Subrogation is the process under which an insurer, which has paid a loss under an insurance policy, becomes entitled to the rights and remedies of its insured against the party responsible for the loss. Because an insurer pays on its policy for losses suffered by the insured to make that policyholder whole, subrogation can be an effective mechanism for an insurer to recover its losses from the responsible party, depending on how the claim has been handled. Subrogation cases are often won and lost as a result of the actions and steps taken within the first few days of the incident. As a result, active involvement in the process, alongside open communication with all involved parties, is crucial to maximizing recovery.
March 21, 2018
Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.
While a plaintiff bears the burden of proving the fact that he has suffered a loss and the quantum of that damage, the defendant bears the onus of proving, on a balance of probabilities...
March 21, 2018
As a result of the special nature of local governments, including cities, towns, counties, regional municipalities, etc., they enjoy a special role in respect of litigation, and have a number of unique defences at their disposal which can often discourage or thwart subrogation efforts altogether. However, it is important to understand that such defences are not insurmountable, but only require special consideration in order to deal with.
More importantly, a detailed understanding of the available defences typically asserted by municipalities can actually make it more likely that actions can succeed as against them.
Recently, the Ontario Superior Court of Justice in Thomson v Portelance, 2018 ONSC 1278, reminded the Bar that a party to motor vehicle accident litigation in Ontario must schedule a mediation once requested.
In Thomson, Justice Firestone presided over a case conference requested by the plaintiff in a situation where the defendant refused to schedule mediation until after examinations for discovery were complete...
March 07, 2018
On March 6, 2018, Bill 193: Rowan’s Law (Concussion Safety), 2018(“Rowan’s Law”) passed its third reading. The Bill will next go before the Lieutenant Governor to receive Royal Assent.
Rowan’s Law is named for Rowan Stringer, a 17-year-old rugby player who died after sustaining a traumatic brain injury in a rugby game. The Bill will come into force on the day it receives Royal Assent, although this day has not been announced (section 9(1)).
Overall, Rowan’s Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport.
A “sport organization” will be required to:
In the midst of a crisis, the common law Doctrine of Emergency is a defendant's saving grace.
When faced with a sudden emergency that a driver is not responsible for creating, he or she cannot be held to a standard of conduct of a reasonable driver in ordinary circumstances – the unique and exigent circumstances must be taken into account when measuring the appropriate standard of care and whether or not there was a breach.
On February 23, 2018, in a split-decision, the Ontario Court of Appeal in Isaac Estate v Matuszynska1 upheld a lower court's decision granting summary judgment and dismissing the action, where the Doctrine of Emergency was found to apply in a drug transaction that went horribly wrong.
Even amongst sophisticated companies (or consenting adults for that matter), it is sometimes difficult to determine when a contract is entered into. On February 14, 2018, the Ontario Court of Appeal allowed an appeal in Cana International Distributing Inc. v. Standard Innovation Corporation, 2018 ONCA 145, which involved an alleged breach of a contract for, among other things, the exclusive distribution rights in retail shops, drug stores and sex toy retail outlet stores regarding a sex toy called “We-Vibe”.
This case is a cautionary tale that counterfactual negotiations – even if they are not signed at the same time – can nevertheless be considered binding.
This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.
Limitation periods, sometimes referred to as proscription periods, refer to the time that a party has to commence an originating court process. They are governed by provincial statutes.
The main purposes of limitation periods are to provide certainty and finality, as well as to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9...
February 16, 2018
The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.
Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient.
A recent Court of Appeal decision1 has clarified two issues that are of relevance to insurers involved in priority disputes.
Both appeals involved individuals who were claiming accident benefits although they were listed as excluded drivers in their parents' policies.
The first issue relates to whether excluded drivers in a household may be entitled to accident benefit coverage from the insurers who issue the given policy.
The second issue relates to what is the appropriate standard of review for an insurance arbitrator's decision involving specialized expertise...
February 13, 2018
In recent years, there have been a number of developments in the law which have resulted in escalating damage awards, particularly in catastrophic injury cases. The paper will outline some of these developments relating to:
I. Future Care Costs;
II. Guardianship and Management Fees; and
III. Risk Premiums.
Canadian citizens, and those not as fortunate to live in Canada, have the perception that 'uniform publicly funded' medical-related services are available nationwide in Canada and are 'free'... that is what it is to be Canadian. However, contrary to popular belief, there is no unified single professional regulatory, or single-payer national healthcare system in Canada. To the extent that there is healthcare that is publicly funded in Canada, it is funded on a provincial or territorial basis [here-in-after collectively 'provincial' or 'province'] and supplemented with federal funds that are 'conditionally' transferred to the province.
It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.
Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.
The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo...
