Saskatchewan Court of Appeal affirms rejection of insurer subrogation argument in condo dispute

The Saskatchewan Court of Appeal has dismissed the appeal of a condominium unit owner and developer who attempted to oppose an assessment of solicitor-client costs on the basis that he was insured under a condominium corporation’s liability insurance policy. 

In Goertz v The Owners of Condominium Plan No. 98SA1201, 2026 SKCA 43, the appellant condo unit owner and the respondent condo corporation, in which he held condo units, had a long-standing condominium dispute. 

Due to the appellant’s failure to pay outstanding amounts owed, the condo corporation suspended his voting rights at its annual general meeting of owners. 

The appellant brought an application against the condo corporation. He requested orders seeking to: 

• Declare some of the condo corporation’s bylaws ultra vires 
• Ask the condo corporation’s board to produce documents 
• Allow him to attend and vote at the annual general meeting 
• Prohibit the board from taking oppressive action against him under s. 99.2 of Saskatchewan’s Condominium Property Act, 1993 (CPA) 
• Compel the board to comply with the CPA 
• Stop the board from passing bylaws contrary to the CPA 
• Appoint an administrator of the condo corporation under s. 101 of the CPA 

In May 2017, a chambers judge of the Court of King’s Bench of Saskatchewan dismissed the appellant’s application and ordered him to pay the condo corporation costs of the proceedings on a solicitor-client basis. 

The Saskatchewan Court of Appeal dismissed the appellant’s appeal of the judge’s substantive and cost decisions. 

Years later, the condo corporation applied for an assessment of the solicitor-client costs. Opposing the assessment, the appellant alleged that: 

• He did not have to pay the cost award because he was insured under the condo corporation’s liability insurance policy and entitled to indemnification under the policy 
• The policy waived subrogation rights against him as an owner of units within the condo corporation 
• Even if the insurer had subrogation rights, the condo corporation admitted that this was not a subrogated claim 
• The claim was statute-barred because the insurer did not follow the proper procedure 
• Even if he was not insured under the policy, allowing a cost assessment would amount to double recovery because the condo corporation’s insurer covered its legal fees and provided full indemnity 

The condo corporation countered that the judge could not entertain the appellant’s arguments opposing the assessment, which constituted a collateral attack against it, as the judge was functus officio in connection with the cost award, except for the assessment of the quantum. 

In May 2023, the chambers judge rejected all the appellant’s arguments. The judge found that: 

• He was functus officio with respect to costs, but not with respect to any new issues regarding the rights relating to insurer subrogation 
• The appellant was not an insured under the policy 
• The insurer’s payments to reimburse the condo corporation for solicitor-client costs in defending the claim were not payments the appellant could claim as made on his behalf 
• The condo corporation’s application for a cost assessment was the proper procedure to pursue the insurer’s costs for its defence 

On appeal, the appellant argued that the judge erroneously determined that the cost award in the May 2017 decision and the cost assessment did not amount to the condo corporation’s double recovery. 

Judge’s ruling affirmed

The Court of Appeal for Saskatchewan dismissed the appeal and ordered the appellant to pay the condo corporation’s appeal costs on a solicitor-client basis under its bylaws.

According to the appeal court, as the chambers judge was functus officio in connection with the cost award in the May 2017 decision, he could not tackle the appellant’s insurer subrogation and double recovery arguments, which sought to revisit the cost award, at the assessment stage. 

The appeal court added that the judge, who lacked the jurisdiction to reconsider final determinations, could only assess and determine the quantum of the costs. 

Alternatively, even if the judge had not been functus officio, the appeal court ruled that the appeal would fail on the merits, as the appellant did not point to any reviewable error in the May 2023 decision.

The appeal court held that the appellant failed to establish any palpable and overriding error in the judge’s finding that he was not insured under the condo corporation’s liability insurance policy or any extricable legal error in the judge’s interpretation of the policy itself. 

The appeal court found the judge entitled to determine that the insurer had not waived its subrogation rights against the appellant.