What if … counsel had adduced better evidence? Deguise v. Montminy showed us the ‘What if’

Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers in complex construction and property damage cases.  Many of the rulings in the decision were specific to Québec civil law.

In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert evidence to show when damage actually started to occur, for the purpose of allocating insurer responsibility.  In other words, Deguise offered an opportunity to apply the ‘injury in fact theory’ of liability insurance coverage to facts proven by evidence, instead of legal conjecture.  The decision, penned in French and applying civil law, has so far escaped the notice of the Bar in the rest of Canada.

To read the entire article outlining the significance of Deguise to our understanding of the reasoning in the landmark Alie decision, and to understand how the presentation of evidence remains the most important advocacy skill, please see my post on the Gilbertson Davis LLP litigation blog.

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