Canadian Lawyer

March 2021

The most widely read magazine for Canadian lawyers

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Page 10 of 43 9 COVID creating increased interest in waivers, but enforceability difficult in some areas What are some common and emerging uses of waivers that you're seeing? I'd say waivers are coming up regularly in the context of personal injury matters, as well as insurance cover- age matters. But [they're] certainly not restricted to those areas. COVID, of course, presents issues with respect to waivers, as well. That's a budding issue now, with respect to what extent can you waive COVID risk. I don't think these principles have necessarily been tested yet. But, certainly, we're seeing an influx in the amount of waivers being generated by all sorts of insti- tutions in connection with the risks posed by COVID. In respect to contracts and agreements, are uses of waivers expanding and evolving? If so, how? I wouldn't say, necessarily, it's expanding or evolv- ing, other than to say that they're used regularly. The applicable law with respect to waivers is pretty well established. For instance, waivers must be clear and understood by the average person; they must clearly inform the signer of the particular legal right that they're giving up and they can't be buried — it can't be sort of part of footnote boilerplate; they need to be brought very clearly to the attention of the signing party; the individual being asked to sign the waiver must be free to choose and accept those terms. There are many decisions that render these waivers unenforceable. And often the question is is it a waiver that can be enforced? The big question is to what ex- tent can it actually be relied upon in a case? And that's very much a circumstance-driven analysis. How does one's insurance coverage impact the use of waivers? In the insurance context specifically, it may well form part of the conditions for coverage that a waiver be in place in certain circumstances. I don't want to sug- gest that this is happening with every carrier in every circumstance. There could be conditions in policies that could be requiring that a waiver be executed to preserve coverage, should something happen in the future. The absence of a waiver may impact the avail- ability of coverage depending, of course, on the terms of the particular policy and issue. And they could actually tag on to a policy a war- ranty that basically says you got coverage, but you had to have had a signed waiver in order to get it. Pretty rare, to be honest. But that certainly [is] an issue for carriers. They like to see these waivers, whether they're enforceable. That's a whole other kettle of fish. *Answers have been shortened Program for alternative dispute resolution in family law expanding A family law alternative dispute resolution program, already introduced at Superior Courts throughout the Greater Toronto Area, will be expanding to Kitchener, Welland and Kingston, Ont. The Dispute Resolution Officer Programs provide a neutral third party to conduct a case conference with litigants in family disputes prior to their first court appearance. The programs are limited to handling motions to change an existing court order concerning child and spousal support. Court: Prioritize efficiency in civil justice The Court of Appeal's restoration of a COVID-delay-related order to strike a jury notice is a signal to lower courts that creativity and efficiency in delivering timely justice should be encouraged, says Joseph Obagi, who acted for the plaintiffs. The court said the decision to strike the jury notices and allow the matter to proceed in three-week tranches was the type of creativity called for in Hryniak v. Mauldin, in which the SCC said a "shift in culture" was required to preserve a system plagued by delay. Changes to Rules of Civil Procedure will save paper, time and money, say lawyers The changes to the Rules of Civil Procedure came into effect Jan. 1 and make permanent many of the temporary measures implemented to allow courts to operate virtually amid the COVID-19 pandemic. The rule changes provide that, aside from originating processes, documents can be served via email, without need for a court order or the other parties' consent. Q&A Jason P. Mangano Partner BLANEY MCMURTRY LLP Practice Areas: » Commercial litigation » Insurance litigation » Class actions » Insurance Coverage Counsel Expertise: » Insurance coverage » Construction defect disputes » Directors' and officers' claims » Professional negligence » Technology errors and omissions » Franchise law Education: » J.D., Osgoode Hall Law School » B.I.B., (Honours), Carleton University

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