[1] LEDERMAN J.: — Zurich appeals a decision of Arbitrator Kenneth Bialkowski (the "arbitrator") in a loss transfer proceeding arising from a multi-vehicle collision that occurred on July 14, 1999. The accident involved an automobile insured with the respondent, TD General Insurance Company ("TD"), and a heavy commercial vehicle insured with the appellant, Zurich Insurance Company ("Zurich"). The driver of the automobile applied for accident benefits in August 1999. Over the next decade, TD paid benefits to its insured. The automobile driver's tort action settled in July 2009 for $600,000, with Zurich contributing $550,000. Moreover, the driver's accident benefits claim was settled with TD in September 2009.

[2] Section 275 of the Insurance Act, R.S.O. 1990, c. I.8 creates an indemnity scheme, commonly referred to as a "loss transfer", whereby first party insurers are entitled to recover accident benefits they paid to their insured individuals from second party insurers. Indemnification is determined according to the respective degree of fault of each insurer's insured under the Fault Determination Rules in R.R.O. 1990, Reg. 668/90 under the Insurance Act. Pursuant to s. 275(4) of the Insurance Act, any dispute arising from a loss transfer claim is resolved through arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17.

[3] In February 2010, approximately 11 years after the accident, TD sent Zurich a notice of loss transfer alleging that Zurich's insured was 100 per cent at fault. Shortly thereafter, TD made the following two loss transfer requests for indemnification from Zurich: (1) $16,529.54 in medical benefits paid by TD between February 4, 2004 and July 22, 2009; and (2) $150,195.92 for medical benefits and settlement sums paid by TD between July 23, 2009 and February 5, 2010.

[4] In August 2011, TD brought an application for an order requiring Zurich to participate in a loss transfer arbitration. TD and Zurich agreed to proceed with the preliminary issue of a motion brought by Zurich to dismiss TD's application for loss transfer. Zurich argued that TD's loss transfer was barred by the [page281] equitable doctrine of laches and by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[5] The motion was heard on or about October 7, 2013, and the arbitrator dismissed it on December 24, 2013.

[6] On the issue of laches, the arbitrator acknowledged that he was bound by Chiappetta J.'s decision in Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada, [2013] O.J. No. 4442, 2013 ONSC 5878 (S.C.J.) ("Intact"), but stated that he disagreed with her finding that laches cannot be applied to a statutory claim for loss transfer. The arbitrator held that, in any event, Zurich had failed to establish "the necessary components of laches . . . one of them being presumed prejudice or actual prejudice".

[7] With respect to the Limitations Act, the arbitrator agreed with the analysis and finding of the Ontario Court of Appeal in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada (2012), 109 O.R. (3d) 652, [2012] O.J. No. 1505, 2012 ONCA 218 ("Markel"). In that case, the court held that the limitation period runs from the day after the first party insurer requests loss transfer from the second party insurer. Noting that TD's application for an order requiring Zurich to participate in the arbitration was brought within two years of requesting indemnity, the arbitrator concluded that TD had satisfied its requirements under the Limitations Act.

[8] Zurich appeals the arbitrator's decision, raising the following issues:

[9] Both parties agree that the standard of review from a private arbitrator on a question of law is correctness; the standard [page282] of review on a question of mixed fact and law is reasonableness and the reviewing court is to give deference to the arbitrator.

[10] Zurich argues that that the Ontario Court of Appeal's decision in Markel unwittingly allows a first party insurer to indefinitely postpone the running of the limitation period. It submits that this is contrary to the purpose and intent of the Limitations Act and its fairness-based discoverability rule. Zurich submits that as a sophisticated party, TD knew or reasonably ought to have known of its right to loss transfer by July 1999 or, alternatively, by September 2001.

[11] TD submits that loss transfer legislation does not indicate any time limit for making a request for indemnification. Moreover, the Court of Appeal in Markel confirmed that the two-year limitation period for initiating a loss transfer runs from the day after a first party insurer sends a loss transfer request for indemnification to a second party insurer. Accordingly, TD's claim for indemnity is not time-barred.

[12] I agree with the arbitrator and TD that TD's loss transfer claim is not barred by the Limitations Act. With respect to Zurich's argument that TD ought to have known it had a loss transfer claim in 1999, the court in Markel was aware that a first party insurer will often have "discovered" a claim in practice, but not within the meaning of the Limitations Act. The court stated the following, at para. 22:

[13] Markel is still binding law in Ontario. In that case, the court could have held that the limitation period runs when a party reasonably discovers that it has a loss transfer claim. It specifically rejected such an approach, and instead held that it runs from the day after the request is made. Zurich did not cite any authority supporting its argument that the limitation period began to run prior to TD's request for indemnity from Zurich. While I acknowledge that the delay is more egregious in this [page283] case than in Markel, the Markel decision applies to the facts of this case, and Zurich's argument in this regard must be rejected.

[14] Zurich argues that laches can be applied to legal claims where a legislative gap exists. It says that such a gap was created by the Court of Appeal's decision in Markel. It says that Markel has the effect of permitting first party insurers to indefinitely delay the limitation period in respect of loss transfer claims because the clock does not start running until the day after the loss transfer claim is made. Zurich submits that Markel did not address when the loss transfer claim should be made.

[15] In oral submission, counsel for Zurich further argued that the loss transfer scheme under the Insurance Act is intended to address the fact that certain classes of vehicles were bearing a disproportionate burden of Ontario's insurance costs. Zurich submits that a loss transfer claim possesses an equitable flavour because it is intended to address unfairness between the various participants in the province's insurance industry.

[16] TD argues that as a purely statutory claim that is devoid of equitable relief, a loss transfer claim is not subject to laches. It points to Intact, in which Chiappetta J. held that laches did not apply to a loss transfer claim because it did not have a "distinctively equitable flavour": see para. 7.

[17] For the reasons that follow, in the unique circumstances of this case, I find that the doctrine of laches applies to a situation where a first party insurer delays for approximately 11 years in requesting loss transfer from a second party insurer.

[18] Traditionally, the doctrine of laches has only been applied to equitable, and not legal, claims. Following the fusion of law and equity, however, courts have been more flexible in applying the doctrine to legal claims under certain circumstances.

[19] In Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641, [2000] O.J. No. 4804 (C.A.) ("Sarnia Band"), the Ontario Court of Appeal stated that the traditional rigid line drawn between law and equity has broken down, but "historical factors continue to influence the applicability of equitable principles to claims traditionally associated with the common law": see para. 276.

[20] Building on this principle from Sarnia Band, the Court of Appeal in Perry, Farley & Onyschuk v. Outerbridge Management Ltd. (2001), 2001 CanLII 5678 (ON CA), 54 O.R. (3d) 131, [2001] O.J. No. 1698 (C.A.) ("Perry") held that a court will not be precluded from applying [page284] equitable defences to a claim merely because the claim arises under a statute. The court suggested that legal claims with a "distinctly equitable flavour" can be subject to equitable principles: see para. 35.

[21] In Bulletin A-11/94, the former Ontario Insurance Commission (now the Financial Services Commission of Ontario ("FSCO")) states that "loss transfer was introduced in order to balance the cost of providing accident benefits between specified classes of vehicles". The bulletin states that in some circumstances, loss transfer shifts the costs from motorcycle insurers to insurers of other classes of automobiles, and in other cases, shifts the costs from insurers of other classes of automobiles to insurers of heavy commercial vehicles: see D. Blair Tully, Commissioner, Bulletin No. A-11/ 94, Property & Casualty -- Auto: Loss Transfer: Standardized Forms and Procedures (Toronto: Ontario Insurance Commission, June 6, 1994).

[22] It therefore appears that Ontario's loss transfer regime possesses an equitable flavour because it is designed to address unfairness between participants in the province's insurance industry, and that is a sufficient basis to permit the application of the doctrine of laches. Alternatively, I find that the fusion of law and equity, which has evolved in order to achieve fairness and justice, requires a finding that laches can apply in this case. Accordingly, I find that the doctrine of laches applies, under certain circumstances, to delayed loss transfer claims made by first party insurers.

[23] My decision in this regard is guided by the principle that the fusion of law and equity has developed in order to achieve just results. In Canson Enterprises Ltd. v. Boughton & Co., 1991 CanLII 52 (SCC), [1991] 3 S.C.R. 534, [1991] S.C.J. No. 91, La Forest J. stated the following, at pp. 585-86 S.C.R.:

[24] The evolution of fusion is discussed in Jill E. Martin, Modern Equity, 16th ed. (London: Sweet & Maxwell, 2012), at p. 29:

[25] In M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 ("M. (K.)"), La Forest J. stated, at p. 76 S.C.R., that the doctrine of laches developed because limitation statutes did not apply to equitable claims. As noted, following the authority in Markel, there is currently no limitation period governing when a first party insurer ought to make a loss transfer claim to a second party insurer. In this case, this has resulted in a loss transfer claim being made almost 11 years after the accident giving rise to the loss. Applying laches in these circumstances is, in my view, consistent with the principle that the fusion of law and equity has evolved in order to achieve just results.

[26] I am further guided by the notion that applying laches to loss transfer claims is consistent with the purposes of the Limitations Act. As stated by Strathy J.A. in Dilollo Estate (Trustee of) v. I.F. Propco Holdings (Ontario) 36 Ltd. (2013), 117 O.R. (3d) 81, [2013] O.J. No. 4432, 2013 ONCA 550, its purpose is the promotion of certainty and clarity in the law of limitation periods: see para. 61. Applying laches in circumstances where a first party insurer has waited approximately 11 years to request indemnification meets this objective.

[27] Having concluded that the doctrine of laches applies to loss transfer claims, I must now consider whether the arbitrator erred in determining that Zurich had not successfully proved the requisite elements of the doctrine. This requires determining the following three issues: (i) did the arbitrator err in determining that Zurich did not suffer prejudice; (ii) is prejudice a necessary requirement for a finding that laches operate; and (iii) if not, did TD acquiesce such that laches should preclude its loss transfer request? [page286]

[28] On the facts before him, the arbitrator was not satisfied that Zurich was prejudiced by TD's delay in serving its first notice for loss transfer approximately 11 years following the accident. He had a sufficient basis to come to this conclusion. There was evidence that Zurich had knowledge of both the accident and the personal injury claims brought by TD's insured; there was no suggestion that Zurich's liability documentation was no longer available, nor that any crucial witness was no longer available. In the circumstances, his conclusion as to prejudice was reasonable and the court should give deference to it.

[29] As noted, the arbitrator acknowledged that he was bound by Chiappetta J.'s decision in Intact, but stated that he disagreed with Justice Chiappetta's finding that laches cannot be applied to a statutory claim for loss transfer. The arbitrator found that, in any event, Zurich had failed to establish "the necessary components of laches . . . one of them being presumed prejudice or actual prejudice". It appears from this quotation that the arbitrator was under the impression that prejudice is a necessary element for establishing the defence of laches.

[30] Zurich submits that the first branch of laches is acquiescence, and is sufficient on its own to apply the doctrine of laches to preclude TD from pursuing indemnity. It submits that the arbitrator erred in not considering or not finding acquiescence.

[31] TD submits that the jurisprudence is clear that the party relying on the doctrine of laches must demonstrate both delay and prejudice.

[32] For the reasons that follow, I find that acquiescence is a stand-alone branch of laches that does not require a finding of prejudice for laches to apply.

[33] The arbitrator relied on Perry, in which the Ontario Court of Appeal stated that the motion judge "correctly stated that prejudice must be shown", but held that she erred in finding that prejudice had been demonstrated: see para. 37. In her decision, however, the motion judge had noted [ 2000 CanLII 22491 (ON SC), [2000] O.J. No. 2991, 20 C.B.R. (4th) 129 (S.C.J.)], at para. 40, that laches can arise where delay causes prejudice to a party, or where the plaintiff refrains from making a claim where he or she knows her rights have been violated: [page287]

[34] In my view, it is unclear whether the Court of Appeal in Perry was stating that laches will only bar a claim where the defendant can demonstrate prejudice. A review of the authorities suggests that laches has two branches, acquiescence and prejudice, and each can constitute a stand-alone ground for the doctrine's operation.

[35] The leading case on laches in Canada is the Supreme Court's decision in M. (K.), in which La Forest J. described the doctrine as follows, at pp. 77-78 S.C.R.:

[36] In that case, La Forest J. held that is was obvious that the defendant had not altered his position because of the plaintiff's delay, and therefore if laches were to operate, "it must be because of acquiescence, the first branch of the Lindsay rule": see p. 78 S.C.R. The proposition that acquiescence is a stand-alone branch of laches finds support in R.P. Meagher, J.D. Heydon, M.J. Leeming, et al., Equity Doctrines & Remedies (Sydney: Butterworths LexisNexis, 2002), at p. 1031:

[37] In light of these authorities, I conclude that as a separate branch of laches, acquiescence can, in some circumstances, justify the application of laches in the absence of prejudice.

[38] Zurich argues that TD was aware of the circumstance of the accident, and has not provided an explanation of its approximate 11-year delay in serving its first notice of loss transfer. [page288] Zurich argues that TD's failure to request loss transfer in a timely manner, combined with its knowledge of its claim, gives rise to a finding of acquiescence.

[39] TD submits that for acquiescence to be found, a plaintiff must have failed to react to the defendant's conduct, therefore justifying barring the plaintiffs claim against the defendant. It relies on Intact, in which Justice Chiappetta held that not only must the claimant know of facts that give rise to a claim, the defendant must commit some clear act to which the claimant can react. In that case, Chiappetta J. held that the plaintiff had not acquiesced because acquiescence requires the plaintiff to "fail to react to the defendant's conduct": see para. 18. She found that there was no evidence that the defendant attempted to deny the plaintiff's right to a loss transfer, with the plaintiff thereafter delaying its indemnification request. Justice Chiappetta held, at paras. 18-19, that the plaintiff could not acquiesce to conduct that never occurred, and that the plaintiff had reserved its rights, not waived them.

[40] For the reasons that follow, I find that in the unique circumstances of this case, TD acquiesced, and therefore its loss transfer claim against Zurich is barred by the doctrine of laches.

[41] In M. (K.), Justice La Forest described acquiescence in the following terms, at p. 78 S.C.R.:

[42] Recently, in Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, [2013] S.C.J. No. 14, 2013 SCC 14, the majority of the court stated that "[a] cquiescence depends on knowledge, capacity and freedom": see para. 147.

[43] Snell's Equity states that for acquiescence to occur, "it is necessary for there to be some clear act of the claimant which amounts to an acquiescence or waiver of his rights": see J. McGhee, ed., Snell's Equity, 32nd ed. (London: Sweet & Maxwell, 2010), at p. 117. [page289]

[44] I am aware that in these circumstances, Zurich did not "deprive" TD of its rights. I am also aware that mere delay, on its own, will not give rise to a finding of laches. I also agree that to a certain extent, Chiappetta J. was correct in finding that in the context of a delayed loss transfer claim, the defendant will not have committed an act to which the plaintiff fails to react.

[45] In Manitoba Metis Federation, supra, however, the Supreme Court at least implied that in some cases, delay might be interpreted as a clear act by the plaintiff amounting to acquiescence. The court stated the following, at para. 147:

[46] Moreover, Bulletin A-11/94 states that a first party insurer should notify a second party insurer of a loss transfer "promptly". The directive to act "promptly" demonstrates the perceived importance of timely claims for the effective operation of the loss transfer claim regime. The bulletin is not legally binding; however, as sophisticated participants in the insurance industry, I assume both parties were aware of it. TD, with full knowledge that it is supposed to deliver a notice of loss transfer "promptly", and with full knowledge that it likely had a loss transfer claim against Zurich, failed to make a request for almost 11 years.

[47] Given the directive in the bulletin, the fact that TD is a sophisticated insurer that had knowledge, capacity and freedom with respect to its rights, and perhaps most importantly, the almost 11-year delay, I find that TD's delay in requesting loss transfer gave rise to an inference that it had abandoned or waived its rights to the claim.

[48] As a matter of justice between the parties, Zurich should not have to pay the amounts sought in the two loss transfer requests for indemnity even though they equate to only approximately 50 per cent of the total benefits paid by TD.

[49] In summary, I conclude that acquiescence alone is enough to apply the doctrine of laches and preclude TD from pursuing indemnity, and that prejudice is not a necessary element to a laches defence. The arbitrator erred in law in not considering or finding that there was acquiescence in the egregious delay on the part of TD in serving its first request for indemnification. [page290]

[50] The appeal is therefore allowed. The arbitrator's decision is set aside and TD's loss transfer application is dismissed.

[51] The parties have agreed that the costs of the appeal should be fixed at $7,500, inclusive of disbursements and appropriate taxes. Zurich will have its costs in that amount payable by TD. The costs of the arbitration are to be agreed upon or remitted to the arbitrator for assessment.