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Abstract:
For professional "fact-gatherers" such as lawyers, insurance adjusters, claims handlers and private investigators, the vast wealth of information that people volunteer on Facebook can be a goldmine or a smoking gun, depending on your perspective. The personal information contained in a Facebook profile may be highly relevant to matters at issue in litigation; when dealing with claims, particularly in the personal injury context, the information contained on a Facebook page can make or break a case. It is therefore crucial that insurance professionals stay informed of new developments in this emerging area of law. This article summarizes the approach currently adopted by Canadian courts, including the February 2009 Ontario decision of Justice Brown, Leduc v. Roman.

Leduc, Roman, Insurance, Civil, Litigation, Facebook, Myspace, Social Networking, Social Network, Webpage, Internet, Wall, Post, Email, Personal Information, injunction, court order, Privacy, Murphy, Perger, Disclosure, Production, Preservation, Profile, Lawyer

Abstract:
Where a party seeks to take evidence from an unwilling party in a foreign jurisdiction, a formal request for judicial assistance must be made by the party's domestic court to a court in the foreign jurisdiction. Such a request is called a letter rogatory. The author describes the process whereby an American party would request the judicial assistance of an Ontario court, including the formal requirements for a letter rogatory and the various preconditions to enforcement of which an Ontario court must be satisfied. The granting of such a request is a discretionary matter for Ontario courts; the author also reviews factors which will affect the exercise of the discretion.

Letters, Request, Rogatory, Foreign, Deposition, Discovery, Evidence, Witness

Abstract:
This article, written when the author was a law student, critiques the law school legal research experience, observing that much legal research instruction is lost on students who are ill-prepared to receive it, do not understand its importance, and who will usually take the "course of least resistance" when called upon to undertake research. The author also discusses the importance of law librarians, wo she says are much under-utilized resources. Law libraries too, are important not just for the resources they contain, but as a comfortable environment in which to work.

legal research instruction, legal education, law students

Abstract:
Where an insured is the victim of a fraudulent check scheme, fidelity insurers seeking to recover monies paid out under their policies often find that the perpetrator has very little in the way of assets to satisfy a judgment in a subrogated action. Yet it is an often overlooked fact that the bank which honored the fraudulent checks may also be liable for the stolen funds. As there may be very short notice periods in play in these cases, it is important that adjusters and other individuals who are involved in the early stages of these claims be alert to a bank's potential liability.

In Canada, the liability of banks that act on forged checks is governed by a mix of the common law and the federal Bills of Exchange Act (the "Act").1 This article discusses the legal reasons for placing liability on banks in these cases, and considers some common defenses that the subrogation professional may encounter when pursuing this avenue of recovery.

Cheque, Bill of Exchange, Fraud, "Bills of Exchange Act", Bank, Liability, Adjuster, Subrogation, Notice Period, Fraudulent

Abstract:
Obtaining a judgment against a defendant in a subrogated action may often be only the first step in a long process - obtaining a judgment is no guarantee of obtaining payment. When a court issues a judgment, it is not concerned with whether the unsuccessful party will ever actually pay the amount. It is up to the subrogating insurer, being the nominal plaintiff, to take this initiative. This situation is the same in cases where a criminal court orders that a defendant pay restitution, and the order is later converted to a civil judgment.

Nonetheless, Ontario's civil court system does provide the successful insurer (the "judgment creditor") with mechanisms to assist in collecting payment from the unsuccessful defendant (the "judgment debtor"). The two most common mechanisms for this purpose are (1) a writ of seizure and sale, and (2) a garnishment of debts, such as wages, owing to the debtor. In practice, however, these mechanisms can become quite complicated and are often inefficient. This article canvasses the advantages and limits of these enforcement mechanisms.

enforcement, civil, judgment, writ, seizure, sale, garnishment, debts, liability, subrogation, litigation, action

Abstract:
When goods are damaged during transport, the seemingly obvious targets in a subrogated action are usually the "carriers", being the parties who were contracted to handle and transport the goods. There is, however, another party who may bear responsibility for the loss, but who is often overlooked as a potential defendant - the "freight forwarder". Where property is damaged in transport, subrogation professionals should be alert to the possibility of recovering against freight forwarders who may have been involved in arranging carriage for the goods. This article canvasses the potential liability of freight forwarders in this context.

subrogation, freight, forwarder, cargo, sale of goods, liability, carrier, bill of lading, carriage, action, lawsuit, legal, property damage

Abstract:
As a lawyer once remarked when explaining his trial strategy to clients, "If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither is on your side, pound on the table." The notion of "proving one's case" in a subrogated property damage dispute can seem like a substantial hurdle that is difficult to overcome. Often times, an adjuster or subrogation specialist will simply choose not to pursue a subrogated property loss claim for fear that the claim is a "table-pounder"; the claim initially appears weak or seems to be based on little or no evidence. However, the reality may be that the claim actually gives rise to excellent recovery prospects. This article provides an overview of some basic legal principles that come into play in determining the burden of proof in a subrogated property damage case. As this article discusses, depending on the facts, the burden of proof may shift from the plaintiff, the insurance company suing in its insured's name, to a potential defendant.

subrogation, burden of proof, tort, evidence, insurance, legal, law, balance of probability, property

Abstract:
When an insurer steps into the shoes of its insured and commences a subrogated action against the parties who caused an insured loss, it is often desirable for the insurer to withhold the production of certain documents that have been generated during the process of investigating the insured's claim. This may be permitted where the materials have been prepared with a view to litigation, pursuant to what is called "litigation privilege." This privilege does have its limits and exceptions though, and it's protection may even be forfeited in some circumstances. This article discusses the application of litigation privilege and how it operates in subrogated actions.

litigation, anticipation, dominant purpose, privilege, subrogation, confidentiality, legal, lawsuit, claim, client

Abstract:
In the absence of statutory protection for confidentiality of mediation communications in Ontario, courts must rely on the common law to determine what should be protected and what may be divulged. This article discusses the scope and exceptions to confidentiality in mediation developed by Ontario's Divisional Court in Rudd v. Trossacs Investments Inc. (2006), 79 O.R. (3d) 687 (Div. Ct.). Recent cases where disclosure of communications made during mediation has been sought are considered.

Ontario, Civil Procedure, Mandatory Mediation, Confidentiality, Litigation, Settlement, Privilege

Abstract:
The recent Ontario Court of Appeal decision in Ahmed v. Stefaniu, [2006] O.J. No. 4185 (C.A.) is considered in detail. This case involved a jury verdict of negligence against a psychiatrist who had previously decided that a patient who ultimately murdered his sister ought to be a voluntary patient. Ms. Pengelley argues that hindsight bias came into play when the jury considered whether Dr. Stefaniu had met the required standard of care.

Ms. Pengelley's treatise references the seminal 1975 study of psychologist Baruch Fischoff. He underlined the principle that not only did learning of the outcome create hindsight bias, but also that we appear unable to disregard such information. Educating individuals about hindsight bias and asking them to be careful not to be influenced by the information appears to have little effect. Perhaps the best explanation as to why people show hindsight bias, rests in the idea that people try to make post facto sense of the world around them.

Possible solutions to these difficulties are found in bifurcated trials. This can involve the jury hearing evidence about the defendant's conduct and first making a decision about whether the requisite standard of care has been met. Then, it can hear evidence about causation and quantum of damages. Alternatively, a second jury could be asked to determine the damages issue. It is argued that Binnie J. opened the door to bifurcation in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595. To date, the case law indicates that Canadian trial courts should exercise bifurcation only in the clearest cases.

Ms. Pengelley admits that bifurcation is not necessarily foolproof. Bifurcated trials also are not very practical tools in our overburdened judicial system. Nonetheless, counsel's awareness of potential hindsight bias will allow them to tailor their advocacy to take this key factor into consideration in order to improve their odds of success.

Hindsight, Bias, Negligence, Reasonable Care, Medical, Jury Trials, Bifurcation, Customary Practice

Abstract:
All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period. This article discusses the role of limitation periods in subrogated actions

Insurance law, subrogation, limitation period, expiry, date, time limit, lawsuit

Abstract:
Indemnification refers to the financial protection provided by the corporation for its directors. It shields directors from expenses and liability of legal proceedings alleging breaches of their duty to the corporation. The author argues that although Canada's current federal statutory indemnification scheme, s.124 of the Canada Business Corporations Act ("CBCA") was intended to provide a comprehensive scheme for dealing with indemnification, it does not encompass actions brought directly by a corporation against its directors for a breach of duty to the corporation. Although direct actions would seem to fall naturally into subsection 124(4), which authorizes indemnification for actions "by...the corporation" this was intended to apply only to derivative actions. Nor can direct actions be appropriately accommodated by subsection 124(1), which is intended to deal with indemnification in actions brought by third parties. Derivative suits brought by corporate stakeholders, and direct suits brought by the corporation itself, are not the same; in direct suits the corporation and its management are truly adverse. It is contended that advancement in such cases is inappropriate and judicial inclination to interpret direct actions as falling within the purview of the section should be avoided.

This article reviews policy issues raised by advancement of defence costs to directors incurred in both derivative actions and direct actions by the corporation. This article begins with s. 124. The historical development of the section is canvassed to demonstrate that direct actions were never considered within its purview. Canadian federal indemnity laws have been heavily influenced by American corporation law, particularly that of Delaware, New York, and the Model Business Corporations Act. The impact of these statutes on the development of s. 124 is considered, concluding with a discussion of the merits of interpreting this section to encompass direct actions.

indemnification, defence costs, defense costs, direct action, reimburse, derivative action, corporation, advancement, legal fees, company, directors, officers, indemnity, D&O, liability, CBCA, bad faith, mala fides, s. 124, corporate governance, regulation, litigation, lawsuit, financial protection