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Andrew Murray's Archive

Documentary and Oral Discovery in Long-Term Disability Actions

The Discovery process in long-term disability "LTD") actions is a specialized exercise. While the Rules of Civil Procedure apply equally to an LTD action as it would to a commercial case, certain rules and judicial rulings are more applicable than others. This article will highlight the Rules and some of the recent case law, unique to LTD actions, with which all LTD counsel need to be familiar. While it is beyond the scope of this article to deal with the issue of pleadings, it is still worth mentioning that the Discovery process is entirely set up by and anchored to the underlying pleadings. Give due thought to the particularized complaint to be advanced and ensure your pleadings will permit the full line of Discovery you seek.

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Effectively Litigating Psychological Disability Claims: Finding Experts and Proving the Claim The Plaintiff’s Perspective)

Despite a well-developed body of literature, academic research, and practical study in the area of psychological disability - all of which acknowledges how debilitating a psychological disability can be - the clients whom I represent still seem to face an extra rigorous level of scrutiny when their primary complaint relates to a psychological disability. There remains an underlying notion that a claimant with a psychological disability must suffer from a weakness of character, lack of motivation, or is otherwise personally responsible for not working.

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Winning Strategies for Successfully Managing the AB File in Anticipation of Litigation

THE PRIMARY DIRECTIVE: KEEP THE BENEFITS PAID AND DO NO HARM TO THE TORT CASE

On any accident benefit file, large or small, my goal is to ensure that my clients receive the benefits that they are entitled to, in a timely way, and that they continue for so long as they remain entitled. Accident benefit files can be very time-consuming, so getting the benefits paid efficiently is in not only my clients' interests but also my own. Often, it need not be an adversarial experience to get the benefits paid; often all that is required is careful completion of the appropriate paperwork and submission of all necessary documents to the accident benefit adjuster.

The most successful accident benefit files that I can manage are those which do not proceed to litigation or arbitration. The most successful AB files in which I am involved support the tort file. The opinions are complimentary to the arguments that I am trying to advance in the companion tort action. The corollary to keeping AB benefits in pay is "Do no harm to the tort case".

Along the way, I have developed a number of strategies that assist me in achieving my primary directive. In no particular order, here is what I find works for me.

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Breaching Solicitor-Client Privilege in LTD Actions

While claims for solicitor-client privilege have long been recognized by the Courts, and the notion of solicitor-client privilege has existed for hundreds of years, recent developments have clarified and better illuminated the rules relating to solicitor-client privilege. The purpose of this paper is to explore current trends and developments, highlight, by illustrating a number of practical examples, how the Courts have dealt with requests for production of documents over which solicitor-client privilege and/or litigation privilege is claimed, and provide a few practice points to use when going forward

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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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