Court File and Parties
CITATION: HMK (Minister of Public and Business Service Delivery) v. Intact Insurance Company, 2026 ONSC 1713
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King in Right of Ontario as represented by the Minister of Public and Business Service Delivery, Applicant
-and-
Intact Insurance Company and The Dominion of Canada General Insurance, Respondents
BEFORE: L. Brownstone J.
COUNSEL: John Friendly and Andrew Choi, for the Applicant
Joseph Lin, for the Respondent Intact Insurance Company
Jay. A. Stolberg, for the Respondent the Dominion of Canada General Insurance
HEARD: December 16, 2025
ENDORSEMENT
Overview
1The Minister of Public and Business Service Delivery and Procurement operates the Motor Vehicle Accident Claims Fund (the “Fund”), a fund of last resort for people injured in car accidents where no insurance exists to respond to their claim. In this role, the Minister is often involved in priority disputes with other insurers.
2Those disputes are governed by the Insurance Act, R.S.O. 1990, c. I.8 and Regulation 283/95 (the “Regulation”) made under the Act. The legislative scheme rests on the principle of “pay now, dispute later”, so that an injured person is not delayed in receiving Statutory Accident Benefits (SABs) while the insurers dispute priority. Priority disputes are required to be determined by arbitration.
3In addition to the payment of the SABs themselves, the Fund1 and the insurers may incur expenses in investigating and adjusting a claim before priority is determined. These expenses are commonly referred to as “pre-arbitration expenses”. While in this case, there was no arbitration and the term “pre-arbitration expenses” is therefore somewhat ill-fitting, I will use it for ease of reference and consistency of terminology.
4This application raises the question of whether the Fund is entitled to recover pre-arbitration expenses when the Fund is the first party to respond to a claim, and another insurer subsequently accepts priority. In such a case, there is no dispute about priority and therefore, the Fund says, nothing to arbitrate.
5The answer to the question is guided by two lines of caselaw from the Court of Appeal for Ontario.
6The first considers whether “pre-arbitration expenses” are properly recoverable, in addition to the SABs payments made, in a priority dispute arbitration. In that respect, the Court of Appeal recently determined that these expenses are not recoverable between private insurers in an arbitration under the Regulation, other than in cases of deflection2: Echelon General Insurance Company v. Unifund Assurance, [2025 ONCA 324](https://www.minicounsel.ca/oca/2025/324