Loss Transfer And Tort: Never The Twain Shall Meet

Recent work on cases has lead me to resurrect some older loss transfer case law that might still assist practitioners with their current cases. The first is the case from our Court of Appeal in Jevco v. Canadian General, dated August 6, 1993. Jevco sought appeal of the denial of its application to appoint an arbitrator in loss transfer (remember the provisions of automatic appointment in priority disputes do not apply to loss transfer and an Application is necessary where there is no agreement amongst the parties to appoint or whom to appoint). The use to which I again sought it out was regarding how a finding of fault in a related tort matter might affect a loss transfer matter that was subject to the ordinary rules of law, per Rule 5 of Regulation 668, instead of the Rules themselves. Recall the Fault Determination Rules were initially promulgated for property damage claims and are often a bit of a square peg in a round hole and have lead to a lot of litigation over their interpretation in the context of loss transfer. In overturning the original decision that a stay of loss transfer was warranted by reason of the existence of the tort action, Justice Griffiths, at the second paragraph of the Conclusion, and repeated at paragraph four thereof, focussed upon the intended expediency of the scheme and said quite emphatically that "any determination of fault in litigation between the injured plaintiff and the alleged tortfeasor is irrelevant." Jevco was granted its arbitrator appointment with costs of the appeal but not of the Application, due to its novelty. The citation for the decision is 14 O.R. (3d) 545. There was no appeal taken beyond Ontario's top Court.

The second case is the February 6, 2008 private arbitration award of Jay Rudolph in Unifund and Axa v. St. Paul. Reference to it is found at #11 of the list of decisions upon the Rudolph Mediation & Arbitration Services Inc. website (see http://rudolphmediation.com/arbitration-decisions-released-by-j-jay-rudolph/). Unfortunately, the index of decisions on the website does not appear to be a complete list of all of Jay's awards and they are not hyperlinked. Converse to the prior case, this case does permit consideration of a Highway Traffic Act conviction to govern in a loss transfer matter. The case is 25 pages long and too extensive to deal with comprehensively in a short summary. Suffice it to say that in this case accident benefits were being requested from St. Paul by the other...

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