Priority Dispute: Third Party Vehicle Renter vs. The Defendant Vehicle Owner

In a very recent decision - Elias v. Koochek – the Court addressed the issue whether the insurer of a renter of a vehicle who is not named as a defendant in the main action, but has been brought into the action as a third party, has priority over the insurer of the owner of the rental vehicle. 

The third party Moshe rented a car from Avis. The defendant Koochek was operating the vehicle with Moshe's consent when he was involved in a collision. Koochek's passengers sued him and Avis.  Koochek refused to add Moshe as a defendant. Avis third partied Moshe and brought a motion for determination of a question of law – i.e., whether Moshe's insurer, Intact, was required to respond first to the plaintiffs' claim. The issue focused on the meaning of the term "insurance available" as that term was used in subsection 277(1.1) of the Insurance Act.