Law Times

Law Times • January 6, 2014 Page 3 NEWS National mobility agreement Insurance lawyers eye opportunities in Quebec BY JuDY VAN RHIJN For Law Times O ut-of-province claims are a challenging part of any insurance practice. The recently revamped national mobility agreement allows lawyers to look after their clients regardless of where the claim occurred. With the door now open to the Quebec courts, insurance lawyers are looking at how to capitalize on the change but are encountering more than legal and bureaucratic barriers. Since the first mobility agreement in 2003, there has been a gradual acceptance of opening the provincial borders on a limited basis. In 2006, there was the territorial mobility agreement that became permanent in 2011. In 2010, there was the Quebec mobility agreement with amendments in 2012. The new national mobility agreement of 2013 consolidates those earlier documents. The way is now open for lawyers to move between the civil and common law jurisdictions and appear in court for up to 100 days each year without receiving a call from the provincial law society or going through the cumbersome procedure to obtain a special dispensation from the court. Insurance law is an area that can benefit from the mobility agreement more than some others and insurance lawyers, particularly from the defence side, are looking for assistance on how to successfully navigate the Quebec scene. Lee Akazaki, a member of the board of directors of Canadian Defence Lawyers, says many insurance defence counsel work for companies that operate nationally and internationally, which can lead to the out-ofprovince claims. "What governs what we do is pretty random. We rely on provision of indemnity for accidents. You can never tell when an accident is going to occur or where. What is usually done for the routine administrative court appearance is to engage a local agent, but clients often want their preferred practitioner to appear [at] trial or at an important hearing," says Akazaki. Daniel Strigberger, of Miller Thomson LLP, is one insurance lawyer who hopes to capitalize on the agreement. "It's beneficial not just to know the law but to step up and do some of the work, especially when a firm has offices in most provinces." He frequently deals with priority disputes. "Every accident could create Settlement approval marks 'final chapter in the Indalex saga' there will be bilingual services coverage under more than one for anglophone practitioners. policy. It's just a matter of figuring It has a civil law French lexicon out which one." and a common law French lexiThe Ontario Trial Lawyers Ascon. We all trade in words, but sociation hasn't yet experienced in Quebec, we can't expect the any push from its members for assame words to mean the same sistance, but the Ontario Bar Assothing." ciation is already planning a joint Akazaki considers the tradibusiness law program with the Cational insurance defence field to nadian Bar Association's Quebec be very different in Quebec. branch. It will take place over two "The main reason is that the days in both provinces in the fall rest of the country has risen up and is likely to include insurance on auto litigation. That is still the law. The Insurance Bureau of Canbread and butter of at least 50 ada already provides information to 60 per cent of the insurance to its members and their lawyers bar. But Quebec is a complete on the different insurance systems across Canada. It tracks legislative 'The civil code has provisions for the law of no-fault system. It produces its negligence and the law of insurance that developments and reports on sig- are not so difficult to get a grasp on,' says own litigation, but that's a different animal from provinces which nificant jurisprudence in all Cana- Lee Akazaki. have tort and accident benefits." dian jurisdictions. Another challenge, he says, is the perception "The nature of insurance practice is that the substantive law is nearly always provincial un- that the civil code is an alien regime, something less you are dealing with maritime or aviation that creates a psychological barrier. "Quebec is bijural. It has both civil and common law, which has a federal aspect," says Akazaki. "It is helpful to us to get input from lawyers from dif- law, which mystifies the common law practitioner. Anything we are unfamiliar with, we tend to back ferent provinces." Canadian Defence Lawyers runs a national away from. In actual fact, those differences are not symposium in Toronto during the summer as well that significant in our area of insurance defence. as regional meetings with updates about other The civil code has provisions for the law of neglijurisdictions. It's hoping to capitalize on the new gence and the law of insurance that are not so difagreement by adding programs about Quebec law ficult to get a grasp on." Canadian Defence Lawyers also serves as a to its educational programming. "If you have mutual understanding and can clearing house for inquiries, provides referrals, learn what other provincial systems do, you get and facilitates partnerships between its members. "In the beginning, retainers are like a partnership value," says Akazaki. While Quebec is a new participant in the mobil- or traditional agency agreement, but those lawyers ity regime, Akazaki says: "In theory, it should oper- help promote understanding of the system. If the ate in the same way. In practice, there are a number experience is a good one, people think it is someof reasons why Quebec poses a challenge to a com- thing they would like to do more of." Strigberger notes the choice on an out-ofmon law practitioner. "The first and most obvious is language, even province matter comes down to farming it out or for a bilingual practitioner such as myself. Canada working with other lawyers on it. "It also works in does still have two solitudes. Quebec is not a bilin- reverse with out-of-province lawyers coming here. LT gual province. There can be no expectation that We are branching out," he says. BY YAMRI TADDESE Law Times I n a decision touting "the final chapter in the Indalex saga," the Ontario Superior Court has approved a settlement agreement in the high-profile pensions case. On Dec. 21, Superior Court Justice David Brown approved a settlement agreement reached in September as litigation loomed following the Supreme Court of Canada's ruling in the case. In a landmark decision in February, the Supreme Court put the pensioners back behind creditors waiting for payment from Indalex Ltd. after it applied for protection under the Companies' Creditors Arrangement Act in 2009. The case pit the Pension Benefits Act, a piece of provincial legislation, against federal laws that rank debtor-in-possession lenders ahead of pensioners in the contest for creditor primacy. The Supreme Court unanimously agreed that the federal law supersedes the provincial one. After paying the debtor-in-possession lenders, Indalex had roughly $5 million to distribute among its other creditors. According to the now-approved settlement agreement, pensioners under the "salaried plan" will receive $650,000, and $105,000 will go to the United Steelworkers for seven members of the salaried plan, according to Brown. Retired executives will receive $350,000 paid in trust to counsel who will receive partial reimbursement of legal fees at $285,000. There will also be a distribution of $15,000 to four members of the executive plan. "I accepted the monitor's recommendation, especially given that no interested party voiced any opposition to the approval order sought," wrote Brown. "The settlement agreement is a reasonable, proportionate resolution of the outstanding claims." Osler Hoskin & Harcourt LLP pensions and benefits lawyer Paul Litner says the settlement agreement was reasonable because "it's going to take a lot more [money] to continue to litigate about this issue." The pensioners are ultimately better off under the approved agreement compared to what they would have gotten had the original distribution scheme gone through, he notes. LT • Professional Development • Cutting Edge Content • Variety and Flexibility • Networking Opportunities ...than ever before. n v f r FEBRUARY 6-8, 2014 Be a part of Canada's largest legal conference. Institute 2014 is your chance to connect with over 1700 of your peers, 300 leading speakers and choose from 29 accredited sessions. Get all your 2014 credits in just 2 days. Register at oba.org/Institute2014 Follow us on Twitter @OBAcpd #OBAInstitute www.lawtimesnews.com Untitled-5 1 13-12-19 3:13 PM

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