Donohue v. Lefaivre

knowledge sufficient to overcome that finding, must, in my opinion, be strong and conclusive. Being in doubt as to -.

the sufficiency of the circumstances in this case to overcome the finding, and believing the point first above men- Lamont Jtioned may possibly come before the court for determination if the appellants are allowed to proceed with their appeal, leave to appeal will be granted.

THOMAS D. BULGER (PLAINTIFF)........ APPELLANT; *Oct.

AND

*Oct. 13.

THE HOME INSURANCE COMPANY

R

N (DEFENDANT) .......................

f

ON APPEAL FROM THE OF APPEAL BRITISH COLUMBIA (1)

Insurance, fire-Arbitration-Fire Insurance Policy Act, s. 22-Arbitration Act, 8-Defendant's right to appointment of arbitrator-Stay of action pending arbitration-Waste of time and money in trivial technical disputes.

In an action on a fire insurance policy on household furniture, the appellant claimed damages for the respondent's failure to repair or replace the goods as the plaintiff alleged the insurance company had elected to do; and in the alternative, indemnity for loss of, or damage to, the goods insured. The insurance company having given notice of the appointment of an arbitrator under statutory condition no. 2, and the appellant having refused' to appoint an arbitrator, the respondent applied for an order directing such an appointment, and also for an order for a stay of proceedings pending the arbitration. Both applications were dismissed by the trial judge; and the Court of Appeal allowed both appeals.

Held, that if in fact there had been an election by the respondent to take advantage of the re-instatement clause, the appellant was entitled to enforce the obligation to re-instate, and in respect of the appellant's claim for damages for failure to do so, the arbitration clause would have no operation, and the respondent would not be entitled either to an order directing the appointment of an arbitrator or to a stay. It *PRESENT:-Duff, Newcombe, Rinfret, Lamont and Smith JJ. (1) S.C.R.