Kishinchand & Sons ( Hong Kong ) Ltd. v. Wellcorp Container Lines Ltd. Co.
T-271-93
Denault J.
19/6/95
4 pp.
Motions arising from decision relating to insurance coverage (Kishinchand & Sons (Hong Kong) Ltd. v. Wellcorp Container Lines Ltd., [1995] 2 F.C. 37 (T.D.)): (1) motion to show cause; (2) motion for payment out of Court; and (3) motion to stay execution of judgment pending appeal -- Plaintiff seeking to recover amount of summary judgment against defendant by way of garnishee order against defendant's insurer, Kingsway General Insurance Co.-Kingsway, relying on allegedly exclusionary language contained in insurance policy, denying insurance coverage to defendant ex post facto and refusing to pay amount awarded to plaintiff -- Kingsway opposing garnishment order on grounds existence of debt between Kingsway and judgment debtor (defendant) disputed and proper forum for determination of same through arbitration pursuant to insurance policy arbitration clause -- Plaintiff not bound by insurance contract between defendant and Kingsway as not party to contract; arbitration clause of insurance policy not binding on plaintiff in absence of all parties' consent -- Court having inherent jurisdiction to determine issue of insurance coverage and whether Kingsway liable, in fact and in law, to pay debt incurred by defendant[cad 211]Kingsway not raising, in timely fashion, concerns regarding lack of coverage due to violation of insurance policy; positive finding of reliance on part of defendant -- Intention to deny coverage must be clearly stated and insured should be informed at once; not enough for Kingsway to have inadequately reserved its right to deny coverage -- Kingsway estopped from denying coverage; Kingsway having contractual obligation to pay defendant's debt-Garnishment against Kingsway ordered; order for payment out of Court allowed; order staying execution of judgment denied.