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January 06, 2005



Really like the blog, appreciate the share!


It's not relevant to the deisicon but the current CA should be more careful to get its terminology right. The police and the negligent uninsured driver and somebody else also at fault whose conduct also caused P's damages aren't joint torteasors . Anybody at fault might be capable of behing held jointly liable the point in issue because of actionable conduct the same damage (and damages), but that's a different question and that aspect of the causation issue doesn't make the separate actors joint tortfeasors . I think it isn't necessarily the case that the insurer can't commence third party proceedings against the possiblity of paying; that is, the insurer has to wait until it has been held liable. The subrogation provision in s. 265(6) of the Insurance Act specifically requires payment, but the paying insurer didn't need that section to have subrogation through the common law principle. So, the CA is going to have to sort that out.I realize that, until it has paid, it hasn't, on the surface, fulfilled all the requirements for common law subrogation. However, there are a handful of Ontario cases that have allowed an insurer's 3rd party claim in advance of payment, on the rationale of better administration of justice and avoiding multiplicity of proceedings. They're discussed in the CA's Freudmann-Cohen v. Tran, 2004 CanLII 34765 (ON C.A.). While the issue there was the insurer suing in its own name in a case where the insurer hadn't yet paid its insured, the core issues are the same.DC

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