Citation and Parties

CITATION: Unifund Assurance Company v. The Co-operators General Insurance Company, 2022 ONSC 3961

DIVISIONAL COURT FILE NO.: 215/21

DATE: 20220704

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: UNIFUND ASSURANCE COMPANY, Appellant

AND:

THE CO-OPERATORS GENERAL INSURANCE COMPANY, Respondent

BEFORE: D.L. CORBETT, LEDERER and NISHIKAWA JJ.

COUNSEL: N. Rosenthall and N. Fabiano, for the Appellant

Mark Donaldson, for the Respondent

HEARD: July 4, 2022, by videoconference in Toronto

REASONS FOR DECISION

The Court:

[1] We advised the parties of this decision at the conclusion of the hearing on July 4, 2022.

[2] This is an appeal from Arbitrator Samis. The arbitration was conducted pursuant to ss. 7 and 8 of O. Reg. 283/95, Disputes Between Insurers, which stipulates that the Arbitration Act, 1991, SO 1991, c.17, applies to the arbitration.

[3] Section 45 of the Arbitration Act, 1991 provides for appeals from an arbitration award as follows:

45 (1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

determination of the question of law at issue will significantly affect the rights of the parties.

(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law. [emphasis added]

[4] Section 1 of the Arbitration Act defines the "court" to mean the Family Court or the Superior Court of Justice.[^1] In their Arbitration Agreement, the parties have provided for an appeal to the Superior Court of Justice on a question of law or mixed fact and law, without leave.

[5] The Divisional Court is a statutory court and cannot exercise jurisdiction where none has been granted to it. Jurisdiction over this appeal lies in the Superior Court of Justice and not the Divisional Court (see, for example, Intact Insurance v. Economical Mutual, 2021 ONSC 7750; Intact Insurance Company v. The Dominion of Canada General Insurance Company et al., 2020 ONSC 7982).

[6] We are satisfied that the jurisdictional error here was a matter of oversight: neither side raised it in advance, and the issue was not identified by court staff on intake or by the Divisional Court triage judge. In all the circumstances, rather than dismissing the appeal, we order that it be transferred to the Superior Court of Justice in Toronto, without costs of today's appearance.

D.L. CORBETT J.

LEDERER J.

NISHIKAWA J.

Released: July 4, 2022

[^1]: There are exceptions to the application of this definition that do not apply to this case.