the Colorado class action ... including reimbursement for the defence costs in relation thereto" - LawPro moved to strike his application pursuant to rule 21.01(3)(b) - A motion judge dismissed LawPro's motion - LawPro appealed - At issue was, inter alia, whether the motion judge's order was interlocutory or final - The Ontario Court of Appeal held that the order was a final order - "The motion judge's order did not simply dismiss the motion to strike. It contained a declaration that [Meisels] had a substantive right to bring the application. This declaration deprives [LawPro] of a substantive defence, namely, that the application is a nullity because [Meisels] lacks standing as an undischarged bankrupt to bring the action. That defence, if successful, would be determinative of the entire action. [LawPro] has no other opportunity to raise this defence in the continuing litigation as the decision of the motion judge is res judicata in this regard. Thus, although the order does not finally dispose of the rights of the parties to the action, it disposes of a substantive right that is determinative of the entire action." - See paragraphs 7 to 10.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders - What constitute - [See Practice - Topic 5461 ].

Cases Noticed:

Ball v. Donais (1993), 64 O.A.C. 85; 13 O.R.(3d) 322 (C.A.), refd to. [para. 7].

Adler (Bankrupt), Re, [2008] O.T.C. Uned. I66; 47 C.B.R.(5th) 77 (S.C. Reg.), refd to. [para. 9].

Murphy v. Stefaniak - see Murphy (Bankrupt), Re.

Murphy (Bankrupt), Re (2007), 231 O.A.C. 76; 2007 ONCA 819, refd to. [para. 11].

Ernst & Young Inc. v. Chartis Insurance Co. of Canada et al., [2012] O.T.C. Uned. 5020; 14 C.C.L.I.(5th) 270; 2012 ONSC 5020, varied (2014), 314 O.A.C. 262; 118 O.R.(3d) 740; 2014 ONCA 78, refd to. [para. 12].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 13].

Clement Estate v. Canada (Attorney General) et al., [2012] O.T.C. Uned. 5823; 82 E.T.R.(3d) 270; 2012 ONSC 5823, refd to. [para. 13].

Adelaide Capital Corp. v. Sethi (1996), 6 C.B.R. (4th) 22 (Ont. C.J.), refd to. [para. 16].

Eurasia Auto Ltd. v. M and M Welding & Supply (1985) Inc. (1991), 119 A.R. 348; 5 C.B.R.(3d) 227 (Q.B.), refd to. [para. 16].

Major, Re (1984), 54 C.B.R.(N.S.) 28 (B.C.S.C.), refd to. [para. 16].

Counsel:

J. Stephen Cavanagh, for the appellant;

Michael Simaan and Alex Minkin, for the respondent.

This appeal was heard on May 11, 2015, by Weiler, Cronk and Pepall, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered on June 8, 2015.