Court File and Parties

CITATION: Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 372

DATE: 20070516

DOCKET: M34739 (C45063)

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS, GILLESE, MacFARLAND JJ.A. and LANE J. (ad hoc)

IN THE MATTER of the Insurance Act, R.S.O. 1990, c.I.8, as amended, and Regulation 283/95 made pursuant to the Insurance Act;

AND IN THE MATTER of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c.M.41;

AND IN THE MATTER of the Arbitration Act, 1991, S.O. 1991, c.17;

AND IN THE MATTER of an arbitration.

BETWEEN:

ALLSTATE INSURANCE COMPANY OF CANADA

Applicant (Respondent in Appeal/Moving Party)

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND and MANITOBA PUBLIC INSURANCE

Respondent (Appellant, Motor Vehicle Accident Claims Fund/Responding Party)

Todd J. McCarthy for the Applicant/Respondent in Appeal/ Moving Party

David Scott for the Respondent/Appellant, Motor Vehicle Accident Claims Fund/Responding Party

Heard in-writing

On a motion to vary paragraphs 50 and 52 of the Judgment of this court dated January 31, 2007

ENDORSEMENT

[1] On the appeal, Allstate argued that the Fund had initiated arbitration proceedings beyond the one-year limitation period prescribed in s. 7(2) of O. Reg. 283/95, and therefore, the arbitrator had no jurisdiction to consider the Fund’s claim for reimbursement. At para. 50 of our reasons, we held that Allstate had withdrawn this argument before the arbitrator and could not revive it on the appeal.

[2] Allstate now brings a motion to vary our judgment by striking out the reference to its withdrawal of the limitation defence argument under s. 7(2) and by remitting to the arbitrator the question whether the Fund initiated arbitration beyond the one-year period.

[3] Allstate contends that, based on Kalinkine, it took the position before the arbitrator that the Fund was not an insurer. Consistent with that position it acknowledged that the Fund was not bound by s. 7(2). Now that this court has overturned Kalinkine and held that the Fund is an insurer under the Regulation, Allstate submits that it should be able to rely on the limitation defence.

[4] We do not accept this submission. Allstate did not appeal the arbitrator’s finding that it had “conceded that the Fund was not bound by the time limits set out in the Regulation.” Instead, before Ferguson J., Allstate agreed that either it or Manitoba Public Insurance was liable to repay the Fund, with liability turning solely on whether the deceased was principally dependent on her mother for financial support.

[5] Thus, Ferguson J. expressly found that he need not be concerned with the notice provisions under the Regulation:

Because the parties agree that one of the Respondents is liable to make the repayment depending solely on the issue of the deceased’s dependency, I am not concerned with the notice provisions of the Regulation.

[6] Both before the arbitrator and Ferguson J., Allstate chose not to maintain its argument on the limitation period. It is therefore not open to Allstate to raise this argument in this court.

[7] The motion is dismissed, with costs to the Fund fixed at $1,000.

“John Laskin J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“D. Lane J. (ad hoc)”