Court of Appeal for Ontario

CITATION: Lincoln General Insurance Company v. Insurance Corporation of British Columbia, 2008 ONCA 470

DATE: 20080612

DOCKET: M35651 (C47060)

BEFORE: BORINS, SHARPE and GILLESE JJ.A.

BETWEEN:

LINCOLN GENERAL INSURANCE COMPANY

Respondent in Appeal (Moving Party)

and

INSURANCE CORPORATION OF BRITISH COLUMBIA and KERRY-JO KLINGBEIL

Appellant in Appeal (Respondent)

COUNSEL:

Scott Maidment and Geoff Moysa for the moving party, Lincoln General Insurance Company

Alan D’Silva and Ellen Snow for the respondent Insurance Corporation of British Columbia

Sumitra Lagoo for the respondent Kerry-Jo Klingbeil

HEARD AND RELEASED ORALLY: June 11, 2008

ENDORSEMENT

[1] The Insurance Corporation of British Columbia has filed an appeal from the decision of Hoilett J. who allowed an appeal from two arbitral awards. The respondent, Lincoln General Insurance Company, moves to quash the appeal on the ground that the appellant did not obtain leave to appeal as required by section 49 of the Arbitrations Act. In our view the respondent is correct, and the appeal must be quashed for want of jurisdiction.

[2] The provision in the arbitration agreement that either party could appeal any questions “to the Ontario Superior Court without leave” neither expressly, nor by implication, permits either party to appeal from the Superior Court to the Court of Appeal without complying with section 49. We would add that, in our view, the parties could not have contracted out of section 49 of the Arbitrations Act and given the court jurisdiction which it would not otherwise have. Thus, the arbitration agreement did not confer any appeal rights regarding an appeal from the Superior Court to the Court of Appeal.

[3] Accordingly, we would quash the appeal.

[4] The appellant has asked that the court extend the time to move for leave to appeal and to permit the parties to make submissions at this hearing on whether or not leave to appeal should be granted under section 49. While we are prepared to extend the time to move for leave to appeal, we will not hear submissions today on the leave motion. Rule 61.03.1(1) provides that a “motion for leave to appeal shall be heard in writing”. As well, the rule stipulates the material that must be filed by the moving party which we do not have. We see no reason to depart from the normal practice of hearing leave motions in writing, in the circumstances of this case.

[5] However, we are prepared to make some accommodation. We would extend the time to move for leave to appeal until June 20, 2008, and give the parties until that date to file any materials in addition to the materials before the court on the proposed appeal and the motion to quash. The appellant must, of course, file its motion for leave to appeal containing the grounds upon which leave is sought. This panel will remain seized of the file and deal with the motion for leave to appeal when it has been completed.

[6] As for the costs of this motion, the parties agree that they will address costs following the motion for leave to appeal, or following the appeal should leave be granted.

“S. Borins J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”