Canada: Canadian Legal Perspectives - August 2014

In this Issue August 2014

  • Welcome to Canadian Legal Perspectives
  • Kent Davidson, Q.C., New Chairman of Miller Thomson to Visit Lloyd's 8-10 September 2014
  • Motion for Summary Judgment: Can You Ever Be a Winner?
  • Vancouver's New Building Bylaw
  • British Columbia Case Commentaries
  • When Does the Clock Start to Run? Contribution Claims Under Alberta's Tort-feasors Act
  • Proposed Changes to the Quebec Code of Civil Procedure and Their Impact on the Litigation Process: Part 1

WELCOME TO CANADIAN LEGAL PERSPECTIVES

Dear Colleagues,

Welcome to our first issue of Canadian Legal Perspectives: A Brief for the Lloyd's Market.

Contributed to by lawyers from Miller Thomson's national Insurance Group, our goal is to inform you, and to provide readers with coast-to-coast insight into current, cutting-edge legal issues impacting Canadian insurance.

This will be a quarterly publication. We welcome your comments or suggestions for future topics.

KENT DAVIDSON, Q.C., NEW CHAIRMAN OF MILLER THOMSON TO VISIT LLOYD'S 8-10 SEPTEMBER 2014

Miller Thomson is pleased to announce that Kent Davidson has been elected to the Chairmanship of Miller Thomson LLP.

Kent comes to office having led a successful practice in Labour and Employment as well as Commercial Litigation Law, having been called to the Bar of Alberta in 1983.

Kent previously served as Managing Partner of the firm's Edmonton and Calgary offices, and has served for seven years as a member of Miller Thomson's National Executive Committee.

With a focus on business and quality, Kent has been behind many of the firm's initiatives to strengthen our core practice over the years.

Kent will be in London to visit our insurance practice.

"My visit will be to learn about the Lloyd's market first hand from our broker, underwriting and claims management colleagues, while re-emphasising Miller Thomson's staunch commitment to our Lloyd's and London Market business partners", he said. "I look forward in learning how we may improve and enhance our relationships".

MOTION FOR SUMMARY JUDGMENT: CAN YOU EVER BE A WINNER?

By Anna Casemore and Pietro Palleschi, Toronto

Prior to the significant changes to Ontario's Rules of Civil Procedure in 2010, winning a motion for summary judgment was considered to be somewhat of a miraculous achievement. The former Rule 20, which governed motions for summary judgment, served to severely restrict a judge's powers, and judgment would be granted only if the moving party could demonstrate that there was no genuine issue for trial. And almost anything could be characterized as a genuine issue for trial. Furthermore, cost consequences for the losing party were so Draconian that most litigants would be deterred from even trying.

The changes to the Rules, generally, in 2010 signalled a legal cultural shift, the goal being to increase access to justice. In terms of summary judgment, in particular, the intent was to elevate the likelihood of success. The legal test was modified such that judgment would be granted if there is no genuine issue requiring trial. In other words, unless a trial is absolutely necessary, the dispute can be resolved summarily.

To achieve the goal of greater access to justice, judges have been afforded sweeping new powers: they are now permitted to hear and weigh oral evidence, make determinations as to credibility, and draw inferences from the evidence unless the interest of justice requires that a hearing be conducted on a full evidentiary basis (i.e. a trial). Furthermore, cost consequences for unsuccessful litigants have been slackened: whereas the old Rule required that that the losing party pay the successful party's costs, on a full indemnity basis, the Court now has discretion to award costs, depending on the circumstances.

The governing principle is proportionality: courts are now required to apply the Rules with a view to the importance and complexity of the matter, and a consideration of the amount in dispute.

In Combined Air Mechanical Services Inc. v. Flesch1, the Ontario Court of Appeal had its first opportunity to interpret and apply the new Rule. Unfortunately, its interpretation was much more restrictive than legal practitioners in Ontario had anticipated or hoped. In fact, some perceived the decision to be contrary to the legislative intent contemplated by the new Rule.

In 2014, the Supreme Court of Canada seized the opportunity to address the problem, and to clarify the application of the test for summary judgment. In Hryniak v. Mauldin2, the Supreme Court recognized that the expense and delay of trials had the potential to prevent a fair and just resolution of a case, and sought to rectify the length and cost of trial by focalizing its opinion through access to justice concerns. It expressly recognized that the Rules needed to be interpreted broadly to favour proportionality and fair access to affordable, timely and just adjudication of claims.

Importantly, unlike the Court in Combined Air, which was of the view that a traditional trial, with its procedural safeguards, provided greater assurances of fairness and should remain the default proceeding, the Supreme Court endorsed the notion that summary judgement was, in fact, a genuine alternative model of adjudication, and that summary judgment was no less legitimate than a regular trial, as long as certain procedural criteria were met, and should be more widely available to allow litigants access to less expensive and more timely adjudication. The Court called for "moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case"3 , and that judges should utilize their expanded powers to ensure that disputes are resolved in an affordable and timely manner with regard to the prevailing principle of proportionality.

The Supreme Court emphasized the need for an individual assessment in each case, based on the principles outlined (access to justice, proportionality, affordability, timeliness, and fairness), as opposed to a categorical approach.

Essentially, summary judgment will be available where the process:

  1. allows the judge to make the necessary findings of fact, and to apply the laws to the facts; and
  2. is a proportionate, more expeditious and less expensive means to achieve a just result.

The overarching message expressed by the Supreme Court is that there will be no genuine issue requiring a trial where the judge, on a motion for summary judgment, can reach a fair and just determination on the merits.

The Practical Implications of Hryniak

As a result of the Hryniak decision, the number of successful motions for summary judgment should increase, although the decision should not be viewed as disposing of the traditional trial, or as opening the floodgates.

Ensuring access to justice remains one of the greatest challenges in Canada.4 A cultural change, of the proportion envisioned by the drafters of the New Rules, will require a significant shift in thinking, even with the expressly written broader Rules at the court's fingertips. Hopefully, it will also entail attitudinal changes towards pre-trial procedures and a movement of the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of a particular case.5

What does this mean for insurers? They can take comfort in knowing that motions for summary judgment are less risky, less expensive if unsuccessful, and a more viable option than before. While such a motion will rarely be cheap – it is, essentially, a mini-trial, and requires that an insurer puts its best foot forward, and obtains expert evidence – it provides an opportunity for the dispute to be resolved at a much earlier stage in the proceedings, thus halting the incurrence of unnecessary defence costs.

VANCOUVER'S NEW BUILDING BYLAW

By Karen L. Weslowski, Vancouver

Introduction

Unlike any other city or municipality in British Columbia, the City of Vancouver is authorized by the Vancouver Charter to pass its own building bylaws regulating the design and construction of buildings as well as administrative provisions for permitting, inspection and enforcement.

On 1st April, 2014, Vancouver City Council adopted the 2012 British Columbia Building Code, with additional requirements and revisions specific to Vancouver, to create the 2014 Vancouver Building Bylaw (the "Vancouver Building Bylaw"). The Vancouver Building Bylaw was originally scheduled to come into effect on 1st July, 2014 but that date has been extended to 1st January, 2015. The current 2007 Vancouver Building Bylaw will remain in effect until that date.

The Vancouver Building Bylaw includes amendments to improve housing for seniors and people with disabilities as well as amendments to promote the City's objectives of the "Greenest City 2020 Action Plan". This environmental action plan contains specific goals addressing issues such as reducing carbon footprint, achieving zero waste and preserving the City's ecosystems, which the City hopes to achieve by 2020 to constitute the world's "greenest city".

The Vancouver Building Bylaw may affect how professionals, including architects, engineers and building envelope consultants, design projects subject to the bylaw and may impose additional administrative requirements associated with a project. It may also impose further obligations upon professionals during the construction process in the form of field review to ensure that the additional requirements of the bylaw are being met.

Requirements of New Vancouver Building Bylaw

The Vancouver Building Bylaw covers one and two family dwellings, including single family homes, townhouses and secondary suites (buildings classified as Part 3 or Part 9 non-residential buildings), and is intended to address issues such as: accessibility, energy utilization, and rain screen cladding systems. It includes new requirements and improvements for:

  • Building permits;
  • Building envelope requirements;
  • Equipment;
  • Health and life safety;
  • Energy efficiency;
  • Adaptable housing;
  • Certified Energy Advisor evaluation of energy efficiency prior to City insulation inspection;
  • Energy modelling report prior to application; and
  • Sprinkler systems.

In connection with Vancouver's Greenest City 2020 Action Plan, the Vancouver Building Bylaw requires that all new buildings subject to the bylaw be designed to meet strict energy standards to reach energy reduction targets for new buildings of 20% below 2007 levels by 2020, and to be carbon neutral by 2030. A 240-volt electrical vehicle outlet is required in each carport or garage.

To address accessibility issues, the bylaw requires that all doorways and corridors be wider to accommodate wheelchairs. There are new requirements with respect to the placement of kitchen and bathroom faucets, kitchen sink drains and dimensions for bathrooms. Also amended are the requirements for the placement of outlets, electric switches and living room windows.

As part of building envelope requirements, improved insulation is mandated for windows, sliding glass doors, skylights, walls, attics and under slab insulation. There are also new requirements for air tightness.

"Noise pollution" from exterior and interior sources is becoming a bigger issue in construction and has been the subject of at least one known claim in the context of the remediation of the building envelope of a condominium complex. Explicitly addressed in the Vancouver Building Bylaw is one aspect of noise control; the bylaw requires HVAC equipment to conform to the noise-control bylaw.

No More Doorknobs

One new requirement in the Vancouver Building Bylaw has attracted considerable attention, as well as some derision. With the bylaw, Vancouver has become the first city in Canada to ban doorknobs. In place of doorknobs, all new construction under the bylaw will require the use of accessible levered handles. This is part of the minimum accessibility standards.

Other Requirements

Prior to obtaining a building permit under the Vancouver Building Bylaw, a new house plan must be evaluated by a Certified Energy Advisor ("CEA") using EnerGuide Rating System and the "P-File" submitted with the plans.

Prior to the City's insulation inspection, an authorized Energy Advisor must: (1) provide confirmation of visual verification of window ratings; (2) complete a Vancouver Thermal Bypass checklist; and (3) complete a pre-drywall blower-door test.

Prior to final inspection, the builder must submit a copy of the final EnerGuide Report, prepared by the CEA. Further work may be required if the home performs significantly worse than the 3.5 ACH. Also required is a completed checklist by the CEA confirming that electrical, pipe insulation, and other energy requirements of the VBBL were met.

Transition Between 2007 and 2014 Vancouver Building Bylaw

If an application for a building permit is made before 1st January, 2015, the applicant can choose to apply under the 2007 bylaw or the 2014 bylaw.

Applications for building permits under the current bylaw must be submitted to the City of Vancouver by 19th December, 2014.

Not surprisingly, the City of Vancouver has received a large number of development applications under the current bylaw and reports that applications have increased by 40% from the same time period the previous year.

As a result of the influx of applications, builders have reported increased delays in the processing of their permit applications from a time period of one week to up to three months, which builders say have resulted in construction delays and increased costs.

Conclusion

While the new Vancouver Building Bylaw is intended to make buildings more accessible and environmentally friendly, opponents have criticized it on the basis that the changes will result in increased construction cost. The bylaw imposes new design criteria on those professionals involved in the construction of buildings subject to the bylaw, and may impose additional administrative and field review obligations. Time will tell whether these obligations will result in new types of claims against building professionals.

BRITISH COLUMBIA CASE COMMENTARIES

By Karen L. Weslowski, Vancouver

The Owners, Strata Plan, BCS 1348 v. Travelers Guarantee Company of Canada, 2014 BCSC (unreported)

This case provides some much needed clarity on the relationship between tort claims made by strata corporations against consultants and trades involved in construction and contractual warranty claims made by the same strata corporation against their new home warranty provider.

The plaintiffs in this case were the owners of a strata titled hotel in Whistler, British Columbia. They brought a claim against the defendant Travelers Guarantee Company of Canada ("Travelers") for breach of home warranty insurance issued by Travelers.

Travelers sought leave of the court to file a third party notice against the architect and building envelope consultant involved in the construction of the hotel. Travelers sought contribution and indemnity from these parties pursuant to the Negligence Act, R.S.B.C. 1996, c. 333. The architect and building envelope consultant opposed the application on the following grounds: (1) there was no reasonable cause of action and the third party claim was bound to fail; and (2) Travelers had no basis upon which to bring third party proceedings for contribution and indemnity under the Negligence Act in respect of any costs and losses incurred under its warranty.

The court did not accept the first ground, finding that the proposed third party claim raised a triable issue against the architect and building envelope consultant. The third party claim alleged that these parties owed a duty of care to the plaintiffs to ensure the hotel was constructed without deficiencies. It was alleged that the architect and building envelope consultant breached that duty by permitting the hotel to be constructed with structural and other deficiencies which caused resultant damage.

The court accepted the second ground and dismissed Travelers' application. The court noted that the plaintiffs' claim against Travelers was contractual in nature. There was no contract between the proposed third parties and either the plaintiffs or Travelers. The court held that to advance a claim under the Negligence Act for contribution and indemnity, all parties must be (or have the potential to be) joint tort-feasors. With its application, Travelers was attempting to erroneously intermingle a contractual claim with a tort claim, which cannot give rise to the right to claim contribution and indemnity pursuant to the Negligence Act.

Further, the court stated if it was wrong on the application of the Negligence Act, it would dismiss Travelers' application on the basis of prejudice to the proposed third parties. The court noted that this was not a case where Travelers had paid the warranty claim and was asserting its subrogated rights. The proposed third parties would be required to sit through a long trial addressing issues of a contractual nature in which they had no vested interest. The court preferred to have Travelers resolve its contractual issues with the plaintiffs and then pursue its subrogated rights, if any, against the proposed third parties by separate action.

Given the finding in this case, it may not be appropriate for a warranty provider to issue third party notices against consultants and trades in the context of an entirely contractual warranty claim made by a strata. However, if the strata has commenced a separate negligence claim against the consultants and trades concerning the same alleged deficiencies in construction, the court may order the negligence action to be heard at the same time as the warranty claim, thus avoiding two separate trials.

McRae v. Seymour Village Management Inc., 2014 BCSC 714

This case concerns a multi-unit, wood-frame residential condominium complex in North Vancouver, British Columbia. Eight buildings comprise the complex containing a total of 114 residential units. The complex is around 40 years old. Due to its age, the complex was constituted as a common law strata, which is established in a slightly different manner than a strata created pursuant to the Strata Property Act, S.B.C. 1998, c. 43.

The issue before the court was whether the complex should be sold as a whole over the objections of some of its owners?

The petitioners applied pursuant to the Partition of Property Act, R.S.B.C. 1996, c. 347 for an order permitting sale of the entire complex to an interested developer. This legislation provides a mechanism by which a property with multiple owners may be sold. Where a majority of owners want to sell, the court "must, unless it sees a good reason to the contrary", order a sale of the property.

The petitioners, comprised of owners supporting a sale of the complex, sought to sell for two main reasons: (1) given the age and condition of the wood frame buildings, they did not wish to continue to fund impending repairs and capital projects to the cost of an estimated $2.7 million; and (2) the market value of the complex, and each of the individual units, could be maximized if sold as a whole to a developer.

The respondents, comprised of owners opposing a sale of the complex, argued that a sale of the complex would cause them undue hardship, including the inability to afford a comparable home, inability or unwillingness to assume mortgage debt to purchase a new home and unwillingness to leave the community.

The court had to consider whether the hardships faced by the respondents justified refusing the sale desired by the majority of the owners. While sympathetic to the concerns expressed by the respondents, the court noted that shared ownership has its disadvantages, one of them being forced sale by the other co-owners. The court granted the order for sale.

As condominiums, particularly those of wood frame construction, age and reach the end of their service lives, owners may find that maintenance and repair costs exceed the value of the property. Rather than undertake expensive building remediation projects, applications for relief under the Partition of Property Act may become more common in British Columbia.

WHEN DOES THE CLOCK START TO RUN? CONTRIBUTION CLAIMS UNDER ALBERTA'S TORT-FEASORS ACT

By Mark Alexander, Edmonton

At common law, a plaintiff who has been injured as a result of the acts of two or more tort-feasors - the party committing the wrongdoing - can sue any one of them to recover 100 per cent of his or her damages that result from the wrongdoing. The tort-feasor held liable is then left without recourse against the other joint tort-feasor(s) who were not sued by the plaintiff.

Alberta, like most other common-law jurisdictions, has remedied this problem by enacting the Tort-feasors Act,6 which provides a statutory right of action to a tort-feasor for contribution and indemnity against other joint tort-feasor(s). However, that right of action must be considered in light of the province's limitations period.

Consider the following two Court of Appeal decisions which have dealt with attempts by tort-feasors to bring a claim against joint tort-feasors.

In Howalta v. CDI,7 the Alberta Court of Appeal addressed the issue of the ability of a tort-feasor (tort-feasor #1) to advance a claim for contribution against another (tort-feasor #2) who is protected from judgment vis-à-vis the plaintiff by a procedural bar (for example, when the plaintiff's claim against tort-feasor #2 is statute barred). In holding that tort-feasor #1's claim for contribution would also be barred, the Court recognised the potential unfairness to tort-feasor #1, but concluded that it was bound by the strict wording of the Tort-feasors Act.

Similarly, in CNRL v. Arcelormittal,8 the Court of Appeal followed Howalta, holding that the Tort-feasors Act imposes a condition precedent to a claim for contribution: A tort-feasor can claim contribution only from a tort-feasor "who is or would, if sued, have been liable in respect of the same damage". If tort-feasor #2 cannot be directly liable to the plaintiff, then tort-feasor #1 can have no right of contribution against tort-feasor #2, irrespective of the fact that tort-feasor #2 may have caused or contributed to the loss.

Essentially, a claim for contribution and indemnity, in the face of a procedural bar (such as a limitations defence), has been held to be derivative of the plaintiff's claim against tort-feasor #2. Accordingly, if a plaintiff cannot succeed against tort-feasor #2, then tort-feasor #1 can have no valid claim against tort-feasor #2 for contribution or indemnity.

As is evident, the current state of the law gives rise to a substantial problem in the event of the late-suing plaintiff. For example, if a plaintiff waits to commence proceedings against tort-feasor #1 until just before the expiry of the limitation period, and does not sue tort-feasor #2, who may have caused or contributed to the plaintiff's damages, it leads to an inherently unfair situation whereby tort-feasor #1 might be out of time to advance a claim for contribution against tort-feasor #2, as the limitation period governing the plaintiff's claim against tort-feasor #2 may have already expired. Due to the plaintiff's inaction, tort-feasor #1 may be significantly prejudiced because the plaintiff would then be able to recover 100 per cent of his/her damages from tort-feasor #1, despite the fact that tort-feasor #2 may have caused or contributed to the loss.

The Alberta's Limitations Act9does not expressly state when a claim for contribution arises. As a result, the problem of the late-suing plaintiff persists. Recognizing this unfairness, a potential amendment to the Alberta Limitations Act is being considered.

On May 20, 2014, Alberta Justice and the Solicitor General issued a paper inviting submissions on the issue of limitation periods for contribution claims under the Tort-feasors Act. In particular, members of the Alberta Bar were asked to comment on the current state of the law with respect to contribution claims and the problem of the late-suing plaintiff, in light of the decisions in Howalta and CNRL.

During this process, Alberta Justice and the Solicitor General noted that other common law jurisdictions in Canada have specifically addressed the issue of when the limitation period for contribution and indemnity claims begins to run by statute. Furthermore, they noted the earlier decision of Dean v. Kociniak,10 dating back to 2001, wherein the Alberta Court of Queen's Bench held that the limitation period applicable to a tort-feasor's claim for contribution and indemnity from a second tort-feasor does not start to run from the time that the plaintiff's limitation period begins to run (typically, the date of the injury) but rather from the date of the "injury suffered by the tort-feasor", which is the date on which the second tort-feasor failed to contribute to the first tort-feasor.

In Dean, the Court engaged in a comprehensive review of the legislation governing limitation periods for claims for contribution, and held that the general application of the 'discoverability' rule requires the limitation period to be construed from when the moving tort-feasor knew or ought to have known of his claim against the second tort-feasor.

While the analysis in Dean is certainly persuasive, it is an earlier, lower court decision, and runs contrary to the Court of Appeal's decisions in Howalta and CNRL, which are currently binding in Alberta. This means that, for now, under the current state of the law of Alberta, it is imperative that a careful assessment of the plaintiff's claim is undertaken, as soon as possible following a notice of a claim, to ensure that any actions for contribution are commenced within the limitation period applicable to the plaintiff's claim against the party from whom contribution is sought.

In the meantime, it will be interesting to see what changes the Ministry's review will generate. We will keep watching and updating you on developments in this area of the law.

PROPOSED CHANGES TO THE QUEBEC CODE OF CIVIL PROCEDURE AND THEIR IMPACT ON THE LITIGATION PROCESS: PART 1

By Fadi Amine, Montréal

The Province of Quebec recently enacted a new Code of Civil Procedure (the "CCP"), which is expected to come into force during the Fall of 2015. The CCP is intended to address long-standing, systemic problems that have adversely affected the smooth and efficient functioning of the court process, and to reduce the backlog and long procedural delays, limit the rising costs of litigation, and address various other problems that have become apparent during the last decade. The overarching stated purpose of this overhaul is to modernize court procedures and processes, increase public confidence in the court system, and make access to justice more efficient, simpler, faster, and less costly.

The proposed changes include:

  1. an obligation on all parties:

    • to consider private modes of dispute prevention and resolution;
    • to cooperate and keep each other informed; and
    • to negotiate a Case Protocol (essentially, a detailed timetable of anticipated procedures, including the disclosure of the parties' preliminary positions);
  2. a greater involvement of judges in the case management of the litigation;
  3. a complete reform of pre-trial examinations;
  4. a reform of the procedure relating to expert evidence;
  5. the admissibility of written testimony at trial;
  6. a broadening of the scope of the exception to dismiss, thus permitting a defendant to seek dismissal of only part of a claim;
  7. the opportunity for parties to jointly submit an issue of law to the court; and
  8. repeal of the Tariff of advocates' judicial fees, and the current regime for awarding costs.

In this brief, we have focused on some of the more significant changes.

A. The Case Protocol

The parties have to agree, within the first 45 days of the commencement of an action, to a Case Protocol, in writing, signed by the parties, which will cover the following:

  1. admissions, agreements and undertakings of the parties,
  2. issues in dispute,
  3. consideration by the parties to modes of private dispute prevention and resolution,
  4. procedural steps ensuring the orderly progress of the proceedings, and the time assessed for each step,
  5. foreseeable legal costs,
  6. procedural deadlines,
  7. preliminary exceptions and safeguard measures,
  8. advisability of holding a settlement conference,
  9. details of pre-trial written or oral examinations,
  10. details of the defence,
  11. procedure and delays for pre-trial discovery and disclosure,
  12. foreseeable incidental applications or motions, and
  13. means of notification intended to be used by the parties.

The Case Protocol will be binding upon the parties, who will incur financial sanctions if there is significant non-compliance.

The Case Protocol moves to the front end of the litigation process, many of the steps that are currently addressed mid-course or even at the end of the process, when the parties are preparing for trial.

The immediate, likely consequence of this change is that litigation costs will be higher at the earlier stage of the proceeding.

B. Case Management

Throughout the litigation process, judges will have a greater role than they presently do, and will be able to convene case management conferences, involving all the parties, once the Case Protocol has been filed.

They will also be able to order appropriate management measures, require undertakings, subject the proceedings to certain conditions, and order that proceedings be simplified or expedited, and the length of trial be abridged. Furthermore, they will be able to assess the scope of the expert evidence and determine the conditions under which pre-trial examinations will be held.

C. Pre-Trial Examinations

Currently, objections formulated by counsel during pre-trial examinations are a major factor in creating delay. For example, the timing of the pre-trial examination (whether it occurs before or after defence) can have a significant impact on the type of question that is permissible, or its relevance to an action, and is a source of many objections and corresponding delay in adjudicating them.

The CCP no longer makes a distinction between examinations before or after defence, and all objections, except for those relating to client-solicitor privilege, are supposed to be taken "under reserve", meaning that the witness answers and the judge decides on the merits whether to uphold the objection.

Furthermore, the CCP serves to limit each pre-trial examination to five hours (with some exceptions). When the value in dispute is less than $100,000, the time limit will be three hours. The CCP also provides for the option of written examinations.

D. Expert Evidence Reform

The CCP defines the goal of the expert witness: to enlighten the court in its decision-making, and not to represent one party or the other. In other words, the expert shall not be an advocate.

The parties are still entitled to retain their own experts, but if they do, they will have to explain to the court the reasons why they declined to seek a joint expert opinion.

Under the CCP, a party is prohibited from filing more than one expert report per subject-area. Furthermore, the parties will have to disclose to the court the instructions that they gave to their expert.

As part of their expanded powers to manage proceedings, judges will be able to order a meeting between experts to reconcile their opinions, identify points of difference, and require an additional report on those adverse points.

During trial, the report of the expert will stand in lieu of his/her testimony. It is possible, however, for a party to examine the expert, but only in order to clarify his/her report, or to obtain opinion on new evidence. Otherwise, the examination for any other purpose must be pre-authorized by the court. The adverse party will be able to cross-examine the expert.

E. Conclusion

From an insurance litigation perspective, it is expected that some of these changes will increase costs at the outset, by forcing the parties to delve into much more detail during the planning stage of the case. The hope of the legislature, however, is that this early effort, combined with the obligation to consider private modes of dispute resolution before instituting an action, will lead to a higher number of cases being settled, sooner rather than later, thus resulting in the reduction of defence costs and expenses.

Footnotes

[1] Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

[2] Hryniak v Mauldin, [2014] SCC 7 ["Hryniak"].

[3] Ibid. at para. 2-3.

[4] Ibid. at para. 1.

[5] Ibid. at para. 2-3.

[6] Tort-feasors Act, R.S.A. 1980, c. T-6.

[7] Howalta Electrical Services Inc. v. CDI Career Development Institutes Ltd., 2011 ABCA 234.

[8] Arcelormittal Tubular Products Roman S.A. v. Fluor Canada Ltd., 2013 ABCA 279.

[9] Limitations Act, R.S.A. 2000, c. L-12, as amended.

[10] Dean v. Kociniak, 2001 ABQB 412.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Mark Alexander
Karen L. Weslowski
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To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions