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May 29, 2013

Are Judges Allowed to Plagarize?

The Supreme Court recently commented on how much copying judges are permitted to do in the course of their reasons.

In Cojocaru v. British Columbia Women's Hospital and Health, [2013] SCC 30, the trial judge incorporated large portions of the plaintiff's submissions into his reasons for judgment.  In fact, of 368 paragraphs in the judgment, only 47 were predominately the judge's own words.  The Court held that "while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of materials from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside".  The judgment will only be set aside if a reasonable person would conclude that the judge did not put his or her mind to the issues and decide them independently and impartially.  The Court held that the decision should not be set aside.  The key factors appear to be that the judge did not accept all of the plaintiff's submissions, discussed a number of issues and stated his conclusion in his own words.

May 22, 2013

Litigation Privilege Protects Adjuster's File

When does litigation privilege arise in tort claims?

Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)

In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed.  The plaintiff fell in a Wal-mart parking lot and an incident report was prepared.  A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident.  The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.

Justice Quinn held that the notes were privileged:

[61]   I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.

When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation.  The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour). 

May 15, 2013

Limitation Periods in Duty to Defend or Indemnify Cases

When does the limitation period begin to run in duty to defend or duty to indemnify cases?

In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs.  Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor.  Georgian was added as an additional insured to the contractor's policy.  The underlying claim was ultimately settled on the basis of the contractor's admission of liability.

One of the issues was when the limitation period began to run.  Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.

Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement."  Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.

Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.

May 8, 2013

Insurer Obligated to Continue Paying Defence Costs

Malaviya was insured under a Standard Automobile Policy (SAP) with Jevco for the minimum liability limit of $200,000.  He was sued following an accident in 2005. The insurer paid the limits of its policy, then sought a declaration that it had no continuing duty to indemnify or defend Malaviya.  The contentious issue on the application was whether Jevco was obliged to continue paying the insured’s defence costs.

Justice Morgan described the wording of the SAP as “muddled and contradictory”.  It failed to clearly answer whether the insured would pay the insured’s legal costs above and beyond the coverage limit.  On the other hand, s. 245(b) of the Insurance Act provides that the insurer shall bear the defence costs of a claim.  There is no limiting language in s. 245.  As a result, the insurer is obligated to continue paying defence costs of the insured, even when there is no further duty to indemnify. 

The  SAP may have to be modified in order to avoid this situation from arising in the future.

May 1, 2013

Action Against Municipality Dismissed for Failing to Give Notice

In August of last year, we reported on Argue v. Tay (Township), in which the action was dismissed for the failure to give notice required by s. 44(10) of the Municipal Act.  The plaintiff argued that the municipality had actual or constructive knowledge of the accident because the municipal fire department attended the scene.  The matter was appealed to the Court of Appeal, which has now dismissed the appeal at 2013 ONCA 247 (CanLii).

The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced.  The motions judge held that she failed to meet her onus.  The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.

This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.