Words Are Important 7th Annual Insurance

Symposium

Chair:

Marcus B. Snowden

Blaney McMurtry LLP

March 3 & 4, 2011

Commencing at 8 am

OBA Conference Centre 200-20 Toronto St., Toronto

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7 t h A n n u a l I n s u r a n c e S y m p o s i u m

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Plan your 2011 CLE year with CDL

Here are the dates, locations and programmes planned for next

year. Programmes and dates may change as circumstances demand.

Keep an eye on your inbox as we add more great CLE

Registrations and Information at www.cdlawyers.org

TORONTO

March 3 & 4, 2011 Insurance Symposium

March 21, 2011 Property Damage Claims

April 8, 2011 Accident Benefits Skills

April 26, 2011 Mid-Level Madness

April 29, 2011 Law Clerks

May 5, 2011 Loss Transfer & Priority Disputes

June 2, 2011 AGM 2011 Hard Rock Defence

ALBERTA

March 28, 2011 Edmonton Lunch & Learn

April 4, 2011 Calgary Lunch & Learn

VANCOUVER

May 19, 2011 Boot Camp

SASKATCHEWAN

May 19, 2011 Coverage Disputes (Saskatoon)

ATLANTIC

June 15, 2011 Newfoundland Programme (St. John’s)

June 17, 2011 Defensible Positions (Moncton)

8:00 a.m. James S. Ehmann, QC Kanuka Thuringer LLP Regina Subrogation v Equitable contribution: There are distinctions with differences Where more than one insurer has issued a policy of

liability insurance with respect to the same risk and one of the insurers has fully indemnified the insured, can the paying insurer maintain a subrogated action, in the name of the insured, against the non-paying insurer? While a handful of Canadian decisions have introduced some confusion on the issue, two recent appel-late judgments, following the approach adopted in Great Britain and a number of Commonwealth jurisdictions have settled the question; in such a case, the remedy of the paying insurer against the non-paying insurer is an action in its own name for equitable contribution.

9:00 a.m.—Wendy J. Johnson QC McInnes Cooper, Halifax Insurance meets Insolvency: The impact of BIA and CCAA proceedings

What must a Plaintiff do to preserve an action against a policyholder who has engaged an insolvent restructur-ing process pursuant to either the CCAA or BIA? Does a discharge order affect the indemnity insurance avail-able to respond to a claim? What is the effect of policy wording providing that bankruptcy does not relieve the insurer of its obligations? Is a policyholder “legally obli-gated to pay” a judgment which is not entered prior to the discharge order, triggering indemnity under the policy?

March 3, 2011

7:30 a.m. : Registration and Continental Breakfast

7.50 a.m. Welcoming Remarks Symposium Chair Marcus B. Snowden Blaney McMurtry LLP

7 t h A n n u al I n s u r an ce S y m p o s iu m—M ar c h 3 - 4 2 01 1—T o r o n to

10:15 a.m. Policyholders’ Perspectives PANEL

Chair: John Norton McCall Dawson Osterberg Handler LLP, London Junior Sirivar McCarthy Tétrault LLP, Toronto Tom Donnelly Thomas Gold Pettingill LLP, Toronto Glenn Smith Lenczner Slaght Royce Smith Griffin LLP, Toronto Insurance coverage analysis requires bal-ance. The Supreme Court has repeatedly emphasized that the goal of insurance contract interpretation is to give effect to the intentions of the parties. It is not suffi-cient to consider only the insurer’s inten-tion. This panel of four experienced policy-holder coverage counsel will:

present policyholder perspectives on advancing insurance claims;

discuss common errors committed by insurers and their coverage counsel; and

10:15 a.m.— Bob Krywiak, CIP, FCIAA, CCFI, Executive General Adjuster, Crawford & Company (Canada) Inc., Toronto Property Insurance Law update and impact on practical adjustment of First Party prop-erty losses - It is important that you have in place a list of quali-fied experts and resources that can mobilize the necessary professionals, crews and equipment at a moment's notice. Whether you need an engineer, contractor or attorney, it is paramount that you choose your experts carefully. The adjuster arriving at the scene of a catastrophe must be prepared for any and every contingency. He or she must be knowledgeable about what the insurer's policies do and do not cover, and, after locating the insured, review what can and cannot be done to help.

9:00 A.M. RODERICK S.W. WINSOR, BLANEY MCMURTRY LLP GOOD FAITH IN CANADIAN INSURANCE LAW: LIMI-

TATIONS OF THE CONVENTIONAL VIEW

Reference is frequently made to an obligation of good faith in Canadian insurance cases. However, a careful analysis of the law reveals that many of these statements do not reflect underlying legal principles and fail to adequately explain how many of these disputes should be analyzed and resolved. Accepting the conventional view is particularly dangerous for defendants. A conceptual framework will be provided and ap-plied to examples from property, life, disability, and general and professional liability insurance.

11:15 a.m.- Alan G. McIntyre

McKercher LLP, Regina The Abuse of Process How your client litigates can have proce-dural and substantive consequences for your client’s interests - The Saskatchewan Court of Appeal re-cently dealt with the issues of Abuse of Process and Issue Estoppel. The Court reviewed both concepts and proposed that abuse of process should be used more often in relation to civil interlocutory proceedings because abuse of process is a flexible concept and civil litigation is prone to interlocutory proceedings result-ing in potential abuses of process and increased expense. Come see if this doctrine applies to any of your files.

1:15 p.m.- Michael A. Hamilton

Nelson, Levine, de Luca & Horst, LLC, Blue Bell, PA USA A View from the States: The New Tripartite Rela-tionship Involving Policyholders, Primary Insur-ers and Excess Insurers: Emerging Issues Involv-ing SIRs, Deductibles, and Inter-Insurer Bad Faith Claims

In response to the economic times, the number of insur-ance policies in the United States with large SIRs or de-ductibles has grown. These type of policies create a new, and sometimes conflicting, dynamic between insureds and their insurers. Which party controls the defense of claims made against the insured? How are those cases litigated and settled? Furthermore, when an ex-cess carrier is exposed to liability, these issues have lead to an increasing number of lawsuits between excess car-riers and primary carriers for bad faith failure to settle.

4: 30—Deconstructing Construction Defect Coverage after Progressive Homes - PANEL CHAIR: Mr. Justice Paul W. Walker British Columbia Supreme Court Vancouver

Tom Donnelly Thomas Gold Pettingill LLP Andrew N. Epstein Watson Goepel Maledy LLP Christopher Rhone Branch MacMaster LLP Neo J. Tuytel Bernard & Partners In September 2010 the Supreme Court of Canada released its decision in Progressive Homes v. Lombard General Insurance Co. of Canada, 2010 SCC 33. The decision brings clarity and uniformity to the law of liability insurance across Canada and restates the commercial general liability insurer’s duty to defend. Our panel will explore the many issues aris-ing from this case including the extent to which law-suits against insureds might constitute claims for damages caused by an “accident”; the meaning “property damage”; the extent to which the “your work” and other exclusion may avoid coverage; ramifications for insurers’ potential duty to indem-nify their insureds; and types of future legal dis-putes that may flow from the decision.

2:15 p.m.— Neo J. Tuytel Bernard & Partners, Vancouver The Tangled Contractual Webs That Clients Weave: Insurance Covenants, Tort Immunity and Bars To Subrogation By covenants to insure or pay premiums, in leases and other contracts, policy holders can bar subrogated claims by underwriters. This can shift efforts to recover prop-erty losses, as well as defence and indemnity of liability claims, from subrogation against tortfeasors to contribu-tion from other insurers. You will hear from counsel about the latest distinguishing of the Supreme Court’s ‘trilogy’ by B.C. trial judges, and the pending appeals.

3:15 p.m.— Andrew N. Epstein

Watson Goepel Maledy LLP, Vancouver

Material change, Misrepresentation and Non-Disclosure

The recent decision in Jackson v. Canadian Northern Shield Insurance Company provides useful guidance on some of-ten misunderstood areas of insurance law: Material change, voiding a policy and relief against forfeiture. The effect of the decision should be to give insurers greater comfort in making difficult decisions on whether or not a policy should be voided when evidence of a material change in risk is un-covered during the investigation of a loss.

8:00 a.m. March 4, 2010 CROSS CANADA TRIAL JUDGES PANEL Professionalism, ethics and proper practice management litigating your coverage case in Court - CHAIR: Mark G. Lichty Blaney McMurtry LLP, Toronto Mr. Justice John D. Murphy Nova Scotia Supreme Court Trial Division, Halifax Madam Justice Alicia Soldevila la Cour Supérieure du Québec, Québec City Mr. Justice David M. Brown Superior Court of Justice of Ontario, Toronto Mr. Justice Paul W. Walker

11:15 a.m. John L. Davis, Gilbertson Davis Em-erson LLP, Toronto Subrogation: Allocation of Recoveries & Ex-penses In Property Subrogation Cases - Legal, Ethical & Practical Considerations. This presentation focuses on various legal, ethical and practical concerns which may arise with the allo-cation of recoveries in property subrogation claims. Common law, statutory and policy prescribed alloca-tion formulas are reviewed. Obligations of insurers, adjusters and counsel are addressed. Strategies are proposed to maximize recoveries and control costs. The topic will be of interest to underwriters, claims personnel, adjusters and insurance counsel.