Articles

The Guiding Principles of Management Fees: Contemporary Trends in British Columbia Litigation.

By // In Articles // 2020.02.05 // Read More

The Guiding Principles of Management Fees: Contemporary Trends in British Columbia Litigation.  

By: Tiffany Tsang and David M. Giroday 

Introduction

An award for management fees, when justified, can be granted by the court to compensate a plaintiff for the cost of hiring an investment manager to handle the investment of their damages award in a personal injury matter. These are more often awarded where the plaintiff has limited investment experience and in instances where a plaintiff receives a sizeable award. In such circumstances, a consideration of management fees by the court and counsel may be necessary.

Medical Marijuana in Personal Injury Actions

By // In Articles // 2018.07.05 // Read More

Tiffany P.K. Tsang and Callan W. MacKinlay

Originally presented at CLEBC’s Personal Injury Conference, 2018, held at Vancouver, BC on June 15, 2018.

  1. Introduction

The purpose of this paper is to provide an overview of the current state of the law and jurisprudence on the current and potential future guidelines for authorization of medical marijuana by medical practitioners; judicial considerations for awarding versus denying medical marijuana claims; and the factual considerations that counsel should pay attention to when seeking or defending an award for medical marijuana.

The Breach of a Statutory Provision Does Not Determine Negligence

By // In Articles // 2018.07.04 // Read More

Tiffany P.K. Tsang and Callan W. MacKinlay

In cases such as motor vehicle accident claims, it is tempting for parties (and even courts) to infer negligence from a breach of a statutory regulation; however, we are reminded in the recent case of Haynes v. Haynes, 2017 BCCA 131 that the factual matrix and evidence of surrounding circumstances ultimately determines liability. A regulatory breach is just one element of that factual matrix. Fundamentally, the plaintiff still bears the burden of proving a breach of the common law standard of care, notwithstanding the presence of a regulatory breach by the defendant. That breach alone will not suffice to prove negligence.

Allocation of Defence Costs and Conduct of Defence

By // In Articles // 2018.06.27 // Read More

Scott W.K. Urquhart and Nikta Shirazian

I. Introduction

In most instances where a duty to defend has been triggered the insurer has the obligation to pay the defence costs and will have conduct of the defence. However, this arrangement is not true in all cases. Indeed, certain circumstances arise where the costs of defending an action can be allocated amongst various parties. For example, such a scenario may arise when an insured has more than one liability insurer and both are obligated to defend an action. It may also arise in instances where there are covered and uncovered aspects to a particular claim. The purpose of this paper is to provide an overview of the legal principles governing the allocation of defence costs in the aforementioned scenarios. This paper will also address the legal principles governing the determination of which party obtains conduct of the defence in such circumstances.

Good Intentions, Unintended Consequences: Potential Pitfalls for the Insurance Industry and the CTR.

By // In Articles // 2016.04.27 // Read More

Authors:Scott W.K. Urquhart and Margot Liechti

British Columbia is in the process of rolling out a new dispute resolution mechanism for strata disputes and matters falling within the Provincial Court Small Claims jurisdiction ($25,000.00). The object of the Civil Resolution Tribunal (the “CRT”) is admirable. The aim is to provide convenient and cheaper access to justice through an online portal that is user friendly and purged of byzantine legal processes.

Course of Construction Policies and Consequential Economic Losses

By // In Articles // 2016.04.20 // Read More

Author: Scott W.K. Urquhart 

Acciona v. Allianz and Claims for Increased Expense.

Much ink has been spilled on the BC courts’ decisions in Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company[1].  But the lion’s share of the commentary has focussed on the defect exclusion at issue in that case, known as the LEG 2/96 exclusion, and the finding that it did not exclude damage to defectively constructed property.  Garnering less attention are the courts’ rulings with respect to the economic claims presented by the insured.

The History and Treatment of Damages in Canada

By // In Articles // 2014.09.18 // Read More

Author: Lawrence Bau

Introduction

The law of damages in Canada has undergone unique changes over the past 50 years which have helped shape the actions of Canadian society. The development of three areas of damages in Canada is of particular interest: non-pecuniary, punitive, and aggravated damages.

With respect to non-pecuniary damages, the Supreme Court of Canada, Canada’s highest court, implemented a series of rulings in the late 1970s which affected the way non-pecuniary damages were awarded. The rulings have had longstanding social implications. We will discover how the rule has been treated in subsequent cases and predict how it will likely fare in the future.

Determining Coverage in Cases Involving Multiple Concurrent Causes

By // In Articles // 2014.09.18 // Read More

Introduction

Insurance policies commonly contain clauses which stipulate which losses are covered and which are excluded under the policy. However, determining whether coverage applies can be complicated when a loss can be attributed to two concurrent causes, one of which is excluded from coverage. An example if where an explosion causes a fire on the insured’s property. Damage or loss from the explosion is covered but the fire is excluded from coverage.

Concurrent Causation and Insurance for Catastrophic Weather Events

By // In Articles // 2014.09.08 // Read More

One of the thorniest issues to deal with in insurance coverage matters is that of “concurrent causation”. The problem was illustrated again on the national stage last year when Albertans experienced massive overland flooding that also resulted in sewer back up. Typically, homeowner’s policies in Canada do not cover damage from flooding but many will include an endorsement for sewer back up. The events of 2013 presented insurers and insureds with the problem of how to handle losses directly caused by a sewer back up that is, itself, caused by an excluded flood.

Helping the Witness Help the Court

By // In Articles // 2014.08.15 // Read More

“Expert evidence is getting considerable judicial attention recently. There is considerable concern that experts are not fulfilling their role as unbiased providers of assistance to the courts, and several Canadian jurisdictions have tackled the concerns in recent revisions to court rules.”