Court of Appeal for Ontario

CITATION: Hunter v. Richardson, 2013 ONCA 731

DATE: 20131223

DOCKET: C56974

Feldman, Epstein, and van Rensburg JJ.A.

BETWEEN

Shanice Clarke Hunter, Minor by her Litigation Guardian Ann Clarke, and Anne Clarke

Plaintiffs (Respondents)

and

Alan Keith Richardson and W. Emerson Richardson

Defendants (Respondent)

and

Royal & Sunalliance Canada Group and The Dominion of Canada General Insurance Company

Defendants (Appellant)

Counsel:

Derek Greenside, for the appellant Royal & Sunalliance Canada Group

Edward (Ted) A. Kalnins, for the respondents, Shanice Clarke Hunter, Minor by her Litigation Guardian Ann Clarke, and Anne Clarke

Stan J. Sokol, for the respondent, W. Emerson Richardson

Heard and released orally: November 21, 2013

On appeal from the order of Justice Frank of the Superior Court of Justice, dated April 4, 2013.

ENDORSEMENT

[1] The court asked counsel, both by correspondence before this date and for submissions in court, about this court’s jurisdiction to hear this appeal, and in particular, whether the order appealed from is final or interlocutory. The appellant submits that the order adding it as a party is final for two reasons: 1) because the Insurance Act requires mediation as a precondition to commencing a Court action for SABS, and 2) because the Insurance Act also requires arbitration of the issue of responsibility for SABS as between insurers.

[2] In our view, the order adding Royal & Sun Alliance Canada Group as a party is interlocutory. It has the same effect in this case as does an order adding a party in any other case.

[3] The order would only be final if the reasons specifically determined the above questions of law, allowed the party to be added on that basis, and the order specifically so provided. That did not occur here. Therefore the addition of the party does not preclude or foreclose any right to plead the statutory requirements and to raise the issue at trial or before.

[4] As there has been no such final determination in this case, the order is interlocutory and any appeal from it lies to the Divisional Court with leave.

[5] The appeal to this court is therefore quashed with costs payable by the appellant to the Fund in the amount of $5,500.00, and to the plaintiff in the amount of $2,000.00, all inclusive of disbursements and HST.

“K. Feldman J.A.”

“G. Epstein J.A.”

“K. van Rensburg J.A.”