ROBIN JAMES GOERTZ Applicant - v. -, 2023 SKKB 95

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 95 Date: 2023 05 04 Docket: QBG-SA-00384-2017 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: ROBIN JAMES GOERTZ Applicant - and - THE OWNERS OF CONDOMINIUM PLAN NO. 98SA12401 Respondent Counsel: E.F. Anthony Merchant, K.C. for the applicant Eric J. Mager for the respondent ___________________________________________________________________________ DECISION SCHERMAN J.

May 4, 2023 ___________________________________________________________________________ Introduction [1] In a judgment of May 12, 2017 (Goertz v Owners of Condominium Plan No. 98SA12401, 2017 SKQB 135), Idismissed various claims Robin James Goertz made against The Owners of Condominium Plan No. 98SA12401 [Condo Corp] andawarded solicitor-client costs of the proceeding against Mr. Goertz in favour of the Condo Corp. That decision, including the award ofsolicitor-client costs, was appealed by Mr.

Goertz to the Court of Appeal, which dismissed the appeals (Goertz v The Owners ofCondominium Plan No. 98SA12401, 2018 SKCA 41, [2018] 12 WWR 195). Mr. Goertz sought leave to appeal to the Supreme Court ofCanada which leave was denied ( ). The matter is now before me by way of the Condo Corp’s application to assessthe solicitor-client costs of the proceedings. The Issues [2] Notwithstanding the fact that there is an extant judgment of this Court that awards the Condo Corpsolicitor-client costs to be assessed, Mr.

Goertz opposes any assessment of those costs taking the positions that: a. the Condo Corp has already been fully indemnified in respect of the solicitor-client costs of the proceedings by the insurer of theCondo Corp; b. Mr.

Goertz is also an “insured” under the Policy of Insurance [Policy] and, thus, the insurer’s payments to the Condo Corp must beviewed as also being made on his account and the insurer cannot have subrogation rights against its own insured; c. the Policy provides a waiver of subrogation rights against him as an owner of units within the Condo Corp; d. even if the insurer has a right of subrogation: i. the Condo Corp has admitted this is not a subrogation claim; and ii. the proper procedure to make a subrogation claim has not been followed by the insurer, and it is out of time to bring such a claim; e. even if Mr.

Goertz is not an insured under the Policy, to permit this assessment would provide the Condo Corp double recovery. [3] The Condo Corp takes the following positions in opposition to Mr. Goertz: a. Mr. Goertz is not an insured under the Policy and the payments made by the insurer to the Condo Corp’s lawyers pursuant to itsobligation to provide a defence are not payments Mr. Goertz can claim the benefit of; b. the insurer has a clear right of subrogation against Mr. Goertz which has not been waived;

c. the Condo Corp has not made an admission that the assessment it is seeking is not in relation to the insurer’s subrogation rights; d. the application for assessment of solicitor-client costs brought in the name of the Condo Corp is a proper procedure to pursue a subrogation claim and was made to enforce the insurer’s subrogation rights; e. the Condo Corp will have to account to the insurer for all monies received pursuant to the requested assessment of solicitor-client costs and, thus, there cannot and will not be double recovery; and f. I am functus in respect of the positions Mr. Goertz takes.

The award of solicitor-client costs has been made and upheld by the Court of Appeal. The positions advanced by Mr. Goertz are simply an impermissible collateral attack on an extant valid judgment. Analysis of the Issues a. Is Mr. Goertz an insured under the Policy such that payments made by the insurer to reimburse the Condo Corp for solicitor-client costs incurred are payments Mr. Goertz can claim the benefit of? [ 4 ] Whether Mr. Goertz is an insured under the Policy must be determined by the terms of the Policy of Insurance.

I find the Policy of Insurance in effect at the time this proceeding was commenced is the Policy exhibited as Exhibit “A” to the affidavit of Rob Svoboda sworn April 12, 2021, and, in particular, the Riders Nos. 40000 Commercial General Liability Policy and 10214 Directors and Officers Liability listed on the Declarations page of Policy No. 0188421CL01 in effect for the policy period November 1, 2016, to November 1, 2017. [ 5 ] In his affidavit sworn April 19, 2023, Mr.

Goertz falsely swears that the insurer waived its rights of subrogation against the Unit Owners of the Corporation, relying upon language contained in Rider No. 10474 exhibited to his affidavit. It is clear from the Declarations page of Policy No. 0188421CL01, referenced in the paragraph above, that Rider No. 10474 was not part of the Policy in effect for the period November 1, 2016, to November 1, 2017. This is confirmed by Exhibit “B” to Mr. Goertz’s own affidavit sworn October 15, 2019. In this affidavit, Mr. Goertz states that Exhibit “B” is a copy of Policy No. 0188421CL01 in effect for the C ondo C orp.

Examining the Declarations page of that exhibited Policy, it is clear that the Policy was a renewal for the period November 1, 2018, to November 1, 2019, of the Policy in effect for the period November 1, 2016, to November 1, 2017. Significantly Rider No. 10474, claimed by Mr.

Goertz to be part of the Policy, is not referenced in the Policy for this period either. [ 6 ] Based on the evidence filed, I find, as stated above, that the Policy of Insurance in effect at the time this proceeding commenced was the Policy exhibited as Exhibit “A” to the affidavit of Rob Svoboda sworn April 12, 2021, and, in particular, the Riders No. 40000 Commercial General Liability Policy and 10214 Directors and Officers Liability listed on the Declarations page of Policy No. 0188421CL01 for the Policy Period November 1, 2016, to November 1, 2017. [ 7 ] This proceeding was commenced by Mr.

Goertz on March 15, 2017, by an originating application. In that originating application. Mr. Goertz sought, inter alia , a declaration that certain bylaws passed by the C ondo C orp were ultra vires , that he was not in arrears of payment of condominium contributions, that he be allowed to vote and attend at annual general meetings and that the C ondo C orp cease oppressive conduct against him. These issues were at the core of the proceedings then before me and in Mr.

Goertz’s subsequent appeal of my decision to the Court of Appeal. [ 8 ] Because these issues engaged the general commercial liability and directors’ and the officers’ liability insured by the Policy, the insurer had an obligation to provide a defence for the C ondo C orp and, thus, it paid the fees of the lawyers defending the C ondo C orp in the application brought by Mr. Goertz. [ 9 ] Rider No. 40000, the Commercial General Liability Policy, creates an obligation by the insurer to defend actions against the C ondo C orp and expressly defines who is an insured for the purposes of that Policy.

The definition of “Who is an Insured” does not include unit owners like Mr. Goertz, with one very narrow exception found in

Section II(2)(

e) where it provides that insureds include “Your unit or strata lot owners and any tenants, but only with respect to the conduct of the corporation for liability arising out of the common property.” The Condominium Property Act, 1993 , SS 1993, c C-26.1 , defines “common property” in s. 2 (

h) as meaning “ the part of the land and buildings included in a condominium plan that is not included in any unit shown in the condominium plan”. While counsel for Mr. Goertz strenuously insisted that common property includes everything in any way connected to the C ondo C orp, including its governing bylaws, t his proceeding and the relief sought herein by Mr. Goertz is patently not relief for liability arising out of the common property. [ 10 ] Rider No. 10214, the Directors & Officers Liability coverage, has no language that makes unit owners insureds for the coverage it provides.

There is nothing in this Rider pursuant which Mr. Goertz can claim to be an insured for the coverage provided. [ 11 ] Counsel for Mr. Goertz argued that quite apart from the language of the various Policy riders, as an owner of units in the C ondo C orp, Mr. Goertz is effectively an insured under the Policy because the Policy would cover loss or damage to his units. If and to the extent that unit owners may view themselves as insured by the C ondo C orp’s Policy, the insurance coverage in respect of units is clearly limited to fortuitous or negligent loss or damage of the units.

It is a basic concept of insurance law that even named insured are not covered for loss or damage caused by their intentional actions. [ 12 ] Property insurance, indeed, all types of insurance coverage, is directed at indemnifying against fortuitous or negligently caused loss or damage. Insurers do not insure for losses covered by the intentional actions of an insured.

There is no basis in law or otherwise to advance the proposition that insurance of the nature here in issue provides coverage for liability for the consequences of intentional acts. [ 13 ] Since the Policy in effect and insurance policies generally do not provide coverage loss or damage caused by intentional acts, there is no basis on which the status of being an insured for the intentionally caused loss or damage can ever be claimed. Mr. Goertz’s proceedings against the C ondo C orp were an intentional act, and there is no basis in the Policy language or under insurance

law that he can claim to be an insured in respect of the loss or damage he occasioned. The arguments advanced by counsel in this and other respects simply ignore basic principles of insurance law and the provisions of the Policy in effect. [ 14 ] For the above reasons, I find that Mr. Goertz is not an insured under the Policy. Accordingly, the payments made by the insurer to reimburse the C ondo C orp for solicitor-client costs incurred in defending Mr. Goertz’s claims are not payments Mr. Goertz can claim as having been paid on his behalf as an insured under the Policy. b.

Has the insurer waived any subrogation rights it has against Mr. Goertz? [ 15 ] Mr. Goertz ’s position that the insurer has waived subrogation rights against him is based on the propositions that: a. it is a principle of insurance law that an insurer may not subrogate against its own insured; and b. the language of Rider No. 10474 provides an express waiver of the insurer’s rights of unit owners. [ 16 ] It is a principle of insurance law that an insurer may not subrogate against its own insured in respect of an insured loss. However, I have found that Mr.

Goertz was not an insured and, thus, this principle is inapplicable. I have found above that Rider No. 10474 is not a part of the Policy. There simply is no basis in the evidence presented on which a waiver of subrogation rights has been established. Accordingly, it follows that there is no basis in law or in fact for Mr. Goertz ’s position that there has been a waiver by the insurer in respect of its rights of subrogation against him. c. Has the C ondo C orp made an admission that its claim for assessment of solicitor-client costs is not a subrogation claim? [ 17 ] In support of this ground, Mr.

Goertz , in his affidavit sworn April 19, 2023, attaches as Exhibit “A” a copy of a November 29, 2022, letter of Mr. Mager, counsel for the C ondo C orp , to Mr. Merchant wherein he states: Re: Goertz v. The Owners: Condominium Corporation No 98S12401 [ sic ] Further to the above-noted matter and my letter of November 23, 2022, please be advised that I have spoken to my clients with respect to the issues raised in your letter of October 26, 2022.

While this matter is not a subrogated claim, the legal costs have been paid by the insurer and are being sought for recovery on their behalf. [ 18 ] Isolating the words “this matter is not a subrogated claim”, Mr. Merchant argues this is an admission of a fact and, therefore, neither the C ondo C orp nor the insurer can take the position that the assessment of costs now sought is in relation to the insurer’s subrogation rights. Proceeding from this, he then argues that to permit the C ondo C orp to receive solicitor-client costs from him would constitute double recovery.

I do not accept the submission that these words are the admission argued by Mr. Merchant. [ 19 ] The words “this matter” grammatically and reasonably can be interpreted as a reference to the proceedings “Goertz v The Owners: Condominium Corporation No. 98S12401 [ sic ]”. The matters at issue therein were not a subrogated claim by either the C ondo C orp or the insurer against Mr. Goertz. It was, instead, the noted claims of Mr.

Goertz against the C ondo C orp, which claims were defended by the C ondo C orp. [ 20 ] While the letter was written following the C ondo C orp’s application for assessment of security of costs, it would not be proper or reasonable to conclude that the relied-upon words should be treated as an admission that the application for assessment of solicitor-client costs sought was not in connection with the insured’s subrogation rights.

The following words “the legal costs have been paid by the insurer and are being sought for recovery on their behalf” make it abundantly clear that the purpose of the assessment being sought was to fix what the quantum of entitlement to solicitor-client costs is and that the assessment was being sought in relation to the subrogation rights of the insurer. Accordingly, I find that there has been no admission that the assessment of the solicitor-client costs application is not a part of a subrogation claim. d.

Is the application for assessment of solicitor-client costs brought in the name of the Condo Corp a proper procedure to pursue a subrogation claim and was it made to enforce the insurer’s subrogation rights? [ 21 ] Mr. Merchant advanced the argument that a subrogation claim can only be advanced by the insurer commencing a separate action pursuing its subrogation claim and that such an action must be commenced within the applicable limitation period, neither of which he argues has happened.

He makes this argument relying upon the Court of Appeal’s decision in Insurance Company of the State of Pennsylvania v Cameco Corporation , 2010 SKCA 95 , [2010] 10 WWR 385 [ Pennsylvania ] . In my opinion, the argument advanced and the conclusions Mr.

Merchant advances are wrong and demonstrate a profound misunderstanding or misstatement of what the law with respect to subrogation is. [ 22 ] Barbara Billingsley, General Principles of Canadian Insurance Law , 2d ed (Markham, Ont: LexisNexis, 2014), provides a thorough review of Canadian law respecting the principles and practice with respect to subrogation claims. Commencing at page 343, the learned author states, inter alia , as follows: Subrogation is “‘the substitution of one person for another’”.

In the context of insurance law, subrogation refers more specifically to the equitable doctrine which allows an insurer to stand in the place of an insured for the purpose of recovering compensation for particular losses suffered by the insured. The doctrine of subrogation permits an insurer who has paid an insured’s loss to recover some of its expenditure by exercising all legal rights of recovery which the insured would have had against a third party for that loss. As famously defined by the English Court of Appeal in Castellain v.

Preston [[1881-85] All ER Rep 493 (CA)]: [S]ubrogation … is the placing of the assurer in the position of the assured. … as between the underwriter and the assured, the underwriter is entitled to every right, whether of contract fulfilled or unfulfilled, or in tort, enforced or capable of being enforced, or to any other right, legal or equitable, which has accrued to the assured, whereby the loss can be or has been diminished.

The insurer pursues recovery from the third party in the name of the insured, but the claim is brought at the insurer’s expense and forthe insurer’s benefit. [page 343] … As an equitable doctrine, subrogation serves two main purposes, both of which were identified by the Supreme Court of Canada inSomersall v. Friedman [2002 SCC 59 , [2002] 3 SCR 109]. First, subrogation preserves the fundamental principle of indemnityby ensuring that an “insured receives no more and no less than a full indemnity”.

In other words, subrogation is a way of ensuring that aninsured is fully compensated for, but does not profit from, an insured loss. Absent subrogation, an insured would potentially be able todouble recover for a loss by obtaining insurance proceeds from an insurer as well as damages from the third party responsible for theloss. The doctrine of subrogation avoids this outcome, and thereby “reduces the moral risk of dishonesty by the insured”, by passing tothe insurer all rights of recovery against the third party.

Second, subrogation ensures that “the loss falls on the person who is legallyresponsible for causing it”. Without subrogation, an insured could recover the full value of its loss from its insurer, leaving the insuredwith little incentive to pursue the third party who caused the loss.

Since subrogation allows the insurer to assume the insured’s right ofrecovery against the third party, the legal accountability of the third party is maintained. [pages 345-346] … Canadian jurisprudence has established several principles with regard to the scope of subrogation at common law, including thefollowing: • “[T]he insurer’s right of subrogation will not arise until the insured has been fully indemnified. [page 347] … • In pursuing a subrogated action against a third party wrongdoer, “[a]n insurer can be in no better position against a third party than theinjured party would be”.

This principle recognizes that the insurer’s right to subrogation is entirely derivative: it consists only of the cause of action which theinsured would otherwise have against the third party who caused the insured’s loss. In other words, subrogation does not affect the legalposition of the third party: … at common law, the doctrine of subrogation does not in any manner bear upon or affect the rights and obligations of third parties inrelation either to the insured or to the insurer. It is a doctrine that determines rights only as between an insurer and the insured.

It neitherincreases nor decreases the liability of a third party. … It is “the rights of the insured” that a subrogated insurer is enforcing and theinsurer does so subject to the equities as between the insured and the third party. Procedurally, this principle means that the insurer must pursue its subrogated claim in the name of the insured. … [pages 350-351] … • Upon fully indemnifying the insured, the insurer is entitled to “exclusive conduct” of the subrogated recovery action against a thirdparty.

This means that, after fully indemnifying the insured, the insurer has the right to make all decisions relating to the subrogated actionagainst the third party. Since the insurer is entitled to all of the proceeds of the litigation, it is only fair that the insurer be entitled toinstruct counsel with regard to the conduct and the resolution of that litigation. … [page 353] • The insured has a duty to cooperate with or assist the insurer in advancing a subrogated claim.

An insurer’s ability to succeed in a subrogated claim against a third party usually depends on the insured’s willingness to be involved inlitigation proceedings and, more particularly, on the evidence provided by the insured at the various stages of litigation. Upon beingfully indemnified by the insurer, however, the insured has little incentive to participate in the litigation against the third party. Thecommon law therefore imposes a good faith obligation on the insured to cooperate with the insurer in advancing its subrogated claim inthe insured’s name.

The purpose of this good faith duty is to ensure that the insurer has the same chance of succeeding in a subrogatedclaim as the insured would have had in bringing its own claim against the third party wrongdoer. … [page 354] … In order to ensure that the subrogated interests of insurers are not unduly prejudiced by the operation of the single cause of action rule,the common law imposes a post-loss duty on every insured to protect the insurer’s subrogated interest vis-à-vis third parties.

In particular,the Supreme Court of Canada has confirmed that “the insured is obliged to pursue any claim it has against a third party, up until suchtime as the insurer is entitled to and does assert control of the claim, in good faith”. Elsewhere, this obligation has been described as a

duty on the insured, “in prosecuting or in settling his claims against such third parties to act with diligence and in good faith, havingregard to the fact that the insurers are interested”. … [page 359] [23] As the authorities cited in Billingsley’s text make clear, the law is that subrogation claims are to be pursued inthe name of the insured and not, as argued by Mr. Merchant, by the insurer commencing its own action or proceeding against the personresponsible to pay the subrogated claim. [24] The insurer was funding the Condo Corp’s defence of Mr. Goertz’s action as it was obliged to do.

As a result ofthe award of solicitor-client costs in the proceeding, there was no need for a separate action to be commenced by the insured in theCondo Corp’s name to pursue its subrogation claim. Rather, the logical and efficient way for that subrogation claim to be pursued wasfor assessment of the solicitor-client costs, that had already been awarded, be pursued by the Condo Corp in the manner which it has. [25] The common law imposes a good faith obligation on the Condo Corp, the insured, to cooperate with the insurerin advancing its subrogated claim in the insured’s name.

It has complied with that obligation by bringing the notice of application forassessment of solicitor-client costs as ordered. Further, no limitation period issues can possibly arise because the award of solicitor-clientcosts has been made in the proceedings. No limitation period issue can possibly arise. All that remains is the assessment of thesolicitor-client costs which has been sought since the notice of application for such assessment was filed in September 2019, followingthe Court of Appeal’s dismissal of Mr. Goertz’s appeal and the Supreme Court denying leave. [26] Mr. Merchant’s argument on behalf of Mr.

Goertz that the decision of the Court of Appeal in Pennsylvaniarequires an insurer’s claim for subrogation be pursued in a separate action brought within an applicable limitation period is transparentlywithout any merit. He fundamentally misinterprets that decision. Pennsylvania was not a case where an insurer’s subrogation rights toawarded solicitor-client costs against an unsuccessful claimant, whose claims had been defended at the expense of the insurerthroughout, was being pursued.

Rather, as the decision in Pennsylvania makes clear, that was a factual situation which the Court ofAppeal concluded was a claim of one insurer against another insurer seeking equitable contribution in respect of a loss it had paid and nota subrogation claim. [27] The essence of the Court of Appeal’s decision is summarized at paragraphs 14 to 16 where it states as follows: [14] Although the parties raise subsidiary issues, the primary question raised by the instant appeal is whether, where more than oneinsurer has issued a policy of liability insurance with respect to the same risk and one of the insurers has fully indemnified the insured,the paying insurer can maintain a subrogated action, in the name of the insured, against the non-paying insurer(s). [15] The position of the appellants is that no such action is recognized in law and that the only relief available to the paying insurer isa contribution action, in its own name, against the non-paying insurers.

Any claim by the insured against the non-paying insurers ceasesto exist, it is argued, once the insured is fully indemnified by the paying insurer.

Accordingly, it is their position that the chambers judgeerred in allowing the application by Cameco to amend the Cameco action to reflect a subrogation claim on behalf of Global, and indeclining to dismiss the Cameco action in response to the appellants application. [16] It is my view that the appellants must succeed on both points. [28] The Court clearly accepted that there was a distinction between a subrogation claim and equitable contributionclaims, and that different procedural rules applied.

At paragraph 19, it stated, inter alia: [19] The British Columbia Court of Appeal [in Pacific Forest Products Ltd. v. AXA Pacific Insurance Company, 2003 BCCA 241,[2003] 6 WWR 254, leave to appeal to the Supreme Court of Canada refused, [2003] SCCA No 293 (QL)] agreed with the appellant thatLumberman’s claim could not be advanced in a subrogated action in the name of the insured but had to be pursued in a separate action inthe name of the indemnifying insurer as a claim for contribution.

The distinction between the concepts of subrogation and contribution inthe context of insurance law was fully expounded in the judgment of Saunders J.A., writing for the Court. These passages, offering anexpansive examination of the leading insurance law cases on this issue, are instructive: 16 The claim, it is clear, is advanced on the premise that Pacific was insured to the limit of $1,000,000 for forest fire-fightingexpenses. If that central allegation is correct, Pacific is in the position of having two insurance policies covering the same risk.

In myview, it is accordingly a claim in a case of double insurance and thus beyond the reach of subrogation but, for reasons long expressed bycourts, within the reach of a claim for relief in the nature of contribution. 17 The principle of subrogation is a device which gives effect to the contract of insurance, protecting the insurer by permitting it topursue claims against a third party in the name of the insured in respect of losses which have been indemnified.

So, for example, BrettL.J. in Castellain [(1883), 11 QBD 380 (CA)] described subrogation in these terms at pp. 388: ... as between the underwriter and theassured the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled orunfulfilled, or in remedy for tort capable of being insisted on or already insisted on, or in any other right, whether by way of condition orotherwise legal or equitable, which can be, or has been exercised or has accrued, and whether such right could or could not be enforcedby the insurer in the name of the assured by the exercise or acquiring of which right or condition the loss against which the assured isinsured, can be, or has been diminished. ... 18 The statement in Castellain is well accepted today.

For example, at p. 495, Ivamy’s General Principles of Insurance Law refers toCastellain in describing the general rule, as does MacGillvray on Insurance Law, 9th ed. (London: Sweet and Maxwell 1997) at p. 22-2. 19 Contribution, on the other hand, is a device for relief of an indemnifier where others have undertaken to indemnify for the samerisk, described as a case of 'double insurance'. Thus in Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48 , [2002]S.C.J. No. 49, Bastarache J. described the principle at paras. 14 and 15:

[14] It is a well-established principle of insurance law that where an insured holds more than one policy of insurance that covers the same risk, the insured may never recover more than the amount of the full loss but is entitled to select the policy under which to claim indemnity, subject to any conditions to the contrary. The selected insurer, in turn, is entitled to contribution from all other insurers who have covered the same risk.

This doctrine of equitable contribution among insurers is founded on the general principle that parties under a coordinate liability to make good a loss must share that burden pro rata. It finds its historic articulation in the words of Lord Mansfield C.J. in Godin v.

London Assurance Co. (1758), 1 Burr. 489 , 97 E.R. 419 , at p. 420 : If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured. … [ 29 ] I find that the notice of application brought in the name of the C ondo C orp for assessment of solicitor-client costs is the appropriate procedure to follow in this case to enforce the insurer’s subrogation rights. e.

Does assessment and collection of the solicitor-client costs assessed constitute impermissible double recovery? [ 30 ] I find the assessment and collection of the solicitor-client costs assessed does not and will not constitute impermissible double recovery. Pursuing the solicitor-client cost is a proper subrogation claim.

Since the insurer funded the defence costs of the C ondo C orp in accordance with its contractual obligation to do so, it is entitled to pursue its proper subrogated claim, and the C ondo C orp has a good faith obligation to cooperate with or assist the insurer in advancing that subrogated claim. There will not be double recovery since the C ondo C orp must account to the insurer for the solicitor-client costs recovered from Mr. Goertz. f.

Am I functus in light of the fact that I have previously ordered solicitor-client costs and a formal order to that effect issued? [ 31 ] I am of the opinion that I am functus in respect of my judgment awarding solicitor-client costs in favour of the C ondo C orp . As such, I must proceed to the assessment of those solicitor-client costs as requested.

Having said that, I accept that I am not functus in respect of deciding any new issues raised with respect to the rights or absence or rights with respect to insurer subrogation. [ 32 ] I have, for the reasons outlined above, rejected all of the arguments presented for Mr. Goertz. As I have previously concluded, those positions and arguments are not supported by the facts or the law. The arguments advanced were based upon invalid propositions of law regarding subrogation rights, obligations, procedure and the

interpretation of the Policy. Conclusion [ 33 ] Following the submissions of counsel on the matters addressed in this decision, I adjourned the assessment of solicitor-client costs and assessment of damages sought by the C ondo C orp to a date to be fixed following the delivery of this decision. Counsel shall arrange through the Local Registrar a date and time for such assessments to proceed before me.

Counsel for the C ondo C orp shall advise in advance of such assessment whether it is also seeking solicitor-client costs with respect to its application for assessment and the costs incurred in respect to the submission resulting in this decision. If costs are sought, then a draft bill of costs covering this shall be presented. “B. Scherman” J. B. SCHERMAN