Date: 20090619
Docket: 09-A-14
Citation: 2009 FCA 209
Present: PELLETIER
J.A.
BETWEEN:
HODDER TUGBOAT CO. LTD.
Plaintiff
and
JJM CONSTRUCTION LTD., TEXADA QUARRYING
LTD.,
PACIFIC TOWING SERVICES LTD., Owners and
All Others Interested in
The Ship, The “PACIFIC MARINER II”
Defendants
REASONS FOR ORDER
PELLETIER J.A.
[1]
On or
before September 8, 2006, Hodder Tugboat Co. Ltd. (Hodder) entered into charter
agreements by which JJM Construction Ltd. (JJM) chartered two barges, NA 194
and NA 195, from Hodder on the terms and conditions set out in the charter
agreements.
[2]
While the
barges were in JJM’s service, they were loaded with a cargo of rock by Texada
Quarrying Ltd. (Texada) and were towed from Texada’s loading facility to JJM’s
construction site at False Creek in Vancouver
by the vessel “Pacific Mariner II” owned by Pacific Towing Service Ltd.
(Pacific). Unfortunately for all concerned, one barge capsized en route and the
other ran aground, sank and rolled in False Creek.
[3]
Both
barges were insured under a hull and machinery policy of insurance, as well as
protection and indemnity insurance, taken out by JJM in which Hodder was also
named as an insured.
[4]
The
insurer made certain payments under the hull and machinery policy to Hodder and
received from Hodder an executed Subrogation Receipt and Release. It appears
that Hodder has losses for which it was not indemnified by the insurer.
[5]
Exercising
its right of subrogation, Hodder’s insurer, Navigator’s Insurance (Navigator),
instructed its solicitors to commence a subrogated action in the name of Hodder
and JJM against Texada, Pacific and all others interested in the ship Pacific
Mariner II. That action is action T-1908-07 (the 07 action). Subsequently,
Hodder, using its own solicitors, commenced its own action against JJM, Texada,
Pacific and all others interested in the ship Pacific Mariner II. This action
is action T-1656-08 (the 08 action).
[6]
Confronted
by two actions containing essentially the same allegations of tortuous conduct,
Texada and Pacific brought motions to strike the claim against them in the 08
action on the grounds that the pleadings were scandalous, frivolous or
vexatious or were otherwise an abuse of process, given the existence of the
same allegations against them in the earlier 07 action. Counsel for the
insurers asked for and were granted leave to appear at the hearing of the
motion. The motions judge disposed of the motion by making the following order:
1-
Counsel
for Hodder in the 08 action and counsel for the plaintiffs in the 07 action co-operate
to achieve the restructuring of the two actions in such a manner that the
plaintiff in the 07 action becomes JJM pursuing its subrogated and uninsured
claims and the defendants remain Pacific and Texada, and the Plaintiff in the
08 action remain Hodder pursuing both the subrogated and the uninsured
claims against JJM, Pacific and Texada.
2-
Both the
07 and the 08 actions shall continue as a specially managed proceeding.
3-
The 07 and
the 08 actions shall be heard together, but not consolidated.
4-
JJM in the
08 action has leave of the Court to issue third party notices to Pacific and
Texada.
5-
A copy of
this order shall be placed in Court file T-1908-07.
6-
Upon the
performance of steps 1 to 4 above, the motions by Texada and by Pacific to
strike the defendants in the 08 action are dismissed without costs.
[7]
Counsel
instructed by Navigator sought an order in the Federal Court granting it
standing to appeal the decision. I presume that this was done because counsel instructed
by Navigator viewed their client as an intervenor in the motion before the
Federal Court and as such it would not have a right of appeal unless that right
was granted to it by the Federal Court. At the same time, counsel sought from
the Federal Court an extension of time to file their notice of appeal.
[8]
The
difficulty in all of this is that Navigator is not a party to the proceedings.
It simply stands in the shoes of its insureds Hodder and JJM, who are already
parties to the 07 action. Thus, the Court is faced with an application by
Hodder and JJM to be granted intervenor status so as to appeal a decision in
which they are parties. It is obvious that Navigator’s interests, as a
subrogating insurer, are not necessarily identical to those of its insureds,
particularly when:
a)
one of the
named insureds has suffered losses for which Navigator has not indemnified it;
and
b)
that
insured seeks to recover those losses from the other named insured, who is
insured against legal liability by Navigator.
[9]
I am not called
upon to decide the propriety of the way in which the various parties have
positioned themselves in this dispute. I am however asked to treat Hodder and
JJM as represented by counsel instructed by Navigator as different legal
entities than Hodder and JJM as represented by counsel of their choice. I
suspect that a good deal of the law of subrogation stands against that
proposition. That said, the Federal Court has allowed it and the question is
whether they should be allowed to appeal an order made following a hearing at
which they were given the right to be heard and which, on the face of it,
affects their interests.
[10]
For the
purposes of this appeal only, it seems to me that Navigator should be allowed
to speak in its own name rather than in the name of its insureds. To hold
otherwise is to create a style of cause which will be confusing to all. The
question of intervener status ought to have been dealt with by the Federal
Court but given that this question is now before this Court, I see no advantage
in sending the matter back to the Federal Court for a decision on that issue. I
will grant Navigator Insurance, in its own name, intervenor status with the
right to appeal the decision of the Federal Court. The time for filing a notice
of appeal from the decision of the Federal Court is extended, for all parties,
to the day that is 15 days after the issuance of this order. Given that none of
this procedural complexity can be attributed to Texada and Pacific, they are
entitled to the costs of this motion in any event of the cause.
"J.D.
Denis Pelletier"
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