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)

Continue reading →

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.

Continue reading →

Only in Canada, eh?

“In essence, Bayes’s theory furnishes a mechanism for incrementally revising probability estimates in light of new information, thereby allowing a fact-finder to update continually an opinion about the relative likelihood of a fact.” Russell Brown, “The Possibility of ‘Inference Causation’: Inferring Cause-In-Fact And The Nature Of Legal Fact-Finding” (2010) 55 McGill L. J. 1  at 27-28 [Brown “Inference Causation”].

“Bayesian methodology suffers from several defects, however, making it incompatible with legal fact-finding.” Russell Brown, “Inference Causation” at 28.

Brown sets out the defects succinctly. I don’t propose to repeat them. Others hold different views. The literature is extensive. And easily found.

Continue reading →

Judgments are not law school exams

That means what should matter to the litigants and their lawyers – and does in most instances – is that the result is the more correct result based on the evidence and that the judge or jury did not make an error that provides merit to an appeal. That means, where the trial is by judge alone, that reasons that might get a C or D, were they law school exam answers, may be sufficient for judgment purposes, so long as the litigants accept the result as one the court was entitled to make on the evidence so not subject to reversal or variation on appeal by an appellate court acting properly, even if a different trial judge or jury, acting properly, too, would have been able to make a different decision. The situation is the same for jury instructions.

Continue reading →