Liability
an open
question
Evidence
Continued From Page 11
Changes to auto insurance in Nova Scotia will increase benefits to injured parties. Above, motorists negotiate curves in Cape Breton Highlands National Park.
istockphoto.com
Step forward for crash victims
DONALEE MOULTON
Nova Scotia is paving a new
path for automobile insurance in
the province. The government
recently passed the Fair Automobile Insurance (2011) Act,
which will create a new legislative roadmap for insurers, drivers and injured individuals.
However, despite the changes,
the legal landscape will continue
to look familiar.
“The [A]ct signals an important first step in restoring the
rights of accident victims,” said
Barry Mason, a founding partner
with Pressé Mason in Bedford,
N.S. “Some may argue that these
additional benefits will lead to
increased premiums. However,
given the massive profits insurers have and continue to yield,
these changes can easily be
implemented without any
increase in premiums.
“[T]he reality is that these
increased benefits are far from
rich,” he added. “Imagine being
hurt in an accident, not able to
work and trying to support your
family off of $250 a week.”
The government agrees the
legislative reforms are a small
but important step. “By any
measure, they are modest, but
[the laws] hadn’t been changed
in about 30 years,” Finance Min-
ister Graham Steele, who is
responsible for the Insurance
Act, said in an interview with The
Lawyers Weekly.
The changes come in the
wake of an increase to the prov-
incial minor cap injury that tri-
pled the limit, an independent
review of auto insurance com-
missioned by the province and a
cost analysis of the review rec-
ommendations conducted by
the Nova Scotia Utility and
Review Board.
It is currently an open question whether Canadian courts
will find a party liable for negligence where it destroys evidence
it had a duty to keep when facing
actual or anticipated litigation.
The imposition of this legal duty
or the incremental broadening
of what constitutes spoliation
would be welcome news to those
who see the need for an added
impetus on parties to ensure
that the best evidence is preserved and available to experts
and the court.
In the meantime, to avoid
issues arising from the improper
preservation of evidence, it is
important to consider what steps
can be taken to preserve evidence
before litigation is anticipated or
commenced. In particular, this
would include ensuring that
protocols are in place for the
preservation of both electronic
and paper records.
The importance of promptly
engaging counsel to ensure that
evidence is preserved is para-
mount. Steps that can be taken
once litigation is anticipated
would include the following:
(1) Sending preservation let-
ters to the opposing parties.
( 2)Locating, securing and
photographing key evidence.
( 3) Engaging protocols for the
preservation of both electronic
and paper records.
( 4) Considering the merits of a
preservation Order from the court.
( 5)Recording the chain of
custody when evidence is moved
or changes hands.
( 6) Ensuring that any experts
retained are knowledgeable with
respect to preservation issues. n
Michael J. L. White practises in
the Insurance & Tort Liability
Group of Borden Ladner Gervais
LLP in Toronto.
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