THE FOLLOWING IS AN OVERVIEW OF THE MEMORANDUM FOR THE 'APPLICATION FOR LEAVE TO APPEAL' CURRENTLY AT THE SUPREME COURT OF CANADA -
For the complete 'Application for Leave to Appeal' please read the pdf version of the file: (click here)
For the complete 'Reply to the Response to the Application for Leave to Appeal' please read the pdf version: (click here)
OVERVIEW
1. The Court of Appeal for Ontario in this case, Phylum Corporation v. The Dominion of Canada General Insurance Company, 2014 ONCA 886, has chosen to overrule a prior decision set by the Supreme Court of Canada in Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 where the Supreme Court of Canada held that an insurance appraisal is a valuation and not an arbitration and that an expert opinion would be required by the appointed umpire in the insurance appraisal.
2. The Saskatchewan Court of Appeal in Shinkaruk Enterprises LTD. v Commonwealth Insurance Co. (1990), 71 D.L.R. (4th) 681 has adopted the decision set by the Supreme Court of Canada ruling in Sport Maska
“Moreover, the reasoning employed in Pfeil and Krofchick, has now been specifically approved by the Supreme Court of Canada in Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 at 588. It may now be considered settled that an appraisal under s. 108 and condition 11 under the Act is a valuation and not an arbitration.”
3. The Divisional Court of Ontario in Krofchick et al. v Provincial Insurance Co. Ltd. et al. (1978), 21 O.R. (2d) 805 held:
“… the function of the appraisers and umpire was not to hear evidence, but rather to arrive at a decision on the basis of their own knowledge and expertise…”
4. There is a clear and significant conflict in law across the nation in the provincial courts of appeal and a continued conflict at all levels of courts across Canada regarding the appointment and role of an umpire in an insurance appraisal. The insurance appraisal is of public interest that
effects the rights of every citizen that purchases the security of an insurance policy and the appointment of an umpire for an insurance appraisal forms a part of every provincial statute in Canada.
5. Mary Zgrablic in her affidavit for support of the Applicant’s Application for Leave to Appeal states:
“… the Court of Appeal ruling in Phylum v Dominion, which found that the umpire in this case did not possess the proper knowledge and experience to provide an expert opinion but ruled that the umpire was properly qualified and provided no reasons for that decision. The Court of Appeal for Ontario has further stated that an umpire can hear evidence from the parties setting a provincial precedent in contradicting the Supreme Court of Canada.”
6. The Supreme Court of Canada in Canada v Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 held:
“[26] Courts must proceed with caution when deciding to overrule a prior decision…No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank…”
7. The Applicant seeks leave to appeal this case so that the Supreme Court of Canada may have the opportunity to consider whether all provincial courts of appeal and lower courts are equal regarding an appointment of an umpire in an insurance appraisal and a further consideration to reaffirm past precedent set by the Supreme Court of Canada in Sport Maska so that there may be equality for every citizen across the nation and that each citizen will know what to expect in law given a case with similar material facts.
8. The Applicant further seeks leave to appeal so that the Supreme Court of Canada may have the opportunity to provide guidance to the lower courts and to citizens in consideration of one of the most critical questions for an insurance appraisal, what qualifications are necessary for a person to act as an umpire in an insurance appraisal? The consideration of this question may serve as a relief to the lower courts in this area of the law.
