Law Times

PAGE 16 MARCH 10, 2014 • LAW TIMES www.lawtimesnews.com proportionate share. "I am not convinced that the plaintiff s here are prepared to give up their right to collect 100 per cent of their damages from Canada in a situation where the other contributed to the same loss," wrote Butler. "I accept that the plaintiff s are seeking only to collect from Can- ada damages for losses caused by Canada in a situation of several, non-concurrent tortfeasors, but that is entirely diff erent. As [the pleadings] suggest, the amended statements of claim have ample references suggestive of joint li- ability, entitling the plaintiff s to recover 100 per cent of the losses (caused by various parties) from Canada alone with a potential [claim] for contribution by Can- ada against others." Indeed, on direct questioning from Butler, the plaintiff s refused to waive their right to recover 100 per cent of their losses from Canada. " is is not a case where I can conclude that the third party claims have no possibility of suc- cess," wrote Butler. "I conclude that it is therefore inappropriate to strike the third party claims." What remained for consid- eration, however, was whether the court should stay or sever the third-party claims. "I conclude that the test is whether it would be just/fair and expeditious/appropriate to sever or stay the third party claims (or either of them)," wrote Butler. ree factors came into play in this analysis: the extent to which the issues weren't overlapping; any saving in time or costs that would result; and whether there would be serious prejudice to either par- ty by severing or not severing the third-party claims. Here, Butler concluded, there were interwoven facts. "If the trial judge concluded that the facts warranted a fi nding of either a common law delegable duty (that was delegated), or vi- carious liability, on both Canada and the province (as an example only), since the plaintiff s have sued Canada only and are not prepared to waive recovery of proportionate liability, there may be claims for contribution," wrote Butler. Consideration of time and ex- pense savings, however, militated in favour of severance. Most im- portantly, the third-party claims and proceedings arising from them would likely delay the com- mon issues trials by one or two years. "Class action legislation was enacted to address the complexi- ties of mass tort claims and ensure timely and effi cient access to jus- tice," wrote Butler. "Permitting the third party claims to be heard with the com- mon issues trial would unduly complicate the matter and would be contrary to the spirit and intent of the legislation." Finally, prejudice consider- ations also favoured severance. Class members were of an ad- vanced age, leading to a real risk that some wouldn't survive to tes- tify if there were additional delays in a case that had already been subject to signifi cant delay. " ese cases are now seven years old, largely because the case has been fraught with procedural motions brought by the defen- dants," says Poltak. Butler noted that while it's im- portant to avoid a multiplicity of proceedings, the litigation would come to an end if the plaintiff s were unsuccessful against Canada at a common issues trial. If the plaintiff s were successful, it would be without prejudice to Canada's right to seek contribution from joint tortfeasors in further pro- ceedings. "In light of the foregoing, Can- ada has not satisfi ed me that there would be serious prejudice to the defendant in severing the third party claims," Butler concluded. Nonetheless, the action had been pleaded and certifi ed on the basis of both fi duciary duty and negligence. Duty-of-care con- siderations would necessarily in- volve the third parties. In these circumstances, sever- ance was only appropriate if the plaintiff s opted to confi ne the certifi ed issues for the common issues trial to the fi duciary duty alleged. LT Time, expense considerations favoured severance FOCUS ReislerFranklin_LT_Mar10_14.indd 1 14-03-04 2:44 PM Find concise, comprehensive and practical guidance on handling liability and first-party claims under commercial insurance policies in Property Damage Claims Under Commercial Insurance Policies. Lawyers, risk managers, claims adjusters, and others will find it invaluable for dealing with claims of a property nature (apart from auto) and for understanding property insurance claims in general. 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An indispensable resource for presenting insurance claims Continued from page 15 Boutiques adapting to industry changes outiques focusing on in- surance defence are hav- ing to fi nd ways to exploit or adapt to the increas- ingly mighty power wielded by Canada's insurance companies. e acquisition by Desjardins Group of the Canadian opera- tions of State Farm Mutual Auto- mobile Insurance Co. in January 2014 was the latest consolidation in a wave of moves that have le the insurance industry dominated by a handful of major players. BY CHARLOTTE SANTRY Law Times B See Larger, page 17

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