Winnipeg Airports Authority Inc v Allianz Global Date:, 2017 MBCA 101

Citation: Winnipeg Airports Authority Inc v Allianz Global Date: 20171016 Risks US Insurance Company, 2017 MBCA 101 Docket: AI16-30-08706 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: WINNIPEG AIRPORTS AUTHORITY INC. ) W. J. Kenny, Q.C. ) for the Appellant ) (Plaintiff) Appellant) A. K. A.

Peterkin ) for the Interested Party/- and - ) Respondent Continental ) Casualty CompanyALLIANZ GLOBAL RISKs US ) INSURANCE COMPANY ) Appeal heard and ) Decision pronounced:(Defendant)) October 16, 2017 On appeal from 2016 MBQB 185 HAMILTON JA (for the Court): [1] The plaintiff appeals the dismissal of its motion for leave to amend its statement of claim to add a party beyond alimitation period. At the hearing we dismissed the appeal, with brief reasons to follow.

These are those reasons. [2] The plaintiff sought to add Continental Casualty Company (Continental) as a defendant in its action against AllianzGlobal Risk US Insurance Company (Allianz) for coverage under a first party builder’s risk insurance policy (the policy). [3] The claim pertains to certain repair costs incurred by the plaintiff during the construction of the new Winnipegairport.

It is one of several claims in complicated construction litigation that is being managed by a case management judge (the motionjudge). [4] The policy is a subscription policy which states that the defendant and Continental are “severally and not jointly”liable to the plaintiff on the basis of 67 per cent and 33 per cent respectively. Allianz is named as the “insurer” in the policy. There is acover note and subscription policy declaration that sets out the subscription agreement which binds the two insurers and the plaintiff.

The policy also states, “Wherever in this Policy, or in any endorsement attached hereto, reference is made to ‘The Company’, ‘TheInsurer’, or ‘This Company’, reference has been deemed to be made to each of the insurers severally.” [5] The statement of defence filed by Allianz admits that it is the insurer under the policy.

There is a separate paragraphthat sets out that Allianz and Continental are the subscribing insurers. [6] The motion to add Continental as a defendant was made beyond the applicable limitation date and shortly afterAllianz filed a motion to amend its statement of defence to set out that its liability under the policy was 67 per cent. [7] Continental opposed the motion on the basis of the expired limitation period, arguing that there were no specialcircumstances that would warrant its addition as a defendant.

Continental acknowledged that it had not suffered any prejudice. [8] The sole issue before the motion judge was whether the plaintiff had demonstrated special circumstances to warrantthe exercise of his discretion to grant leave to amend the statement of claim. See Basarsky v Quinlan, (SCC), [1972] SCR

380. [ 9 ] The plaintiff’s evidence on the motion did not include any explanation for why Continental was not named as a defendant. [ 10 ] The motion judge concluded that the plaintiff had either by “conscious decision or inadvertence” (at para 68), not named Continental as a defendant. [ 11 ] The plaintiff asserts that the motion judge was wrong to find that the following constellation of circumstances did not create special circumstances: • a reasonable

interpretation of the policy was that Allianz was the only insurer; • the wording of the statement of defence and the fact that Allianz sought to amend its statement of defence to clarify its liability under the policy; • representations made by Allianz to the plaintiff during the course of the investigation of coverage under the policy; • the knowledge of the parties throughout the relevant time periods and the conduct of Continental with that knowledge; • the immediate application by the plaintiff to amend its statement of claim upon learning of the motion by Allianz to amend its statement of defence. [ 12 ] Although the motion judge did not specifically refer in his reasons to the fact that Allianz was named as the insurer under the policy, the record discloses he was very aware of this and the plaintiff raised that fact in its submissions. [ 13 ] For this Court to intervene the plaintiff must demonstrate that the motion judge erred in principle, made a palpable and overriding error with respect to the facts or that the decision is so clearly wrong as to amount to an injustice.

Otherwise, deference is owed to the motion judge. See Homestead Properties (Canada) Ltd v Sekhri et al , 2007 MBCA 61 . [ 14 ] The plaintiff has not demonstrated a basis for appellate intervention. [ 15 ] The motion judge wrote detailed reasons. He made findings of fact that were open to him based on the record and applied them to the applicable law. The decision to dismiss the plaintiff’s motion was a reasonable exercise of his discretion and does not amount to an injustice. [ 16 ] Therefore, the appeal was dismissed with costs. JA JA JA