



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-Demnitys 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-Demnitys 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 Superintendents decision to come before the
    court on judicial review on a full record.

[6]

The motion judges 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.


