Docket: CACV2422 Glenn Pegg (Defendant) Prospective Appellant - v. -, 2013 SKCA 70

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 70 Date: 2013-06-25 Between: Docket: CACV2422 Glenn Pegg (Defendant) Prospective Appellant - and - Wawanesa Mutual Insurance Company (Third Party) Prospective Respondent - and – The Government of Saskatchewan (Plaintiff) Prospective Respondent Before: Lane J.A. Counsel: John Benesh for the prospective appellant Bruce Wirth for the prospective respondent Wawanesa

Application: From: 2013 SKQB 196 Heard: June 25, 2013 Disposition: Leave Denied (orally) Written Reasons: June 26, 2013 By: The Honourable Mr. Justice Lane Lane J.A. [ 1 ] The proposed appellant (defendant) seeks leave to appeal an order issued by a Queen's Bench judge in chambers dismissing his application to determine; if the insurer, and third-party herein, Wawanesa, is obligated to pay more than $3,000 under an insurance policy issued to the defendant, and if the insurer is obligated to defend the plaintiff's action against the proposed appellant.

The background facts to the claim and the issues are set out in the decision of the chambers judge. [ 2 ] The test for the granting or denial of leave to appeal is not in issue and the parties agreed that leave is granted or withheld on the considerations of merit and importance (see, for example: Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119 , 227 Sask. R. 121). [ 3 ] The proposed appellant brought an application in Queen's Bench chambers pursuant to Rule 188. He proceeded without an agreed statement of facts resulting in some confusion as described in the fiat of the chambers judge.

This led to the dismissal of his application to determine the limits of the obligation of the insurer. The chambers judge then ruled the issue of the duty to defend ought not to be resolved pursuant to Rule 188 but rather Rule 452 (a).

After an analysis pursuant to that Rule, and after a review of the claim and the policy, he found there was no contractual obligation on the insurer to provide a defence because the claim did not claim for property damage, but for the firefighting costs assessed against him. [ 4 ] The proposed appellant claims the chambers judge failed to consider his argument he had a defence of imminent peril. However that claim was not set out in his Third Party claim and no factual basis has been presented.

He also seeks to appeal the award of costs against him. [ 5 ] I dismissed the application for leave because, in my view, it was bound to fail in any event. The proposed appellant established no factual basis for his claim of imminent peril and the option to amend his pleadings is still open to him. I am also satisfied the chambers judge was correct in his analysis of the issues before him further leading to a likelihood the appeal would not succeed. The action was commenced under

Part 40 and an appeal of these issues will very likely delay proceedings and add significant additional costs to the parties. The test for the granting of leave has not been met. [ 6 ] The application for leave is therefore dismissed with costs in the usual manner.