COURT OF APPEAL FOR ONTARIO

CITATION: Pro-Demnity Insurance Company v. Ontario (Financial Services Commission), 2016 ONCA 260

DATE: 20160408

DOCKET: C61171

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Pro-Demnity Insurance Company

Applicants (Appellants)

and

Financial Services Commission of Ontario and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario

Respondent (Respondent)

John J. Chapman and Jennifer Bush, for the appellant

Robert H. Ratcliffe and Edmund Huang, for the respondent

Heard and released orally: April 6, 2016

On appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated September 28, 2015.

ENDORSEMENT

[1] The Pro-Demnity Insurance Company provides professional liability insurance to Ontario architects. The Ontario Architects’ Association, the body that regulates architects in Ontario pursuant to the Architects Act, R.S.O. 1990, c. A.26, is authorized by s. 2(5) of that Act to own shares in Pro-Demnity. Pro-Demnity is licenced under the Insurance Act, R.S.O. 1990, c. I.8, to sell liability insurance to architects.

[2] Pro-Demnity brought an application under r. 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a determination that s. 2(5) of the Architects Act does not prevent it from expanding the scope of its insurance business beyond liability insurance for architects and to insureds other than architects. The application judge held that he had jurisdiction to hear the application, but declined to exercise it.

[3] On appeal, the appellant argues that the application judge erred in declining to exercise his jurisdiction and submits that this court should interpret s. 2(5).

[4] Pro-Demnity’s commenced its Rule 14.05(3)(d) application after it had submitted an application to the Superintendent to amend its licence to sell insurance. Section 27(2) of The Insurance Act gives the Superintendent exclusive jurisdiction to determine all questions of fact and law that arise in dealing with that application. In response to Pro-Demnity’s application, the Superintendent requested certain information and expressed a concern in relation to s. 2(5) of the Architects Act. Upon receiving that preliminary response, the appellant commenced this application for an interpretation of s. 2(5) divorced from its license amendment application.

[5] While the motion judge determined he had jurisdiction to rule on the r. 14.05(3)(d) application, he declined to exercise that jurisdiction. He explained that he regarded it as more appropriate for the Superintendent to determine the question in the context of the licence amendment application, and then allow any challenge to the Superintendent’s decision to come before the court on judicial review on a full record.

[6] The motion judge’s decision was discretionary and reasonable. In the circumstances, we see no reason to interfere.

[7] The appeal is dismissed.

[8] The costs of the appeal are fixed in the amount of $10,000, all inclusive.

“Robert J. Sharpe J.A.”

”R. G. Juriansz J.A.”

“L. B. Roberts J.A.”