Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2009 ONCA 409

CITATION: Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2009 ONCA 409

DATE: 20090515

DOCKET: M37230 (C45063)

COURT OF APPEAL FOR ONTARIO

Laskin, Simmons, Gillese and MacFarland JJ.A.

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/Responding Party)

and

Motor Vehicle Accident Claims Fund and Manitoba Public Insurance

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

Respondent (Respondent, Manitoba Public Insurance/Moving Party)

Ian D. Kirby, for Manitoba Public Insurance

Todd J. McCarthy, for Allstate Insurance Company of Canada

David A. Scott, for Motor Vehicle Accident Claims Fund

Heard in writing

On appeal from the order of Justice Donald S. Ferguson of the Superior Court of Justice, dated November 2, 2005, with reasons reported at (2005), [2005 CanLII 40356 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii40356/2005canlii40356.html), 78 O.R. (3d) 429, and on a motion for directions.

ENDORSEMENT

[1] Manitoba Public Insurance (MPI) seeks an order from this court that either Allstate Insurance Company of Canada or the Motor Vehicle Accident Claims Fund pay it the $12,000 in costs ordered by Ferguson J. Allstate takes the position that we should not make any costs order in favour of MPI. The Fund takes the position that Allstate should pay MPI’s costs.

[2] Thus MPI’s motion raises two issues: first, should we order that MPI’s costs be paid; and if so, second, who should pay them.

[3] On the first issue, in our view, MPI is entitled to recover the costs awarded by Ferguson J. The appeal in this court originated in a priority dispute over the payment of accident benefits. MPI was successful in that dispute. Ferguson J. ordered that the Fund pay MPI’s costs, which he fixed at $5,000 for the arbitration and $7,000 for the application before him.

[4] The appeal in this court narrowed to a dispute between Allstate and the Fund. MPI took no part in the appeal. The Fund was successful on the appeal. At the time we did not address Ferguson J.’s costs order in favour of MPI. However, those costs remain unpaid. We see no reason why they should not be paid. Thus, we decide the first issue in favour of MPI.

[5] The second issue is simply whether the Fund or Allstate should pay these costs. Counsel for MPI proposed that his client’s costs should be paid by the unsuccessful party on the jurisdictional issues in this court. The Fund accepted that proposal; Allstate did not.

[6] In our view, even if accepted by all parties, that proposal does not satisfactorily resolve the question who should pay MPI’s costs. We say that because, in a sense, neither the Fund nor Allstate succeeded on the jurisdictional issues in this court.

[7] The Fund’s position was that it was not an insurer under regulation 283/95. We rejected that position, and held that the Fund was an insurer under the regulation. Allstate’s position was that if the Fund was an insurer, it failed to initiate arbitration within the time limits set out in the regulation, and therefore, the arbitrator had no jurisdiction to consider the Fund’s claim for reimbursement of accident benefits. We rejected that position, and held that Allstate had abandoned its right to contest the timeliness of the arbitration proceedings.

[8] As success on the jurisdictional issue does not satisfactorily resolve the question who should pay MPI’s costs, we turn to the one criterion that does resolve this question: success on the appeal. The Fund ultimately succeeded on the appeal and obtained an order from this court restoring the award of the arbitrator, which had ordered Allstate to reimburse the Fund.

[9] As Allstate was the losing party on the appeal, we order that it pay MPI the $12,000 in costs awarded by Ferguson J., together with a further $1,000 for the costs of this motion.

“John Laskin J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”