Kingsway General Insurance Company v. Gore Mutual Insurance Company, 2011 ONCA 87

CITATION: Kingsway General Insurance Company v. Gore Mutual Insurance Company, 2011 ONCA 87

DATE: 20110128

DOCKET: M39618 (C52924)

COURT OF APPEAL FOR ONTARIO

Juriansz J.A. (In Chambers)

BETWEEN

Kingsway General Insurance Company

Applicant (Appellant)

and

Gore Mutual Insurance Company

Respondent (Respondent in Appeal)

Harry Brown, for the appellant

Mark Donaldson, for the respondent

George Kanellakos, for the Markel Insurance Company

Heard: January 28, 2011

ENDORSEMENT

[1] This motion raises a point of general application: may a party to an arbitration award appeal a decision of the Superior Court of Justice to this court in accordance with s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, instead of in accordance with s. 49 of the Arbitration Act, 1991, S.O. 1991, c. 17?

[2] Kingsway General Insurance Company seeks an order that it may appeal from the decision of the Superior Court of Justice dismissing its appeal from an arbitration award without leave of this court.

[3] Section 49 of the Arbitration Act states as follows:

An appeal from the court's decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to the Court of Appeal, with leave of that court.

[4] However, s. 6(1)(b) of the Courts of Justice Act contains the general provision:

An appeal lies to the Court of Appeal from … a final order of a judge of the Superior Court of Justice….

[5] Kingsway argues that although s. 49 of the Arbitration Act requires the party appealing from the Superior Court to obtain leave to appeal to the Court of Appeal, s. 6(1)(b) of the Courts of Justice Act provides for an appeal to the Court of Appeal as a matter of right.

[6] I disagree.

[7] Section 49 of the Arbitration Act and s. 6(1)(b) of the Courts of Justice Act are in fundamental conflict. One requires leave and the other does not. Both cannot be given effect. Section 6(1)(b) of the Courts of Justice Act has general application. However, in s. 49 of the Arbitration Act the legislature has specifically addressed the right to further appeal the decision of an arbitrator. The legislative intent, obviously, was that the specific legislation should prevail over the general.

[8] The motion is dismissed. Kingsway requires leave to appeal the decision of the Superior Court to this court.

[9] Mr. Kanellakos appeared for the Markel Insurance Company, which is involved in another case raising identical issues. On the request of all, Kingsway’s application for leave to appeal and that of the Markel Insurance Company in C52873 should be place before the same panel for determination.