Under Ontario automobile insurance legislation, an arbitrator may determine limitation periods

This dispute between insurers under Ontario’s Regulation 283/95 queries whether an arbitrator can decide if, at first instance, the one year limitation period under the Regulations applies.  The Judge found the arbitrator can decide questions of law and jurisdiction.

ING Insurance Co. of Canada v. Insurance Corp. of British Columbia, [2008] O.J. No. 3759, Ontario Superior Court of Justice, G. Trotter J., September 17, 2008

Ontario Regulation 283/95 under the Insurance Act, R.S.O, 1990, c.I.8 deals with disputes between insurers.  Section 7 states, inter alia, that if the Insurers cannot agree as to who is required to pay benefits in dispute, the dispute shall be sent to arbitration.  Section 7 (2) states that the Insurer paying benefits, or another Insurer, or the Insured may initiate the arbitration.  No arbitration may be initiated after one year after the time the Insurer paying the benefits first gives notice.

The Judge did not find anything in the regulations that suggests the limitation period in Section 7 (2) cannot be determined by an arbitrator.  The mandate of an arbitrator acting under the regulation is a broad one.  An arbitrator can entertain an argument on any question of law relating to a dispute.  The conclusion on a question of law is not final until all appeal routes have been exhausted.  Whether triggered by agreement or by statute, all decisions are to be made by the arbitrator, including questions of law and jurisdiction.

A Judge found that the arbitrator has jurisdiction to determine whether, on the facts of this case, there has been a compliance with Section 7 (2) of the regulation.

The issue of costs of these proceedings should also be addressed by the arbitrator.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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