The Court refused to join primary insurers as co-defendants where the insurers had accepted indemnity, assumed conduct of the defence, and provided undertakings to be bound by findings of fact and law in the proceeding, holding that the Mestrez factors were not satisfied in the absence of any denial of liability or bona fide coverage dispute. The Court held that the mere possibility of a future dispute, combined with the low inconvenience of joinder, was insufficient to justify the exercise of discretion under r 9.06(b)(ii). Joinder of excess layer insurers was ordered by consent, and the Court noted that the insurance coverage questions would necessarily be determined in the proceeding through the excess layer claims given the follow-form policy terms.
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