Court of Appeal for Ontario

H'ng v. Fair

Date: 2001-04-23

Bill Wong, for the appellants;

Thomas C. Wright, Q.C., for the respondent, Allstate Insurance Co. of Canada.

(Court File No. C32225/99)

[1] By the Court: We agree with the motions judge's finding that the same issues were in the arbitration proceedings as are set out in the statement of claim in the [illegible] action. These issues were fully canvassed in the arbitration proceedings and decided against the appellants.

[2] Having proceeded with arbitration, the appellants cannot be permitted to take the litigation route because of unsatisfactory results obtained from the arbitration. The test of issue estoppel is satisfied. See Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 68 O.A.C. 284; 17 O.R.(3d) 267 (C.A.) and Randhawa v. Everest & Jennings Canadian Ltd. (1996), 1996 CanLII 8157 (ON SC), 7 O.T.C. 28; 1 C.P.C.(4th) 49 (Gen. Div.) and the action was properly dismissed with costs to the respondent Allstate to be assessed.

Appeal dismissed.