NOVA SCOTIA COURT OF APPEAL
Citation: CGU Insurance Company v. Noble,
2003 NSCA 102
Date: 20031002
Docket: CA 193918
Registry: Halifax
Between:
CGU Insurance Company of Canada, a body corporate
Appellant
v.
Keyan Noble
Respondent
- and -
Christopher Goudey, Paula Goudey, Cathy Marie Malone,
Colby Todd Brannen, Red Knight Enterprises (1987) Limited,
and Matthew Douglas Malone
Respondents
Judges: Roscoe, Bateman and Saunders, JJ.A.
Appeal Heard: September 22, 2003, in Halifax, Nova Scotia
Held: Leave to appeal granted and the appeal is dismissed per reasons for judgment of Bateman, J.A.; Roscoe and Saunders, JJ.A. concurring.
Counsel: John Kulik and Karl Seidenz, for the appellant
Scott Norton, Q.C., for the respondent Noble
Reasons for judgment:
[1] This is an appeal by CGU Insurance Company of Canada from an interlocutory order in the Supreme Court wherein Justice Robert Wright dismissed an application to strike the Third Party Statement of Claim filed by Keyan Noble in the main action. Of the several parties to the action, only Mr. Noble is responding on this appeal.
[2] The action arises from a February 2, 2001 motor vehicle accident involving three vehicles and two impacts. A vehicle owned by a Cathy Malone, driven by Todd Brannen and in which Matthew Malone was a passenger, collided with a motor vehicle operated by Christopher Goudey. The Malone vehicle was struck a second time by a vehicle driven by Noble.
[3] Each of the Malone and Goudey vehicles are separately insured by CGU.
[4] Goudey commenced a legal action naming Cathy Malone, Todd Brannen and Red Knight Enterprises, and, eventually Noble, all as defendants. Cathy Malone filed a Third Party Statement of Claim against Noble, Matthew Malone and CGU Insurance. Noble filed a Third Party Statement of Claim against Matthew Malone and CGU Insurance.
[5] The aspect of Noble’s Third Party Statement of Claim which was the subject of the application before Justice Wright was Noble’s claim for contribution or indemnity from CGU for any liability that Noble may have to the original plaintiffs, the Goudeys:
6. As to the Third Party, CGU, the Defendant Noble says that the Defendant, Cathy Marie Malone, alleges . . .that the vehicle owned by her was being operated by the Defendant Brannen without her consent. Noble says that if it is determined that the Malone vehicle was uninsured as a result of being operated by the Defendant Brannen without consent . . .then CGU is obliged under Section D of the [Goudey’s] policy issued to the Plaintiffs to pay all sums that the [Goudey’s] are legally entitled to recover from the owner or driver of the uninsured vehicle.
[6] After reviewing the relevant case law, Justice Wright concluded that, while Noble’s claim against CGU was of doubtful merit, it was not “plain and obviously” unsustainable, as is the test for striking a pleading pursuant to Civil Procedure Rule 14.25(1)(a). It was Justice Wright’s conclusion that there was “a justiciable issue . . . that ought not to be summarily determined on a Chambers application . . .”. (See Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board) (1999), 179 N.S.R. (2d) 213; N.S.J. No. 258 (Q.L.) (C.A.); Lamey v. Wentworth Valley Developments Ltd. (1999). 175 N.S.R. (2d) 356; N.S.J. No. 122 (Q.L.)(C.A.); Roulston v. Nova Scotia (Attorney General) (1994), 130 N.S.R. (2d) 44; N.S.J. No. 115 (Q.L.)(C.A.)).
[7] In Roulston, supra, Roscoe, J.A., for this Court, identified the test to be applied by the judge on an application to strike. At p. 46:
[4] ... The appellant had applied to strike out the statement of claim under either of Civil Procedure rule 14.25(1)(a) or Rule 25.01. The test under rule 14.25 was summarized by Macdonald, J.A., in Vladi Private Islands Ltd. v. Hoase et al, supra at p. 325 where he stated:
The proper test to be applied when considering an application to strike out a statement of claim has been considered by this court on numerous occasions. It is clear from the authorities that a judge must proceed on the assumption that the facts contained in the statement of claim are true and, assuming those facts to be true, consider whether a claim is made out. An order to strike out a statement of claim will not be granted unless on the facts as pleaded the action is “obviously unsustainable”.
(Emphasis added)
[8] In considering this appeal we must apply the standard of review set out by Freeman J.A. in American Home Assurance Co. et al. v. Brett Pontiac Buick GMC Ltd. et al. (1993), 116 N.S.R. (2d) 319 at page 322:
[10] The appellant faces an onerous double burden in appealing from the dismissal of an application to strike out the statement of claim, a serious matter that would result in the action being decided against the respondent plaintiffs without trial. A claim will be struck out only if, on its face, it is "absolutely unsustainable" (see Curry v. Dargie (1984), 62 N.S.R. (2d) 416; 136 A.P.R. 416 (A.D.) at p. 429) or "is certain to fail because it contains a radical defect". (See Hunt v. T & N plc et al., [1990] 2 S.C.R. 959, 43 C.P.C. (2d) 105, 4 C.C.L.T. (2d) 1; 117 N.R. 321, (sub nom. Hunt v. Carey Canada Inc.) [1990] 6 W.W.R. 385, 49 B.C.L.R. (2d) 273; 74 D.L.R. (4d) 321.) This court will not interfere with an interlocutory discretionary order unless wrong principles of law have been applied or a patent injustice would result (see Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143; 275 A.P.R. 143 (C.A.)).
[9] In dismissing the application Justice Wright relied upon this court’s decision in Lamey, supra. There, an appeal from a Chambers order denying an application to amend the Statement of Claim pursuant to Civil Procedure Rule 15.01 was allowed. This Court said in Lamey, Glube C.J. writing for the Court:
[16] It seems clear that Justice Wright embarked upon an exercise that is not contemplated by Civil Procedure Rule 15.01. He engaged in an extensive examination of the merits of the proposed amendment by examining the differing case law. The Chambers judge was presented with arguable and interesting interpretations of case law and statutes which should have been left to a trial judge to reach a decision based on the full merits and argument of the case. There were clearly arguments for and against the proposed claim. This should have resulted in a bare finding, which is all that is necessary, that the proposed amendment raised a justiciable issue. Justice Wright said in his decision:
Once again, there are conflicting views on whether or not loss of expectation of earning capacity should be treated as part of loss of expectation of life...
[17] This indicates there was a triable issue in the proposed amendment to the statement of claim. At that point, without determining the issue, the amendment should have been allowed. The provisions of Rule 15 have not been interpreted in this jurisdiction as authorizing a Chambers judge to embark upon an assessment of the merits of the issue.
[10] It was accepted in Lamey that the test for whether a proposed amendment raises a justiciable issue (Rule 15.01) is essentially the same as that applied in considering whether it discloses a reasonable cause of action (Rule 14.25(1)(a)) (Lamey at ¶ 20).
[11] The appellant cites Future Inns, supra, in support of its submission that Justice Wright applied the wrong test. There, the Chambers judge dismissed an application to strike a statement of claim pursuant to Civil Procedure Rule 14.25(1)(a). The action in question had been initiated against individual members of the Labour Relations Board alleging malice and bad faith in the conduct of a proceeding before the Board. In allowing the appeal, Pugsley J.A., writing for this Court, said:
[32] With respect, I am of the view that questions of law are appropriate for determination under Rule 14.25, in cases where the law is clear, and provided no further extrinsic evidence is required to resolve the issues raised.
(Emphasis added)
[12] This, says CGU, supports its submission that Justice Wright applied the wrong test on the application in that he was free to decide the question of law arising on the application. I disagree. The record reveals that Justice Wright was aware that he could, in appropriate circumstances, decide a question of law on an application pursuant to Civil Procedure Rule 14.25(1)(a). Crucial to the decision in Future Inns was this Court’s acceptance that the law in question was settled so that it could be said that the resolution of the point of law was “plain and obvious”, whereas the Chambers judge had thought it to be unclear. Pugsley J.A. wrote:
[55] Justice Tidman accepted the submission on behalf of Future Inns:
“...that in Canada the extent of the immunity of administrative boards and its members is as yet unclear. It appears also that the constitutional question posed by the respondents has not yet been clearly answered by the courts.”
[56] In the context of this case, where a specific statutory immunity has been conferred, in my opinion, the immunity of the Board members is clear respecting actions carried out in their capacity as Board members. The immunity is also clear respecting the actions of the Board when it acts in a Board capacity.
[13] A question of law may be determined on an application pursuant to Civil Procedure Rule 14.25, which was recognized by Justice Wright, but such should occur only where the law is so clear that it is plain and obvious. As noted by Freeman, J.A. in American Home, supra at ¶ 8, deciding a claim without trial is a serious matter which should occur only if the claim, on its face, is absolutely unsustainable. I am satisfied that Justice Wright applied the correct test in dismissing this application. He concluded that, while Mr. Noble’s claim seems unlikely to succeed, resolving it would require an interpretation of the Tortfeasors Act, R.S.N.S. 1989, c. 471, Civil Procedure Rule 17.02 and clause 5 of Section D of the Standard Automobile Policy for Nova Scotia. Counsel has not cited any case in this jurisdiction which has considered the interaction of these provisions. As in Lamey, supra, ¶ 9 above, “ The Chambers judge was presented with arguable and interesting interpretations of case law and statutes which should have been left to a trial judge to reach a decision based on the full merits and argument of the case”. Justice Wright did not err in concluding that the claim was not “unsustainable on its face”.
[14] While I would grant leave, I would dismiss the appeal. As neither party seeks costs, none will be ordered.
Bateman, J.A.
Concurred in:
Roscoe, J.A.
Saunders, J.A.