Loss Transfer Limitation Cases Head to ONCA

October 31, 2011

The Court of Appeal for Ontario has granted the appeallants leave to appeal in two loss transfer matters: Federation v. Kingsway and ING v. Markel.  The Court of Appeal will decide when the two-year limitation period for loss transfer matters starts to run under the Limitations Act, 2002.

In Federation, the arbitrator held that a rolling limitation period starts one day after the second party insurer receives a loss transfer request for indemnification. In ING, a different arbitrator held that the limitation period starts the day the first party insurer receives a response from the second party insurer denying a loss transfer request. 

On July 12, 2011, Superior Court Justice Edward Belobaba “marginally” upheld the arbitrator’s decision in Federation. In his brief Endorsement, the judge admited that he could not “improve on the analyses of the limitations issue” by the arbitrators and that what “is needed is a clear (probably appellate) decision” choosing one approach over the other.

A hearing date for the appeal has not been scheduled yet. 


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