Supreme Court

Date:  2006 06 19
Docket:  S-0001-CV-2005000039

 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

 CHRISTA DOMCHEK
 Plaintiff

 - and -


BEN WEBBER, PAUL WEBBER, BEN WEBBER also known as PAUL WEBBER
 Defendant


 MEMORANDUM ON EX PARTE APPLICATION

[1] The Plaintiff by her solicitors has submitted for filing a notice of discontinuance of action without liability for costs.  The notice is endorsed with the consent of an individual described as the agent for the Defendant’s insurer.

[2] The court file contains only the Statement of Claim and an affidavit of service on the Defendant.  The Statement of Claim claims damages arising out of a motor vehicle accident.

[3] The Plaintiff could discontinue the action pursuant to Rule 309(1)(a) by serving a notice of discontinuance on the Defendant along with proof of service.

[4] The Plaintiff has chosen, however, to submit a notice of discontinuance without liability for costs.  Under Rule 312, “the consent of all parties” is required.  In this case, that means the consent of the Defendant or his  solicitor.

[5] Counsel for the Plaintiff submits that the insurer should be considered a party where it defends a claim on behalf of its insured.  However, the authorities cited by counsel do not, in my view, stand for that proposition.

[6] It may be that a subrograted claimant that instructs counsel to prosecute its claim can be considered a party, but the insurer has not instructed counsel to prosecute its claim in this case.  The case of Jahnke v. Wylie, [1994] A.J. No. 912 (C.A.) deals with Alberta Rule 187 which says that a person for whose benefit an action is prosecuted or defended shall be regarded as a party, but for purposes of discovery of documents only.  Northwest Territories’ Rule 220 is the same.

[7] Finally, in Mangelana v. McFadzen, (2005) NWTSC 54, Richard J. was not convinced that the reference in Rule 643(1) to “the party by whom” includes a non-party to the litigation.  In that case, the non-party was the Government of the Northwest Territories which had a subrograted claim for hospital costs incurred for the plaintiff’s treatment and the issue was whether the Government was a party for purposes of an award of costs in favour of the defendants.

[8] None of the authorities cited say that where consent of a named party is required, that consent can be provided by someone who is neither that party nor a solicitor.  Nor is there any provision in the Rules for an agent to consent.  I do not see any basis upon which an agent for an insurer for a party can provide the required consent.

[9] Accordingly, the notice of discontinuance of action presented will not be filed.



Dated at Yellowknife, NT, this 19th day of June 2006




V.A. Schuler
      J.S.C.



Counsel for the Plaintiff:  Sarah   A.E. Kay



S-0001-CV-2005000039



IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

 CHRISTA DOMCHEK
 Plaintiff

 - and -


BEN WEBBER, PAUL WEBBER, BEN WEBBER also known as PAUL WEBBER
 Defendant








MEMORANDUM ON EX PARTE APPLICATION OF
THE HONOURABLE JUSTICE V.A. SCHULER