Pamela Pengelley has been Profiled for Martindale Hubbell’s “Legal News and Views”

I was recently interviewed by Norman Gautreau, author of “Sea Room” and “Island of First Light“, for Martindale Hubbel’s Legal News and View’s Member Spotlight with respect to its new social networking initatives. Needless to say, it was a very interesting experience. I have been asked to spread the article around (not a difficult chore). It is found on Martindale Hubbel’s “Legal News and Views” (which will require that you register), or you can view a pdf copy of the article at THIS LINK.

What is Subrogation?

In Canada, generally speaking, subrogation refers to the legal right of an insurance company that has indemnified its customer for loss or damage pursuant to an insurance policy to ‘step into the legal shoes’ of its customer and bring a lawsuit in the customer’s name against third parties that caused the loss or damage.  Subrogation serves a number of purposes including (1) preventing people from obtaining  “double recovery” under both an insurance policy and a legal action; (2) ensuring that wrongdoers are held accountable for loss or damage that they have caused to others, notwithstanding that the victim may have insurance.

Canadian common law provides that an insurer must bring its legal action in the name of its customer, rather than in the name of the insurance company. The reason for this is largely historical. Originally, an insured customer was required to take all steps within his or her power to reduce a loss for which they received insurance, including exercising legal remedies against third parties. Since those remedies were personal to the customer, however, they could only be exercised in the name of the customer as a matter of procedural law. The common law did not provide a method whereby a person could be compelled to commence an action against another; therefore insurers had to apply to a Court to compel their customer to allow his or her name to be used for legal proceedings against third persons in order to reduce the loss.

Today, the right of subrogation will automatically accrue to insurers who have fully indemnified their customers under an insurance policy.  However, the legal action still must be commenced in the customer’s name, rather than in the insurance company’s name.  For more information on this topic, including Canadian case references which articulate this principle, please check out “Canadian law still requires that subrogated actions be brought in the name of insured rather than insurer“, at Cozen O’Connor’s Subrogation and Recovery Law Blog.

law cartoon

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Should Dogs Be Allowed On Patios?

doguntitled1If you are a dog owner in Toronto, you will know that restaurant, bar and café owners do not allow any animals, including dogs, to be brought on to their patios owing to a fear that they will be fined and risk losing their license. Yet experts have confirmed that dogs are not a health hazard. In fact, birds present more of a health risk than dogs, and yet no one appears to have informed the pigeons to keep off the patios!

The relevant law is an Ontario regulation, Food Premises, R.R.O. 1990, Reg. 562, enacted under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7. The regulation prohibits a dog from being in a room where food is, among other things, “served, sold or offered for sale”,  unless the animal is “service dog”:

59. Every operator of a food premise shall ensure that in respect of the food premise,…

(e)    every room where food is manufactured, prepared, processed, handled, served, displayed, stored, sold or offered for sale is kept free from,…

(ii) subject to section 60, live birds and animals;

60. (1)  Subclause 59 (e) (ii) does not apply to,

(a)    a service dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a service dog, if the service dog is in an area of the food premise where food is served, sold or offered for sale;

(2)   A dog other than a guide dog for the blind is a service dog for the purposes of clause (1) (a) if,

(a)    it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability; or

(b)    the person who requires the dog can provide on request a letter from a physician or nurse confirming that the person requires a service dog. O. Reg. 74/04, s. 4 (2).

Although the term “premises” is defined in the Health Protection and Promotion Act to include both land and structures, the regulation requires only that rooms be kept free of animals; the term “room” (which would logically seemed be a subset of a “premises”) is not defined in the regulation.

It is debatable whether a “room” would actually include a patio. For instance, the online Merriam-Webster dictionary defines the term “room” as “a partitioned part of the inside of a building”. It appears, however, that Toronto’s Public Health Inspectors are nonetheless interpreting the regulation as extending to patios.

In European countries, it is not uncommon to see pets, not just on patios, but also in the restuarants themselves. Is the concern really about health? Or is it instead an accomodation for a certain percentage of the population who feel that dogs just shouldn’t be there?  If this is the case, is this an issue that should be regulated or should it instead be left up to the owners of the premises to decide whether to allow dogs on their patios?

For those who feel strongly that dogs should be allowed on patios in Toronto,  Urban Dog Toronto is sponsoring a petition to change the current law (or, at least, its current interpretation).

Ontario Cellphone Ban Begins October 26, 2009

Starting on October 26, 2009, it will be illegal for Ontario drivers to talk, text, type, dial or use email using hand-held cellphones or other hand-held communication or entertainment devices.   Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2009, will amend Ontario’s Highway Traffic Act to include the following provision:

Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.

(8) In this section,

“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

The Following a three-month period beginning Oct. 26, where the focus will be on educating drivers, police will start issuing tickets on Feb. 1, 2010, according to the Ontario government. Fines will range from  $60 – $500 for talking or texting when you should be paying attention to the road. Hands-free devices are still permitted, however, so  long as a driver uses a voice-activated system for dialing the number.

Sgt. Tim Burrows of the OPP says that if a driver is caught using a hand-held device, he or she may also be charged with careless driving — costing up to $1000, six demerit points and a driver’s license suspension. It will be up to the discretion of the police officer whether to charge a driver with distraction or careless driving – or the worst case scenario: both.

A Farewell to the House of Lords

The House of Lords is no longer the highest  court in the United Kingdom; it has been replaced by the new Supreme Court of the United Kingdom, which has officially come into existence today (October 1, 2009).  According to the  Official Press Release, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. The Supreme Court takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC), which continues to be the final court of appeal for certain other Commonwealth countries (and was Canada’s final court of appeal until 1949)  and other jurisdictions, such as Crown Dependencies.