TAKING CHARGE: PROACTIVE
DEFENCE STRATEGIES IN
PROVINCIAL/MUNICIPAL LITIGATION

Charles M. K. Loopstra, Q.C.

PART I - INSURANCE ISSUES

In discussing proactive defence strategies for public authorities, one cannot ignore the insurance issues. A provincial or municipal defendant may be self-insured, may have a high self-retention limit before the insurance coverage applies, may have gaps in its coverage for certain claims during certain periods, or may be under-insured with respect to catastrophic claims. Counsel acting for a provincial or municipal defendant should always be aware of the various insurance issues affecting his or her client, since it may have a considerable influence on the defence strategy adopted. This paper does not attempt to deal with all of the insurance issues that could be encountered but rather identifies several issues that could influence the defence strategy.

When a claim is made that has the potential of exceeding the insurance limits, the insurer has a duty to attempt to settle the matter within the policy limits. Although insurers have an interest in defending claims to protect their funds, at some point that interest must give way to the insured’s interest in escaping an excess liability claim. The Ontario Court of Appeal has recognized that this conflict of interest does not give rise to a fiduciary duty, ¹ but the insurer’s conduct can nevertheless lead to a potential bad faith claim. ²

Provincial governments and municipalities can face numerous types of claims which could potentially lead to damage awards in excess of insurance coverages. If the claim involves a catastrophic event, such as the T.T.C. subway crash or a negligence claim relating to a large fire loss, there is little that the defendant can do to manage the claim, other than follow the usual defence strategies with respect to liability and the quantification of damages. However, where claims involve potential damages in excess of the policy limits, the defendant ought to adopt a proactive strategy to reduce or eliminate these potential damages.

A case in point was the "sinking condominium building" in Richmond Hill which received national media coverage. The building was built over a large pressurized aquifer which had been punctured during construction. Construction was halted, one level of underground parking was eliminated and a geotechnical consultant hired by the developer made numerous recommendations with respect to how the construction could properly be completed to avoid further damage.

The building was completed and the developer sold all the luxury condominium units to individual purchasers. Approximately eight years later, large voids were discovered underneath the building’s foundations as a result of the pressurized aquifer continuing to wash soils into the large sump systems located within the building. The Town issued an emergency order to vacate the building, resulting in a flurry of litigation activity.

Richmond Hill and a number of other defendants were sued for $51,000,000 in damages, $41,000,000 in excess of its insurance limits. It was expected that the repair work would cost millions of dollars and the Condominium Corporation did not have the means to pay for it. If the building was not repaired, it would have to be demolished because of the unsafe condition, which would have resulted in damage claims in the tens of millions of dollars, well above the municipality’s coverage limits.

Richmond Hill only had one option, namely, to ensure that the building was repaired and the damages would be contained within the policy limits. The way it achieved this was by entering into a loan agreement with the Condominium Corporation, whereby it eventually advanced $6,000,000 in loans for repair costs, without prejudice to the determination of liability for the damages suffered by the Condominium Corporation. The Town did receive priority over all mortgages by way of an assignment of the special assessment the Condominium Corporation would levy to repay the loan (this is a provision available under the Condominium Act). The Town also obtained an assignment of all settlement and insurance proceeds from the Condominium Corporation. The repair work was successfully completed at a total cost of approximately $6,150,000 and the action was settled for approximately $6,700,000, including costs. The Town’s insurer, OMEX contributed $1,962,294 to the setttlement and Richmond Hill was fully repaid for all of its loans out of the settlement proceeds.

The net result was that the Town avoided any exposure above its insurance limits, and the Town’s insurer was able to secure a settlement with contributions from a number of other parties.

B. The duty to defend where there are multiple insurers

Public authorities should report any occurrence to all insurers, regardless of whether the policy covers all claims pleaded. Where the policy contains a duty to defend provision, the insurer is bound to defend with respect to those causes of action which, if proved, would be within the coverage. Thus, it is the pleadings that govern the duty to defend, not the insurer’s view of the validity of the claim. All overlapping insurers are obliged to defend jointly and to agree upon the selection of counsel.³ If the insurers are unable to agree, then the insured will have a right to select counsel and seek reimbursement for the reasonable costs incurred in defending the action.⁴

If there is no overlapping coverage, each insurer is responsible for defending that part of the claim that is covered under its policy. The Ontario Courts only permit one solicitor of record, unless there are distinct and conflicting interests at stake.⁵ Thus, in most cases, the insurers would have to come to an agreement in the selection of counsel. If court intervention is sought, the guiding principle is the insurer with the greater risk of loss should have the right to control the defence.⁶

C. Concurrent causes of action

Concurrent causes of action can lead to coverage disputes. It has been argued that if a loss is caused by concurrent causes, one covered by the policy and the other excluded, and the excluded cause is essential to the chain of causation, there is no coverage.⁷ However, all exclusion clauses do not result in this interpretation. A recent decision of the Supreme Court of Canada (Derksen v. 539938 Ontario Ltd.)⁸ held that where neither of the causes were found to be the dominant cause (i.e. the accident would not have occurred but for either cause), and the exclusion clause did not expressly provide that all coverage would be excluded if the loss was due to another covered peril, then there may be coverage. The case puts to an end the tendency to determine coverage on the basis of an analysis of "proximate cause". The court applied the reasoning of McLachlin J. (as she then was) in C.C.R. Fishing Ltd. v. British Reserve Insurance Co.:⁹

The court concluded that there can be both auto-related and non-auto-related negligence. "In such circumstances, it is undesirable to attempt to decide which of two concurrent causes was the ‘proximate’ cause."¹⁰ In determining whether there is coverage where there are concurrent causes, one of which is an excluded peril, the Supreme Court of Canada has in effect put the emphasis on contractual interpretation, regardless of what is the dominant proximate cause of the loss. It also has a tendency (at least for the purpose of determining coverage issues) to get rid of the notion that a secondary cause constitutes an intervening cause, and thereby avoid coverage. This issue should not be confused with cases where there is only one proximate cause but different causes of action.

PART II: THE LAWSUIT

A. Pleadings

Whether you are the plaintiff or defendant, pleadings are extremely important to a lawsuit. They are the vehicles that deliver the message. What every lawyer and client must do is to deliver that message effectively and concisely. As a plaintiff you not only want to plead all of the material facts on which you rely, but also you need to plead every cause of action you are pursuing. Frequently I see pleadings that are framed in negligence only when in fact the claim should really be pleaded in nuisance or some other cause of action. Sometimes I see no cause of action pleaded at all.

There is a difference of opinion as to whether a party should demand particulars when pleadings are deficient. The normal practice is to demand particulars when you are unable to respond properly to a pleading.¹¹ Although the list is not intended to be exhaustive, here are some suggestions as to when a demand for particulars is appropriate:

1. When a document is referred to in a pleading, the other party should obtain a copy;

2. When you are uncertain as to the cause of action being pleaded;

3. When a statutory breach is pleaded, but no particulars are given;

4. When a cause of action is pleaded, but no particulars are given.

As an insured or insurer, it is of particular importance that you know what cause of action is being pleaded and what material facts are being relied on. Often coverage issues, and the duty to defend, depend on the pleading. Although a demand for particulars may lead to an amended pleading which has the result of bolstering a party’s position, it is better to know what you are facing at an early stage of the case, rather than be presented with an amended pleading after an expensive discovery process which may lead to further discoveries.

B. Documentary evidence

Documentary evidence is critical to a lawsuit. It can be the most persuasive evidence there is, especially if there is conflicting viva voce evidence. A paper trail, if well organized, tells a story. If the client is not well organized and uncertain as to what to produce, it is absolutely critical for counsel to put together a proper documents brief. I always start with all documents, regardless of relevance, privilege, date, or whether they are favourable or unfavourable to the cause. There is an obligation to produce all relevant documents, regardless of whether they are favourable or unfavourable to your client.¹² There are some good computer programs available to organize documents into a chronological list and into various categories so that they can be easily filtered for various groupings.¹³ I recommend that once documents have been exchanged you incorporate them into one comprehensive binder in chronological order, so that you have the full documentary story from beginning to end. This helps a lawyer and client put the case in context and simplifies all further preparation. Good documentary preparation not only makes for a better lawsuit, but also a cheaper lawsuit, since it allows the parties to quickly identify the issues in the proper context.

PART III: MEDIATION

The mediation process is vital to any lawsuit if properly utilized. Where mediation has become mandatory,¹⁴ the process can be utilized to a party’s advantage. Even where mediation is not mandatory, counsel should endeavour to enter into a mediation agreement that is useful. Although the ultimate goal of mediation is to settle lawsuits, there are many other benefits to mediation that can expedite and lessen the cost of litigation. In any lawsuit that involves complex legal issues or that relies on expert evidence, mediation should be attempted before discovery. The process can greatly assist counsel in identifying the legal issues and coming to terms with the evidence for and against their clients. Counsel should also exchange preliminary expert reports on a without prejudice basis. The sooner you can come to grips with the expert evidence to be relied upon, the sooner you will become realistic about the probable success of your lawsuit. The concept of exchanging expert reports 90 days before the commencement of trial¹⁵ in my opinion is an outdated concept. With the reliance placed on expert opinions by judges and juries today, being faced with expert reports after discovery and just before trial is tantamount to trial by ambush. Often the later delivery of an expert report results in a dramatic change as to the likely outcome of the trial. Also, at that point, experts are precluded from consulting with each other, something that I also advocate.

If you decide to exchange expert reports on a without prejudice basis for the purpose of mediation, you should do so using the following statement:

Once the expert reports have been exchanged, you should consider the benefit of having a meeting of experts (with or without counsel present) to determine whether the experts can agree on:

1. the underlying assumptions;

2. the causation issues; and

If the experts can agree on all of these issues, you have a guaranteed settlement subject to allocating responsibility among the defendants if you have more than one defendant. If the experts can’t agree, you have the following benefits (without a binding transcript):

The key to a successful mediation is commitment and preparation. In complex cases, I strongly advocate a pre-mediation meeting between counsel to hammer out a mediation agreement. I am currently involved in a case involving a breach of a non-competition covenant where both liability and damages are in dispute. An attempt at mandatory mediation was completely unproductive and unsuccessful. Discoveries were commenced, but both parties felt that until there was a better understanding of the damages alleged and disputed, there would never be a resolution without a trial. Both parties agreed to jointly retain an independent forensic accountant to assess the damages on a without prejudice basis. Each party is able to submit its own assumptions to the expert. It is hoped that ultimately this report will lead to a settlement. Neither party can call the expert or rely on the report at trial if the action does not settle. However, any facts contained in the report which are ordinarily discoverable may be referred to. In this way, the expert is doing part of the discovery process for you, and he or she should know exactly where to look in determining whether the plaintiff has in fact suffered damages (a skill not all lawyers have mastered).

PART IV: EXPERT EVIDENCE

Expert evidence is an exception to the opinion rule. Mr. Justice Dickson of the Supreme Court of Canada described the role of an expert as follows:

The Supreme Court of Canada has established the following criteria to determine the admissibility of expert evidence:¹⁷

1. The evidence is relevant;

2. The evidence is necessary to assist the judge or jury;

3. The evidence does not violate an exclusionary rule of evidence; and

4. The witness is a properly qualified expert.

As counsel in any complex case, you should consult with an expert for a number of reasons:

However, none of these reasons necessarily justify the calling of an expert at trial. During the course of preparation for trial and the actual trial, the role of the expert may change dramatically. It is therefore important to choose your expert early, and mould him for the eventual role he or she will play if the case goes to trial. Some counsel make the mistake of letting the expert run their case. Competent counsel, who have some working knowledge of the subject matter, will never let that happen. Counsel should always remain the quarterback and make the strategic decisions. Experts should never become advocates; they should present themselves as experienced neutral parties who are giving their expert opinion on facts assumed to be true. Experts, who are properly qualified, will understand that relationship and be able to work within those parameters. Judges, in turn, appreciate the role of an expert, since it helps them come to a decision in matters which are often too complex for a lay person to grasp.

At one time the courts would not allow an expert to give an opinion as to the ultimate issue which the court is being called upon to decide. That is no longer the case, but the closer you get to the final decision the more likely the court will rule on its admissibility.¹⁸ The courts have a considerable amount of discretion in considering whether the expert evidence is admissible. Counsel may argue the expert is not qualified, the evidence has no probative value, is prejudicial, is misleading or will consume an inordinate amount of court time in comparison to its evidential value.¹⁹

Assuming the expert evidence is admissible, how do you challenge it? The most obvious way is to challenge the underlying assumptions that go to the conclusion. In cross-examination I always ask the expert to produce his retainer letter. It is amazing how often I have been able to get this produced and have used it as ammunition in attacking his or her independence.²⁰ Also if the report refers to any other documents (such as a retainer letter or other document which is not evidence) you should insist on its production. In preparing an expert, you may wish to remind him of the duties and responsibilities of experts enumerated by Mr. Justice Cresswell in National Justice Compania S.A. v. Prudential Assurance Co. Ltd. : ²¹

What if your expert is advancing a new theory or technique on which the whole opinion is based? In order to distinguish between "junk science" and good scientific theory, the Supreme Court of Canada (with reference to American jurisprudence) has approved the following tests:

2. Whether the theory or technique has been subject to peer review and publication;

3. The known or potential rate of error or the existence of standards; and

4. Whether the theory or technique has been generally accepted.²²

There are a number of ways to challenge or discredit an expert:

1. Limit his evidence to the substance of his report;²³

2. Challenge the use of hypothetical questions which assume unproven facts;

3. Attack the expert’s assumptions;

5. Have the expert admit that there are genuine areas of disagreement in the field; and

Expert reports can be very costly. Counsel should be careful to monitor these costs by always assessing the benefit against the likelihood of recovery of these costs or putting an end to very expensive litigation through mediation and settlement by the use of preliminary expert reports. Here are some cost recovery principles:

4. There should be some relationship between the expert fee and the work accomplished.²⁷

PART V - STIGMA CLAIMS

Increasingly, stigma claims are being pleaded and considered by the court. Such claims have a potential for upsetting the traditional way of measuring damages. The proliferation of environmental law claims brought to court has caused new attention to be paid to this head of damages. However, stigma claims are by no means limited to environmental claims.

"Stigma" is generally defined as affecting someone’s or something’s reputation. In the context of damages to property, it is really a component of damages for diminution in value with respect to the expectation of some loss of future value, whether it be as a result of an eventual sale, the inability to obtain mortgage financing, or as a result of partial rectification (as opposed to complete rectification). In effect, a stigma claim is intended to compensate the innocent party for damages that that party may incur some time in the future as a result of the loss of reputation to the property.

Traditionally, where damage to property has been inflicted, whether it be in contract or tort, the plaintiff must consider whether or not it should recover by way of diminution in value or rectification. The traditional rule was that a plaintiff could only recover the lesser of the two. This rule was intended to avoid windfall results. For example, in a breach of contract case for a relatively minor construction deficiency which would cost millions of dollars to rectify, the defendant could avoid an award for substantial damages by establishing that diminution in value as a result of the deficiency was negligible or non-existent. On the other hand, if the cost of rectification is equal to or less than the diminution in value, the rectification cost is always recoverable, even if the plaintiff does not actually incur the cost.³²

The plaintiff’s remedy is based on the complaint that, but for the defendant’s wrong, the plaintiff would have been in possession of a property superior than what he now in fact has. What if the property after undergoing repair would still be of less value than it was originally? Can the owner recover for the residual deficiency?

It is this classification that leads to stigma claims. The argument is that the damages for rectification have not fully compensated the injured party for the likelihood of suffering future losses as a result of the stigma associated with the damage. It is, of course, especially true in cases of partial rectification or rectification to standards that are less than what the contract calls for, or in an environmental case, to standards that are less than pristine standards. It is my submission that stigma damages are really a component of damages for diminution in value. As the Court of Appeal has pointed out in the Tridan case:³³

If the defendant offers partial rectification and you can establish that there is ongoing diminution in value, then clearly the rule with respect to the plaintiff being entitled to the lesser of damages for rectification or diminution in value does not apply. As suggested above, a stigma claim can be a component of diminution in value in these circumstances. For example, where a building was constructed with uneven and unlevel floors, and applying topping would have only partially rectified the problem, the owner was awarded substantial damages for diminution in value, including stigma damages.³⁴ In the Woodbine case, the future expectation of loss was based on a sophisticated purchaser, exercising due diligence, discovering the deficiencies and offering a lower price for the property. In the Tridan case, the Court of Appeal held that had the trial judge awarded damages on the basis of a cleanup to 1997 MOE guidelines, representing a reasonable standard to apply to commercial lands that are contaminated but unaffected for the purpose being served, then the court may have upheld the award for stigma damages:³⁵

In the Tridan case, the court also reiterated the MOE guidelines setting cleanup standards do not "supplant the common law standard of compensation for injury to land". This statement suggests that where you can prove diminution in value to the property beyond the applicable cleanup standard, the same is recoverable in common law. As suggested above, the diminution in value could include stigma damages.

In order to advance a stigma claim when you have full rectification, you would have to first establish that notwithstanding full rectification, there is ongoing diminution in value. This presents some difficulty, since the traditional rule was that damages were to be awarded on the basis of the lesser of full rectification or diminution in value. This also leads to a number of scenarios, each of which presents a different challenge for the plaintiff:

As a defendant, you must make a practical assessment of the problems as quickly as possible. In an environmental case, you need to determine what is an appropriate standard for remediation. At the very least, you should plead that the Ministry’s standard for a cleanup is a reasonable standard and that a cleanup to a pristine standard is excessive and would result in betterment. This would almost certainly apply to an existing industrial or commercial property which is rarely found to be in pristine condition.

If a stigma claim is being advanced with respect to building deficiencies, you need to investigate immediately whether or not these deficiencies constitute health or safety hazards. If they amount to minor deficiencies, which do not present a probable health or safety hazard, then you may wish to obtain a report on the potential diminution in value to the property. In considering diminution in value, your expert should examine any diminution in value as a result of stigma, regardless of whether it has been pleaded. As pointed out above, stigma does not need to be separately pleaded, since it is a component of diminution in value.

Where there has been no physical damage to the plaintiff’s property, if the action is pleaded in negligence, it should be defended on the basis that there is no compensation for pure economic loss.

This defence should be evaluated in the context of the current tests applied by the Supreme Court of Canada in determining liability for pure economic loss.³⁶ One of the five categories of cases that may permit recovery in tort for pure economic loss is the independent liability of statutory public authorities. However, that does not mean liability in all cases. Recovery in those circumstances is still subject to the two part test in the Anns decision in England adopted by the Supreme Court of Canada in Kamloops (City) v. Nielsen ³⁷ and in Rothfield v. Manolakos.³⁸ This test can be summarized as follows:

This defence would, of course, not be available in actions based on nuisance. However, it may be more difficult for the defendant to prove the nuisance than the negligence and hence this defence should not be overlooked.

In applying the defence, counsel acting for the public authority must plead material facts which clearly allow for the two part Anns test to take the claim out of the liability net. For example, in claims involving negligent Building Code inspections, the municipality would plead that the alleged defects (assuming no personal injury has occurred) pose no real and substantial danger to the occupants of the building. More importantly, a stigma claim is not based on any actual or potential harm to property, but only to the reputation of the property.

Another defence that should be pleaded is that the plaintiff has not mitigated his damages.

It would be hard to sustain a stigma claim if the plaintiff has acted unreasonably in mitigating his damages. However, it is up to the defendant to plead and prove these relevant facts.

When it comes to measuring damages, the stigma claim in a strong market would be less of a factor than in a weak market. Where there is an abundance of supply, a purchaser is inclined to choose the best property, i.e. free of any stigma claim, and either discount those properties where you can find reason to do so, or avoid them altogether. Where there is a shortage of supply, a purchaser is inclined to buy what he can get taking into consideration all the other factors. In such a case, you may find that there is little inclination to discount for stigma.

Accordingly, when you are preparing your defence damages report, the date of valuation becomes extremely important. If the owner has held on to the property and not sold it before trial, the plaintiff can quantify his damages when the damage claim arose or at the date of trial. If on the date the claim for damage arose the market was weak, and at the date of trial the market was strong, the plaintiff is going to attempt to quantify his stigma claim as of the date the claim for damages arose. Although generally the plaintiff has the right to choose the date for the calculation of damages, the defendant may wish to advance the argument that since the stigma claim is based on prospective damages and not actual damages, fluctuations in the market should be taken into consideration. On that basis, the trial judge may very well be persuaded to assess a percentage of value quantifying the stigma claim at a midway point between a strong market and a weak market, thereby reducing the overall potential claim for damages for stigma. The defendant may also be able to establish that the plaintiff had ample opportunity to sell (and therefore mitigate his damages) in a strong market, and therefore should not be compensated for stigma damages at all.

The date for the calculation of pre-judgment interest is extremely significant when it comes to stigma claims. If the stigma claim is advanced as of the date of trial, i.e. the experts give their opinion as to the stigma damage as of the date of trial as opposed to the date the claim for damages arose, then the plaintiff is disentitled to pre-judgment interest on that amount. In Tridan, the Court of Appeal held:⁴⁰

The defendant should always be diligent in ensuring that there is no double recovery for pre-judgment interest.

PART VI - STRATEGIES FOR THE DEEP POCKET

DEFENDANT

The principal reason for the deep pocket syndrome in civil litigation is the joint tortfeasor principle under the Negligence Act.⁴¹ Counsel should always be mindful of this principle in negligence cases when giving advice to their deep pocket clients on the clients’ exposure to damages and their ability to recover from their co-defendants. In addition, there is a tendency to "result oriented justice" in our courts, especially in personal injury and wrongful death cases to find a deep pocket defendant liable in order to ensure that the innocent plaintiff does not obtain a "hollow judgment". This tendency is creeping into other types of litigation as well, especially in negligent inspections relating to Building Code cases.

How does counsel for a deep pocket defendant develop strategies to minimize this exposure? Some suggestions have already been mentioned in this paper. The following is a summary of some of these and other strategies:

3. Be proactive in order to reduce the potential for damages;

5. Don’t get bogged down into expensive discoveries, without first trying mediation;

8. Never be unrealistic.

PART VII: CONCLUSION

Acting for public authorities presents numerous challenges. In many cases the plaintiff’s agenda is driven by the theory that because he or she has suffered damages, the public authority is at fault and should pay, regardless of how weak the case is. The courts, for reason of public policy, or in some cases out of sympathy for the plaintiff, will find a basis for finding the public authority liable. It is for this reason that the public authority defendant must be proactive in using all the tools available to prevent the case from going to trial, and attempt to secure a favourable settlement. Although this is a significant challenge for counsel in most circumstances, the success of this strategy is also dependant on a co-operative and understanding client. The strategy may involve spending more money up-front in the litigation, to avoid a punitive result later in the litigation. Some lawyers are reluctant to recommend a settlement strategy early in the litigation out of a fear that they will be considered as weak and afraid of taking a case to trial, or simply because they do not have a sufficient handle on the case to give that kind of direction to the client. It is my view that good defence counsel should always be assessing a case from a settlement perspective, and only take to trial cases which clearly need to go to trial because there are no other options available. This of course does not mean that counsel should not be readying a case for trial and maintaining a trial posture if appropriate, but counsel should be seizing settlement opportunities when it is clearly advantageous to do so.

1 Plaza Fibreglass v. Cardinal (1990), I.L.R. 1-2658 (H.C.); reversed [1994] I.L.R. 1-3067 (Ont. C.A.)
2 Pelky v. Hudson Bay Insurance Co., [1982] I.L.R. 1-1493; Dillon v. Guardian Insurance, [1983] I.L.R. 1-1706
3 Prudential Assurance v. Man. Public Ins. Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.)
4 Prudential, supra
5 J. L. v. Sabourin, [2002] I.L.R. 1-4043 (Master)
6 Economical Mutual Insurance Co. v. Insurance Corp. of B.C. (1986), 18 C.C.L.I. 134 (Alta. Q.B.)
7 Ford Motor Co. of Canada Ltd. v. Prudential Assurance Co., [1959] S.C.R. 539
8 [2001] 3 S.C.R. 398
9 [1990] 1 S.C.R. 814 at p. 823
10 Derksen, supra
11 Rule 25.10 of the Rules of Civil Procedure (Ontario)
12 Rule 30.02(1) of the Rules of Civil Procedure (Ontario)
13 Microsoft Access 7 for Windows 95
14 Rule 24.1 of the Rules of Civil Procedure (Ontario)
15 Rule 53.03(1) of the Rules of Civil Procedure (Ontario)
16 R. v. Abbey (1982), 138 D.L.R. (3d) 202 at p. 217
17 R. v. Mohan, [1994] 2 S.C.R. 9
18 Graat v. R., [1982] 2 S.C.R. 819
19 R. v. Mohan, supra
20 For a good discussion on what is privileged in the Expert's file see: The Nuts and Bolts of Expert Evidence (January 2002) 25 Advocates' Quarterly 157
21 [1993] 2 Lloyd's Law Reports 68 (Comm. Ct. Q.B. Div.); approved [1995] 1 Lloyd's Law Reports 455 (C.A.)
22 R. v. J. - L. J., [2000] 2 S.C.R. 600
23 Rule 53.03(3) of the Rules of Civil Procedure (Ontario)
24 Dow & Duggan v. Smithers (1991), 101 N.S.R. (2d) 98 (S.C.); Webster v. Blair (1990), 101 N.S.R. (2d) 53 (S.C.)
25 Tri-Associates Ins. Agency v. Douglas (1986), 9 C.P.C. (2d) 227 (Ont. H.C.J.)
26 Creative Touch Millworks Inc. v. Royal Insurance Co. of Canada (1991), 99 Sask. R. 127 (Q.B.)
27 Stribbell v. Bhalla (1990), 73 O.R. (2d) 748 (H.C.J.)
28 Khan v. Mitchell (1988), 27 C.P.C. (2d) 52 (Ont. Ass. Off.); Davies v. Robertson (1984), 44 C.P.C. 150 (Ont. Master)
29 Ritopecki v. Dominion Stores Ltd. (1977), 13 O.R. (2d) 488
30 ibid
31 Bratt v. Hanes (1988), 65 O.R. (2d) 612
32 Waddams, The Law of Damages, looseleaf edition, p.1.2310
33 Tridan Developments Limited et al. v. Shell Canada Products Limited et al., [2002] 57 O.R. (3d) 503 at p. 507 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused [2002] S.C.C.A. No. 98
34 McAlpine v. Woodbine Place Inc. (1998), 37 C.L.R. (2d) 38 (Ont. Ct. Gen. Div.); varied on appeal (2001), 7 C.L.R. (3d) 155
35 Tridan, supra, at p. 509
36 Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021
37 [1984] 2 S.C.R. 2
38 [1989] 2 S.C.R. 1259
39 Condominium Plan No. 782 1326 v. Jodoin Developments Ltd. (1984), 32 R.P.R. 1 at pp. 7-8 (Alta. Q.B.)
40 Tridan, supra, at p. 510
41 R.S.O. 1990 c.N. 1

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