For the one or two people out there who regularly follow this blog (thanks Mom), you may have noticed that there have been new contributions made in the last month by Tara Pollitt. There is also a new photo on the main page - the white haired guy is me, in case you couldn't guess.
So, this is to officially announce that Ms. Pollitt is now a co-editor/writer. Tara grew up in Owen Sound. She received an undergraduate degree at the University of Waterloo and a law degree from the University of Western Ontario. Suffice to say, she is smarter than me. Tara practiced law initially on the plaintiff side for several years at a well-known plaintiff's law firm before switching over to practice law exclusively for insurance clients. We at McCall Dawson are glad she made the change. So are her clients.
I am very happy to have Tara join me on this blog. We hope you enjoy our regular legal updates in the weeks and months to come. We are always happy to have your comments.
Jumat, 30 Oktober 2009
Rabu, 28 Oktober 2009
Changes to the Rules of Civil Procedure - Part 1
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 1 of our review of the amendments.
A brand new rule has been created which introduces a “discovery plan”. This is a document created by the parties which will set out things such as the scope of discovery, timelines for service of Affidavits of Documents and names of persons to be examined. There is no prescribed form for the discovery plan, so precedents will have to be developed. This rule presumes a level of cooperation between counsel which may or may not exist. The aim of the rule is to make the process of documentary and oral discovery more streamlined and efficient; however, it could result in a new area of dispute between parties. It could be especially difficult in cases involving self-represented litigants to come to agreement on the elements of the discovery plan. If there is no discovery plan, a judge on a motion can refuse to grant the relief sought; for example, on an undertakings motion, the court could refuse to order the undertakings be complied with if there is no discovery plan. It would seem prudent to “paper the file” if counsel is unable to come to an agreement on the discovery plan, so that at least there is proof that an attempt at complying with the rule was made.
Although the discovery plan aims to make discovery more efficient, it is possible that it increases cost, at least in the short term, as counsel develop a standard practice for the discovery plan.
A brand new rule has been created which introduces a “discovery plan”. This is a document created by the parties which will set out things such as the scope of discovery, timelines for service of Affidavits of Documents and names of persons to be examined. There is no prescribed form for the discovery plan, so precedents will have to be developed. This rule presumes a level of cooperation between counsel which may or may not exist. The aim of the rule is to make the process of documentary and oral discovery more streamlined and efficient; however, it could result in a new area of dispute between parties. It could be especially difficult in cases involving self-represented litigants to come to agreement on the elements of the discovery plan. If there is no discovery plan, a judge on a motion can refuse to grant the relief sought; for example, on an undertakings motion, the court could refuse to order the undertakings be complied with if there is no discovery plan. It would seem prudent to “paper the file” if counsel is unable to come to an agreement on the discovery plan, so that at least there is proof that an attempt at complying with the rule was made.
Although the discovery plan aims to make discovery more efficient, it is possible that it increases cost, at least in the short term, as counsel develop a standard practice for the discovery plan.
Rabu, 21 Oktober 2009
OPCF 44: McGrath v. Arshad, [2008] O.J. No. 5771 (S.C.J.)
This decision clarifies the underinsured provisions of the OPCF 44. The at fault driver, Arshad, had $200,000 in liability insurance. There were multiple plaintiffs, whose claims exceeded $200,000 and would therefore share pro rata. One of the plaintiffs, McGrath, had purchased $2,000,000 in extra insurance but his pro rata share was only $20,000. His insurer took the position that its obligation to pay started at $200,000. The court disagreed and held that the insurer was obligated to make up any shortfall between the actual amount the claimant received from the underinsured driver ($20,000) and his damages up to the OPCF limits ($1,800,000).
Senin, 12 Oktober 2009
Distracted Driving Legislation Comes into Effect October 26, 2009
Bill 118, which amends the Highway Traffic Act to prohibit the use of handheld electronic devices while driving, comes into effect October 26, 2009.
Some highlights of the new legislation:
Some highlights of the new legislation:
- drivers cannot use handheld devices while driving. This includes cell phones as well as handheld entertainment devices such as iPods, Gameboys and so forth;
- drivers may use devices such as cell phones in hands-free mode;
- drivers cannot view display screens on devices unrelated to driving, such as DVDs or laptops. This does not include GPS systems;
- the use of such devices while off the roadway, not in motion and not impeding traffic is permitted;
- calls to 911 are exempted.
Fines for contravening these provisions range from $60 to $500. Police can also charge drivers with careless driving which has more serious penalties, including imprisonment.
Rabu, 30 September 2009
Facebook in Litigation - 2
This is part two of Tara Pollitt's article on Facebook in Ontario litigation.
The Murphy case was followed in Leduc v. Roman,[1] an appeal of a Master’s decision. Justice Brown held that a party who maintains a private Facebook account stands in no different position than one who maintains a publicly accessible profile and to permit a party to hide behind privacy controls on a website designed to share social information is to deprive the other party of material relevant to ensuring a fair trial. In Leduc the defendant had obtained an initial order requiring the plaintiff to preserve the website prior to the balance of the motion being heard. This approach is useful to prevent information from being changed or deleted before the motion can be heard.
Facebook was used recently in a trial decision out of Newfoundland called Terry v. Mullowney.[2] The plaintiff was cross-examined at trial using printouts from his publicly accessible Facebook account. The Court explicitly noted that the material from Facebook showed the plaintiff had a full and active social life and without that evidence he would have been left with a very different view of the plaintiff’s social life. The information was a critical factor in reducing the claim from approximately $1.3 million to $40,000.
[1] [2009] O.J. No. 681 (S.C.J.).
[2] 2009 NLTD 56 (Canlii).
The Murphy case was followed in Leduc v. Roman,[1] an appeal of a Master’s decision. Justice Brown held that a party who maintains a private Facebook account stands in no different position than one who maintains a publicly accessible profile and to permit a party to hide behind privacy controls on a website designed to share social information is to deprive the other party of material relevant to ensuring a fair trial. In Leduc the defendant had obtained an initial order requiring the plaintiff to preserve the website prior to the balance of the motion being heard. This approach is useful to prevent information from being changed or deleted before the motion can be heard.
Facebook was used recently in a trial decision out of Newfoundland called Terry v. Mullowney.[2] The plaintiff was cross-examined at trial using printouts from his publicly accessible Facebook account. The Court explicitly noted that the material from Facebook showed the plaintiff had a full and active social life and without that evidence he would have been left with a very different view of the plaintiff’s social life. The information was a critical factor in reducing the claim from approximately $1.3 million to $40,000.
[1] [2009] O.J. No. 681 (S.C.J.).
[2] 2009 NLTD 56 (Canlii).
Selasa, 22 September 2009
Court of Appeal: Injured Insureds Do Not Need to Sue Insured Joint Tortfeasors to Claim Uninsured Motorist Coverage
In a somewhat surprising decision, the Court of Appeal for Ontario has held that an insured motorist does not have to sue insured joint tortfeasors in order to collect on the uninsured coverage in her own automobile insurance policy. Also the insurer does not appear to have a right of subrogation against the joint tortfeasors but only against the uninsured motorist.
This decision is properly understood as providing reasonable coverage for an insured from her insurer. It is a first party claim, not third party claim. The insured purchased coverage for this very type of situation from her insurer. The insurer picked a bad set of facts in this case and should have waited for a better case to pursue this issue - namely, where the joint tortfeasor was at least 25% liable. In this instance it is not even certain that the joint tortfeasor was 1% liable.
The decision is Loftus v. Security National, 2009 ONCA 618 (decision released Aug 21, 2009). Click here for a copy of the decision.
The plaintiff was injured after being hit by an uninsured motorist. The uninsured motorist was being chased by the police when he entered an intersection, lost control and struck the plaintiff.
The plaintiff sued the uninsured motorist and her own insurer, Security National, under the uninsured coverage of her policy. The uninsured motorist did not defend.
At first instance, on a Rule 22 motion, MacDougall J. found that Security National was liable to pay the plaintiff under the uninsured provisions of the policy, even though she had not commenced an action against the police/joint tortfeasors and even if the police/joint tortfeasors are assumed to be negligent.
The Court of Appeal for Ontario reviewed the relevant wording of the Uninsured Automobile Coverage Schedule ("the Schedule") contained in R.R.O. 1990, Reg. 676:
2. (1) The insurer shall not be liable to make any payment,
(b) where a person insured under the contract is entitled to recover money under any valid policy of insurance other than money payable on death, except for the difference between such entitlement and the relevant minimum limits determined under clause (a);
(c) where the person insured under the contract is entitled to recover money under the third party liability section of a motor vehicle liability policy;
The Court of Appeal then held that the key phrase herein is "entitled to recover money". The question then is whether the plaintiff is "entitled to recover money". If yes, then she cannot recover under the uninsured provisions of her own policy.
The Court of Appeal answered the question by finding that the phrase "entitled to recover" as it appears in ss. 2(1)(b) and (c) of the Schedule means entitled to recover "in fact" as opposed to entitled to recover "in law" and that an "injured insured is entitled to recover in fact only where a potential joint tortfeasor’s insurer admits liability to pay or where the injured insured obtains judgment against the insured joint tortfeasor."
The Court of Appeal went on to say that:
"We see no indication in the language of s. 265 of the Insurance Act or of the Schedule that it was the intention of the legislature to require victims of uninsured drivers to engage in potentially speculative and costly litigation against potential joint tortfeasors who may be insured rather than relying on the coverage paid for in their own policies of insurance."
The Court of Appeal also rejected submissions by Security National that this finding would result in double recovery by the insured. The Court of Appeal held that "recovery under the uninsured coverage is an alternative" and that obtaining judgment against her own insurer signifies an election not to subsequently pursue a claim against the joint tortfeasors.
The Courts in this instance simply did not want to find liability against the police for what was clearly the fault of the uninsured motorist and nor did the Courts want to punish the insured for refusing to pursue litigation against the police. The insured purchased auto insurance from the insurer for this very situation.
This decision is properly understood as providing reasonable coverage for an insured from her insurer. It is a first party claim, not third party claim. The insured purchased coverage for this very type of situation from her insurer. The insurer picked a bad set of facts in this case and should have waited for a better case to pursue this issue - namely, where the joint tortfeasor was at least 25% liable. In this instance it is not even certain that the joint tortfeasor was 1% liable.
The decision is Loftus v. Security National, 2009 ONCA 618 (decision released Aug 21, 2009). Click here for a copy of the decision.
The plaintiff was injured after being hit by an uninsured motorist. The uninsured motorist was being chased by the police when he entered an intersection, lost control and struck the plaintiff.
The plaintiff sued the uninsured motorist and her own insurer, Security National, under the uninsured coverage of her policy. The uninsured motorist did not defend.
At first instance, on a Rule 22 motion, MacDougall J. found that Security National was liable to pay the plaintiff under the uninsured provisions of the policy, even though she had not commenced an action against the police/joint tortfeasors and even if the police/joint tortfeasors are assumed to be negligent.
The Court of Appeal for Ontario reviewed the relevant wording of the Uninsured Automobile Coverage Schedule ("the Schedule") contained in R.R.O. 1990, Reg. 676:
2. (1) The insurer shall not be liable to make any payment,
(b) where a person insured under the contract is entitled to recover money under any valid policy of insurance other than money payable on death, except for the difference between such entitlement and the relevant minimum limits determined under clause (a);
(c) where the person insured under the contract is entitled to recover money under the third party liability section of a motor vehicle liability policy;
The Court of Appeal then held that the key phrase herein is "entitled to recover money". The question then is whether the plaintiff is "entitled to recover money". If yes, then she cannot recover under the uninsured provisions of her own policy.
The Court of Appeal answered the question by finding that the phrase "entitled to recover" as it appears in ss. 2(1)(b) and (c) of the Schedule means entitled to recover "in fact" as opposed to entitled to recover "in law" and that an "injured insured is entitled to recover in fact only where a potential joint tortfeasor’s insurer admits liability to pay or where the injured insured obtains judgment against the insured joint tortfeasor."
The Court of Appeal went on to say that:
"We see no indication in the language of s. 265 of the Insurance Act or of the Schedule that it was the intention of the legislature to require victims of uninsured drivers to engage in potentially speculative and costly litigation against potential joint tortfeasors who may be insured rather than relying on the coverage paid for in their own policies of insurance."
The Court of Appeal also rejected submissions by Security National that this finding would result in double recovery by the insured. The Court of Appeal held that "recovery under the uninsured coverage is an alternative" and that obtaining judgment against her own insurer signifies an election not to subsequently pursue a claim against the joint tortfeasors.
The Courts in this instance simply did not want to find liability against the police for what was clearly the fault of the uninsured motorist and nor did the Courts want to punish the insured for refusing to pursue litigation against the police. The insured purchased auto insurance from the insurer for this very situation.
Jumat, 18 September 2009
Facebook in Litigation - 1
CNN recently reported that Facebook now is nearly as large as the population of the United States. There are about 307 million people living the U.S. and Facebook now says it has 300 million users.
Not surprisingly Facebook has now been used in litigation in Ontario. Here is an article by my colleague Tara Pollitt in which plaintiffs have had their credibility checked against their own Facebook webpages.
THE USE OF FACEBOOK IN LITIGATION by Tara Pollitt
Facebook, a social networking website, allows users to share content with other users such as photographs, videos, and by posting messages. A variety of privacy settings are possible, ranging from making one’s site completely open to everyone to restricting access to one’s “friends” – people who are chosen by the user and are permitted to view the user’s information and share their own information. Facebook has quickly become a resource in investigating claims and courts have overwhelmingly approved of its content as being relevant to issues in litigation.
The first reported decision regarding the use of Facebook at trial is Kourtesis v. Jouris[1]. The plaintiff testified that she had little social life post-accident. Photographs the defendant obtained from her publicly accessible Facebook account showed otherwise. In contrast to the evidence the plaintiff and her brother gave about a family trip to Greece where she sat at a café rather than participating in a festival, photographs from Facebook showed her celebrating on her brother’s shoulders. In the trial decision, Justice Browne referred to these photographs in concluding that the plaintiff had an active social life that was not diminished by her injuries. He dismissed the plaintiff’s claim for general damages.
The first reported motion regarding Facebook is Murphy v. Perger.[2] The defendant gained access to a publicly accessible site called the “Jill Murphy Fan Club” and discovered that there was also a private site created by the plaintiff’s sister but over which the plaintiff had control. She had granted access to her webpage to 366 “friends”. Justice Rady allowed the defendant’s motion to obtain production of material on the site, including photographs, holding that the information on the site was relevant as a useful means of assessing the plaintiff’s damages. She rejected the submission that the motion was merely a fishing expedition. She also rejected the argument that the information was a violation of the plaintiff’s right to privacy; the plaintiff could not have had a serious expectation of privacy given that 366 people had already been granted access to the site.
[1] [2007] O.J. No. 2677 (S.C.J.).
[2] [2007] O.J. No. 5511 (S.C.J.).
Not surprisingly Facebook has now been used in litigation in Ontario. Here is an article by my colleague Tara Pollitt in which plaintiffs have had their credibility checked against their own Facebook webpages.
THE USE OF FACEBOOK IN LITIGATION by Tara Pollitt
Facebook, a social networking website, allows users to share content with other users such as photographs, videos, and by posting messages. A variety of privacy settings are possible, ranging from making one’s site completely open to everyone to restricting access to one’s “friends” – people who are chosen by the user and are permitted to view the user’s information and share their own information. Facebook has quickly become a resource in investigating claims and courts have overwhelmingly approved of its content as being relevant to issues in litigation.
The first reported decision regarding the use of Facebook at trial is Kourtesis v. Jouris[1]. The plaintiff testified that she had little social life post-accident. Photographs the defendant obtained from her publicly accessible Facebook account showed otherwise. In contrast to the evidence the plaintiff and her brother gave about a family trip to Greece where she sat at a café rather than participating in a festival, photographs from Facebook showed her celebrating on her brother’s shoulders. In the trial decision, Justice Browne referred to these photographs in concluding that the plaintiff had an active social life that was not diminished by her injuries. He dismissed the plaintiff’s claim for general damages.
The first reported motion regarding Facebook is Murphy v. Perger.[2] The defendant gained access to a publicly accessible site called the “Jill Murphy Fan Club” and discovered that there was also a private site created by the plaintiff’s sister but over which the plaintiff had control. She had granted access to her webpage to 366 “friends”. Justice Rady allowed the defendant’s motion to obtain production of material on the site, including photographs, holding that the information on the site was relevant as a useful means of assessing the plaintiff’s damages. She rejected the submission that the motion was merely a fishing expedition. She also rejected the argument that the information was a violation of the plaintiff’s right to privacy; the plaintiff could not have had a serious expectation of privacy given that 366 people had already been granted access to the site.
[1] [2007] O.J. No. 2677 (S.C.J.).
[2] [2007] O.J. No. 5511 (S.C.J.).
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