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CIVIL PROCEDURE - Third party procedure - Availability

Friday, July 26, 2019 @ 6:03 AM  


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Appeal by the defendant insurer from the dismissal of its third party claim against the plaintiffs’ lawyers. The plaintiffs sued the appellant for failing to preserve the car the plaintiff husband was driving when he was seriously injured in a motor vehicle accident. They alleged the failure to preserve the vehicle might impair their ability to prove their case in a separate personal injury action. The appellant brought third party proceedings for contribution and indemnity against the plaintiffs’ lawyers alleging they breached their duty to the plaintiffs to see that evidence necessary for their personal injury action was preserved. The motion judge held that because the allegations in the third party claim related to conduct falling within the scope of the lawyers’ retainer by the plaintiffs, it was conduct that was attributable in law to the plaintiffs and could be raised in the appellant’s defence.

HELD: Appeal dismissed. There was no pleaded negligence that arose from acts outside of the lawyers’ retainer. The alleged negligence of the lawyers was negligence attributable to the plaintiffs, could be raised by the appellant to obtain a reduction of the plaintiffs’ claim and could not support a third party claim. It was plain and obvious the third party claim disclosed no reasonable cause of action. It had no reasonable prospect of success and was properly struck.

Hengeveld v. Personal Insurance Co., [2019] O.J. No. 3150, Ontario Court of Appeal, A. Hoy A.C.J.O., P.D. Lauwers and B. Zarnett JJ.A., June 17, 2019. Digest No. TLD-July222019013