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Subrogation: Recommendations for Early Investigation
by Adam Grant
July 10, 2017

At the outset of a loss, it is most critical to begin preserving evidence and investigating the cause of the loss. This is beneficial both to preserve future subrogation potential, but also to determine whether there may be any issues that may affect coverage under the policy.

As soon as access is provided to a scene, the first person to enter, along with the adjuster, should be a forensic engineer. For fire losses, it is well understood that a review of the scene, prior to the commencement of repair efforts, is critical to determining the origin and cause of the fire. However, it is common for this approach to be ignored with other types of losses.

For example, in the cause of a failure of plumbing components, there is a tendency for a contractor to remove the part that they consider to be the point of failure, to be provided to an engineer at a later time. This can potentially destroy evidence of the condition of the scene, and also creates issues with the chain of custody.

Making Use of Unusual Torts in Subrogation
by Adam Grant
July 10, 2017

Historically, separate and distinct causes of action developed within the law of torts. Suits had to be pleaded within an existing and recognized form of action in order to succeed. This pleading requirement was abolished by the Common Law Procedure Act 1852, the principles of which have been accepted into Canadian provincial law. It is now only necessary to plead facts that may, if proven, give rise to a cause of action in tort. It is not necessary to identify or name the specific nominate tort that constitutes the basis of the action.

In practice, we usually lay out which tort we will be leading facts to prove. In insurance subrogation, we usually work within the framework of negligence, but this doesn't mean that we are limited to it when it comes to executing our subrogated right of action. A review of some lesser known torts demonstrates the spectrum of torts available at common law which can be useful in advancing a subrogation claim.

Insurers Beware: Recent Developments in the Duty to Defend and Indemnify
by Alan S. Drimer
July 10, 2017

The scope of an insurer's responsibility regarding the duty to defend and indemnify has increased. This increased responsibility can be observed with respect to an insurer's duties to an additional insured, an insurer's duties in a situation involving a conflict of interest, and an insurer's duties in a situation involving a breach of contract.

What is the duty to defend versus the duty to indemnify?

Commercial general liability (CGL) insurance policies are primarily used to provide financial protection to an insured party in the event that it issued by a third party. CGL policies result in the insurer assuming two obligations towards the insured:...

A Lawyer's Guide to Discoveries and Timing of IMEs
by Annette Uetrecht-Bain
July 10, 2017

In bodily injury claims, there are typically two types of examination of the plaintiff that take place: (1) Examinations for Discovery, and (2) Independent Medical Examinations.

The following are issues that typically arise in scheduling examinations for discovery and independent medical assessments.

Everything You Need to Know About Trial Insurance: Security Against Bad Outcomes at Trial For Sale!
July 10, 2017

After the Event Insurance (“Trial Insurance”) is a type of insurance that protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial. Generally, unsuccessful parties bear the responsibility of paying a, sometimes significant, portion of the successful side's legal costs in addition to their own. The availability of Trial Insurance changes the landscape of personal injury litigation for everyone involved. While the concept of Trial Insurance is relatively new in Ontario, it is already rapidly evolving and becoming more prevalent. How it Works...

The Effect of "After The Event" Insurance on the Litigation Process
by Howard Borlack
July 05, 2017

Imagine trading peace of mind for a chance to give someone a piece of your mind. Welcome to “After The Event" (ATE) insurance policies – the instigators of the insurance policy world. In general, Legal Expense Insurance (LEI) products exist to provide coverage for various legal costs and disbursements during the litigation process. These products include “Before The Event" insurance, which provides coverage for a future incident, and “After The Event" insurance, which is obtained specifically to litigate an incident after it has already occurred.

Take control of public space and liability may follow: Case Comment - MacKay v Starbucks
by Eric Turkienicz
June 23, 2017

At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act (“the Act”).

Proposed changes to Ontario's Construction Lien Act - Update 2
by Eric Turkienicz
June 23, 2017

The Construction Lien Act can be a daunting piece of legislation to approach. Combining tight deadlines, technical definitions, and a sometimes complex interplay between its own provisions, it is no wonder that it is often viewed with some trepidation by lawyers and clients alike. 

A Bill to overhaul the Construction Lien Act has recently passed its first reading before the Legislative Assembly. These changes, if ultimately passed, will be a welcome change to a piece of legislation that has (in this lawyer’s opinion) caused more arguments than it has solved.

Defamation in the Internet Age: The Law and Social Media
June 13, 2017

Defamation law, mostly conceived in an old-media world, historically balanced one person's right to freedom of speech with another's to not have his or her reputation unfairly attacked. The emergence of social media has made it more difficult to navigate the application of these long-standing principles. Unlike the traditional letter to the editor, comments on social media can be posted instantly, often in the heat of emotion, and many people who post comments do so under the mistaken belief that they will remain anonymous. Social media has the ability to create a false sense of intimacy, as users may mistakenly believe they are only speaking to a small, well-known group of individuals...

Taxi Company Not Vicariously Liable When Employee Sexually Assaults Client
June 08, 2017

In an important decision released June 2, 2017, the Court of Appeal of Ontario considered the novel issue of whether a taxi company is liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part.

A unanimous Court of Appeal ruled that the taxi company was not vicariously liable, suggesting that not all employers are vicariously liable for the intentional acts of their employees, even when their clientele may find themselves in the most vulnerable of situations.

What's in a Name? Upcoming Changes to the Definition of a Motor Vehicle: Road-Building Machines
June 08, 2017

Effective July 1, 2017, the definition of a Road-Building Machine (RBM) will be narrowed, pursuant to Ontario Regulation 398/16. Accordingly, certain vehicles will no longer be considered road-building machines, but instead will be deemed Commercial Motor Vehicles (CMVs).

This paper provides the impact and Implications for Insurers...

Recovery for Mental Injuries: Dispensing with the Requirement of Expert Evidence
June 07, 2017

Amongst the most challenging personal injury cases to defend are those where a Plaintiff's accident-related injuries are solely psychological in nature. As there is no objective evidence for defence lawyers to look to when attempting to verify or challenge a Plaintiff's account of their injuries or impairments caused by an accident, Defendants have no choice but to rely on the expertise of experts when attempting to determine the severity of a Plaintiff's psychological and emotional injuries and impairments.

The Supreme Court of Canada has released a decision that makes this determination that much more challenging for defence lawyers by finding that expert evidence of a recognized psychiatric or psychological illness is not required for a plaintiff to recover damages for mental injuries.

The timing of mandatory mediations in Toronto has changed
May 23, 2017

As of May 1, 2017, the practice direction regarding the timing of mandatory mediations in Toronto has changed.

Mandatory mediations must now be completed prior to an action being set down for trial unless a judge or case management master orders otherwise.  This is a significant change from the past practice direction that only required mandatory mediations to be scheduled before the action could be set down for trial. This change applies to all Toronto files that have not yet been set down for trial.

We anticipate that this change to the practice direction will lead to earlier mediations on Toronto matters. We are already starting to see the impact of this change, in terms of plaintiffs' counsel reaching out earlier than ever to schedule mediations, some even seeking to schedule same at the same time as scheduling discoveries.

Retroactivity, Retrospectivity & Immediate Applicability
May 16, 2017

It is hoped that the recent appeal decision in MVACF and Barnes will shed some light on this turbulent, but interesting, area of accident benefits.

The issue, in this case, was whether the amendment applied to the Applicant for services provided after its effective date.

The United Airlines debacle in the context of Canadian tort law
May 15, 2017

Airlines have faced increased legal, public relations and operational challenges ever since Dr. David Dao’s forcible removal from his United Airlines flight on April 9, 2017. These challenges can lead to a perfect storm in which airlines may find themselves exposed to significant claims for damages.

This paper will briefly discuss the extent to which airlines may be exposed to liability for domestic and international travel.

* Addendum added May 23, 2017