



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Medical Association v. Willis
    Canada Inc., 2013 ONCA 745

DATE: 20131211

DOCKET: C57075

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

BETWEEN

Ontario Medical Association

Plaintiff (Appellant)

and

Willis Canada Inc. and Aviva Canada Inc.

Defendants (Respondents)

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

Elizabeth Pillon and Vanessa Voakes, for the respondent

Heard: November 8, 2013

On appeal from the order of Justice Frank J. C. Newbould
    of the Superior Court of Justice, dated April 17, 2013, with reasons reported
    at 2013 ONSC 2253.

Sharpe J.A.:


[1]

This appeal involves the stay of an action to permit an arbitrator to
    determine whether the claim is subject to an arbitration clause. The threshold
    issue is whether an appeal lies to this court from a decision of a judge of the
    Superior Court staying an action under the competence-competence principle,
    thereby deferring the issue of whether or not the dispute is arbitrable to the
    arbitrator.

FACTS

The parties

[2]

The appellant Ontario Medical Association (OMA) is an umbrella body
    that represents the interests of the Ontario medical profession. The respondent
    Aviva Canada Inc. (Aviva) provides personal and commercial insurance. The
    respondent Willis Canada Inc. (Willis) is an insurance broker.

The contractual
    documents

[3]

Willis and Aviva entered a written agreement in June 2004, the
    Broker/Agent Agreement, pursuant to which Willis acts as broker and Aviva
    provides insurance coverage to OMA members. That agreement contains the
    following arbitration clause:

3.

Arbitration
.

Where the parties disagree, any dispute between them arising
    out of this Agreement, but not specifically dealt with under the terms of this
    Agreement, shall be submitted to arbitration pursuant to the provisions of any
    applicable arbitration law, and the expense of such arbitration shall be borne
    equally by the Broker/Agent [Willis] and the Company [Aviva].

[4]

Pursuant to a Schedule to that agreement, Aviva agrees to pay the OMA an
    Over-Ride (Sponsor Fee) of 2% on the OMA portfolio. The Schedule further
    provides that the parties (inclusive of the Ontario Medical Association) are
    to meet to negotiate the formulation of a schedule to provide for increases to
    the fee based on actuarially calculated profit and loss ratios.

[5]

The OMA is not a signatory to the Broker/Agent Agreement but the OMA is
    a party to an agreement called Addendum to Broker/Agent Agreement. The
    preamble to that agreement provides as follows;

THIS ADDENDUM is executed pursuant to and is attached to and
    forms part of the Broker/Agent Agreement for The Ontario Medical Association
    portfolio dated June, 2004 (the Broker/Agent Agreement). The Ontario Medical
    Association (OMA) joins this Addendum for purposes of Clause 3 below exclusively.

[6]

Clause 3 provides that the OMA joins the Addendum as the beneficiary of Avivas
    obligation to pay the Over-Ride (Sponsor Fee) under the Schedule and further
    provides that Aviva will pay OMA a Variable Sponsor Fee according to a
    formula set out in the clause, as well as a Policy in Force Sponsor Bonus.

The OMAs action

[7]

The OMA commenced this action against Willis and Aviva, alleging default
    in payment of the fees contemplated by the Schedule and the Addendum.

Avivas stay motion

[8]

Aviva moved to stay the action pursuant to the
Arbitration Act, 1991
,
    S.O. 1991, c. 17, s. 7 and to have the dispute referred to arbitration.

[9]

The OMAs position is that it is not a party to the Broker/Agent Agreement
    and therefore is not bound by the arbitration clause in that agreement. The
    Addendum clearly states that the OMA joins for the purposes of clause 3
    exclusively. The OMA submits that this language excludes the arbitration clause
    in the Broker/Agent Agreement and that it is only by virtue of the Addendum
    that the OMA has any recourse against Willis and Aviva for the various fees to
    which it is entitled.

[10]

Aviva
    contends that in its statement of claim, the OMA has pleaded its claim as
    arising under the Broker/Agent Agreement. Aviva also argues that when the
    Broker/Agent Agreement and the Addendum are fairly read as a whole, the OMA is
    a party to the Broker/Agent Agreement and its claim is governed by the
    arbitration clause.

[11]

Willis
    takes a different position. It has accepted the jurisdiction of the Superior
    Court by filing a statement of defense in the action asserting that the OMA is
    not a party to the Broker/Agent Agreement.

Decision of the motion
    judge: Ontario Medical Association v. Willis Canada Inc. et al, 2013 ONSC 2253.

[12]

The
    motion judge granted a stay, applying the competence-competence principle and
    citing
Dalimpex Ltd. v. Janicki
(2003), 64 O.R. (3d) 737 (C.A.), at para.
    21, and
Dancap

Productions Inc. v. Key Brand Entertainment Inc
.,
2009 ONCA 13
5,
55 B.L.R. (4th) 1, at paras.
    32-33. He found that as there was an arguable case that the OMA and its claim
    were governed by the arbitration clause, the proper order was to defer the
    issue of jurisdiction to the arbitrator. He made it clear that he was making no
    determination that the OMA was a party to the arbitration agreement and was
    leaving that issue to be decided by the arbitrator.

LEGISLATION

[13]

The
    provision in the
Arbitration Act, 1991
, governing stays is s. 7:

7.  (1)
If
    a party to an arbitration agreement commences a proceeding in respect of a
    matter to be submitted to arbitration under the agreement, the court in which
    the proceeding is commenced shall, on the motion of another party to the
    arbitration agreement, stay the proceeding.

Exceptions

(2)  However,
    the court may refuse to stay the proceeding in any of the following cases:

1. A party entered into the arbitration agreement while under a
    legal incapacity.

2. The arbitration agreement is invalid.

3. The subject-matter of the dispute is not capable of being
    the subject of arbitration under Ontario law.

4. The motion was brought with undue delay.

5. The matter is a proper one for default or summary judgment.

Arbitration may continue

(3)
An
    arbitration of the dispute may be commenced and continued while the motion is
    before the court.

Effect of refusal to stay

(4)
If
    the court refuses to stay the proceeding,

(a) no arbitration of the dispute shall be commenced; and

(b) an arbitration that has been commenced shall not be
    continued, and anything done in connection with the arbitration before the
    court made its decision is without effect.

Agreement covering part of dispute

(5)
The
    court may stay the proceeding with respect to the matters dealt with in the
    arbitration agreement and allow it to continue with respect to other matters if
    it finds that,

(a) the agreement deals with only some of the matters in respect
    of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the
    agreement from the other matters.

No appeal

(6)
There
    is no appeal from the courts decision.

[14]

The
    other provisions of the
Arbitration Act, 1991
relevant to this appeal are
    s. 17(1), which gives arbitrators the power to rule on their own jurisdiction,
    and s. 17(8), which allows for curial review where the arbitrator rules on
    jurisdiction as a preliminary matter:

17.
(1)
An
    arbitral tribunal may rule on its own jurisdiction to conduct the arbitration
    and may in that connection rule on objections with respect to the existence or
    validity of the arbitration agreement.



(8)  If the arbitral tribunal rules on an objection
    as a preliminary question, a party may, within thirty days after receiving notice
    of the ruling, make an application to the court to decide the matter.

[15]

Finally,
    the
Arbitration Act, 1991
, s. 46(1) provides that a party may (subject
    to an agreement pursuant to s. 3 to contract out of s. 46) ask the court to set
    aside an arbitrators award that deals with a dispute that the arbitration
    agreement does not cover.

ISSUES

[16]

The
    OMA submits that the motion judge erred in staying the action and raises the
    following ground of appeal:

1.

On a proper
    interpretation of the contractual documents, is OMA bound by the Broker/Agent
    Agreement to submit this dispute to arbitration?

[17]

Aviva
    raises the following threshold issue:

2.

Is an appeal to
    this court precluded by the
Arbitration Act
,
1991
,
    s. 7(6)?

ANALYSIS

[18]

I
    turn first to the threshold issue of this courts jurisdiction to entertain the
    OMAs appeal.

(1) The
    competence-competence principle and the Arbitration Act, 1991.

[19]

To
    properly characterize the nature of the motion judges decision, it is
    necessary to consider the competence-competence principle that he applied.

[20]

That
    principle gives precedence to the arbitration process and holds that
    arbitrators should be allowed to exercise their power to rule first on their
    own jurisdiction:
Dell Computer Corp. v. Union des consommateurs
,
    2007 SCC 34, [2007] 2 S.C.R. 801, at para. 70.
Dell Computer
involved
    the interpretation and application of provisions in the Quebec
Code of
    Civil Procedure
, R.S.Q., c. C-25 dealing with arbitration and stays

against
    the background of the UNCITRAL
Model Law on International Commercial
    Arbitration
(Model Law)
,
adopted in Ontario by the
International
    Commercial Arbitration Act,
R.S.O. 1990, c. I.9.

[21]

Writing
    for the majority, Deschamps J., at paras. 69 and following, identified two competing
    schools of thought as to the appropriate degree of judicial involvement in
    disputes as to the jurisdiction of arbitrators. The first school of thought
    favours an interventionist and robust role for the courts to make the initial
    determination of all jurisdictional disputes. That was the traditional approach
    taken by the English and Canadian courts until relatively recently. The second,
    and in recent years, prevailing school of thought, is reflected by the
    competence-competence principle.

[22]

Deschamps J. elaborated on the competence-competence
    principle at paras. 84-86. She laid down as a general rule that in any case
    involving an arbitration clause, a challenge to the arbitrators jurisdiction
    must be resolved first by the arbitrator. That general rule should be departed
    from only if the challenge to the arbitrators jurisdiction is based solely on
    a question of law, an exception based upon the combination of the courts
    expertise on matters of law and the efficiency to be achieved by having the issue
    dealt with when the request for a stay and referral is made. However, Deschamps
    J. cautioned that [i]f the challenge requires the production and review of
    factual evidence, the court should normally refer the case to arbitration, as
    arbitrators have, for this purpose, the same resources and expertise as courts. 
    If questions of mixed law and fact are raised, the court should refer the issue
    to the arbitrator unless the questions of fact require only superficial
    consideration of the documentary evidence in the record. Finally, Deschamps J.
    held that when applying these exceptions, the courts should be satisfied that
    the challenge to the arbitrators jurisdiction is not a delaying tactic and
    that it will not unduly impair the conduct of the arbitration proceeding and
    lean in favour of allowing the arbitrator to rule in his or her competence.

[23]

In
Dancap Productions Inc.
, a case arising under the
International
    Commercial Arbitration Act
and the

Model Law, this court stated
    at paras. 32-33:

It is now well-established in Ontario that the court should
    grant a stay under art. 8(1) of the Model Law where it is arguable that the
    dispute falls within the terms of an arbitration agreement. In
Dalimpex
    Ltd. v. Janicki
(2003), 64 O.R. (3d) 737 (C.A.), at para. 21, Charron J.A.
    adopted the following passage by Hinkson J.A. in
Gulf Canada Resources Ltd.
    v. Arochem International Ltd.
(1992), 66 B.C.L.R. (2d) 113 (B.C.C.A.), at
    paras. 39-40, as the proper approach to art. 8(1):

it is not for the court on an application for a stay of
    proceedings to reach any final determination as to the scope of the arbitration
    agreement or whether a particular party to the legal proceedings is a party to
    the arbitration agreement because those are matters within the jurisdiction of
    the arbitral tribunal.  Only where it is clear that the dispute is outside
    the terms of the arbitration agreement or that a party is not a party to the
    arbitration agreement or that the application is out of time should the court
    reach any final determination in respect of such matters on an application for
    a stay of proceedings.

Where it is arguable that the dispute falls within the terms
    of the arbitration agreement or where it is arguable that a party to the legal
    proceedings is a party to the arbitration agreement then, in my view, the stay
    should be granted and those matters left to be determined by the arbitral
    tribunal.

As Charron J.A. explained in
Dalimpex
, at para. 22, a
    deferential approach allowing the arbitrator to decide whether the dispute is
    arbitrable, absent a clear case to the contrary, is consistent both with the
    wording of the legislation and the intention of the parties to review their
    disputes to arbitration.

[24]

The
    OMA argues that the Ontario authorities adopting the competence-competence
    principle were decided under the legislation based on the Model Law, Ontarios
International
    Commercial Arbitration Act,
and that they have no bearing on matters
    governed by the
Arbitration Act
,
1991
.

[25]

For
    the following reasons, I disagree with that submission.

[26]

First,
    I can see 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 is to be resolved. The provision governing stays in the Model Law,
    adopted by
International Commercial Arbitration Act
and the
Arbitration Act, 1991
, is Art. 8 (1):

A court before which an action is brought in a matter which is
    the subject of an arbitration agreement shall, if a party so requests not later
    than when submitting his first statement on the substance of the dispute, refer
    the parties to arbitration unless it finds that the agreement is null and void,
    inoperative or incapable of being performed.

[27]

I
    can see no meaningful distinction between that language and ss. 7 (1) and (2)
    of the
Arbitration Act, 1991.


[28]

Art.
    16 (1) of the Model Law gives arbitrators the power to decide their own
    jurisdiction:

The arbitral tribunal may rule on its own jurisdiction,
    including any objections with respect to the existence or validity of the
    arbitration agreement. For that purpose, an arbitration clause which forms part
    of a contract shall be treated as an agreement independent of the other terms
    of the contract. A decision by the arbitral tribunal that the contract is null
    and void shall not entail
ipso jure
the invalidity of the arbitration
    clause.

[29]

As
    I have noted, the same power is conferred by s. 17(1) of the
Arbitration
    Act, 1991
.

[30]

The
    power conferred on a court to grant a stay and the power of the arbitrator to
    determine his or her own jurisdiction are substantially the same under both
    regimes and I can see nothing in the language of the Model Law on the one hand,
    and the
Arbitration Act, 1991
on the other, that could justify
    applying the competence-competence principle to the former while excluding it
    from the latter.

[31]

Second,
    the argument advanced by the OMA is not supported by authority. The
    competence-competence principle has been applied to matters arising under the
Arbitration
    Act, 1991
.

[32]

In
Ontario First Nations Limited Partnership v. Ontario
    Lottery and Gaming Corp.
,
2013 ONSC 4166,
    Morgan J. applied the competence-competence principle to an arbitration
    agreement under the
Arbitration Act, 1991
. He stated, at para. 22, that the court will only
    retain jurisdiction where it is clear the dispute is outside the terms of the
    arbitration agreement. Campbell J. also applied the principle to a request for
    a stay under s. 7 in
2162683 Ontario Inc. v. Flexsmart Inc.,
2010 ONSC 6493, 7 C.P.C. (7th) 347.

[33]

1338121 Ontario Inc. v. FDV Inc.
,
2011 ONSC 3816, 92 B.L.R. (4th) 1 did not concern a
    stay, but Brown J. commented at paras. 30-31 on the application of the
    principle under the
Arbitration Act, 1991
:

To invoke the operation of the
competence-competence
principle, a
    party must demonstrate that it is "arguable" that a dispute falls within
    the terms of an arbitration agreement.

...

In the case of domestic arbitration clauses, section 17(1) of
    the Arbitration Act, 1991, S.O.
    1991, c. 17, adopts the competence-competence
    principle:

17. (1) An arbitral tribunal may rule on its own
    jurisdiction to conduct the arbitrations and may in that connection rule on
    objections with respect to the existence or validity of the arbitration
    agreement.

[34]

In
Bell Canada v. The
    Plan Group
(2009), 96 O.R. (3d) 81 (C.A.), a case arising under the
Arbitration
    Act
,
1991
, Gillese J.A. (dissenting on other grounds) suggested at
    paras. 122-124 that an application judge should have been asked to refer a
    matter to arbitration based on the general rule laid down in
Dell Computer
that, with two exceptions, in any case involving an arbitration clause, a
    challenge to the arbitrators jurisdiction must be resolved first by the
    arbitrator.

[35]

Counsel for the OMA was unable to
    cite any authority that explicitly recognizes the distinction he was attempting
    to draw between the two regimes but submits nonetheless that under s. 7(1), the
    court is
required
to decide the
    issue rather than simply pass it on to the arbitrator, a proposition that is
    inconsistent with the competence-competence principle.  The OMA relies on the
    following passage from
Mantini v. Smith Lyons LLP
(2003), 64 O.R. (3d) 505 (C.A.), at para. 17:

In order to determine whether a claim should be stayed under s.
    7(1) of the
Arbitration Act
, the court first interprets the arbitration
    provision, then analyzes the claims to determine whether they must be decided
    by an arbitrator under the terms of the agreement, as interpreted by the court.
    If so, then under s. 7(1), the court is required to stay the action and refer
    the claims to arbitration subject to the limited exceptions in s. 7(2). [Citation
    omitted.]

[36]

There is no reference to the
    competence-competence principle in the
Mantini
judgment and no
    suggestion that either party asked the court to defer the question of
    jurisdiction to the arbitrator. It appears to have been common ground between
    the parties that the court should resolve the question of jurisdiction as a
    matter of law. As I have noted, the competence-competence principle does allow
    a court to decide a
challenge to the
    arbitrators jurisdiction where the challenge is based solely on a question of
    law, as was done in
Mantini
. In
    my view,
Mantini
does not stand
    for the proposition that the competence-competence principle does not apply to
    proceedings arising under the
Arbitration Act, 1991
.

[37]

Third, there is no basis in
    principle to define the respective roles of the courts and arbitrators differently
    under the
Arbitration Act, 1991
.
    The competence-competence principle has gained wide acceptance as the
    appropriate model to determine the jurisdiction of arbitrators, and absent
    legislative language or binding authority pointing in another direction, I
    would hold that it applies to the
Arbitration Act, 1991
.

(2) Is the appeal barred
    by s. 7(6)?

[38]

I now turn to the question of whether
    s. 7(6) bars an appeal from a decision granting a stay on the basis that the
    issue of the arbitrators jurisdiction should be determined by the arbitrator
    under the competence-competence principle.

[39]

Aviva submits that the motion
    judges order referring the matter to arbitration amounts to a decision
    within the meaning of s. 7(6) from which no appeal lies. The OMA submits that
    s. 7(6) only precludes an appeal where the judge actually decides the issue of
    jurisdiction. Here motion the judge made no decision other than to refer any
    decision on that issue to the arbitrator.

[40]

A
    distinction has emerged in the case law under s. 7(6) between cases where the
    motion judge finds that the plaintiffs claim is governed by an arbitration
    agreement and cases where the motion judge decides that the matter is not
    governed by an arbitration clause. If the motion judge determines that the
    arbitration clause applies, the order falls within s. 7 and any appeal from
    that order is barred by s. 7(6): see
Radewych v. Brookfield Homes (Ontario)
    Ltd.
, 2007 ONCA 721;
SLMSoft.com Inc. v. First Ontario Credit Union
    Ltd.
(2003), 172 O.A.C. 201 (C.A.), affg [2002] O.T.C. 757 (S.C.);
Lamb
    v. AlanRidge Homes Ltd
., 2009 ABCA 343,
464 A.R. 46
.

[41]

On the other hand, if the motion
    judge decides that the matter is not subject to arbitration because one of the
    parties is not a party to the arbitration agreement or because the dispute
    falls outside the reach of the arbitration clause and refuses the stay, it has
    been held that there is no order under s. 7(1) and that an appeal is not barred
    by s. 7(6).

[42]

The leading case in this second
    category is
Huras v. Primerica Financial Services Ltd
. (2000), 137 O.A.C. 79 (C.A.), where the motion judge
    had found that the dispute was not governed by the agreement containing the
    arbitration clause. This court held, at para. 18:

Where there is no arbitration clause, the
Arbitration Act, 1991
has no application, or putting it another way, the dispute lies beyond the
    scope of
s. 7
.  It follows
    that if the court has decided that the
Act
is not applicable, then the
    prohibition against an appeal in
s. 7(6)
is equally not
    applicable. [Citations omitted.]

[43]

Huras
has been followed
    by this court: see
Brown v. Murphy
(2002),
59 O.R. (3d) 404
(C.A.), and in other provinces: see
A.G.
    Clark Holdings Ltd. v. HOOPP Realty Inc.
,
    2013 ABCA 101, 544 A.R. 114;
Opron Maritimes Construction Ltd. v.
    Irving Oil Ltd.
, 2011 NBCA 60, 386 N.B.R.
    (2d) 1.

[44]

I am unaware of any case dealing
    with the type of order at issue on this appeal, namely, an order made under the
    competence-competence principle that grants a stay but does not determine the
    ultimate issue of the arbitrators jurisdiction to deal with the dispute.

[45]

In my view, s. 7(6) bars this
    appeal. I reach that conclusion for the following reasons.

[46]

First, it is my view that this
    case is not caught by the
Huras
line of authority. While the motion judge did not decide that the arbitration
    clause applied to the OMAs claims so as to bring the case squarely within the
Radewych v. Brookfield Homes (Ontario) Ltd.
line of authority, he did grant a stay pursuant to s. 7(1) and therefore he did
    not decide that the dispute lies beyond the scope of
s. 7
 as was the case in
Huras
. Moreover, while the motion judge did not finally
    resolve the issue of the arbitrators jurisdiction, he did make a preliminary
    assessment of the case and decide that it was at least arguable that the matter
    was arbitrable.

[47]

Second, it is my view that the
    purpose of s. 7(6), when combined with the competence-competence principle,
    supports barring the appeal. The rationale behind the competence-competence
    principle is that unless it is clear as a matter of law that the arbitrator
    does not have jurisdiction, the issue of jurisdiction should be decided by the
    arbitrator.  I agree with the observation of the Alberta Court of Appeal in
Lamb
    v. AlanRidge Homes Ltd
., at para. 14, that
    the preclusion of appeals in s. 7(6) reflects an important policy
    consideration:

[N]amely that the process of determining whether the parties
    should proceed with arbitration, or legal proceedings, should not become bogged
    down by resort to the appeal process. The legislature obviously intended that
    the decision of the Court of Queens Bench should be final, so as to promote an
    expeditious determination of the forum to hear the disputes of the parties.

[48]

There is an understandable
    inclination to resist the idea that any decision is not subject to review by
    way of appeal. However, there are situations where the need for finality and an
    expeditious resolution trump reviewability. It seems to me that a decision to
    grant a stay pursuant to the competence-competence principle falls into that
    category. The threshold for granting a stay pursuant to the test articulated in
Dell Computer
involves an
    exercise of judicial discretion. The competence-competence principle directs
    most disputes about jurisdiction away from the courts in favour of arbitrators in
    the first instance. The legislature has clearly stated that there should be no
    appeal from a decision to grant a stay under s. 7 and, in my view, that
    legislative policy would be frustrated by allowing this appeal to proceed.

[49]

It is also significant to observe that
    granting a stay and referring the issue of jurisdiction to the arbitrator in
    the first instance does not eliminate the possibility of judicial review. The
Arbitration
    Act, 1991
, s. 17(8) provides for review of a preliminary ruling on
    jurisdiction and s. 46 provides that an award may be set aside if it strays
    beyond what is covered by the arbitration agreement.

[50]

I conclude, accordingly, that this
    appeal is barred by s. 7(6) and for that reason, I would dismiss the appeal.

(2) Other issues

[51]

As I have concluded that this
    appeal is barred, there is no basis for me to consider the OMAs alternate
    submission that the motion judge erred by refusing to deal with
the
    challenge to the arbitrators jurisdiction as being based solely on a question
    of law.

DISPOSITION

[52]

For the foregoing reasons, I would dismiss the appeal
    with costs to the respondent in the amount agreed to by the parties, namely,
    $15,000
.

Robert J. Sharpe
    J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree R.A. Blair
    J.A.

Released: December 13, 2013


