Roderick S.W. Winsor

The conventional view of good faith is misleading or incomplete in that it does not answer essential questions such as whether the obligation is contractual, Roderick Winsor, partner with Blaney McMurtry LLP told delegates at the Insurance Law: Spring Update 2008 in Toronto on May 15. In Maschke Estate v Gleeson, Winsor observed, it was found that "a contract of insurance is one of uberrima fides, the utmost good faith … The duty to act promptly and in good faith arises the day the insurer receives the claims." This view represents a common understanding of implied obligation of good faith in insurance, Winsor noted. But this notion leaves out important questions, Winsor added, such as:• is the obligation owed only to the insured; • what is good faith; and • what is the standard of care?It is important to realize the definition of utmost good faith has great practical significance for insurers and their counsel, Winsor said. He said a more comprehensive definition should consider whether: • the obligation is limited to the stated terms of the contract, or goes beyond them;• utmost good faith is limited to obligations such as paying a property loss within 60 days, or goes beyond that to mean in some cases:(a) the insurer must pay sooner;(b) the insurer should pay replacement cost in situations in which an insured has not replaced; or (c) an insurer cannot rely on an insured's failure to pay the premium to terminate the contract in all circumstances.The claim should be seen as a contractual one and any obligation of good faith should be seen as recognition of the mutual intent of the parties, Winsor noted. It is not an excuse to allow a party to renegotiate the agreement, to avoid a careful analysis of the contract or justify reliance on the reasonable expectation of the insured, he added.

With more than two decades of experience in litigating commercial and insurance-related disputes at the trial and appellate levels, Rod Winsor continues to specialize in high level, high profile cases nationally and internationally.

Mass tort and class actions he has handled include the bombing of Air India 182, the shooting down of KAL 007, the Cincinatti Air Canada fire, the sinking of the Ocean Ranger and the Hagersville tire fire.He also litigates claims against companies, directors and officers relating to various frauds and environmental losses.

Rod is a partner in Blaney McMurtry LLP and has been awarded an AV ranking, the highest rating possible by Martindale-Hubbell, the prestigious international lawyer ranking service.

Recently, Rod has concentrated on environmental and multi-jurisdictional litigation in Canada and the U.S.These claims involve aviation conspiracy, technology and intellectual property, construction, product and professional liability, employment and pollution claims.He has successfully litigated catastrophic injury cases.

Rod also regularly deals with the assessment and litigation of insurance coverage issues.He is experienced in mediation and domestic and international commercial arbitration.

As a writer, Rod is co-author of "The Insurance Act of Ontario Annotated" published by Butterworths and is working on "The Implied Obligation of Good Faith In Contract" to be published by Canada Law Book.He also delivered the Law Society of Upper Canada Annual Lecture on Governmental Duty of Care and Liability for Regulatory Negligence.

Rod has published papers on such topics as "Liability of Government Arising Out of Its Regulatory Functions", "The Doctrine of Reasonable Expectations", "Environmental Coverage Issues", "Mass Torts" and "Reducing Damages and Defense Costs in Environmental Claims".He has also published "The Defense of Multi-Jurisdictional Product Liability Claims", Handling First Party Claims By The Insured", "Liability Insurance-Recovery by Insured of Uninsured Portion of Claim" and "Commercial Insurance Law."

Insurers need to decide whether to attack the certification of a class action lawsuit up front, or wait until after certification to respond to the claim, Roderick S.W. Winsor, a partner at Blaney McMurtry LLP, told delegates at the Insurance Law Update presentation on June 6. The Number 1 goal is to defeat a certification motion, Winsor said.
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Challenging at the certification level may also be wise because the disclosure of a cause of action is often is a real obstacle for class actions, Winsor suggested in materials prepared for his presentation.For example, a cause may involve novel claims that haven't been adjudicated before or they may involve proving that the government did not show a proper duty of care, which may be difficult to do.Whether or not there is an identifiable class appears to be merely a definition issue, but it can be a thorny issue in some cases.A common factual basis is not sufficient to establish a class; there must be an issue common to everyone identified in the class.Is a class action proceeding the preferable procedure?Perhaps there is a better solution to the problem.Three considerations must be addressed: judicial economy, behaviour modification and the trump card: access to justice, Winsor said.

Rod WinsorBlaney McMurtry LLP: Roderick S.W. Winsor
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Roderick S.W. Winsor
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Roderick S.W. Winsor

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With three decades of experience in litigating commercial and insurance-related disputes at the trial and appellate levels, Rod Winsor continues to specialize in high level, high profile cases nationally and internationally.

Mass tort actions he has handled include the bombing of Air India 182, the shooting down of KAL 007, the Cincinnati Air Canada fire, the sinking of the Ocean Ranger and a variety of landfill and industrial pollution claims.He also litigates claims against companies, directors and officers relating to various frauds and class proceedings for both defendants and plaintiffs.

Rod is a partner in Blaney McMurtry LLP and has been awarded an Av ranking, the highest rating possible by Martindale-Hubbell, the prestigious international lawyer ranking service.Rod has also been selected by his peers for inclusion in the 2008 Lexpert Canadian Legal Directory as a leading practitioner in Commercial Insurance Litigation.Recently, Rod has concentrated on environmental and multi-jurisdictional litigation in Canada and the U.S.These claims involve aviation conspiracy, technology and intellectual property, construction, product and professional liability, employment and pollution claims.He has successfully litigated catastrophic injury cases and completed a year long civil conspiracy trial involving allegations of bribery in the aviation industry.

Rod regularly deals with the assessment and litigation of insurance coverage issues.He is experienced in mediation and domestic and international commercial arbitration.

As a writer, Rod is co-author of "The Insurance Act of Ontario Annotated" published by Butterworths and has recently completed "Good Faith in Canadian Insurance Law", published by Canada Law Book.He also delivered the Law Society of Upper Canada Annual Lecture on Governmental Duty of Care and Liability for Regulatory Negligence.

Rod has published papers on such topics as "Liability of Government Arising Out of Its Regulatory Functions", "The Doctrine of Reasonable Expectations", "Environmental Coverage Issues", "Mass Torts" and "Reducing Damages and Defense Costs in Environmental Claims".He has also published "The Defense of Multi-Jurisdictional Product Liability Claims", Handling First Party Claims By The Insured", "Liability Insurance-Recovery by Insured of Uninsured Portion of Claim" and "Commercial Insurance Law."

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Profile

With three decades of experience in litigating commercial and insurance-related disputes at the trial and appellate levels, Rod Winsor continues to specialize in high level, high profile cases nationally and internationally.

Mass tort actions he has handled include the bombing of Air India 182, the shooting down of KAL 007, the Cincinnati Air Canada fire, the sinking of the Ocean Ranger and a variety of landfill and industrial pollution claims.He also litigates claims against companies, directors and officers relating to various frauds and class proceedings for both defendants and plaintiffs.

Rod is a partner in Blaney McMurtry LLP and has been awarded an Av ranking, the highest rating possible by Martindale-Hubbell, the prestigious international lawyer ranking service.Rod has also been selected by his peers for inclusion in the 2008 Lexpert Canadian Legal Directory as a leading practitioner in Commercial Insurance Litigation.Recently, Rod has concentrated on environmental and multi-jurisdictional litigation in Canada and the U.S.These claims involve aviation conspiracy, technology and intellectual property, construction, product and professional liability, employment and pollution claims.He has successfully litigated catastrophic injury cases and completed a year long civil conspiracy trial involving allegations of bribery in the aviation industry.

Rod regularly deals with the assessment and litigation of insurance coverage issues.He is experienced in mediation and domestic and international commercial arbitration.

As a writer, Rod is co-author of "The Insurance Act of Ontario Annotated" published by Butterworths and has recently completed "Good Faith in Canadian Insurance Law", published by Canada Law Book.He also delivered the Law Society of Upper Canada Annual Lecture on Governmental Duty of Care and Liability for Regulatory Negligence.

Rod has published papers on such topics as "Liability of Government Arising Out of Its Regulatory Functions", "The Doctrine of Reasonable Expectations", "Environmental Coverage Issues", "Mass Torts" and "Reducing Damages and Defense Costs in Environmental Claims".He has also published "The Defense of Multi-Jurisdictional Product Liability Claims", Handling First Party Claims By The Insured", "Liability Insurance-Recovery by Insured of Uninsured Portion of Claim" and "Commercial Insurance Law."

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With three decades of experience in litigating commercial and insurance-related disputes at the trial and appellate levels, Rod Winsor continues to specialize in high level, high profile cases nationally and internationally.

Mass tort actions he has handled include the bombing of Air India 182, the shooting down of KAL 007, the Cincinnati Air Canada fire, the sinking of the Ocean Ranger and a variety of landfill and industrial pollution claims.He also litigates claims against companies, directors and officers relating to various frauds and class proceedings for both defendants and plaintiffs.

Rod is a partner in Blaney McMurtry LLP and has been awarded an Av ranking, the highest rating possible by Martindale-Hubbell, the prestigious international lawyer ranking service.Recently, Rod has concentrated on environmental and multi-jurisdictional litigation in Canada and the U.S.These claims involve aviation conspiracy, technology and intellectual property, construction, product and professional liability, employment and pollution claims.He has successfully litigated catastrophic injury cases and completed a year long civil conspiracy trial involving allegations of bribery in the aviation industry.

Rod regularly deals with the assessment and litigation of insurance coverage issues.He is experienced in mediation and domestic and international commercial arbitration.

As a writer, Rod is co-author of "The Insurance Act of Ontario Annotated" published by Butterworths and has recently completed "The Implied Obligation of Good Faith In Contract" to be published by Canada Law Book.He also delivered the Law Society of Upper Canada Annual Lecture on Governmental Duty of Care and Liability for Regulatory Negligence.

Rod has published papers on such topics as "Liability of Government Arising Out of Its Regulatory Functions", "The Doctrine of Reasonable Expectations", "Environmental Coverage Issues", "Mass Torts" and "Reducing Damages and Defense Costs in Environmental Claims".He has also published "The Defense of Multi-Jurisdictional Product Liability Claims", Handling First Party Claims By The Insured", "Liability Insurance-Recovery by Insured of Uninsured Portion of Claim" and "Commercial Insurance Law."

by Roderick S.W. Winsor[ Due to the length of this paper, we have made only the table of contents available for downloading.A copy of the complete paper may be obtained by e-mail request to rwinsor@blaney.com ]
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by Roderick S.W. Winsor

by Roberick S.W. Winsor