Two Good to be True

What It Is: The OBA’s Excellence in Insurance Law Award recognizes and thanks OBA members who have shown leadership and achievement in the following areas: development of insurance law through advocacy, teaching, writing or legislative reform; leadership in the profession; maintaining the highest standards of professional competence as well as the highest levels of honesty, integrity and civility; and enhancement of the profession of law and the well-being of a community.

ERIC R. WILLIAMS, WILLIAMS MCENERY (OTTAWA)

Eric Williams handles complex insurance litigation issues; his professional experience of doing the best with the cards he’s been dealt manifests itself in his ability to adapt to unusual circumstances. In a telephone interview conducted from his car (parked outside of an Ottawa grocery store), the founding partner of Williams McEnery, an eight-piece civil litigation firm, chats about practising law over the past 35 years.

Williams has stick-handled quite a few insurance cases through the Canadian courts, but perhaps he is best known for his recent triumph at the Supreme Court of Canada in 2006.

In Childs v. Desormeaux, often referred to as the “social host” case, Williams successfully argued that a host of an event where alcohol is being served is not responsible for the actions of a guest after they leave the gathering. The insurance community followed the case carefully, because if Williams’ argument had been unsuccessful (and the courts found that social hosts did owe a duty of care ), then insurers would have a much more difficult time projecting the additional exposures in homeowners’ policies.

Williams acted as counsel from the tria level all the way to the Supreme Court. He says the “decision preserves the legal autonomy of individual members of society, and continues to restrict the requirement by other members of society to act affirmatively when aware others are engaging in risky behaviour in social situations.”

Williams says he has always enjoyed practising insurance law, mostly because of the quality of the people with whom he gets to work. It’s clear he feels a sense of camaraderie with claims adjusters. “They are right there with you when it comes to assessment and liability,” he says. “They often have a very good sense of what a case is worth. They have a very good sense of the risk involved in the case and they’re able to make intelligent decisions on behalf of the insurer.”

And although he feels insurance law “is quite well developed,” Williams does foresee the courts plugging a few holes in the caselaw in the future – particularly in the area of disability insurance. “I think there is going to be some development in [terms of when] the courts see misconduct,” he suggests. “We have had punitive damage awards in property/casualty now, and I think there will be a mirror in those situations.”

By way of example, Williams points to Pilot v. Whitten, in which an insured’s home was destroyed by fire. An adjuster decided that the loss would have to be paid, but the insurer, as Williams puts it, “went out and got six different engineers in until they finally got one in that said it was arson.”

The claim was denied, the case was tried and the adjuster testified that he told the insurer he did not believe it was a case of arson. In the end, the jury awarded the plaintiff Cdn$1 million in punitive damages – at the time, the biggest damages award in Canada.

Cases such as this “have cleaned a lot of that up, whereby people are far more sensitive now to the insured’s rights,” Williams says.

Asked about how he feels about receiving the OBA award, Williams, who seemingly speaks without taking a break for air, uncharacteristically pauses. “It’s like anything,” he finally says. “You try to do your best for your clients, whoever they are, and to get recognition is very satisfying for a person that tries to do their best.”

JESSE T. GLASS, LAXTON GLASS LLP (TORONTO)

Jesse Glass is no stranger to the courtroom. By the time he was called to the bar in 1959, he had already tried close to 200 cases. He’s added hundreds more to his roster over the past 48 years and shows no signs of slowing down.

His interest in civil litigation was sparked during a second-year law school course at Osgoode Hall. This interest was developed further by articling – and later working – under Edson Haines, a prominent insurance defence lawyer at the time. “I have never done anything else [since], and I am still having fun,” Glass says.

Glass says he likes to share his sense of fun and passion for his work with his colleagues and students. He also shares wisdom he’s gained over the years with crowds at seminars and lecture halls, as well as during one-to-one mentor opportunities in his office.

Why does he like to maintain and even increase his contact with people in his profession during a time when he might be forgiven for withdrawing a little bit? He offers three reasons: “First, I think the profession has been good to me,” he says. “Second, I’ve always enjoyed mentoring within my own office, and Number 3 – it’s sort of fun to teach a subject you know a lot about.”

Glass believes the number of insurance cases making it to the courtroom has declined over the years. Even so, he adds, the challenges for the insurance defence bar have mounted.

New records in damages have been set, he says, with verdicts awarding plaintiffs millions of dollars. Sophisticated evidentiary models brought this shift about, he contends. Based on the influence of American jurisprudence, “today the Canadian personal injury bar is very sophisticated,” he says.

The plaintiff bar’s use of demonstrative evidence – such as showing the jury an actual letter or memorandum, highlighted with a phrase the plaintiff lawyer wants the jury to remember, or translating an x-ray into a coloured illustration so that “the jury can see [the counsel’s point] as well as hear it from the mouth of the witness,” has made it a “great challenge for an insurance defence to be able to compete effectively,” says Glass.

Legislative changes also present new challenges to the profession, he says, citing the Limitations Act, 2002. The [Limitations Act] creates difficulty for insurers, because they don’t know how long it will take for claims to be resolved, Glass notes, and the longer they take to get resolved, the more legal fees they will require. This leads to financial issues for insurers, because they won’t know how much money they will need to reserve for the litigation. For example, he says, assume there are two seriously injured and two victims with minor injuries in a car accident. The two serious victims require 80% of the policy limit. “Is it safe [for an insurer] to settle when you have two potential [minor] policy claims in the background, which may or may not develop into anything, but in respect of which might be five or 10 years before you get notice of a claim?”

Despite his distinguished career, and the challenges facing the insurance defence bar, Glass shows no signs of slowing down. “I intend to work just as hard as I feel like working,” he says. “If I feel that I am no longer as productive as I should be, then I’ll stop and find other interests.”