Category: British Columbia law
Subrogation Waiver – Kruger Products Limited v. First Choice Logistics Inc., 2013 BCCA 3
Leases, construction contracts, and contracts governing other commercial relationships often have clauses limiting the liability of a party (and some non-parties) to the contract in the event of an occurrence which causes loss to a party to the contract. Clauses which require one party to the contract to obtain insurance in respect of the type of loss that occurred may have that consequence, even where the contract (or the policy) does not specifically provide that subrogation (by the insurer of the injured party) is waived.
The British Columbia Court of Appeal provides an excellent review of the law in Kruger Products Limited v. First Choice Logistics Inc., 2013 BCCA 3.
British Columbia: RIP Moore v. Castlegar?
if the B.C. Court of Appeal is prepared to listen to the views of the Ontario Court of Appeal on the meaning of Clements v. Clements, 2012 SCC 32, on this issue, assuming the Supreme Court of Canada doesn’t comment on this issue in its Ediger reasons (appeal argued December 4, 2012, judgment reserved), whenever they’re released. See Goodman v. Viljoen, 2012 ONCA 896 at paras. 70-76. The text of the paragraphs is quoted later in this posting.
(updated Jan 9/13: added CanLII citation and the last 2 sentences above)
Only in British Columbia, eh?
(but not yet any other province ending in “a”).
Or, how to conflate factual causation – what caused what – with the separate limitation of liability question(s) of remoteness – is there any reason, in law, that this particular factual cause should not be treated as a legal factual cause so that the court may then consider if the plaintiff has satisfied the rest of the requirements of the cause of action.
A problem with boilerplate
Those of you in British Columbia who (need or ought to) care about such things may have noticed an almost boilerplate quality in the paragraphs in recent British Columbia Supreme Court decisions setting out the principles of factual causation in negligence. This, on the whole, is a good thing and the judges should be commended.
On the other hand, what’s not good is that the boilerplate is literally wrong. (It’s still safe for me to say these things since I don’t have to appear in front of British Columbia judges.) So far, though, that hasn’t seemed to affect the validity of the judges’ decisions.
Stumping The Great Karnak (even were he still alive)
Rothstein J. wrote for the Supreme Court in F.H. v. McDougall, [2008] 3 SCR 41 at para. 46, 2008 SCC 53
If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.
The 4th Monkey Still in Abstenia 