Canadian Lawyer

48 O C T O B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m However, adverse cost insurance was allowed as a disbursement in another Ontario Superior Court case in 2017. In Armstrong v. Lakeridge Resort Ltd, Justice David Salmers rejected defence counsel's submission, relying on Markovic, that the plaintiffs' disbursement for costs insur- ance be disallowed. Salmers wrote in the deci- sion that the plaintiffs' costs in advancing their claim were "extremely large" and that, without insurance, "the fear of a very large adverse costs award would cause many plaintiffs of modest means to be afraid to pursue meritorious claims." There is also a question over whether the defence can bring a security for costs motion if the plaintiff has adverse cost insurance, as plaintiffs say the insurance provides their counterparts that security, says Harrington. Defendants dispute that, saying policies have varying exclu- sions and the defence has no control over whether the other side ends up violating terms and voiding their policy, he says. Exclusions include failing to accept settlement recommen- dation, changing counsel, failure to attend defence medical exam, failure to promptly tell insurer about adverse costs award or misleading insurer, according to a presenta- tion by Susan Gunter, Naomi Horrox, Ian Hu and Rikin Morzaria put on by the Law Society of Ontario. "Essentially, there's no guarantees that money will be available even if they have a policy," he says. Adverse cost insurance is "not a one-size- fits-all" product and many plaintiffs do not benefit from it, says Sloan Mandel, a partner at Thomson Rogers, who represents plaintiffs. Before insuring their clients with one of these products, lawyers should ask themselves if they've ever acted for a client who had to pay costs for the defence, he says. "How many times does that happen? How many times would this have been beneficial?" he says. "To offer it to all of your clients without having first reviewed the document with a fine-toothed comb and contemplated not only the upsides but the downsides of entering into such a contract, I think, is dangerous," Mandel says. "To offer [adverse cost insurance] to all of your clients without having first reviewed the document with a fine-toothed comb and contemplated not only the upsides but the downsides of entering into such a contract, I think, is dangerous." Sloan Mandel, Thomson Rogers L E G A L R E P O R T © 2018 Thomson Reuters Canada Limited 00253DF-A93499-CM Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 New in this edition • Updates to legislation to B.C. Reg. 99/2018 (May 18, 2018) and to Canada Gazette Vol. 152:10 (May 16, 2018) • Addition of The Insurance (Vehicle) Act • Addition of Supreme Court Administrative Notices and Practice Directions • Updates to, and addition of, Court of Appeal Practice Directive • Wealth of new annotations and expanded commentary, with cases personally selected and summarized by the authors, including: – Gichuru v. Pallai, R. v. Marakah and Pintea v. Johns, Levy v. British Columbia (Crime Victim Assistance Program), Michael Wilson & Partners Ltd. v. Desirée Resources Inc., Google Inc. v. Equustek Solutions Inc., Hansra v. Hansra and Tisalona v. Easton, Smithies Holdings Inc. v. RCV Holdings Ltd., Trenchard v. Westsea Construction Ltd., Kakavelakis v. Boutsakis, Kondori v. New Country Appliances Inc. Also available as a ProView eBook* New Edition British Columbia Annual Practice, 2019 Edition The Honourable Madam Justice Janice R. Dillon and Gordon Turriff, Q.C. Print + ProView eBook Order # L7798-8543BE-65203 $152 Hardcover + Softcover + CD-ROM + eBook August 2018 approx. 1800 pages (Hardcover) approx. 1020 pages (Softcover) Annual volumes supplied on standing order subscription e-Notes available on request on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. *Not available to trade bookstores, third-party distributors, and academic institutions. Discover the complete collection of ProView eBooks at store.thomsonreuters.ca/proview Find all upcoming and available training sessions at cpdcentre.ca

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