Cotnam, Lavallée, Bachand

Appeal from a judgment of the Superior Court rendered in the course of a proceeding granting a Wellington motion in part. Allowed. Application for leave to produce additional schedules and to strike allegations. Declared moot.

The respondent insured is the founder of a religious organization. In the context of a class action, former members of the religious community alleged that they were abused by the organization and its officers. At the time of the facts in dispute, various insurance policies provided civil liability protection for the legal persons involved and their officers and subordinates. Some insurers took up the interest of the legal persons they insured and of the respondent as unnamed insured. The respondent’s defence was from that point on handled by a law firm at the cost of the insurers that acknowledged their duty to defend him. The appellant denied coverage and refused to take up the interest of the respondent.

The appellant primarily argues that the respondent pleads for another, namely, the other insurers, through his Wellington motion. Since his defence is already handled by the other insurers, he has no interest in using this type of motion to request the specific performance of an obligation already performed in full by third parties.

A Wellington motion is an exceptional remedy that aims to protect the insured by giving immediate effect to the duty to defend. Implementing this duty can be complex when the facts alleged against the insured are likely to simultaneously or successively trigger several insurance policies granted by various insurers, whether due to the coverage period or the nature of the policies taken out. As a result of this plurality of insurances, the insured could be defended for only part of the claim, while simultaneously being forced to assume part of his or her defence costs. In such circumstances, the insured retains the standing necessary to present a Wellington motion against the insurers likely to cover this part of the defence costs.

In this case, the situation is different because the defence of the insured is entirely assumed by several insurers. He therefore has no standing to claim the specific performance of an obligation already performed in full by third parties. In such circumstances, the insured cannot hope to gain any personal advantage whatsoever from the Wellington motion he presented. The participation of an additional insurer in the payment of his defence costs changes nothing for him. It must therefore be concluded that the insured has no direct and personal interest in this debate (art. 85 of the Code of Civil Procedure (CQLR, c. C‑25.01)). His motion, which appears to have been introduced for the sole benefit of the other insurers, must be dismissed on this ground alone.

In addition, a Wellington motion is not the appropriate procedural vehicle to allow insurers to resolve the issues raised by a plurality of insurances. In this case, if the debate on the coverage of the claim and the appellant’s duty to assume part of the respondent’s defence costs must continue, it must do so in another proceeding.

Text of the decision: http://citoyens.soquij.qc.ca