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Jevco vs Drews December 2003

Case Name:

Jevco Insurance Co. v. Drews

Between

Jevco Insurance Company, appellant (petitioner), and

Barry Drews and Insurance Corporation of British

Columbia, respondents (respondents)

 

[2003] B.C.J. No. 2922

2003 BCCA 711

7 C.C.L.I. (4th) 22

127 A.C.W.S. (3d) 1043

Vancouver Registry No. CA030841

 British Columbia Court of Appeal

 Vancouver, British Columbia

 

Finch C.J.B.C.

(In Chambers)

Oral judgment: December 8, 2003.

 Released: December 30, 2003.

(10 paras.)

Arbitration — Judicial review — Practice, appeals — Leave to appeal — Jurisdiction — Practice — Appeals — Restrictions on argument on appeal — Issue or points not previously raised — Issues conceded or agreed upon by parties.

Petition by Jevco for leave to raise constitutional issues on appeal. Jevco agreed to an arbitration in BC to determine Drews’s rights under an insurance policy in respect to injuries suffered by him in a motor vehicle accident in New Brunswick 13 years ago. Jevco agreed that the Commercial Arbitration Act, Financial Institutions Act, Financial Institutions Act Regulations, Insurance (Motor Vehicle) Act, and Insurance (Motor Vehicle) Act Regulations applied. The arbitration was held and the arbitrator issued a decision. Jevco appealed to the Supreme Court under the Commercial Arbitration Act’s provisions for appeal which empowered the Supreme Court to confirm, amend, or set aside an arbitrator’s decision. Jevco’s appeal was dismissed. Jevco sought leave to appeal to the Court of Appeal to raise for the first time arguments that the Acts and Regulations were constitutionally inapplicable to Jevco’s insurance policy because their application extended beyond the territorial limits of provincial jurisdiction. Drews contended the Court lacked jurisdiction to hear new grounds on appeal and in any case the prejudice to him precluded granting leave.

HELD: Application dismissed. The Court lacked jurisdiction to consider or decide new issues not raised in the arbitration given the Supreme Court’s jurisdiction under the Commercial Arbitration Act was limited to confirming, amending, or setting aside an arbitrator’s decision and the Court of Appeal s jurisdiction under the Act could not be wider. In addition, Jevco’s agreement to the application of the Acts and Regulations in the arbitration and the Supreme Court appeal and the prejudice to Drews of the raising of new issues after 13 years of delay precluded granting leave.

Statutes, Regulations and Rules Cited:

Commercial Arbitration Act, s. 31.

Financial Institutions Act, R.S.B.C. 1989, c. 47.

Financial Institutions Act Regulations, B.C. Reg.

84/91,

s. 2(2).

Insurance (Motor Vehicle) Act.

Insurance (Motor Vehicle) Act Regulations, B.C. Reg. 324/91, ss. 148(2), 148.1(7), 148.1(8), 148.1(9).

New Brunswick Insurance Act, R.S.N.B. 1973, c. I-12.

Ontario Insurance Act.

Counsel:

E. Dolden, for the appellant.

Y. Gertsoyg, for the defendant, B. Drews.

M. Wilhemson, for the respondent, ICBC.

J.M. Walters, for the Attorney General.

1     FINCH C.J.B.C. (orally):– The petitioner applies for an order that it have leave in the following terms:

  1. leave from the Court of Appeal permitting the Appellant to argue that sections 2(2) of B.C. Reg. 84/91 [Regulations pursuant to the Financial Institutions Act, R.S.B.C. 1989, c. 47] and sections 148.1(2), 148.1(7), 148.1(8) and 148.1(9) of B.C. Reg. 324/91 [Regulations pursuant to the Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204] (collectively these “Acts”) are constitutionally inapplicable to the Appellant because the application of these Acts in the circumstances of the case at bar would not respect the territorial limits on provincial jurisdiction;
  2. leave from the Court of Appeal permitting the Appellant to argue that the defences which the Appellant may raise to determine which insurer is obligated to provide the Respondent, Barry Drews with underinsured motorist protection coverage that he may be entitled to resulting from injuries he allegedly sustained in a motor vehicle accident on July 26, 1992, in New Brunswick are dictated by the New Brunswick Insurance Act, R.S.N.B. 1973, c. 1-12;
  3. leave from the Court of Appeal permitting the Appellant and Respondents respectively to file a Supplementary Factum to address the arguments outlined in paragraphs 1-2 of the Notice of Motion and to address generally Unifund Assurance Company v. Insurance Corporation of British Columbia, [2003] 161 S.C.R. 161; and
  4. leave from the Court of Appeal permitting the Appellant to file such Supplementary Factum with 14 days from the date of any order made pursuant to paragraph 3 above and permitting the Respondents to file their respective Factums within 30 days from the date of the delivery of the Appellant’s Supplementary Factum.

2     The order appealed from was pronounced in the British Columbia Supreme Court on 8 May 2003 by Mr. Justice Williamson, [2003] B.C.J. No. 1082. He dismissed the petitioner’s appeal under s. 31 of the Commercial Arbitration Act from the decision of an arbitrator, Mr. Boskovich. The petitioner’s application for leave to advance new arguments in the Court of Appeal and for leave to amend its factum accordingly is said to arise from the decision of the Supreme Court of Canada in Unifund Assurance Co. of Canada v. Insurance Corporation of British Columbia, (2003) 16 B.C.L.R. (4th) 1 (S.C.), pronounced on 17 July 2003. That judgment held provisions of the Ontario Insurance Act constitutionally inapplicable to ICBC because the legislation did not respect the limits of territorial jurisdiction. Counsel for the petitioner argues that by application of the same principles to the facts of this case provisions of the B.C. legislation as set out in the notice of motion are similarly inapplicable to the policy of insurance issued by the petitioner.

3     Counsel for ICBC opposes the petitioner’s application on the grounds that the petitioner has attorned to the jurisdiction of the British Columbia courts and has accepted the applicability of B.C. legislation. It says the petitioner’s position now as to the applicability of B.C. legislation is inconsistent with the position it took before the arbitrator and in the B.C. Supreme Court.

4     Counsel for the Attorney General, who has not been served with a notice under the Constitutional Questions Act but who has been served with a copy of this notice of motion, opposes the application on a number of grounds. Counsel points out that the Attorney General of Canada has not been served with a notice of constitutional question, a condition precedent to raising the issue the petitioner now seeks to raise. She says the petitioner has attorned to the jurisdiction of the arbitrator and to the B.C. courts and has accepted that B.C. law should apply to the dispute. She says that because this is an appeal under the provisions of the Commercial Arbitration Act there is no basis in the statute for entertaining the issues the petitioner now seeks to raise. She says that to permit the raising of these new issues at this late date will cause prejudice to the Attorney General, to the public interest, to the courts and to the injured party, Mr. Drews, because there is no adequate evidentiary basis to ground the arguments sought to be made on these new issues.

5     Counsel for Mr. Drews also opposes the application on grounds similar to those raised by the other respondents. He stresses the prejudice further delay will cause to Mr. Drews, who was injured in an accident some 13 or 14 years ago. He says the arguments sought to be advanced by the petitioner will cause yet further delay in payment to him of monies he is entitled to receive from one or other of the two insurers at risk.

6     I am of the opinion that the petitioner’s application to raise these new issues and to amend its factum must fail. I think there are three reasons for that and I do not propose to expound them at length. The first reason is based on the petitioner’s attornment to the jurisdiction of British Columbia and to its acceptance of B.C. law as applicable in the circumstances of this case. The second is the absence of any basis in the Commercial Arbitration Act for raising an issue such as this that does not arise from the award itself. The third reason is the prejudice to all of the parties who object but, principally, to Mr. Drews and to the Attorney General.

7     It seems clear to me from the record in this case, or those parts of the record to which my attention has been directed, that the petitioner agreed to submit to an arbitration in British Columbia in which the Insurance Motor Vehicle Act and the regulations under that Act apply, agreed that the provisions of the Financial Institutions Act applied and agreed that the Commercial Arbitration Act applied. It has not taken a position inconsistent with those agreements in any of the court proceedings that have taken place either before or after the arbitration.

8     On the issue of jurisdiction, s. 31(4) of the Commercial Arbitration Act sets out the power of the court hearing an appeal from an arbitrator and provides that the court may confirm, amend or set aside the award. On an appeal to the Supreme Court of British Columbia in this case there would have been no power in the court to consider or decide the new issues the petitioner now seeks to raise. The Court of Appeal cannot have a broader jurisdiction than does the Supreme Court on an appeal under the Commercial Arbitration Act.

9     I find considerable substance in the objection taken by counsel for Mr. Drews on the issue of prejudice to his client if these new arguments are permitted to be raised. The matter has already dragged on for an unconscionable length of time. I do not suggest that that is solely or even primarily the responsibility of the petitioner. It does bear some responsibility however. It seems to me the interests of the injured person in achieving a resolution of these issues is an important factor to consider. I think, as well, that there would be prejudice to the Attorney General and to the public interest in this sense that there may well be evidentiary matters that should have been developed in the record in order properly to address the issues that the petitioner now seeks to raise.

10     For those reasons the application is dismissed.