Ontario Medical Association v. Willis Canada Inc. et al., 2013 ONCA 745

• Judge: Hoy, A.C.J.O., Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 08, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 745;(2013), 313 O.A.C. 237 (CA)

Ont. Medical Assoc. v. Willis Can. Inc. (2013), 313 O.A.C. 237 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.012

Ontario Medical Association (plaintiff/appellant) v. Willis Canada Inc. and Aviva Canada Inc. (defendants/respondents)

(C57075; 2013 ONCA 745)

Indexed As: Ontario Medical Association v. Willis Canada Inc. et al.

Ontario Court of Appeal

Hoy, A.C.J.O., Sharpe and Blair, JJ.A.

December 11, 2013.

Summary:

The Ontario Medical Association (OMA) was an umbrella body that represented the interests of the Ontario medical profession. Aviva Canada Inc. provided personal and commercial insurance. Willis Canada Inc. was an insurance broker. The OMA commenced this action against Willis and Aviva, alleging default in payment of the fees contemplated by a broker/agent agreement. Aviva moved to stay the action under the Arbitration Act and to have the dispute referred to arbitration. The motion judge granted a stay, applying the competence-competence principle. The OMA appealed.

The Ontario Court of Appeal dismissed the appeal.

Arbitration - Topic 2504

Stay of proceedings - Arbitration clause - Enforcement of - The Ontario Medical Association (OMA) was an umbrella body that represented the interests of the Ontario medical profession - Aviva Canada Inc. provided personal and commercial insurance - Willis Canada Inc. was an insurance broker - The OMA commenced this action against Willis and Aviva, alleging default in payment of the fees contemplated by a broker/agent agreement - Aviva moved to stay the action under the Arbitration Act and to have the dispute referred to arbitration - The motion judge granted a stay, applying the competence-competence principle - The OMA appealed, asserting that the Ontario authorities adopting the competence-competence principle were decided under the legislation based on the model law, Ontario's International Commercial Arbitration Act, and that they had no bearing on matters governed by the Arbitration Act - The Ontario Court of Appeal dismissed the appeal - First, there was no basis in the language of the two legislative regimes to justify a different approach to the important issue of how the jurisdiction of arbitrators was to be resolved - Second, the argument advanced by the OMA was not supported by authority - The competence-competence principle had been applied to matters arising under the Arbitration Act - Third, there was no basis in principle to define the respective roles of the courts and arbitrators differently under the Arbitration Act - The competence-competence principle had gained wide acceptance as the appropriate model to determine the jurisdiction of arbitrators, and absent legislative language or binding authority pointing in another direction, the court held that it applied to the Arbitration Act - See paragraphs 19 to 37.

Arbitration - Topic 2507

Stay of proceedings - When available - [See Arbitration - Topic 2504 ].

Arbitration - Topic 2525

Stay of proceedings - Appeals - The Ontario Medical Association (OMA) was an umbrella body that represented the interests of the Ontario medical profession - Aviva Canada Inc. provided personal and commercial insurance - Willis Canada Inc. was an insurance broker - The OMA commenced this action against Willis and Aviva, alleging default in payment of the fees contemplated by a broker/agent agreement - Aviva moved to stay the action under the Arbitration Act and to have the dispute referred to arbitration - The motion judge granted a stay, applying the competence-competence principle - The OMA appealed - Aviva asserted that an appeal was precluded by s. 7(6) of the Arbitration Act - Aviva submitted that the motion judge's order referring the matter to arbitration amounted to a "decision" within the meaning of s. 7(6) from which no appeal lied - The Ontario Court of Appeal held that s. 7(6) barred the appeal - The purpose of s. 7(6), when combined with the competence-competence principle, supported barring the appeal - The rationale behind the competence-competence principle was that unless it was clear as a matter of law that the arbitrator did not have jurisdiction, the issue of jurisdiction should be decided by the arbitrator - See paragraphs 38 to 50.

Cases Noticed:

Dalimpex Ltd. v. Janicki et al. (2003), 172 O.A.C. 312; 64 O.R.(3d) 737 (C.A.), refd to. [para. 12].

Dancap Productions Inc. et al. v. Key Brand Entertainment Inc. et al. (2009), 246 O.A.C. 226; 55 B.L.R.(4th) 1; 2009 ONCA 135, refd to. [para. 12].

Dell Computer Corp. v. Union des consommateurs et al., [2007] 2 S.C.R. 801; 366 N.R. 1; 2007 SCC 34, consd. [para. 20].

Ontario First Nations Limited Partnership v. Ontario Lottery and Gaming Corp. et al., [2013] O.T.C. Uned. 4166; 2013 ONSC 4166, refd to. [para. 32].

2162683 Ontario Inc. et al. v. Flexsmart Inc. et al., [2010] O.T.C. Uned. 6493; 7 C.P.C.(7th) 347; 2010 ONSC 6493, refd to. [para. 32].

1338121 Ontario Inc. et al. v. FDV Inc. et al., [2011] O.T.C. Uned. 3816; 92 B.L.R.(4th) 1; 2011 ONSC 3816, refd to. [para. 33].

Plan Group et al. v. Bell Canada (2009), 252 O.A.C. 71; 96 O.R.(3d) 81; 2009 ONCA 548, refd to. [para. 35].

Mantini v. Smith Lyons LLP et al. (2003), 174 O.A.C. 138; 64 O.R.(3d) 505 (C.A.), refd to. [para. 35].

Radewych v. Brookfield Homes (Ontario) Ltd. et al., [2007] O.A.C. Uned. 403; 2007 ONCA 721, refd to. [para. 40].

SLM Soft.com Inc. v. FirstOntario Credit Union Ltd. , [2002] O.T.C. 757 (S.C.), affd. (2003), 172 O.A.C. 201 (C.A.), refd to. [para. 40].

Lamb v. AlanRidge Homes Ltd. et al. (2009), 464 A.R. 46; 467 W.A.C. 46; 2009 ABCA 343, refd to. [para. 40].

Huras v. Primerica Financial Services Ltd. (2000), 137 O.A.C. 79 (C.A.), dist. [para. 42].

Brown v. Murphy (2002), 159 O.A.C. 75; 59 O.R.(3d) 404 (C.A.), refd to. [para. 43].

Clark (A.G.) Holdings Ltd. et al. v. HOOPP Realty Inc. (2013), 544 A.R. 114; 567 W.A.C. 114; 2013 ABCA 101, refd to. [para. 43].

SNC-SNAM, G.P. v. Opron Maritimes Construction Ltd. et al. (2011), 386 N.B.R.(2d) 1; 999 A.P.R. 1; 336 D.L.R.(4th) 129; 2011 NBCA 60, refd to. [para. 43].

Statutes Noticed:

Arbitration Act, S.O. 1991, c. 17, sect. 7 [para. 13].

Counsel:

Peter H. Griffin and Brendan F. Morrison, for the appellant;

Elizabeth Pillon and Vanessa Voakes, for the respondent.

This appeal was heard on November 8, 2013, by Hoy, A.C.J.O., Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., on December 11, 2013.