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Andrew Murray's Archive

Managing Subrogated Claims

There are a number of good texts dealing with the issue of subrogation itself. Craig Brown's loose leaf text, Insurance Law in Canada, has an entire chapter devoted to the issue of subrogation.2) In the insurance law context about which Craig Brown writes, the type of subrogation described occurs when an insurance company pays out the claim of one of its insureds and then launches a lawsuit, in the name of its insured, against the negligent party or parties responsible for the loss, with the intent of recouping, in whole or in part, the damages that had been paid out by the insurer to the innocent insured.

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Update on Costs – Life After the Grid

This paper is intended to present a cross-section of different types of costs awards that have been granted since the Costs Grid was abolished effective July 1, 2005. It is hoped that the eight cases outlined below appropriately gauge the pulse of the judiciary as it relates to costs and the new procedures established by the amendments to the costs regime that were implemented fifteen months ago.

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Criminal Acts in a Tortious Context

This paper is intended to present a cross-section of different types of costs awards that have been granted since the Costs Grid was abolished effective July 1, 2005. It is hoped that the eight cases outlined below appropriately gauge the pulse of the judiciary as it relates to costs and the new procedures established by the amendments to the costs regime that were implemented fifteen months ago.

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Streamlining the Process of Proving and Defending Economic Loss to Resolve Cases Efficiently: The Plaintiff’s Perspective

The purpose of this paper is to:

a) provide a helpful checklist of considerations that ought to be made when advancing a claim for economic losses on behalf of a plaintiff;

b) outline a roster of possible experts to consider using to best advance the plaintiff's claim for economic losses;

c) suggest a few tips for streamlining the process of settling economic loss claims;

d) share some insight into what works at a settlement conference or mediation; and

e) outline a helpful summary of the law related to claims for future economic loss.

Presented at The Canadian Institute's 4th Annual Forum on Litigating Personal Injury Damages "Winning Strategies to Building Your Case" Conference, February 2006

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It’s the First Day of Trial: What do I do?

The purpose of this paper is to collect together as many hints, tips, and anecdotal pieces of wisdom as possible dealing with the first day of trial. If you are like me, you will find that the first day of trial is often the most stressful or anxiety-provoking day of the whole trial process. I find that, once that first day of trial is under my belt, I get into a groove, develop hopefully) a rapport with the Judge or jury, begin to understand opposing counsel, and embrace the rhythm of the trial. That first day, however, especially the night before the first day, can often leave me feeling uneasy.

Let's face it, the way that cases settle mid-trial, you are never going to see as many "last days of trial" as you do "first days of trial". Instead of being anxiety-provoking, the first day of trial should proceed smoothly and according to the plaintiff's plan. It should be defence counsel who is worrying about the last day of trial, and not you worrying about the first day of trial. Since the remaining days of trial take on a rhythm of their own, which is usually fairly predictable, this paper hopes to embolden us all to cover off that first day of trial smoothly, effectively, and without stress.

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Contingency Fees – What is Old is New Again

One of the worst-kept secrets in Ontario was the existence of Retainer Agreements entered into between personal injury Plaintiffs and their counsel, in which payment of legal fees was dependant on the Plaintiff being successful in the lawsuit. While not specifically called a "Contingency Fee Agreement", the practical reality was that counsel would be paid for their work, if and only if the client succeeded in the lawsuit. While other jurisdictions across Canada and the United States embraced contingency fees as an appropriate means by which deserving claims could be advanced by competent counsel, Ontario maintained its anachronistic aversion to legalizing contingency fees into the 21 st century.

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The Law of Causation: A Review And An Update

This paper reviews the current state of the law of causation in personal injury actions

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Advocacy in Bills of Costs on Motions and Trials

Effective January 1, 2002, a new costs grid replaced Part of Tariff A, significantly changing the manner in which the quantum of costs payable by one party to another party is determined. At the same time, changes were implemented to dramatically increase the frequency by which Judges will be obliged to fix costs, and reduce the circumstances in which costs will be assessed by an Assessment Officer.

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