Vogler v. Lemieux et al., 2013 ONSC 4512

• Judge: Leach, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 02, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONSC 4512;(2013), 311 O.A.C. 45 (DC)

Vogler v. Lemieux (2013), 311 O.A.C. 45 (DC)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. SE.019

Edward Vogler (plaintiff/appellant) v. Allstate Insurance Company of Canada Tom Lemieux (respondent) and Allstate Insurance Company of Canada Statutory Third Party added by Order pursuant to s. 258(14) of the Insurance Act, R.S.O. 1190 c. I.8, as amended Tom Lemieux (statutory third party/respondent)

(1961; 2013 ONSC 4512)

Indexed As: Vogler v. Lemieux et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Leach, J.

July 8, 2013.

Summary:

The plaintiff was injured in a single vehicle accident involving the plaintiff's own vehicle. The vehicle was insured by a standard automobile policy of insurance, issued by Allstate. The plaintiff's action was based in negligence against Lemieux, for damages as a result of injuries the plaintiff sustained. The plaintiff moved to amend the statement of claim to add Allstate as a defendant pursuant to the family protection coverage endorsement of the policy, on the basis that Lemieux was an inadequately insured motorist as defined in the endorsement. Allstate opposed the motion on two grounds: (1) that the proposed claim was not tenable in law, and (2) that statutory and contract limitation periods barred the plaintiff from suing Allstate.

A Master of the Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 1692, denied the plaintiff leave to make the amendments on the basis that they were untenable in law. The plaintiff appealed.

The Ontario Divisional Court, per Leach, J.,  found that the Master arrived at the correct result, albeit not for the reasons she gave, and dismissed the appeal.

Insurance - Topic 4105

Automobile insurance - Uninsured or underinsured motorist coverage - Adding insurer as defendant, intervenor or third party - [See Insurance - Topic 5244 ].

Insurance - Topic 5187

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - Requirement of "legally entitled to recover" or "entitled to recover" - [See Insurance - Topic 5244 ].

Insurance - Topic 5244

Automobile insurance - Compulsory government schemes - Subrogation or indemnity - Conditions precedent - A Master denied the plaintiff leave to make amendments to his statement of claim on the basis that they were untenable in law - The plaintiff appealed - The appeal concerned the ability of a plaintiff, injured in a single vehicle accident involving his own automobile, to claim indemnity pursuant to the OPCF-44R family protection endorsement forming part of the insurance in relation to that vehicle - The proposed amendments sought to add the insurer Allstate as a defendant to the plaintiff's action based in negligence against the defendant Lemieux - The plaintiff sought recovery from Allstate for damages found as against Lemieux, as an inadequately insured motorist, pursuant to the terms of the OPCF-44R - Allstate, as a statutory third party, maintained that the plaintiff, not Lemieux, was in fact driving the vehicle, but that if Lemieux was found to have been operating the plaintiff's vehicle, then there had been a breach of statutory condition 4(1) of the policy, as Lemieux was not authorized by law to drive (his license had been suspended for many years) - Allstate's position was that the amendments were not tenable at law, as there was no way in which the plaintiff could establish that Lemieux was an "inadequately insured motorist" within the meaning of s. 1.5 of the endorsement - The Ontario Divisional Court, per Leach, J., found that the Master arrived at the correct result, albeit not for the reasons she gave - "In particular, the amendments should be viewed as untenable because, in my view, there simply are no circumstances in which the proposed claims on the OPCF-44R endorsement might succeed having regard to the provisions of the underlying policy, the endorsement, and the applicable law." - In that regard, examination of five possible alternate scenarios indicated that none of those scenarios gave rise to a situation where the plaintiff could or would have a claim against Allstate based on the OPCF-44R endorsement - See paragraphs 57 to 63.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Insurance - Topic 5244 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 34].

Mantella (A.) & Sons Ltd. v. Ontario Realty Corp. et al., [2008] O.T.C. Uned. A68; 91 O.R.(3d) 449 (Sup. Ct.), affd. [2009] O.A.C. Uned. 657 (C.A.), refd to. [para. 35].

Craig v. Allstate Insurance Co. of Canada (2002), 161 O.A.C. 140; 59 O.R.(3d) 590 (C.A.), refd to. [para. 37, footnote 3].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co. (1980), 32 N.R. 488; 112 D.L.R.(3d) 49 (S.C.C.), refd to. [para. 38, footnote 4].

Wigle et al. v. Allstate Insurance Co. of Canada (1984), 44 O.R.(2d) 677 (H.C.), affd. (1984), 6 O.A.C. 161; 10 C.C.L.I. (C.A.), leave to appeal refused (1985), 59 N.R. 73; 8 O.A.C. 320; 14 D.L.R.(4th) 404 (S.C.C.), refd to. [para. 38, footnote 4].

Fletcher v. Manitoba Public Insurance Co. (1990), 116 N.R. 1; 71 Man.R.(2d) 81; 44 O.A.C. 81; 74 D.L.R.(4th) 636 (S.C.C.), refd to. [para. 38, footnote 4].

Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10, refd to. [para. 38, footnote 4].

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81, refd to. [para. 38, footnote 4].

Chilton v. Co-Operators General Insurance Co. (1997), 97 O.A.C. 369; 32 O.R.(3d) 161, refd to. [para. 38, footnote 4].

Somersall v. Friedman et al., [2002] 3 S.C.R. 109; 292 N.R. 1; 163 O.A.C. 201, refd to. [para. 38, footnote 4].

Beausoleil et al. v. Canadian General Insurance Co. et al. (1992), 55 O.A.C. 383; 8 O.R.(3d) 754 (C.A.), refd to. [para. 39, footnote 6].

Patriquin v. Gogo et al., [2006] O.T.C. 1086 (Sup. Ct.), affd. [2009] O.A.C. Uned. 60 (C.A.), refd to. [para. 52].

Grand River Enterprises, A Partnership et al. v. Burnham (2005), 197 O.A.C. 168; 10 C.P.C.(6th) 136 (C.A.), refd to. [para. 54].

Almrei v. Canada (Attorney General), [2012] O.A.C. Uned. 639 (C.A.), refd to. [para. 54].

Dionisi v. Dionisi (1983), 42 O.R.(2d) 597 (H.C.), refd to. [para. 60].

Abela v. Ontario, [1988] O.J. No. 246 (Div. Ct.), refd to. [para. 60].

Wawanesa Mutual Insurance Co. v. S.C. Construction Ltd., [2012] O.T.C. Uned. 353 (Sup. Ct.), refd to. [para. 60].

Co-Operative Fire and Casualty Co. v. Ritchie and Ritchie, [1983] 2 S.C.R. 36; 50 N.R. 106; 61 N.S.R.(2d) 437; 133 A.P.R. 437, refd to. [para. 60].

Tut v. RBC General Insurance Co. et al. (2011), 285 O.A.C. 100; 107 O.R.(3d) 481 (C.A.), refd to. [para. 60].

Vandepitte v. Preferred Accident Insurance Co. of New York, [1933] 1 D.L.R. 289 (J.C.P.C.), refd to. [para. 60, footnote 13].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 60].

Authors and Works Noticed:

Newcombe, John, The Standard Automobile Policy Annotated, p. 155 [para. 60].

Swan, John and Reiter, Barry J., Contracts (2nd Ed.), p. 5-1 [para. 60, footnote 11].

Treitel, G.H., The Law of Contracts (9th Ed.), p. 703 [para. 60, footnote 11].

Waddams, S.M., The Law of Contracts (6th Ed. ), pp. 434, 435 [para. 60, footnote 11].

Counsel:

Alan L. Rachlin, for the plaintiff/appellant, Edward Vogler;

Tom Lemieux, respondent, not participating;

R. Shawn Stringer, for the statutory third party/respondent.

This appeal was heard on November 2, 2012, before Leach, J., of the Ontario Divisional Court, who delivered the following judgment, dated July 8, 2013.