Third parties - Statutory provisions; Practice - Summary judgments - Parties to action

Roy v. Lapointe

Dismissal of a motion by the insurer (statutory third party) to set aside summary judgment on liability against its insureds (the defendant driver and the defendant owner) because the insurer was attempting a collateral attack on a prior order refusing to set aside default judgment against one of the insureds (the defendant owner).

[2013] O.J. No. 557

2013 ONSC 808

Ontario Superior Court of Justice

M.P. Eberhard J.

February 4, 2013

Belairdirect Insurance was the insurer of the defendant driver and the defendant owner. The insurer denied coverage for the defendant driver but responded on behalf of the defendant owner.

The defendant driver and the defendant owner were noted in default. The insurer brought a motion to set aside the default judgment against the defendant owner. The insurer’s motion was dismissed.

The insurer subsequently filed a motion seeking to be added as a statutory third party pursuant to section 258(14) of the Insurance Act, R.S.O.1990, c. I.8. The plaintiff filed a motion for summary judgment on the issue of liability against the defendant driver and the defendant owner. The summary judgment motion was heard first and the court granted summary judgment. The insurer did not attend the summary judgment motion because it was not yet a party.

The insurer was subsequently added as a third party and it brought a motion to set aside the summary judgment. The insurer argued it would be a miscarriage of justice if the summary judgment operated to limit the insurer’s statutory right to contest liability and damages. The insurer argued the default judgment was effectively set aside by the act of allowing the insurer to enter the action as a statutory third party.

The court found that the insurer’s actions after its motion to set aside default judgment against the defendant owner was dismissed were a collateral attack on that order. The insurer only sought to add itself as a third party after the defendant driver was noted in default and the insurer’s motion to set aside the noting in default was dismissed. The court refused to go behind the order declining to set aside default judgment and dismissed the insurer’s motion.