DATE: 20010405

DOCKET: C34222

COURT OF APPEAL FOR ONTARIO

RE: MICHAEL DASHCHUK (Appellant (Moving Party)) and CANADIAN FRAM LTD., BENDIX ENGINE COMPONENTS LIMITED, BENDIX ELECTRONICS LIMITED, SIEMENS-BENDIX AUTOMOTIVE ELECTRONICS LIMITED and SIEMENS AUTOMOTIVE LIMITED (Respondents (Responding Parties))

BEFORE: CHARRON, ROSENBERG AND GOUDGE JJ.A.

COUNSEL: R. Nairn Waterman For the appellant

Michael E. Barrack For the respondent

HEARD: April 2, 2001

On appeal from the judgment of Justice Russell G. Juriansz dated May 11, 1999.

E N D O R S E M E N T

Released Orally April 2, 2001

[1] The appellant raises two issues in this court. First, the proper integration of his pension and second, his entitlement to life insurance.

[2] This appeal was initially brought before the Divisional Court. The Divisional Court held that the appeal should be in this court. See Dashchuk v. Canadian Farm Ltd., [2000] O.J. No. 636. In our view, there is a real question about our jurisdiction to hear this matter. So far as the proceeding before Mr. Justice Juriansz was one to enforce the arbitration under s. 50 of the Arbitration Act, 1991, S.O. 1991, Chap. 17, we do not agree with the Divisional Court that an appeal lies to this court. See Jevco Insurance Co. v. Continental Insurance Co. of Canada, [1998] O.J. No. 4196 (Ont. C.A.).

[3] However, both parties submit that the proceeding below sought declarations beyond the issues agreed to be submitted to arbitration and that the appeals from those dispositions were properly before us. We therefore reserved our decision on jurisdiction and heard the matter on the merits.

[4] As to the integration issue, we agree with the respondent’s primary submission. The agreement between the parties required that the arbitration process be the forum to determine Dr. Dashchuk’s entitlement to a pension and the parameters of that pension. The submission to arbitration could not be broader on this score. It necessarily included the issue of the integration of his pension. The parties further agreed that there be no recourse to the courts. Hence we have no jurisdiction to deal with this ground of appeal. Parenthetically, we can also say that there appears to have been a sufficient factual basis before Mr. Justice Juriansz to sustain his factual conclusion that the pension has been integrated in a way that accords with the company’s pension plan, which is all that Dr. Dashchuk would be entitled to in any event.

[5] As to the life insurance issue, even if we have jurisdiction to deal with it we cannot agree with the appellant. It would be up to the appellant to show that he has not received the normal “retiring benefit” in this regard. However, he has not put forward any material to demonstrate this. Indeed, so far as there is any material before us relevant to this issue the correspondence would seem to demonstrate that he has indeed received the normal life insurance retirement benefit.

[6] Both grounds raised by the appellant must therefore fail. Mr. Waterman fairly acknowledged that should this happen his complaint about post-judgment interest fails as well.

[7] The appeal is dismissed.

“Louise Charron J.A.”

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”