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Abstract:
The current state of the law with respect to concurrent causation in insurance produces unpredictable results. The insurance system may not reliably function in the wake of a large scale multi-causal disaster - a hurricane, earthquake, or terrorist strike - that causes widespread losses to many policyholders at once. Courts, parties, and academics alike are challenged in evaluating a particular cause in a causal chain of events in the context of an insurance contract. To add to the complexity, insurers often attempt to contract around the rules, with inconsistent success.

This article attempts to create a solution for solving concurrent causation disputes in insurance. Underpinning the proposed legal rules in this article are the important analytic and conceptual differences between causation in tort and causation in insurance. The article proposes the adoption of two distinct immutable legal rules for resolving concurrent causation insurance disputes.

The choice of legal rule necessarily depends first on a sensible, predictable analysis of the various concurrent causes that brought about a potentially insured loss. Courts and parties need to be able to discuss the contractual relevance of various competing concurrent causes with reference to a contractual, not tort, context. The proposed analysis proceeds first by examining concurrent causes in a given loss scenario on two dimensions: the temporal and the sufficiency dimensions. Next, the analysis must also determine the involvement and necessity of each cause in the end result loss claimed by the insured.

Finally, the analysis requires an examination of the sufficiency of the end result effect of the concurrent causes. The article proposes two immutable legal rules based on whether or not a concurrently caused loss results from separate, discrete causes or reciprocal, indivisible causes. These two rules are aimed to longitudinally incentivize insurers to draft more efficient contractual language dealing with concurrent causation.

insurance, causation, concurrent causation, insurance policy, default rule, proximate cause, efficient cause, contract, insurance contract

Abstract:
The driving public cannot reliably predict when an accident is covered or not covered by automobile insurance. Neither can lawyers assisting accident victims or auto insurers. For example, if a driver operating a vehicle drops a child off to play and the child is seriously hurt crossing the street, is the child covered by first party no-fault automobile benefits from the driver's policy? Is the driver protected for his negligence by his third party liability automobile insurance policy, in the event the child sues the driver? Is any underinsured or uninsured automobile coverage available in the event of a shortfall in available compensation? Or is the child's loss not covered at all? The answer, according to the Supreme Court of Canada: it depends.

The standard Canadian automobile insurance policy coverage clause protects the policyholder against accidents arising out of the "ownership, use or operation of a vehicle." The same clause is used in coverage provisions for both first party no-fault benefits and third party liability insurance, depending upon which of these two types of insurance is applicable in which provincial auto insurance regime. Third party liability insurance is triggered when the accident victim sues the at-fault tortfeasor who caused the accident. It is the at-fault tortfeasor's liability insurance which the accident victim is seeking to trigger. Most Canadian provinces have a fault-based auto insurance system where third party liability insurance is the primary target for compensation for injured auto accident victims. Quebec and Manitoba have no-fault automobile insurance regimes, where only first party no-fault benefits are available to accident victims. First party no-fault benefits are triggered without regard to the fault of the tortfeasor driver. These benefits provide compensation to the accident victim, under the accident victim's own insurance policy.

Saskatchewan operates a dual no-fault and tort auto insurance system, where drivers can choose under which system to be insured. Ontario has a hybrid no-fault automobile insurance regime, where a severely injured victim can sometimes gain access to the tort system and hence the tortfeasor's third party liability insurance in addition to first party no-fault benefits. Regardless of the provincial insurance regime in operation, access to either first party or third party coverages depends upon whether or not the accident arose out of the "ownership, use or operation of a vehicle." Yet, what is "ownership?" What is "use?" What is "operation?"

Prior to 2007, insurers and Canadian drivers enjoyed a relatively predictable response to this coverage question. Automobile insurance was generally provided to insureds by a broad, insured-friendly interpretation of the coverage clause "ownership, use or operation of a vehicle." As long as a vehicle was somehow implicated in the accident, courts usually held, with few exceptions, that an insured could trigger his or her automobile insurance.

The Supreme Court recently significantly narrowed the scope of automobile coverage by restricting the once-expansive interpretive exercise to a more nuanced and categorical application. The Court effectively created two interpretive tests for two types of insurance, a broad test for first party no-fault benefits and a narrower test for third party liability insurance. Despite the broadly worded coverage clause, the Court held that auto insurance coverage can only be triggered in the third party liability situation if the at-fault tortfeasor is at fault as a motorist. The Court's aim surely must have been to simplify the coverage question by restricting automobile coverage to standard two-vehicle auto collision situations and their corollaries. The shift to this default rule, from the previous default rule of pro-coverage as long as a vehicle is essentially in the factual matrix, surprisingly does not do anything to ameliorate the efficiency of the system. In fact, it makes the system more unpredictable.

This article addresses the problematic nature of the Supreme Court's recent automobile insurance coverage analysis and provides prescriptive suggestions for heading off future interpretive difficulty about this pervasive type of insurance. The article is divided into three parts, each of which addresses a fundamental argument against the Court's recent approach to auto insurance.

In Part I, the article argues that the Court's interpretive exercise is internally inconsistent. The Court reverses standard insurance contract interpretation principles in favour of a results-oriented approach to auto coverage. Such a move at the Supreme Court level jeopardizes the predictability of insurance coverage interpretation jurisprudence because principles long adhered to are turned inside-out toward an insurer-friendly application.

In Part II, the article examines the negative impact of the categorical approach the Supreme Court uses to treat first party and third party coverage as requiring different interpretive analyses. This impact is not ameliorated by the fact that the Court also uses the established purpose and causation categorical tests for auto insurance coverage in a fashion that is not consistent with other jurisprudence on insurance causation. The end result is an overly complicated and disjointed interpretive methodology which creates an anomaly in that auto insurance causation appears to be treated differently than causation in other areas of insurance.

Finally, in Part III, the article cautions that the Supreme Court's approach will narrow available auto insurance coverage for Canadian drivers in a way that creates gaps in coverage for which there is currently no product on the market. The author predicts that, as a result, other non-auto insurance policies will be called upon to fill those gaps, creating market inefficiencies through problematic sudden loss distribution issues that previously did not exist. The end solution may be either to create a combination insurance policy designed to fill coverage gaps or, alternatively, a return to the pro-coverage approach to automobile insurance which is simple to apply and which aligns with established insurance jurisprudence. The Supreme Court's present approach to automobile insurance coverage fails to honour long-standing insurance law interpretation concepts and represents a results-driven process which puts principle by the wayside. The implications are serious and potentially far-reaching. In the end, the result may be less efficient, and ultimately less just, than the previous state of the law.

Abstract:
Ontario's new securities legislation, Bill 198, closes the gate on securities class actions. Yet the legislation does not make such an ulterior purpose initially evident. Indeed, the new statutory revisions to the Securities Act have thus far been touted as a compromise between the interests of securities class action defendants and plaintiffs. Defendants are leery of American-style strike suits. Plaintiffs are eager to ease the burden of proving reliance as a common issue. Bill 198 hides its politically charged message within layers of new gate keeping procedures that combine with existing class actions legislation to create a procedural mangle for securities class actions. One needs to actually chart the practical ramifications for bringing a securities class action under Bill 198 in order to discern that securities class actions are still unwelcome in Ontario.

This paper exposes the logistical problems behind Bill 198's operation, and concludes that no reasonable plaintiff's counsel would take advantage of the new statutory cause of action. The benefits of having securities class actions in Ontario's procedural landscape are actually never realized through this legislation. Bill 198 appears to add a new cause of action which eliminates the traditional common law requirement of proving actual reliance. Such a revision would seem to make a securities class action far easier to litigate. But the layering of procedural deterrence from both Bill 198 and the Class Proceedings Act operate in conjunction to practically prevent securities class actions. Bill 198 adds to any potential securities class action the requirements of proving both good faith and reasonable possibility of success at trial. Damages are also capped. The Class Proceedings Act requires that all potential class actions pass a certification stage, where class plaintiffs must prove they have common issues tying the class together. In addition, all Ontario class actions require judicial approval of settlements. The paper questions the efficacy of Bill 198's targeting of securities class actions as a different kind of class action that should not be brought, for all practical purposes. Why are other class actions, such as products liability or vanishing premium cases, allowed to proceed in Ontario? What is so fundamentally different about a securities class action that it must be regulated to death by mismatched and duplicative procedures? Arguably, nothing.

class action, securities, securities class action, class proceeding, Canada

Abstract:
From radio to telephone to television and now the Internet, the evolution of new media technology has soundly tested the value that society, through the law, places on freedom of expression. The law's reaction to new media technology mirrors society's reaction in many ways. Uneasiness of the power and breadth of a new media's expressive possibilities prompts reluctance in creating legal frameworks that address how the media will operate under current freedom of expression constitutional doctrine. Government attempts to regulate media have typically been driven by two goals: protection of the vulnerable from harmful expression and upholding the accessibility to a new mode of expression. These regulatory aims, by their operative nature, impinge on the right of freedom of expression. This paper is divided into four parts. Part I sketches an overview of the argument that constitutional cases involving freedom of expression in various media should approach American First Amendment questions without regard to the technical qualities of the medium carrying the expression. Various types ofmedia differ only in degree and the differences may be constitutionally irrelevant in many instances. The basic doctrines surrounding constitutional challenges to government attempts at regulating expression are explained. The Part ends with a proposal for a technologically neutral way of balancing the protection of expression with the government's regulatory goals. Part II demonstrates how the pitfalls of analogy, novelty, and timeliness have marred American First Amendment jurisprudence when courts focus primarily on distinctions between types of media. The Part is necessarily exhaustive for two reasons: firstly, to establish the historical patterns of difficulty that courts dealing with new media have encountered and secondly, to ground the parallel to Canadian freedom of expression doctrine which follows in Part: III. Part III offers a possible doctrinal approach for a technologically neutral analysis of freedom of expression cases by contrasting the American approach to new media with a possible Canadian jurisprudential solution using Canadian Charter of Rights and Freedoms doctrines. The expansiveness of the Charter's s. 2(b) freedom of expression protection coupled with the contextual balancing effect of s. 1 of the Charter provide a workable, if somewhat unpredictable, alternative for addressing the problems of freedom of expression in different media forms. Part N concludes with a call for the adoption of a techno-neutral methodology when confronting freedom of expression challenges with media. A Canadian balancing effect coupled with a contextual assessment of the affected expression may be the most effective procedure for achieving techno-neutrality for both American and Canadian courts dealing with freedom of expression in existing and evolving media.

Abstract:
This article explores the tensions between the perceived public and private aspects of the litigation system by using the debate surrounding whether or not the public civil justice system can and should tolerate secret settlements. By evaluating the arguments against secret settlements, the article argues that, in civil litigation, the public rights inherent in the system must necessarily play out as secondary collateral concerns to the private rights of the individual litigants. To do otherwise is to upset the balance of the adversarial nature which is the bedrock of the civil justice system. The system itself is a decidedly private system, built around solving private interest disputes. The system happens to have some public aspects to it, but when such aspects attempt to trump private dispute settlement concerns, the very public values sought to be protected are actually jeopardized. The private, party-centric view of the system is actually the more effective perspective from which to design an all-encompassing civil justice system that preserves private rights and also protects some valuable public interest rights as well. It is therefore essential to acknowledge this inverse relationship between the public view and the private view of the civil litigation system when one is exploring any reforms to the system, such as whether or not to foster or ban secret settlements.

Part I of this article begins by discussing what a secret settlement is and how it operates. The article next explores how secret settlements are used by both defendants and plaintiffs in civil litigation. Part II of this article canvasses two opposing views of the purpose of the civil justice system: the “public view” and the “private view.” The article explores how public law proponents of the civil litigation system, like David Luban, Owen Fiss, and Abram Chayes have decidedly ideologically driven, results-based public-centric views about secret settlements (and the litigation system) which perhaps lead to untenable conclusions when applied in a civil justice system design context. The litigants themselves in this line of thinking take second seat to the public interest and, more curiously, the public interest and the litigants’ interests appear to be presented as ideologically opposite. Instead, the article argues that rights-driven, more party-centric approaches to the civil litigation system such as those taken by Arthur Miller, Carrie Menkel-Meadow, and Christopher Drahozal and Laura Hines actually do a better job of balancing both private and public interests in the system itself. Part III reviews key public view criticisms about secret settlements and demonstrates that the solution to these criticisms are actually better informed by the private view of litigation. The public view postulates that secret settlements defy transparency, do not contribute to the public good, can perpetuate danger, may take advantage of vulnerable litigants, and should not be used in litigation where the government is a party. However, the private view of secret settlements turns the public view criticisms upside-down and exposes the problematic, exclusively public nature of the public view such that that norms of the public view are not nearly as achievable in actual operation as one might otherwise expect at first blush. Part IV of this article concludes by offering a solution. When reforming and designing the civil justice system, either in whole or in part – like whether or not to allow secret settlements – one can expect a fuller, more balanced normative dialogue by using the private view as a primary modality of thinking about litigation in a systemic way. In the end, the private view of litigation often has far more “public” to the “private” than one might expect.

Abstract:
Understanding the application of judicially created cause-in-fact doctrine to a case where proof of cause is at best ambiguous, necessitates understanding what has driven the court to tinker with existing tort doctrine in the first place. It is the aim of this article to explore .how these three modifications to traditional cause-in-fact principles operate, examine why they arose, and then use a normative lens to evaluate why they need to be consolidated into a predictable and portable outgrowth of causation doctrine.

This article is divided into four substantive sections. Part II defines the landscape of cause-in-fact doctrine and explains how American, Canadian, and British courts have modified this landscape to oblige ambiguous causation cases. Part III evaluates the judicial modifications of cause-in-fact doctrine and explores the often inarticulated motivations that drive a court's use of these innovations. First, reversal of the burden of proof of causation from the plaintiff to the defendant is considered. Next, the approach that proves cause based on the defendant's material increase of risk of injury to the plaintiff is evaluated. And finally, the practice of proving causation based on reasonable inferences on the facts of the case is examined. Part IV is the pivotal division of the article, where the three alternative approaches to cause-in-fact are synthesized to produce a new, normative3 method for deciding ambiguous cause-in-fact cases. This method, called structured causation, deifies existing torts principles in a fashion that is also compatible with a positivist interpretation of what courts have been doing. Part V explains how structured causation accomplishes the normative goals, which are compatible with the competing tort theories of efficiency and corrective justice.

tort, causation, cause-in-fact, canada, united states

Abstract:
Limitation periods are, by nature, defense-sensitive. They are designed to bring closure, predictability and insurability to defendants while at the same time prompting plaintiffs not to sleep on their rights. Current trends in evolving legal doctrine continue to modify the effect of limitation periods in favor of a plaintiff in special circumstances. The concepts of discoverability and incapacity have become judicially imposed options for avoiding the harsh results of a limitation period if a plaintiff is unable to bring an action before the period expires. Working in the background of this jurisprudential outgrowth are the real or imagined pressures placed by an insurance industry seeking underwriting certainty. The effect is perhaps a perception that limitation periods are becoming softened and plaintiffs are wriggling free of the supposed closure, predictability and insurability that a strict limitation period is supposed to provide to defendants. This perception is one that may be behind the British Columbia Law Institute's latest report, The Ultimate Limitation Period: Updating the Limitation Act.

limitation, limitation period, statute of limitations, civil litigation, ultimate limitation

Abstract:
The common law has developed exceptions around statutory limitation periods which, when applied, restore the plaintiff's right to bring a claim in certain special circumstances. The first of these exceptions is the doctrine of discoverability. This doctrine delays the start of the limitation period until such time that the plaintiff is aware of the facts giving rise to the legal claim. The second exception, that of capacity, is really a different form of discoverability. In order for a plaintiff to bring an action, that plaintiff must have the capacity to do so. Otherwise, the limitation period is delayed until such time that the plaintiff regains capacity. Courts within Canada have grappled with these concepts in an attempt to modernize the interpretation of limitations statutes, statutes that are truly defense oriented in their very construction.

Over the past two decades, a modified subjective/objective test for discoverability has developed which takes into account what a reasonable person would do in the plaintiffs own particular circumstances. This test developed, however, in the limited circumstances of interpreting a section of provincial legislation. At the same time, the concept of capacity to commence an action has also been refined to delineate the rather complex steps required of a plaintiff in bringing a legal action. The next necessary outgrowth of this law of exceptions should be a synthesis of capacity with discoverability, resulting in a unified and portable legal test to be applied to all limitation issues. This test should have as its hallmark a frank recognition of the necessary steps required to commence an action. These steps are more akin to those found in routine business transactions. Furthermore, the test should be a modified subjective/objective test which accounts for the specific circumstances of the plaintiff, while injecting a realm of reasonableness to strike the balance between plaintiff and defendant. Lastly, the test should be tempered by the length of the limitation period relative to the length and severity of both a plaintiffs alleged inability to discover his or her case or a plaintiffs incapacity to bring an action. Treating incapacity and discoverability together, in one cohesive unit, would provide courts and litigants alike with a tool to assess the relative strength of a limitation period defense.

limitation period, limitations, discoverability, capacity, civil litigation

Abstract:
Advocates contemplating seeking Leave to Appeal to the Supreme Court of Canada in personal injury cases face a unique decision calculus. The strategy at this Court is different from that of other appellate courts because the Supreme Court of Canada uses a particular test for granting Leave: “public importance.” One must first ask for Leave from the Supreme Court to even get to a hearing on the merits. When one’s personal injury appeal is competing on the Supreme Court’s Leave docket with other cases bringing issues such as unconstitutional search and seizure, equality rights, the separation of Quebec, and freedom of expression, the task of imbuing one’s case with “public importance” becomes a challenge. This article aims to offer some strategy behind the Leave process by removing some of the mystery so that personal injury lawyers and their clients can make informed decisions about this potentially important step.

Civil litigation, Supreme Court of Canada, personal injury, appeal, leave, public importance, insurance

Abstract:
It is the aim of this article to propose a novel system of dispute resolution for disputes which turn on interpretations of complex but uncertain scientific evidence. Part II identifies a specific subset of legal disputes that can only be resolved through policy judgments from ambiguous scientific data. Recognizing the underlying commonalities of these science-policy disputes offers an opportunity to craft a single dispute resolution mechanism which may be utilized for a wide variety of disputes. Part III outlines the benefits of using a mediation-based dispute settlement mechanism, as opposed to the traditional adversary-style litigation system, for these specific types of disputes. Part IV proposes a model mediation system for disputes turning on policy-based interpretations of complex scientific information. Part V concludes by applying the model to a fictional products liability dispute which involves conflicting scientific determinations from technically complex data.

alternative dispute resolution, a.d.r., mediation, dispute resolution