Ishtiaq Khawar v. Sultan Afzal, 2016 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: January 15, 2016 2016 SKPC 010 File: SC#654 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Ishtiaq Khawar and Sultan Afzal Proposed Plaintiff - and - Kristie Constantinoff and Saskatchewan Government Insurance Proposed Defendant Selves For the Plaintiff No one For the Defendants _____________________________________________________________________________ FIAT Q.D.

AGNEW , J _____________________________________________________________________________ [ 1 ] This matter came before me on December 16, 2015 pursuant to s. 7 of The Small Claims Act, 1997 , SS S-50.11. That

section requires that a draft claim be reviewed by a judge of this Court, who decides whether or not to issue a summons and thereby commence the actual claim process. Under subsection (1), the judge is to issue the summons if satisfied that “the plaintiff may have a valid claim”. Both subsections (3) and (3.1) refer to reasons for which the judge may refuse to issue a summons; from the wording, those reasons are not intended to limit the scope of “a valid claim” in subsection (1), but are exemplars added for clarity.

[ 2 ] According to the draft claim in the present matter, the proposed plaintiffs own and operate a taxi business together. It appears that their business is the sharing of a taxi, operating under the aegis of one of Saskatoon’s major taxi companies. It appears that the taxi was involved in an accident with a vehicle operated by the proposed defendant Kristie Constantinoff, as a result of which the plaintiffs allege they suffered certain losses, including loss of business.

The proposed action is to recover those losses. [ 3 ] The proposed defendant Saskatchewan Government Insurance (“SGI”) is referred to in several paragraphs in the draft claim. It is identified in paragraph 4. In paragraph 5, there is a reference to the proposed plaintiffs having filed a claim with SGI. Paragraph 6 states that SGI found Ms. Constantinoff responsible for the accident. Paragraph 13 states that SGI disallowed much of the proposed plaintiffs’ claim.

Paragraph 14 specifies the amounts the proposed plaintiffs are seeking and states, “[t]his represents the outstanding amount of days refused by [SGI] that the Defendant Kristie M Constantinoff is liable for.” [ 4 ] When this claim was placed before me, I made the following fiat: The claim will not issue in its present form. If SGI is being sued as the plaintiffs’ insurer, this needs to be stated and the basis for the claim against SGI clearly set out. If SGI is being sued as the defendant’s insurer, then it should not be a party to the action.

If there is some other basis for the claim against SGI, this must be clearly set out. [ 5 ] This matter has now returned to me on the basis of a letter from someone representing themselves “As Agent for the Plaintiffs”. The letter sets out my fiat as above, with the third sentence underlined.

The letter goes on to say, “[w]e have enquired with SGI Lawyer Lynn Barlage and she advised that SGI may be added as the defendants [sic] insurer as per section 45(1) of the Automobile Accident Insurance Act,” and quotes the said subsection. [ 6 ] Section 45(1) reads as follows: A person having a claim against an insured for which indemnity is provided by virtue of an owner ’ s certificate under this Part shall, notwithstanding that there is no contractual relationship with respect thereto between that person and the insurer, be entitled, upon recovering a judgment therefor against the insured, to have the insurance money payable under this Part applied in or towards satisfaction of his judgment and of any other judgments or claims against the insured covered by the indemnity and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied. [ 7 ] I take it from the underlining in my fiat that the above is intended to address the issue I outlined there, namely that SGI should not be a party if they are simply being sued as Ms.

Constantinoff’s insurer. [ 8 ] I of course do not know what communications the plaintiffs or their agent may have had with SGI, or what the context was of such communications, or the extent of the information set out by any side in such communications. [ 9 ] Section 45(1) was addressed by our Court of Queen’s Bench in 2010, in Saskatchewan Government Insurance v Anca . [1] The wording of the subsection as quoted in that case is identical to the wording above. [ 10 ] In Anca , one of the questions before the Court was whether or not there was a valid claim [2] against SGI.

In that sense, the issue was precisely the same as is before me now. The Court of Queen’s Bench, the decisions of which are binding on me, stated the following: It is established law in Saskatchewan as well as in other provinces of Canada that when there is legislation similar to s. 45(1) of the Act that the respondent must have a judgment against the insurer's insured (the other party to the accident) before she is able to bring an action against the insured's insurer (the appellant). [3]

[ 11 ] The Court accordingly held that s. 45(1) did not create a valid claim against SGI until a plaintiff had obtained a judgment against someone insured by SGI: it does not create the right to bring an action against both the insured and SGI simultaneously, based solely on SGI’s status as insurer of the proposed defendant. [ 12 ] I presume that this conclusion is the result of the wording of s. 45(1), specifically where it refers to the person having a claim against an insured, “upon recovering a judgment therefor against the insured,” being entitled to pursue an action against SGI.

There is a clear order of steps which is required: first, judgment against the insured (Ms. Constantinoff, in this case), and only then action against SGI. [ 13 ] My fiat of December 16, 2015 accordingly stands. ______________________________ Q. D. Agnew, J [1] 2010 SKQB 268 . [2] Or “cause of action”, as it was referred to in that case; “valid claim” is the wording in s. 7(1) of The Small Claims Act, 1997 . [3] Paragraph 4.