Seibel v. Dwyer Elevator Co.

'- OTHERS (DEFENDANTS)

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MaIT sy 13,14. *Oct. 20. AND

W. R. SMITH (PLAINTIFF) .................

RESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION THE SUPREME On a submission to an arbitration of three persons under statutory condition No. 22 in schedule C to The Alberta Insurance Act, R.S.A. (1922) c. to determine the amount of loss, the decision of a majority of the arbitrators is binding.

. In this case the appellate court while deciding that the majority of the arbitrators could render a valid award allowed an amendment of the statement of defence to the effect that the arbitrators had considered the replacement value and not the real value of the insured buildings and sent back the case for trial upon this issue.

Held, per Mignault J., that such a judgment was a final judgment within the meaning of s. 2 of the Supreme Court Act as amended by 10-11 Geo. V, c. 32.

Judgment of the Appellate Division (20 Alta. L.R. 114) affirmed, Mignault J. dissenting.

APPEAL from the decision of the Appellate Division of the Supreme Court of Alberta (1), reversing the judgment of Ives J. who affirmed an order of Clarry M.C. refusing the respondent's motion for judgment on the ground that the amount of loss, which it was necessary should be fixed by arbitration, had not been so fixed inasmuch as the award set up by the plaintiff was made by but two of three arbitrators and was consequently invalid as an award.

The appellant insurance companies issued policies of insurance against loss or damage by fire for a total amount of $5,000 on a building owned by respondent. The building and contents were totally destroyed by fire. Each of the policies was subject to the statutory conditions of The Alberta Insurance Act. The respondent claiming that differ- *PRESENT:-Idington, Duff, Mignault and Malouin JJ. and Maclean J. ad hoc.

Reporter's Note.-Mr. Justice Malouin resigned before the date of the judgment.