J. Dated: 19990216 THE COURT OF APPEAL FOR SASKATCHEWAN ENDORSEMENT APPELLANT: McQUEEN AGENCIES LTD. RESPONDENT: LAWRENCE RONALD WARKEN COUNSEL: Ms. Catherine Sloan for the Appellant Mr. Kim M. Ford for the Respondent APPEAL HEARD: February 12, 1999 CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis The Honourable Mr. Justice Sherstobitoff THE COURT [1] In this action brought by the respondent/plaintiff on a hail insurance contract for the 1996 crop year, the appellant, McQueen Agencies Ltd., appeals from an order entered in Queen’s Bench on October 15, 1998. This order dismissed the appellant’s motion for summary judgment on its counterclaim for insurance premiums payable by the plaintiff under the hailinsurance contract in question. The appellant’s motion for dismissal of the plaintiff’s action was also denied. [2] Although the appellant contends that the plaintiff’s claim is fixed at $3,373.50, being the amount of an appraisal award, the respondent/plaintiff challenges the validity of this appraisal award purporting to be made under The Saskatchewan Insurance Act and the statutory conditions that govern such appraisals.[1] [3] We agree that this appeal should be allowed in part. The respondent/plaintiff has no defence to the appellant’s counterclaim for premiums payable under the hail insurance contract. Although the respondent signed promissory note and tendered cheque for $10,870.00 payable on September 30, 1996, he stopped payment of the same with claim of set-off being advanced. [4] In the circumstances, we must treat the counterclaim as an independent action. There has been significant delay in these proceedings and it will probably be many months or longer before the plaintiff’s action is tried. The appellant, having satisfied the criteria in Bombardier Credit Ltd. v. Kostuchuk et al., 1994 CanLII 3870 (SK CA), [1994] 10 W.W.R. 257; 123 Sask. R. 89; 74 W.A.C. 89 (C.A.) at 272-273 and Winfield Developments Ltd. v. Banton Industries Ltd. (1996), 1996 CanLII 4931 (SK CA), 141 Sask. R. 21; 114 W.A.C. 21, is entitled to judgment for $10,870.00 with interest at the rate of 10%, as stipulated in the promissory note, together with costs in Queen Bench on the applicable tariff and costs in this Court on single column 5. Since the respondent/plaintiff has not accepted the amount tendered in payment of the appraisal award, the appellant’s prayer for relief in its motion is amended to claim the full amount of the premiums payable. [5] This summary judgment, under Rule 129, is granted without prejudice to the plaintiff’s right to proceed with his action for an alleged loss of $38,585.00. However, there are number of “housekeeping” items that must be addressed in order to facilitate the orderly disposition of the action. The pleadings must be put in order. With that in mind, we grant the appellant leave to amend its statement of defence to the plaintiff’s claim by pleading the relevant statutory conditions in The Saskatchewan Insurance Act, together with any additional material facts pertaining to that defence. As well, the appellant has leave to plead to any new matters raised in the respondent’s amended statement of claim. [2] [6] The respondent/plaintiff is granted leave to reply, if so advised, to the appellant’s amended statement of defence. [7] Leave is also granted to each party to re-open the examinations for discovery for the purpose of examining on the new issues raised by any such amendments. [8] In giving these directions we are not to be taken as passing on the admissibility of evidence or other legal issues pertaining to the matters raised in the amended pleadings. Since such matters are for the trial judge, it would be premature for this court to make any further comment. DATED at the City of Regina, in the Province of Saskatchewan, this 16th day of February 1999. [1] See appeal book page 96a, paragraph [8], of the reasons of chambers judge’s reasons. [2] See appeal book page 90a
The insurer appealed the October 1998 order which dismissed the appellant's motion for dismissal of the insured's action and for summary judgment on its counterclaim for insurance premiums payable under the hail insurance contract. The insured had signed a promissory note and tendered a cheque payable in September 1996 but stopped payment and advanced a claim of set-off. HELD: The appeal was allowed in part under Rule 129 without prejudice to the plaintiff's right to proceed for the alleged loss of $38,585. 1)The appellant was granted leave to amend its statement of defence by pleading the relevant statutory conditions in the Saskatchewan Insurance Act and any additional material facts and new matters raised by the amended statement of claim. The plaintiff was granted leave to reply. Each party was permitted to re-open the examinations for discovery. 2)The insured had no defence to the counterclaim for premiums which was a separate action. The prayer for relief was amended to claim the full amount of the premiums which were payable with interest at the rate of 10% as stipulated in the promissory note together with costs on the applicable tariff in Queen's Bench and in the Court of Appeal on single column 5.