





CITATION: Kingsway
          General Insurance Company v. Gore Mutual Insurance
      Company, 2011 ONCA 87



DATE: 20110128



DOCKET: M39618 (C52924)



COURT OF APPEAL FOR ONTARIO



Juriansz J.A. (In Chambers)



BETWEEN



Kingsway General Insurance Company



Applicant (Appellant)



and



Gore Mutual Insurance Company



Respondent (Respondent in Appeal)



Harry Brown, for the appellant



Mark Donaldson, for the respondent

George Kanellakos, for the Markel Insurance Company



Heard: January 28, 2011



ENDORSEMENT



[1]

This motion raises a point of general application: may a party to an
    arbitration award appeal a decision of the Superior Court of Justice to this
    court in accordance with s. 6(1)(b) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43, instead of in accordance with s. 49 of the
Arbitration Act
,
    1991, S.O. 1991, c. 17?

[2]

Kingsway General Insurance Company seeks an order that it may appeal
    from the decision of the Superior Court of Justice dismissing its appeal from
    an arbitration award without leave of this court.

[3]

Section 49 of the
Arbitration Act
states as follows:

An appeal from the court's decision in an appeal of
    an award, an application to set aside an award or an application for a
    declaration of invalidity may be made to the Court of Appeal, with leave of
    that court.

[4]

However, s. 6(1)(b) of the
Courts of Justice Act
contains the
    general provision:

An appeal lies to the Court of Appeal from  a
    final order of a judge of the Superior Court of Justice.

[5]

Kingsway argues that although s. 49 of the
Arbitration Act
requires the party appealing from the Superior Court to obtain leave to appeal
    to the Court of Appeal, s. 6(1)(b) of the
Courts of Justice Act
provides
    for an appeal to the Court of Appeal as a matter of right.

[6]

I disagree.

[7]

Section 49 of the
Arbitration Act
and s. 6(1)(b) of the
Courts
    of Justice Act
are in fundamental conflict. One requires leave and the
    other does not. Both cannot be given effect. Section 6(1)(b) of the
Courts
    of Justice Act
has general application. However, in s. 49 of the
Arbitration
    Act
the legislature has specifically addressed the right to further appeal
    the decision of an arbitrator. The legislative intent, obviously, was that the
    specific legislation should prevail over the general.

[8]

The motion is dismissed. Kingsway requires leave to appeal the decision of
    the Superior Court to this court.

[9]

Mr. Kanellakos appeared for the Markel Insurance Company, which is
    involved in another case raising identical issues. On the request of all,
    Kingsways application for leave to appeal and that of the Markel Insurance Company
    in C52873 should be place before the same panel for determination.


