The Ontario Court of Appeal unanimously held that the Plaintiff’s insurer was not entitled to commence a subrogated claim in the name of its bankrupt insureds. In this case, at the time the action was commenced, the insureds’ cause of action had vested in the trustee in bankruptcy and one of the insureds was an undischarged bankrupt. The Court of Appeal held that since the insureds lacked capacity to bring the action, the insurer could not commence a subrogated claim in their names.
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