Unifund Insurance Company v. Insurance Corporation of British Columbia

Unifund Insurance Company v. Insurance Corporation of British Columbia

The application judge erred by staying the Ontario proceeding because s.275 mandates arbitration under the Arbitration Act and the Arbitration Act requires the arbitrator to determine initial questions of jurisdiction and applicable law; the court should have appointed the arbitrator under s.10 and left jurisdictional and choice-of-law determinations to the arbitrator (subject to limited court review/appeal).

Citation
C35074
Parties
Appellant/applicant (no Fault Insurer): Unifund Assurance Company; Respondent (tortfeasor's Insurer): Insurance Corporation of British Columbia
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
22 May 2001
Procedural Posture
Civil Appeal / Appeal From Application Judge's Order Granting a Stay of Arbitration; Remitted to Appoint Arbitrator
Outcome
Appeal allowed with costs; order staying arbitration set aside; matter remitted for appointment of arbitrator
Legal Topics
Statutory Arbitration Under S.275 Insurance Act, No Fault Statutory Accident Benefits Indemnification, Choice of Law/inter Provincial Application of Statute, Forum Non Conveniens, Jurisdiction of Arbitrator Vs Court
Source Language
English
Insurance Law Arbitration Law Civil Procedure Private International Law Statutory Arbitration Under S.275 Insurance Act No Fault Statutory Accident Benefits Indemnification Choice of Law/inter Provincial Application of Statute Forum Non Conveniens +1 more

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Parties

Unifund Assurance Company

Appellant/applicant (no Fault Insurer)

Insurance Corporation of British Columbia

Respondent (tortfeasor's Insurer)

Procedural Posture

Civil Appeal / Appeal From Application Judge's Order Granting a Stay of Arbitration; Remitted to Appoint Arbitrator

Legal Issues

  1. 1 Whether the application judge erred by staying the Ontario arbitration and leaving choice of law to British Columbia courts rather than appointing an arbitrator under s.275 and s.10 Arbitration Act
  2. 2 Whether issues of jurisdiction and applicable law are for the arbitrator to decide initially
  3. 3 Whether forum non conveniens could justify a court-ordered stay before the arbitrator decides jurisdiction

Ratio Decidendi

The application judge erred by staying the Ontario proceeding because s.275 mandates arbitration under the Arbitration Act and the Arbitration Act requires the arbitrator to determine initial questions of jurisdiction and applicable law; the court should have appointed the arbitrator under s.10 and left jurisdictional and choice-of-law determinations to the arbitrator (subject to limited court review/appeal).

Court Disposition

Appeal allowed with costs; order staying arbitration set aside; matter remitted for appointment of arbitrator

Orders

  • Appeal allowed with costs.
  • Order granting stay of the Ontario arbitration set aside.