Ontario Civil

Civil Procedure

Not open to appeal judge to adjudicate novel question of law

Action arose out of single vehicle accident. Plaintiff appealed master’s decision denying leave to amend statement of claim to add insurer as named party defendant in main action. Appeal was dismissed. Without prior notice appeal judge determined key contractual interpretation issue, which was conclusive of coverage dispute. Plaintiff appealed. Appeal allowed. Appeal judge erred in proceeding in that manner. Proper focus of inquiry was whether requested amendment should be allowed. It was open to appeal judge to determine whether plaintiff’s proposed coverage claim against insurer was tenable at law but it was not open to him to finally adjudicate novel question of law under paradigm that was not disclosed to parties and where underlying relevant facts had not been determined. Claim sought to be advanced was novel. At early stage of proceedings where material facts remained contested, it could not be said that proposed claim was could not succeed at trial. Insurer would not suffer prejudice as result of proposed amendment that could not be compensated in costs. Amendment should be allowed.

Vogler v. Lemiux (Nov. 13, 2014, Ont. C.A., E.A. Cronk J.A., E.E. Gillese J.A., and Paul Rouleau J.A., File No. CA C58646) Decision at 230 A.C.W.S. (3d) 88 was reversed.  246 A.C.W.S. (3d) 551.

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