Out-of-province claims are a challenging part of any insurance practice. The recently revamped national mobility agreement allows lawyers to look after their clients regardless of where the claim occurred. With the door now open to the Quebec courts, insurance lawyers are looking at how to capitalize on the change but are encountering more than legal and bureaucratic barriers.
Since the first mobility agreement in 2003, there has been a gradual acceptance of opening the provincial borders on a limited basis. In 2006, there was the territorial mobility agreement that became permanent in 2011. In 2010, there was the Quebec mobility agreement with amendments in 2012. The new national mobility agreement of 2013 consolidates those earlier documents.
The way is now open for lawyers to move between the civil and common law jurisdictions and appear in court for up to 100 days each year without receiving a call from the provincial law society or going through the cumbersome procedure to obtain a special dispensation from the court. Insurance law is an area that can benefit from the mobility agreement more than some others and insurance lawyers, particularly from the defence side, are looking for assistance on how to successfully navigate the Quebec scene.
Lee Akazaki, a member of the board of directors of Canadian Defence Lawyers, says many insurance defence counsel work for companies that operate nationally and internationally, which can lead to the out-of-province claims.
“What governs what we do is pretty random. We rely on provision of indemnity for accidents. You can never tell when an accident is going to occur or where.
What is usually done for the routine administrative court appearance is to engage a local agent, but clients often want their preferred practitioner to appear [at] trial or at an important hearing,” says Akazaki.
Daniel Strigberger, of Miller Thomson LLP, is one insurance lawyer who hopes to capitalize on the agreement.
“It’s beneficial not just to know the law but to step up and do some of the work, especially when a firm has offices in most provinces.” He frequently deals with priority disputes.
“Every accident could create coverage under more than one policy. It’s just a matter of figuring out which one.”
The Ontario Trial Lawyers Association hasn’t yet experienced any push from its members for assistance, but the Ontario Bar Association is already planning a joint business law program with the Canadian Bar Association’s Quebec branch. It will take place over two days in both provinces in the fall and is likely to include insurance law. The Insurance Bureau of Canada already provides information to its members and their lawyers on the different insurance systems across Canada. It tracks legislative developments and reports on significant jurisprudence in all Canadian jurisdictions.
“The nature of insurance practice is that the substantive law is nearly always provincial unless you are dealing with maritime or aviation law, which has a federal aspect,” says Akazaki. “It is helpful to us to get input from lawyers from different provinces.”
Canadian Defence Lawyers runs a national symposium in Toronto during the summer as well as regional meetings with updates about other jurisdictions. It’s hoping to capitalize on the new agreement by adding programs about Quebec law to its educational programming.
“If you have mutual understanding and can learn what other provincial systems do, you get value,” says Akazaki.
While Quebec is a new participant in the mobility regime, Akazaki says: “In theory, it should operate in the same way. In practice, there are a number of reasons why Quebec poses a challenge to a common law practitioner.
“The first and most obvious is language, even for a bilingual practitioner such as myself. Canada does still have two solitudes. Quebec is not a bilingual province.
There can be no expectation that there will be bilingual services for anglophone practitioners. It has a civil law French lexicon and a common law French lexicon. We all trade in words, but in Quebec, we can’t expect the same words to mean the same thing.”
Akazaki considers the traditional insurance defence field to be very different in Quebec.
“The main reason is that the rest of the country has risen up on auto litigation. That is still the bread and butter of at least 50 to 60 per cent of the insurance bar. But Quebec is a complete no-fault system. It produces its own litigation, but that’s a different animal from provinces which have tort and accident benefits.”
Another challenge, he says, is the perception that the civil code is an alien regime, something that creates a psychological barrier.
“Quebec is bijural. It has both civil and common law, which mystifies the common law practitioner. Anything we are unfamiliar with, we tend to back away from. In actual fact, those differences are not that significant in our area of insurance defence. The civil code has provisions for the law of negligence and the law of insurance that are not so difficult to get a grasp on.”
Canadian Defence Lawyers also serves as a clearing house for inquiries, provides referrals, and facilitates partnerships between its members. “In the beginning, retainers are like a partnership or traditional agency agreement, but those lawyers help promote understanding of the system. If the experience is a good one, people think it is something they would like to do more of.”
Strigberger notes the choice on an out-of-province matter comes down to farming it out or working with other lawyers on it. “It also works in reverse with out-of-province lawyers coming here. We are branching out,” he says.
For more, see "Deal opens Quebec doors to Ontario lawyers."