2014 ONSC 3303, 2014 ONSC 3303

Kelly v. Horn et al. [Indexed as: Kelly v. Horn] Ontario Reports Ontario Superior Court of Justice, Divisional Court, Marrocco A.C.J., Whitten and Thomas JJ. June 16, 2014 121 O.R. (3d) 60 | 2014 ONSC 3303 Case

Summary Actions — Bars — Res judicata — Plaintiff injured and vehicle damaged in motor vehicle accident in Alberta — Insurerbringing subrogated action in plaintiff's name but without his knowledge in Alberta for [page61 ]damage to vehicle andobtaining consent judgment which was fully satisfied — Plaintiff not precluded from bringing personal injury action in Ontario—

Section 546 of Insurance Act (Alberta) differentiating insurer's subrogated right of recovery for property damage fromplaintiff's right of recovery for personal injuries — Term implied into Alberta consent judgment that it was without prejudice toplaintiff's right to recover for personal injuries — Insurance Act, R.S.A. 2000, c. I-3, s. 546. The plaintiff was injured and the tractor-trailer which he was driving was damaged in a motor vehicle accident in Alberta.

The defendantinsurer paid the plaintiff for the damage to the tractor-trailer and then brought a subrogated action in Alberta in the plaintiff's name, butwithout his knowledge, to recover the amount it had paid the plaintiff. No statement of defence was filed, and a consent judgment wasgranted. The judgment was fully satisfied. The plaintiff commenced a personal injury action in Ontario against the at-fault driver (

H) andthe insurer. H brought a motion for

summary judgment, taking the position that the plaintiff was precluded from bringing a personalinjury action arising out of the same allegations of negligence and the same motor vehicle accident as that alleged in the concludedproperty damage action in Alberta. The motion was dismissed. H appealed. Held, the appeal should be dismissed.

Section 546 of the Insurance Act, R.S.A. 2000, c. I.3 makes it clear that the insurer's subrogated rights and the insured's personal rightsare statutorily distinct because release of one does not release the other. It was reasonable to read an implied term into the consentjudgment indicating that it was without prejudice to the plaintiff's right to recover for personal injuries. Arrow Transit Lines Ltd. v. Tank Truck Transport Ltd.; Joyce v. Tank Truck Transport Ltd., (ON SC), [1968] 1 O.R.154, [1967] O.J. No. 1103, 65 D.L.R. (2d) 683 (H.C.J.); Biafore v.

Bates-Pasis Leasing Inc. (1976), (ON SC), 11 O.R.(2d) 409, [1976] O.J. No. 2068, 66 D.L.R. (3d) 225, [1976] I.L.R. Â1-741 at 111 (Div. Ct.); Braithwaite v. Haugh (1978), (ON SC), 19 O.R. (2d) 288, [1978] O.J. No. 3306, 84 D.L.R. (3d) 590 (Co. Ct.); Cahoon v. Franks, (SCC), [1967]S.C.R. 455, [1967] S.C.J. No. 32, 63 D.L.R. (2d) 274, 60 W.W.R. 684; Cleveland v. Yukish, (ON SC), [1965] 2 O.R.497, [1965] O.J. No. 1001, 51 D.L.R. (2d) 208 (Co. Ct.); Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J.No. 46, 2001 SCC 44, 201 D.L.R. (4th) 193, 272 N.R. 1, J.E. 2001-1439, 149 O.A.C. 1, 34 Admin.

L.R. (3d) 163, 10 C.C.E.L. (3d) 1,[2001] CLLC Â210-033, 7 C.P.C. (5th) 199, 106 A.C.W.S. (3d) 460; Fortino v. Rudolph, [1982] O.J. No. 1415, 32 C.P.C. 315 (Div. Ct.)[Leave to appeal to C.A. dismissed [1983] O.J. No. 56 (C.A.)]; Gough v. Whyte, (NS SC), [1983] N.S.J. No. 42, 56N.S.R. (2d) 68, 32 C.P.C. 232, 117 A.P.R. 68, 19 A.C.W.S. (2d) 117 (S.C.T.D.); McCourt Cartage Ltd. (c.o.b. Laser Transport) v.Fleming Estate (Litigation Administrator of) (1997), (ON SC), 35 O.R. (3d) 795, [1997] O.J. No. 3933, 152 D.L.R.(4th) 179, 38 O.T.C. 230, 49 C.C.L.I. (2d) 88, [1998] I.L.R.

I-3496, 33 M.V.R. (3d) 32, 74 A.C.W.S. (3d) 268 (Gen. Div.); Trudel v.Seguin, [1998] O.J. No. 5187, 82 O.T.C. 270, 84 A.C.W.S. (3d) 563 (Gen. Div.); Vaughan v. Scott (1979), (ON SC),27 O.R. (2d) 560, [1979] O.J. No. 4518, 107 D.L.R. (3d) 153, 15 C.P.C. 219, 1 A.C.W.S. (2d) 24 (Co. Ct.), consd Other cases referred to

Beattie v. Munro , [1980] O.J. No. 2780 , 19 C.P.C. 303 , 3 A.C.W.S. (2d) 61 (Co. Ct.) ; Kelly v. Horn , [2013] O.J. No. 876 , 2013 ONSC 792 (S.C.J.) [page62 ] Statutes referred to Insurance Act , R.S.A. 2000, c. I-3, s. 546 [as am.], (1),

(6) Insurance Act , R.S.O. 1990, c. I.8 [as am.], ss. 240(1) , 278(1) APPEAL from an order dismissing a motion for

summary judgment. Edward V. Bergeron , for plaintiff/respondent. T. Kirk Boyd , for defendant/appellant Travis Horn. Stephanie Drisdelle , for defendant/respondent Markel Insurance Company. The judgment of the court was delivered by MARROCCO A.C.J. : — [ 1 ] On March 27, 2008 in Ponoka, Alberta, a vehicle operated by the defendant/appellant Travis Horn and owned by West Country Oil Field Ltd. and John Taylor collided with a tractor-trailer operated by the plaintiff/respondent, Noel Kelly.

The tractor-trailer was owned by Ultra Transportation Inc. [ 2 ] After conducting an investigation, Markel Insurance Company paid Noel Kelly for the damage to Ultra Transportation Inc.'s tractor- trailer.

The reason this payment was made to Noel Kelly and not to the owner of the tractor-trailer is not disclosed in the evidence before us. [ 3 ] In a letter dated September 8, 2009, a claim management company hired by Markel Insurance Company provided subrogation documentation, requesting a pre-litigation payment of $167,491 to Aviva Insurance, the liability insurer for West Country Oil Field Ltd., John Taylor and Travis Horn. [ 4 ] The subrogation documentation is not before this court. [ 5 ] Noel Kelly lived in Coburg, Ontario at the time of the accident.

After the accident he returned to Ontario and, on April 8, 2008, made a claim for accident benefits. In this claim, he authorized the release of medical information concerning his injuries to the defendant/respondent Markel Insurance Company.

He provided a complete copy of his accident benefits file to Markel Insurance Company on or about August 27, 2010. [ 6 ] Aviva Insurance did not pay Markel Insurance Company before the two-year limitation period in effect in the Province of Alberta, with the result that on March 23, 2010 Markel Insurance Company commenced an action to enforce its subrogated claim for damage to the tractor-trailer. It sued in the name of Noel Kelly for the amount it paid to Mr.

Kelly to compensate for the property damage to the tractor-trailer. [page63 ] [ 7 ] West Country Oil Field Ltd., John Taylor and Travis Horn retained counsel and their counsel advised counsel for Markel Insurance Company that they would pay the claim. No statement of defence was filed. Judgment was granted in the sum of $163,411.93. The judgment was fully satisfied on March 25, 2011.

A consent judgment signed by a judge of the Alberta Court of Queen's Bench was entered into on March 31, 2011 in Edmonton, Alberta. [ 8 ] Noel Kelly commenced a personal injury action against the defendants in Kingston, Ontario on March 23, 2010. The statement of claim was served on Travis Horn and Markel Insurance Company before the end of July 2010. As indicated, Markel Insurance Company consented to judgment in the property damage action in Edmonton on or about March 31, 2011. [ 9 ] We are satisfied that there was evidence from which it could be inferred that Markel Insurance Company was fully aware of Mr.

Kelly's personal injuries and his action for damages at the time it entered into the consent judgment in Alberta. [ 10 ] On July 19, 2011, the defendants made Noel Kelly aware that a judgment bearing his name existed in Alberta. This was the first time Mr. Kelly had heard about the Alberta legal proceeding. [ 11 ] Travis Horn brought a motion for

summary judgment in the personal injury action. His negligence was not in issue on that motion. On the motion, Mr. Horn took the position that Noel Kelly was precluded from bringing a personal injury action arising out of the same allegations of negligence and the same motor vehicle collision as that alleged in the concluded property damage action in Alberta. [ 12 ] Travis Horn's motion for

summary judgment was dismissed. The learned motion judge relied upon two decisions from Ontario.

[13] The first was Vaughan v. Scott (1979), (ON SC), 27 O.R. (2d) 560, [1979] O.J. No. 4518 (Co. Ct.). In this case,the plaintiff Gary Vaughan was involved in a motor vehicle accident with the defendant Andrew Scott. A claim was issued to recoverproperty damage to Mr. Vaughan's motor vehicle. The defendant failed to enter an appearance; there was judgment in favour of theplaintiff for property damage and costs. In fact, what had occurred was that shortly after the accident the solicitors for the plaintiff'sinsurers were instructed to bring a property damage action.

Unlike this case, the solicitors notified the plaintiff concerning theirinstructions and Mr. Vaughan [page64 ]advised that he had retained his own lawyer to deal with his personal injury claim. [14] Mr. Vaughan eventually sued claiming damages for personal injuries, pleadings were exchanged, examinations for discovery wereheld and the personal injury matter was set down for trial. On the date for trial, the defendant moved to dismiss the action as an abuse ofprocess. The defendant argued that there was only one cause of action arising out of the negligent driving and that it had been settled. [15] Mr.

Scott's motion to dismiss failed. Specifically, the court said, at para. 56: The Courts must recognize that in situations as in the case at bar there are in reality two plaintiffs.

First there is the party who has beeninjured who is on his own to claim compensation for pain and suffering and for certain special damages (subject to subrogation rights tosuch parties as the Ontario Hospital Insurance Plan) and there is a statutory or contractual plaintiff as the case of the insured herein whomay proceed on its own volition and initiative against the defendant with the statutory or contractual consent of the actual plaintiff downto judgment. [16] The second case relied upon by the learned motion judge was Braithwaite v. Haugh (1978), (ON SC), 19 O.R.(2d) 288, [1978] O.J. No. 3306 (Co. Ct.).

In this case, the plaintiff did not retain the solicitors in the property damage action and hadnothing to do with launching or prosecuting that claim, although he did testify in the insurer's action. Later, the plaintiff commenced anaction for personal injuries and while he was prosecuting that action it was brought to his attention that judgment had been obtained byhis insurers for the property damage loss.

The plaintiff successfully moved to set aside the property damage judgment obtained in hisname by his insurers and reopen the property damage judgment so that he could pursue his personal injury claim free from a defence ofestoppel or res judicata. [17] The learned motion judge also relied on the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc.,[2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44. Specifically, the court referred to para. 33 of the Supreme Court of Canadadecision, which provided as follows: The rules governing issue estoppel should not be mechanically applied.

The underlying purpose is to balance the public interest in thefinality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. . . . The first step is todetermine whether the moving party . . . has established the preconditions to the operation of issue estoppel . . .

If successful, the courtmust still determine whether, as a matter of discretion, issue estoppel ought to be applied. (Citations omitted) [page65 ] [18] The learned motion judge then performed the balancing described in Danyluk and set out the considerations upon which his exerciseof discretion would be based. Specifically, the motion judge took into account the following factors in coming to a decision: -- Mr. Kelly was unable to raise the issue concerning his personal injuries in the Alberta action brought by his insurerbecause he did not know about it. -- Mr.

Kelly's Ontario litigation did not contain allegations inconsistent with the factual allegations in the Albertaaction so there was no likelihood of inconsistent judgments. -- There was no attempt in the Ontario action to rely on the facts which could have been discovered with reasonablediligence and introduced into the Alberta proceeding. -- Mr.

Kelly's Ontario action was not an attempt to impose a new legal conception on the Alberta proceeding, nor wasit an attempt to relitigate to secure a more favorable result in respect of the same issues. [19] After considering these factors, the learned motion judge determined that if action or issue estoppel was available to Travis Horn, hewould exercise his discretion and decline to apply it. [20] Travis Horn filed a successful application for leave to appeal: see Kelly v. Horn, [2013] O.J.

No. 876, 2013 ONSC 792 (S.C.J.).Leave was granted because the court granting leave decided that there are conflicting decisions in Ontario and at least Alberta on thequestion of whether one wrong may generate more than one cause of action. [21] We are confronted by two alternatives: mechanistically apply the notion that one wrong may not generate more than one cause ofaction and create the result that Mr.

Kelly's personal injury claim was extinguished by settlement of a property damage claim he knewnothing about, or apply the notion that one wrong may not generate more than one cause of action in a way which permits Mr. Kelly'spersonal injury claim to proceed.

[22] We have decided to dismiss this appeal. [23] The authority for the principle that one wrong may not generate more than one cause of action is Cahoon v. Franks, (SCC), [1967] S.C.R. 455, [1967] S.C.J. No. 32, although some context is necessary to appreciate what that case decided. Mr. Frankswas sitting in a car that was lawfully parked when Mr. Cahoon [page66 ]crashed his car into Mr. Franks' car. Mr. Franks commenced anaction claiming only damages to his car. Sometime later, Mr. Franks obtained an order giving him leave to amend his claim to include aclaim for personal injuries.

He then obtained a further order amending his claim to include damages due to a concussion and injuries tohis spinal cord which left him totally disabled. Mr. Cahoon objected to the amendments because they were made after the expiration ofthe applicable limitation period. Mr. Cahoon argued that the amendments raised a new cause of action that was barred due to the passageof time. The Supreme Court of Canada ruled that the amendments did not set up a new cause of action. The court held that a tort causingboth injury to the person and injury to property did not create two causes of action. This ruling permitted Mr.

Franks to proceed with hisclaim for damages. [24] Cahoon v. Franks did not deal with the effect of Mr. Franks' insurer settling his subrogated property damage claim on Mr. Franks'subsequent pursuit of his personal injury claim. [25] In Beattie v. Munro, [1980] O.J. No. 2780, 19 C.P.C. 303 (Co. Ct.), OHIP commenced a subrogated action in the name of theplaintiff seeking to recover costs associated with the plaintiff's lengthy stay in hospital after a motor vehicle accident.

The actual plaintiffsuccessfully sought to amend the subrogated OHIP claim to seek damages for personal injuries after the limitation period had expired.This case is entirely consistent with Cahoon v. Franks. [26] In Arrow Transit Lines Ltd. v. Tank Truck Transport Ltd.; Joyce v. Tank Truck Transport Ltd., (ON SC), [1968] 1O.R. 154, [1967] O.J. No. 1103 (H.C.J.), the court permitted both a property damage claim brought by the plaintiff's insurer and apersonal injury claim brought by the actual plaintiff to proceed despite the court's opposition to a multiplicity of actions concerning thesame matter.

The court ordered that the actions be tried at the same time. We adopt the following statement by Mr. Justice Wilson, at p.156 O.R.: [T]he Court must endeavour to prevent an injustice being done by dismissing an action so as to deprive a party who has a proper cause ofaction from recovering. Factually this case is quite different from the one with which we are concerned. It simply demonstrates the court's unwillingness tounfairly deprive a party of access to the administration of justice. [page67 ] [27] In Gough v. Whyte, (NS SC), [1983] N.S.J.

No. 42, 56 N.S.R. (2d) 68 (S.C.T.D.), after a motor vehicle accidentthe plaintiff successfully sued in Small Claims Court to recover his deductible. His insurer had no knowledge of the Small Claims Courtaction. When the insurer commenced a subrogated claim to recover the property damage payment it had made to its insured, thedefendant unsuccessfully moved to stay the action based on the Small Claims Court judgment. The court found that it was not contrary topublic policy to permit the insurer's property damage claim to proceed.

The court found there was no hardship to the defendant becausethe defendant knew about the subrogated property damage claim prior to the Small Claims Court action and, as a result, would suffer noprejudice if the property damage claim proceeded. This case provides an illustration of a court resolving the question on the basis ofprejudice rather than the mechanical application of the rule. [28] The appellant relied upon the case of Cleveland v. Yukish, (ON SC), [1965] 2 O.R. 497, [1965] O.J. No. 1001 (Co.Ct.).

We view this case as authority for the proposition that, where the plaintiff insured and the plaintiff insurer maintain separate actionsfor personal injuries and property damage, both claims must proceed in one action. It is not helpful for resolving the issue before us. [29] The appellant also relied upon Fortino v. Rudolph, [1982] O.J. No. 1415, 32 C.P.C. 315 (Div. Ct.). In that case, the insurers of theplaintiff commenced an action for the recovery of property damage and the solicitors for the insurer included a claim for damages for therental of a car, which was a claim on behalf of the actual plaintiff.

There was apparently judgment in respect of the property damageclaim only. The court held that the entire cause of action was merged in the judgment and refused to permit the actual plaintiff tosubsequently continue with car rental claim. In this case, the judgment was in the very same action as the claim which the plaintiffsought to pursue, which is quite different from the case before us. This decision was unsuccessfully appealed to the Court of Appeal,which declined to express an opinion on the correctness or otherwise of Vaughan v. Scott: see [1983] O.J.

No. 56 (C.A.). [30] The appellant also relied on McCourt Cartage Ltd. (c.o.b. Laser Transport) v. Fleming Estate (Litigation Administrator of) (1997), (ON SC), 35 O.R. (3d) 795, [1997] O.J. No. 3933 (Gen. Div.). In that case, the court held, among other things, thatthe insurer's right of subrogation is derivative of and dependent upon the claim of the insured. The court held, at para. 6, that theinsured's right to bring an action was the foundation of the [page68 ]insurer's right to bring a subrogated action.

The court noted that, atcommon law, an insurer's right to bring a subrogated action was derivative of and dependent upon the existence of the insured's cause ofaction. Subrogation operates where the insured has a legally enforceable right against a party other than the insurer to recover the loss.Accordingly, where the insured's right to bring an action ceases to exist, the insurer's subrogated right to bring the same action ceases toexist. What is suggested in this case is a reversal of that principle -- namely, that when Markel Insurance Company's subrogated actionceased to exist, Mr.

Kelly's claim for personal injuries ceased to exist. [31] The court in McCourt Cartage Ltd. also held that the statement by Smith Co. Ct. J. in Braithwaite v. Haugh to the effect that theInsurance Act, R.S.O. 1990, c. I.8 in Ontario created two causes of action was tentative, obiter and not required to justify the remedysought in that case, namely, setting aside the default judgment obtained by the insurer to make certain that the insured could proceedwith his claim unhindered by the principal of res judicata. [32] The appellant also relied upon Trudel v. Seguin, [1998] O.J. No. 5187, 82 O.T.C. 270 (Gen. Div.).

In this case, the plaintiff, Mr.Trudel, was involved in a motor vehicle accident with the defendant that resulted in damage to the plaintiff's motor vehicle. The plaintiffsubmitted proof of loss to his insurers and the insurers paid him the amount of his loss. The insurers commenced a subrogated actionagainst Mr. Seguin in the Small Claims Court and recovered default judgment. Seguin settled the default judgment. Trudel then sued

Seguin for personal injuries arising from the motor vehicle accident. Trudel was able to also sue his own insurer pursuant to theuninsured motorist provisions in his policy because Mr. Seguin was uninsured. [33] Seguin successfully moved to dismiss the personal injury claim against him. [34] The court ruled that the subrogated claim was entirely the insurer's claim. The court ruled that the insurer should have consultedwith Mr. Trudel before proceeding with the subrogated claim to determine whether Mr. Trudel intended to advance a claim for personalinjuries. The court ruled that dismissing Mr.

Trudel's claim against the uninsured defendant Seguin did not prejudice Mr. Trudel becausehe had also sued his insurer pursuant to the uninsured motorist provisions in his policy. The court dismissed Mr. Trudel's claim against[page69 ]Mr. Seguin ruling there was only one cause of action and that it had merged in the Small Claims Court judgment. This case isan example of the court enforcing the one cause of the action principle where there is no prejudice to the plaintiff. There clearly isprejudice to the plaintiff in the case before us because Mr. Kelley's personal injury claim is extinguished if Mr.

Horn's appeal succeeds. [35] The court in Trudel v. Seguin doubted the correctness of Vaughan v. Scott and preferred, at para. 12, the following statement of theDivisional Court in Fortino v. Rudolph: While it might seem that the interests of justice and equity require that the action of [the plaintiff] be permitted to continue, these must beweighed against the interest of our courts in matters being finally determined and the fundamental principle that causes of action mergein judgments. [36] Markel Insurance Company proceeded in Mr.

Kelly's name in Alberta pursuant to s. 546(1) of Alberta's Insurance Act, R.S.A. 2000,c.

I-3, which provides that 546(1) . . . an insurer that makes any payment or assumes liability for making any payment under a contract is subrogated to all rights ofrecovery of the insured against any person and may bring an action in the name of the insured to enforce those rights. [37] Subsection 546(6) provides: 546(6) A settlement or release given before or after an action is brought does not bar the rights of the insured or the insurer unless theyhave concurred in the settlement or release. (Emphasis added) This subsection makes clear that the insurer's subrogated rights and the insured's personal rights are statutorily distinct because release ofone does not release the other. [38] The equivalent

section in the Ontario Insurance Act, namely, s. 278(1), was considered by the Divisional Court in Biafore v. Bates-Pasis Leasing Inc. (1976), (ON SC), 11 O.R. (2d) 409, [1976] O.J. No. 2068 (Div. Ct.). The court held that theprovision (at that time s. 240(1)) meant an insurer's right of subrogation could not be defeated by the insured's valid release in favour ofthe defendant after the defendant had paid a deductible.

Working in reverse, the principle here would suggest the insurer's release in thesubrogated action does not defeat the insured's rights not settled in that action. [39] It is common ground that the payment made to Mr. Kelly by Markel Insurance Company under the contract of insurance was forproperty damage to the tractor-trailer. Accordingly, pursuant to s. 546 of the Alberta legislation, [page70 ]Markel Insurance Companywas subrogated to Mr. Kelly's rights to recover for property damage to the tractor-trailer. No one suggested that, because it reimbursedMr.

Kelly for his property damage, Markel Insurance Company was subrogated to Mr. Kelly's personal right to recover damages for hispersonal injuries. There would be no rational justification for this because the payment made to Mr. Kelly was only in respect of theproperty damage. The rational conclusion is that the Alberta proceeding in Mr. Kelly's name enforced Markel Insurance Company'ssubrogated right to compensation from Mr. Horn for property damage to the tractor-trailer. [40] This view is consistent with the satisfaction piece dated April 5, 2011 and filed with the Alberta Court of Queen's Bench.

It providesthat the plaintiffs "acknowledge satisfaction in full of its claim against the defendants" (emphasis added). The satisfaction piecereferences court file claim number 100304813, which is the court file number of the property damage claim. [41] The consent judgment of course references the same court file number and was also filed on April 5, 2011. It simply provides that "[t]he plaintiffs are hereby granted judgment against the defendants West Country Oilfield Ltd., John Taylor also known as Jack Taylorand Travis Horn in the sum of $163,411.93". Mr.

Kelly's personal injury claim was outstanding when the satisfaction piece and consentjudgment were executed in March 2011. Service of the personal injury claim on the defendants occurred in July 2010. We think it ismore reasonable to read an implied term into the consent judgment indicating that it is without prejudice to Mr. Kelly's right to recoverfor personal injuries. We recognize that we are dealing with a court judgment but, in fact, it is a consent judgment implementing theparties' settlement of the property damage claim and it was obtained without a defence being filed.

The consent judgment in this case is adevice effecting and recording a settlement. It is not a judgment rendered after a trial on the merits. [42] Moreover, implying such a term makes the consent judgment settlement procedure used in this case consistent with the settlementand release procedures provided for in s. 546(6) of the Alberta Insurance Act and described above. [43] Implying such a term in the consent judgment is also consistent with Markel Insurance Company's position in this appeal. Counselfor Markel offered legal arguments urging dismissal of Mr.

Horn's appeal both in its factum and oral submissions. [page71 ] [44] It is true that Mr. Kelly received accident benefits payments in Ontario. However, the insurance regimes in Alberta and Ontario aredifferent. It is not rational to draw any conclusion concerning the nature of Markel Insurance Company's subrogated interest in theAlberta proceeding from the fact that Mr. Kelly received accident benefits payments in Ontario.

[ 45 ] We are satisfied that, for purposes of the law of Ontario, s. 546 of the Insurance Act in Alberta, in the factual context with which we are concerned, differentiates Markel Insurance Company's subrogated right of recovery for property damage from Mr. Kelly's personal right of recovery for personal injuries. We are satisfied that, if it is necessary, a term should be implied into the consent judgment to preserve Mr. Kelly's right to recover for personal injuries.

This accurately interprets the consent judgment settlement procedure used in the Alberta action. [ 46 ] As a result, resolution of the property damage action in Alberta did not compromise Mr. Kelly's personal right of recovery for personal injuries. [ 47 ] If we are wrong, we see no basis to interfere with the motion judge's refusal to stay Mr. Kelly's personal injury action.

Cause of action estoppel and issue estoppel are two doctrinal branches of estoppel res judicatem which, despite its common law roots, is nonetheless a discretionary implement of justice designed to protect against injustice: see Danyluk , at paras. 20 and 63 . We are satisfied that the motion judge identified the appropriate considerations upon which to exercise his discretion and we decline to substitute our discretion for his.

Although unnecessary for our conclusion in this regard, we also agree with his decision. [ 48 ] This appeal is dismissed. [ 49 ] We view the issue in this appeal as novel and, accordingly, there will be no order for costs. Appeal dismissed. End of Document