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Subrogation in fire cases


November 13, 2009   by Canadian Underwriter


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The evidence of what causes a fire is generally consumed in the fire, Richard Lindsay, founding partner of Lindsay Kenney LLP in British Columbia, said.
This makes subrogation a little different in a fire-related case, he told delegates attending the National Association of Subrogation Professionals’ Canadian Chapter’s training and education seminar in Toronto.
“A lot of people back away from that right away because they say ‘well we’ve got to prove this on the balance of probabilities and everything went up in smoke in the fire and that’s the nature of the beast’,” he said.
But it’s not really that simple, he said, noting that in Snell v. Farrell, the Supreme Court of Canada ruled that a robust and pragmatic approach to causation was used.
While the case was a medical malpractice case, the wording has been adapted in several instances to fire related cases to note there is no difference between a fire case and a medical malpractice case where the victim has been cremated. Therefore, those involved will not be held to the standard of proof where scientific certainty must be shown, Lindsay said.
“So that goes a long way to alleviating any causation issues that may be thrown back in your face when you are told you can’t prove it,” he said. “Well the fact of the matter is I can get close enough to proving it ‘with a robust and pragmatic approach’ … I’ve proved it and you’ve got a bigger problem than you think you have in so far as if your defense is that I cannot prove it with scientific certainty.”


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