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Simon Shields, LLB

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Insurance - Subrogation - Duty of Counsel

Mallory v. Werkmann Estate (Ont CA, 2015)

In this case the Court of Appeal briefly noted that even in a subrogated defence (ie. where the insurer appoints defence counsel for their insured defendant) then the ultimate duty of counsel is to the insured:
[29] Mr. Kostyniuk acknowledges that it was inappropriate to include para. 8 [SS: the trial judge's mention of insurance coverage in the judgment] in the appellant’s notice of appeal. I agree. He was appointed and paid by the insurer, but he owed a duty of loyalty and good faith to the appellant: Ernst & Young Inc. v. Chartis Insurance Co. of Canada, 2014 ONCA 78 (CanLII), 118 O.R. (3d) 740, at para. 70; Parlee v. Pembridge Insurance Co., 2005 NBCA 49 (CanLII), 253 D.L.R. (4th) 182, at para. 17.

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