Counsel for the appellant in Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, 2003 SCC 40
Mr. and Mrs. B, Ontario residents, were injured when their rented car was struck by a tractor-trailer in British Columbia. All the vehicles involved in the accident were registered in British Columbia and insured by the appellant. After their return to Ontario, both Mr. and Mrs. B received substantial statutory accident benefits (SABs) under their Ontario policy from their Ontario insurer, the respondent. Subsequently they were awarded substantial damages in an action brought in British Columbia against the negligent truck owner, truck driver and truck repair shop, all of whom were insured by the appellant. Pursuant to s. 25 of the British Columbia Insurance (Motor Vehicle) Act, the appellant deducted the no-fault benefits paid to the Bs from the award of damages in British Columbia.
Both the Ontario insurer and the British Columbia insurer were parties to a Power of Attorney and Undertaking (the "PAU") exchanged by motor vehicle insurers to denote compliance with minimum coverage requirements and to facilitate acceptance of service. The PAU is part of a reciprocal scheme for the enforcement of motor vehicle insurance claims in Canada.
Under s. 275 of the Ontario Insurance Act, the payor of the SABs is entitled to seek indemnification from the insurer of any heavy commercial vehicle involved in the accident. The respondent applied to the Ontario Superior Court of Justice for the appointment of an arbitrator to determine the question of indemnification. The appellant made a cross-motion for a stay of proceedings on the basis, inter alia, that the Ontario insurance regulatory scheme could not constitutionally apply to it on the facts of this case, or, in the alternative, on the basis that British Columbia was the more convenient forum. The motions court, applying forum non conveniens principles, granted the appellant's cross-motion to stay the proceedings. The Court of Appeal reversed that decision, finding that the motions judge should have declined to hear the motion for a stay and proceeded with the appointment of an arbitrator who could then deal with any issues of jurisdiction and law, including the constitutional issue.