NAVIGATING LITIGATION

Knowing What to Do When an Action is Brought Against Your Sailing School

Navigating Litigation��In this presentation, you will learn the following:

• What litigation means
• The reasons why litigation is started
• What negligence is
• Steps to protect your sailing school against negligence claims
• What to do when served
• What to expect during the litigation process

What is litigation?

• Litigation refers to the process of taking legal action. A lawsuit is a proceeding by a party or parties against another in the civil court of law. In Nova Scotia, this means that a lawsuit / action will be brought either before the Nova Scotia Supreme Court, the Small Claims Court, or a tribunal / administrative board
• A lawsuit / action is brought by a plaintiff (a party who claims to have incurred loss as a result of another’s actions.) The individual against whom the action is brought is called the defendant. The plaintiff’s action demands a legal or equitable remedy from a court. The defendant is required to respond to the plaintiff’s complaint. In many ways, the litigation process is very similar to a Protest or a Protest Hearing in sailing

Reasons to Litigate

• While there are many reasons to litigate, such as breach of contract or alleging a human rights infringement, this presentation will only deal with the issue of negligence.
• Negligence is the most likely lawsuit that will be brought against a sailing school. In most instances, the lawsuit will allege that a sailor was injured because of the negligence of a sailing school and their instructors.

Reasons to Litigate

• Negligence in personal injury cases refers to when a plaintiff believes that their injuries are the result of the act, carelessness, or inaction of another person, who is called the defendant. The Plaintiff has the burden of proving negligence and must prove 3 important things:

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1. Liability
2. Causation
3. Damages

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Negligence

• This presentation will focus solely on liability as the issues of causation and damages are best left to the lawyers.
• Causation requires the plaintiff to prove that the breach of the standard of care is the cause of the injuries they suffered. There are situations where there was negligence; however, the negligence did not cause the injuries.
• Plaintiffs are also required to prove that the injuries they are claiming for do actually exists and are as severe as they claim.

STANDARD OF CARE

Liability

• Liability requires the plaintiff to prove that a duty of care exists between themselves and the coach / instructor and sailing school. A duty of care arises by virtue of a “relationship” between parties and the coach-athlete relationship is clearly one that establishes a duty of care. This is because the coach / instructor / sailing school is in a position of trust, care, or power with the athlete, which will almost always establish that the coach / instructor / sailing school owes a duty of care to the sailor athlete.
• In addition to proving a duty of care, the plaintiff must also prove that the standard of care owed by the coach / instructor / sailing school was breached through the action, inaction, or carelessness of the coach / instructor / sailing school.

Standard of Care

• The Standard of Care owed by coaches / instructors / sailing schools requires some further elaboration. The standard of care is an objective standard of conduct expected of all coaches / instructors / sailing schools. The concept of negligence is founded on the notion of “reasonableness.” As adults, we are all credited with the same general intelligence and sensibility, and thus the law expects each of us to behave in a reasonable fashion when confronted with similar circumstances.
• The Standard of Care is modified, however, when it comes to coaches / instructors / sailing schools because we are deemed to have special knowledge or skills above the average person. As such, the law expects us to behave in ways a reasonable coach / instructor / sailing school would when confronted with similar circumstances. The law does not expect the coach to be perfect in his, her, or their behaviour, only to be reasonable and to act as other reasonable coaches would.
• It does not matter if you are a 16-year-old coach / instructor or an Olympic coach who has been coaching for 20 years. The standard of care is dependent on your certification as a coach, not your experience or age!

Standard of Care

• For example, the average person is expected to know that driving into a white out, where visibility is reduced, is dangerous. As such, the average person may be found liable if they drive into a white out and strike another vehicle.

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• In sailing, coaches are expected to have a more nuanced understanding of the weather. If the coach sends out their CANSail 1 sailors when the winds are expected to be 60 km/h with 1 meter waves and then a sailor is injured as a result, that coach could be found to be liable. This is because their special training is supposed to provide them with the skills to assess risks in their sport above the ability of an average individual.

Standard of Care

• Given that the standard of care depends on what a coach ought to do, how do we know what this standard is?
• While there is no black-and-white answer, as the standard will vary depending on the circumstances, there are 3 ways which, taken together, established the standard of care a coach must meet:

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• Written and Unwritten Standards
• Case Law
• Common Sense

Standard of Care – Written Standards

• Written standards include government statutes and regulations, equipment standards, rules or guidelines for a particular sport or facility, and an organization’s internal policies and procedures. Written standards for a coach / sailing school might include a sport’s rules and technical regulations, a facility’s safety and emergency procedures, tournament or event guidelines relating to sport medicine or first aid, coaching manuals and journals, coaching codes of ethics, and the coach’s job description. Written standards promote prudent behaviour by telling coaches / instructors and sailing schools how to behave before an accident happens. Disregarding written standards is strong evidence of negligent behaviour.
• Let’s explore some of the written standards in sailing.

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Standard of Care – Statutes & Regulations

• A standard of care can be established by statutes and regulations. For example, the Small Vessel Regulations which forms part of the Canada Shipping Act imposes a standard of care on coaches, instructors, and sailing schools who are using coach boats.
• For example, Section 204 requires the following life-saving appliances on each coach boat:

Standard of Care – Statutes & Regulations

• Section 5(1) requires that the safety equipment required by the Regulations shall be
• In good working order;
• Readily accessible and available for immediate use; and
• Except for a life raft, maintained and replaced in accordance with the manufacturer’s instructions or recommendations.

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Standard of Care - Statutes & Regulations

• For example, let say that a coach and their laser athlete are participating at CORK when extreme weather roles in. The races are cancelled and everyone heads back to the club. The athlete is exhausted, so the coach has them in the coach boat while towing the laser. Suddenly a wave goes over the engine of the coach boat and the engine fails. The waves are now pushing the coach boat towards the breakwater. The coach boat does have a paddle on board, but no anchor. In these conditions, the paddle is of little use and the coach boat is pushed up against and on to the break water over and over again until another boat can rescue them. The athlete is injured as a result.
• This situation may be a breach of the standard of care owed by the Coach pursuant to the Small Vessel Regulations.

Standard of Care – Equipment Standards

• Using equipment improperly or equipment that is poorly maintained can also be a breach of the standard of care.
• For an example, PFDs and Lifejackets are crucial equipment to the sport of sailing. Allowing a sailor to wear a PFD that is too large for them (where they can slip out of the PFD when in the water) could be a breach of the standard of care.
• Another example of breaching the standard of care associated with equipment standards would be to put 4-5 sailors in a single C420. C420 are to be used by 2 sailors. If a C420 is packed with double the people and an accident occurs (for example, an entrapment situation) and an injury occurs, then the act of putting too many sailors in boat could be a breach in the standard of care.

Standard of Care – Policies & Procedures

• There are many policies and procedures in sailing that establish the standard of care owed by coaches, instructors, and sailing schools. The standard of care is informed by the policies and procedures of organizations such as Sports Canada, the National Coaching Certification Program, Sail Canada, and Sail Nova Scotia.
• We will look through some of the policies and procedures which create the standard of care for sailing schools, instructors, and coaches. It is important to remember that the Courts will look to these policies and protocols when considering whether there has been a breach of the standard of care.

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Standard of Care – Written Standards

• The National Coaching Certification Program (NCCP) provides standardized, inclusive, and safe sport education to coaches and coach developers across 65 sports. The Coaching Association of Canada manages and delivers NCCP training through its partner network of 65 National Sport Organizations and Provincial / Territorial Sport Organizations, including Sail Canada.

Standard of Care – Written Standards

• The NCCP provides coaching resources which are adopted by Sail Canada and Sail Nova Scotia as the standard which coaches must meet. Some of these resources are:

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Covid-19

Making Ethical Decisions

Reporting Inappropriate Behaviour

Diversity and Inclusion

Concussion Awareness

Sport Safety

Reporting Child Sexual Abuse

Standard of Care – Written Standards

• Sail Canada is the national governing body for the sport of sailing in Canada. They are responsible for creating the resources and training to develop Canada’s coaches, instructors, and athletes. Many of the policies developed by NCCP for all Canadian Sports are adopted by Sail Canada, who may modify the policies to make them sailing specific. For example, the Fundamental Course which all instructors and coaches must take to become certified, is training that was first created by NCCP and the adopted by Sail Canada and adapted to specifically train our coaches and instructors

Standard of Care – Written Standards

• Sail Canada provides coaching resources which outline the standard which coaches must meet. Some of these resources are:

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Criminal Record Check & Screening Policy

Safe Sport Module

Respect in Sport Training

Sailing Concussion Protocol

Sailing Code of Conduct

Sailing Harassment Policy

Return to Sailing Protocol

Create the Prerequisites for Coaching / Instructing

Determines the certification, proficiency, and competence of sailors through CANSail

Standard of Care – Written Standards

• Sail Nova Scotia is the provincial regulating body of the sport of sailing in Nova Scotia. They are responsible for training and developing coaches and instructors in Nova Scotia, in addition to ensuring compliance with the CANSail program and the accreditation of levels. Sail Nova Scotis is also responsible for ensuring that the policies developed by NCCP, Canadian Sports, and Sail Canada are followed.

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Standard of Care – Written Standards

• Sail Nova Scotia provides coaching resources which outline the standard which coaches must meet. Some of these resources are:

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Safe Sport Instructor Module

Emergency Action Plan Templates

Daily Crew Lists

Daily Safety Checks

Risk Management Manual

Certifying Coaches / Instructors

Standard of Care – Unwritten Standards

• Unwritten standards refer to conventional practices. The common practices of other members of a profession are a reliable indicator of appropriate and reasonable behaviour, and failure to perform is often an indication of a lack of care. This is why coaches, instructors, and sailing schools should remain current with new developments in their field by networking and pursuing opportunities for professional development.
• An example of unwritten standards is the kill cord or kill switch. While there is no legislation requiring one to be worn in a coach boat, it is the general practice amongst coaches and instructors. If an injury occurs because a kill cord was not worn, it is very likely that the standard of care has been breached.

Standard of Care – Unwritten Standards

• Another example of unwritten standards is the practice of keeping a well-maintained first aid kit in the coach boat and having a well-maintained knife on the coach. If a situation arose where either of these practices would have prevented or mitigated an injury but were not on board, it could be evidence of a breach of the standard of care.

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• Similarly, most sailing schools use VHF radios for communication and safety reasons. If not having a VHF onboard contributes to an emergency situation, then it is likely that the standard of care has been breached.

Standard of Care - Case Law

• Case law refers to previous court decisions about similar fact situations. Much of the Canadian Law of negligence is based on the principles of common law, which have evolved over hundreds of years of judicial decision-making. These cases establish a legal principle are often referred to as “precedent.” Case law guides not only lawyers and judges, but also establishes a standard of care for coaches, instructors, and sport administrators

Case Law – Hamstra et al. v British Columbia Rugby Union

• Mark Hamstra was a junior rugby player trying out for the B.C. provincial team. In a regional selection match, he suffered a serious injury resulting in quadriplegia when the scrum in which he was playing the position of hooker collapsed. He sued, among others, the coach and the rugby association, alleging that the scrum collapsed as a result of a coaching error in mismatching the athletes playing the prop positions alongside him. More particularly, Hamstra argued that the athletes placed beside him were neither skilled nor fit enough to play the prop position competently, and that the coach ought to have known the risk of collapsed scrum leading to the very type of injury Hamstra suffered. Furthermore, such knowledge carried with it a very high degree of care. In making this argument, Hamstra referred to a written memorandum from the English Rugby Football Union and experimental variations to the junior game, designed for safety, which were taking place in New Zealand.

Case Law – Hamstra et al. v British Columbia Rugby Union

• The Court stated that the test for negligence is “whether the coach acted in accordance with the ordinary skill and care of a selector / coach in the circumstances in which he found himself.” The Court held that the coach had shown the ordinary skill and care to be expected in fulfilling his function since he acted in accordance with the Rules of the Game, safety regulations, and accompanying guidelines promoted by the sport’s governing body in Canada. These were written standards available to the coach at the time of the incident. The Court was satisfied that he was not, nor should he necessarily have been aware of information from England and New Zealand pertaining to the risk of spinal injury from collapsed scrums.
• In terms of unwritten standards, it was shown that the coach had properly taught all his players, including Hamstra, to keep their heads up in a collapsing scrum. This was a common coaching technique supported by a junior rugby rule which allowed a penalty to be assessed against any player who “has or causes an opponent to have his shoulders lower than his joint” while in a scrum.

Case Law – Hamstra et al. v British Columbia Rugby Union

• The case against the coach was dismissed, but it important to remember that coaches must keep up to date with the current standards in the sport. The Court commented on the fact that the standard of care coaches owe are always evolving. The Court stated, “… the standard of care as it relates to the risk of serious debilitating cervical spine injury in British Columbia in May 1986 [when the injury occurred] is, in my opinion, a lower one than the Court would apply in British Columbia were the same injury to occur today in similar circumstances.”

Case Law – Smith v Horizon Aero Sports Ltd

• This case involved a woman who suffered injuries from skydiving. The judge ruled that the instructor had misjudged the woman’s readiness to jump on her own. He was an expert instructor and she was a novice student, and he should have known that the student was not ready. The instructor’s misjudgment of the plaintiff’s knowledge retention and thus her readiness to jump breached the standard of care that a novice learner should have expected in that specific situation. The plaintiff was found to be 30% liable for failing to clarify misunderstandings about what she was learning, for failing to give indications that she was under severe stress, and for ultimately sharing in the decision that she should jump from the aircraft.
• This case is important because it demonstrates that coaches and instructors can breach the standard of care by having sailors participate in an activity that they are physically or mentally not yet prepared for.

Case Law – Myers v Peel County Board of Education

• The plaintiff in this case was a 15-year-old boy who broke his neck dismounting from the gymnastic rings. The coach was supervising a double gym class (due to another teacher’s absence) and he had allowed the plaintiff and some other students to practice in an adjoining room. The Court ruled that a physical education teacher must provide adequate supervision and protection, in keeping with that of a careful and prudent parent. In this case, the plaintiff was partially liable also, for having attempted a difficult dismount without the benefit of a spotter and in the absence of supervision.

Case Law – Hussack v Chilliwack School

• Hussack, a grade 7 student at Vedder Middle School, was hit in the face with a field hockey stick while playing in a scrimmage during a physical education class. He suffered a concussion which, overtime, developed into a more serious condition known as “somatoform” disorder. As a result, an action was brought against the school. The Court determined that the physical education teacher had breached the standard of care.
• Immediately before the accident, Hussack had missed 51.5 of 136 school days. The school arranged a meeting with Hussack to convince him to attend physical education classes. To entice Hussack to return to these classes, the teacher told him that they were finishing a field hockey segment and that he would enjoy the game. Hussack had played ice hockey, roller hockey, and floor hockey. The students were playing at a basic level and the teacher felt there was no need for Hussack to learn any progressive skills of the game.

Case Law – Hussack v Chilliwack School

• Prior to the start of the game, the students engaged in warm-up exercises and were reminded of the teacher’s 4 rules of the game which were:
1. Use the flat part of the stick and not the back part
2. Don’t use your feet to touch the ball
3. Don’t lift your stick above your knees
4. Don’t check from behind
• During the second game, a student had a break-away play. As she neared the goal she raised her stick to take the shot. Hussack ran behind her in an attempt to check her. On her backward swing, she hit Hussack in the face. He was diagnosed with a mild concussion and some soft tissue injuries.

Case Law – Hussack v Chilliwack School

• The Court looked to this 4 part test to determine if the standard of care owed by the teacher and school to Hussack had been breached:

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• Was the activity suitable to the age and mental and physical condition of the student?
• Was the student progressively trained and coached to do the activity properly and to avoid danger?
• Was the equipment adequate and suitably arranged?
• Was the performance properly supervised in regard to its inherently dangerous nature?

Case Law – Hussack v Chilliwack School

• The Court found that the teacher failed to meet the standard of care because he allowed Hussack to participate in the round played that day. Hussack had missed all of the classes where the skills and rules of the game were taught and should not have been allowed to play without this training. Hussack himself was not contributorily negligent because he had no previous field hockey experience and played in the round games because of the teacher’s invitation.

Case Law – Hussack v Chilliwack School

• Lessons learned:
1. Exercise must be suitable to the student’s age and condition (mental and physical)
2. Students must be progressively trained to do the exercise properly and to avoid danger
3. Equipment must be adequate and suitably arranged
4. Performance of the exercise must be properly supervised
5. If a student is injured, first aid must be administered
6. Consent of the student / parent must be obtained to administer first aid – usually done at the beginning of the school year
7. Parents should be informed of the injury as soon as possible
8. Have a risk management plan in place.

Steps to Protect Yourself– Instructors and Coaches

An instructor / coach can minimize the risk of negligence by:

• Provide competent and informed instruction in how to perform the activity in accordance with their sport’s policies and procedures;
• Assign drills and exercises that are suitable to the age, ability, fitness level or stage of advancement of the group;
• Progressively train and prepare the participants for the activity according to an acceptable standard of practice (CANSail);
• Clearly explain to the participants the risks involved in the activity;
• Group participants according to size, weight, skill or fitness to avoid potentially dangerous mismatching;
• Inquire about illness or injury and prohibit participation where necessary;
• In the event of a medical emergency, have an EAP and provide suitable first aid;
• Where possible, keep written records of attendance, screening, training, and teaching methods in order to provide evidence of efficient control.

Steps to Protect Yourself– Instructors and Coaches

• Ensure that you have paid your Sail Canada’s instructor registration fee and that all your prerequisites are up to date.
• When you pay your instructor dues each year, you are provided with insurance through Sail Canada’s policy with Gallagher Insurance. This insurance covers certified coaches and instructors against claims for third party bodily injury and / or property damage. It also covers the cost of any defence required, including your legal fees.
• While many claims will go through the Yacht Club’s insurance policy, you must remember that you can be PERSONALLY named in an action. You want to make sure you are protected. There is no way for you to know for sure that your club has the appropriate insurance and you need to make sure that you have your own coverage.
• Also, your club’s insurance may not cover race coaches, deeming them to be independent contractor. Once a claim goes to defence counsel, your club does not have control over whether or not you as an instructor have coverage. In fact, your club’s insurer may deem you to be an independent contractor and bring a Third Party Action against you. Having your own insurance through Sail Canada is the best way to make sure you have your own insurance coverage.

Case Law – Occupiers’ Liability

• Generally speaking, a person in control of land or premises has a duty to protect from harm all those who enter into the land or premises. This legal responsibility lies with those who control the premises, and not necessarily with those who own the premises. The duties of an occupier are set out in the Nova Scotia Occupiers’ Liability Act.

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• The Occupiers’ Liability Act imposes a duty upon occupiers’ of premises to take reasonable care that persons coming onto the premises will be reasonably safe in doing so. The degree of care required is what is reasonable “in all the circumstances of the case.” Thus, the level of care required on the part of an occupier varies with the nature of the premises, the activities on the premises, and to controlling the conduct of third parties on the premises.

Case Law – Occupiers’ Liability

• In Forsyth v Pender Harbour Golf Club Society, the plaintiff fell down a slope at the Pender Harbour Golf Club, after she “duffed” her ball a short distance from the ladies tee, which landed down a slope that was too steep to be machine groomed and was described as being part of the rough rather than part of the fairway. As the plaintiff travelled down the slope, pulling her golf cart behind her, she slipped and landed on her right ankle, which she broke, and she slid down the slope.
• The central issue at trial was whether the Pender Harbour Gold Club Society breached it statutory duty of care, to ensure that the plaintiff was reasonably safe in using the premises However, in dismissing the claim, the Court noted that the fact that the slope was obvious, and the fact that it was potentially slippery was also obvious as the area was surrounded by patches of rock, weeds, and a water hazard. Further, although the plaintiff had never traversed the slope before, she had played on the course on a least 20 occasions. Thus the Court concluded that the plaintiff “understood the obvious risks inherent in descending the slope, which was clearly steep and potentially slipperyterrain, and willingly assumed them.”

Case Law – Occupiers’ Liability

• Liability can result where injuries are caused by unsuitable features of the premises, defective surfaces, structures of equipment, by inadequate signs or lighting, or by operating equipment in dangerous conditions. At the same time, it is important to emphasize that occupiers are not obliged to ensure participants’ safety in all circumstances and there will be no liability where reasonable precautions could not have prevented the accident, where appropriate standards and procedures were observed, or where injury arose from risks inherent in the sport.
• Sailing programs are full of various hazards and dangers. From wet floors to chemicals used in boat work, there are a number of ways for occupiers’ liability claims to arise.

Standard of Care – Common Sense

• Intuition is a reflection of knowledge and experience, and trusting one’s intuition is often the best rule when something does not seem safe or right.

Steps to Protect Yourself – Facilities & Organizations

Sports organizations should consider the following to reduce the risk of injuries to participants, defend themselves against lawsuits, reduce insurance costs, and protect their coaches, instructors, officials, and volunteers:

• Design a system that results in sport facilities and equipment being regularly and thoroughly inspected
• Follow a policy that imposes minimum standards and qualifications on instructors, coaches, and other staff
• Obtain adequate insurance
• Develop a general safety plan to deal with foreseeable situations that could be dangerous or lead to liability
• Display easy to read signs or images to inform and warn participants and spectators of the risks associated with the activity
• Prepare and properly administer carefully drafted waivers and informed consent agreements
• Keep a written record of safety systems and specific steps taken to avoid injury and loss
• Inform coaches, staff, volunteers, and administrators of various ways by which liability can be incurred and train them never to admit liability or fault

Steps to Protect Yourself – Facilities & Organizations

• As we have seen, there is a very significant standard of care imposed upon a club’s coaches and instructors. And most of these coaches and instructors are between the ages of 16 and 18! Don’t leave it to your instructors to run the program alone.
• Your Sail Training Board and Director need to play an active role in ensuring that the policies and procedures that inform the standard of care are being followed at your sailing school. Do not leave it to the 16 year olds to determine whether they are adequately following the procedures!

What to Do When Served with an Action

• Any legal action or litigation is started with the Plaintiff filing a Notice of Action and Statement of Claim with the Court.
• Most negligence cases will be filed with the Supreme Court.
• Once the Notice of Action is filed, it must be personally served and an Affidavit of Service filed.
• In some circumstances, you may be expecting service of a Notice of Action, sometimes you may not. You can expect an individual to come to you, ask you to identify yourself, and then hand you the Notice of Action or Statement of Claim. You may have seen movies or TV shows depicting this stage where a process server serves legal documents.

WHAT TO DO WHEN SERVED WITH AN ACTION– WHAT A NOTICE OF ACTION LOOKS LIKE

IMPORTANT ITEMS TO NOTE

Deadline for filing a defence

• The most important step when served with a Notice of Action is making sure that a default order is not filed. A default order means that you did not defend the action at all or in time, and as such, you are deemed to have accepted the allegations against you in the Notice of Action and Statement of Claim.
• It is important that your insurer receives a copy of the Notice of Action immediately. Some policies may be void if not reported in time.
• Your insurance company can then contact Plaintiff’s counsel and request “an abeyance.” This term simply means that Palintiff’s counsel will not seek a default order against the Defendant after the 15 days have elapsed.
• Luckily, sailing programs in Nova Scotia have not had much experience with litigation. As such, the following are the best practices to avoid default judgment and obtain a defence from your insurer.

Steps once served with a Notice of Action

• Email plaintiff’s counsel (the Notice of Action indicates who that is and what firm they work at. You can then look up their email on the Nova Scotia Barrister’s Society’s website) and ask for an abeyance. While your insurer typically does this, by doing it immediately upon being served, you make it difficult for default judgement to be obtained. An example of what to write is:

“Good Afternoon [insert name],

I acknowledge service of the Notice of Action and Statement of Claim Hfx No. 111222. I am in the process of providing same to my insurer. I kindly ask that you provide an abeyance for the filing of a defence while I contact my insurer. Please take no further steps without first notifying us of your intention to do so.

Kindly confirm your agreement to the abeyance in reply to this email.”

Steps once served with a Notice of Action

• If you are an instructor, you then want to advise your club, Sail Nova Scotia, Sail Canada, and your Insurer.
• Plaintiff’s counsel will generally sue the coach, the club, and Sail Nova Scotia to be thorough and to have has many insurance pockets from which to get damages as possible. However, it is possible that not all of these organizations will be named in the Notice of Action. Regardless, you want to make sure that everyone is informed about the Notice of Action.
• Notifying your Insurer is the Most Important. To do this, you are suppose to notify Sail Canada, who are the policy holder of the Gallagher’s insurance policy, who in turn will notify Gallagher’s.

Steps once served with a Notice of Action

• While Sail Canada should notify Gallagher’s of the Notice of Action, it is best to notify Sail Canada and then call Gallagher’s (1-416-408-5457) and also advise them of the Notice of Action and that you have told Sail Canada. This ensures that Gallagher’s is notified in the event that Sail Canada has issues notifying them.
• If you are a sailing program / yacht club make sure you immediately inform your insurer as soon as you are served with the Notice of Action. You also want to inform Sail Nova Scotia as well.

Steps once served with a Notice of Action

• Once your insurer is informed of the Notice of Action, they will ask for you to provide them with a copy of the Notice of Action.
• Your insurance company will then deal with the Notice of Action. If needed, your insurance company will hire a lawyer to act as defence counsel in the litigation

What to Expect from the Litigation Process

• Once a Notice of Action is filed, there are only 2 ways for the litigation to end: either a settlement is reached or it goes to trial.
• Your insurance company pays for the defence, so it up to them to decide whether to settle the action or to proceed to trial.

What to Expect from the Litigation Process

• Once your insurance company receives the Notice of Action, they will hire a lawyer to defend the action on your behalf.
• The lawyer will likely reach out to you and introduce themselves. They will also ask you for any relevant documents relating to the claim. Documents that the lawyer is looking for will be: incident reports, crew lists, photographs, videos, emails, texts etc.
• The lawyer will then file a Notice of Defence on your behalf. The Notice of Action and Notice of Defence are called pleadings. Once the Notice of Defence is filed, the pleadings close and we move on to the next stage.
• The next stage involves disclosure and discovery. The lawyer will take the documents you provided them and the documents provided by the insurer and will create an Affidavit Disclosing Documents. The plaintiff will do the same with their client’s documents. These Affidavits Disclosing Documents are then exchanged so that both sides learn the facts of the matter.

What to Expect from the Litigation Process

• The next step is discovery examination. You may have seen discovery examinations in TV shows and movies.
• During a discovery examination you attend a conference room with your lawyer. There is a court reporter there to record the conversation. Plaintiff’s counsel will then ask you questions about the accident that is the subject of the Notice of Action.
• Your lawyer will meet with you beforehand to prepare you for your discovery and will be there throughout.

What to Expect from the Litigation Process

• After discovery examinations are complete, the lawyers typically have enough information to determine whether the matter can be settled, or whether it will proceed to trial.
• Settlement means that your insurance company will pay a negotiated sum in exchange for the plaintiff dismissing their action. This means that there will be no trial and the action just goes away. If settlement is reached, your lawyer will let you know and will provide you with a Consent Dismissal Order which is proof that the litigation has ended.
• If settlement cannot be reached, then the matter will proceed to trial. Your lawyer will advise you of this as you will need to begin to prepare to be a witness at trial.
• Litigation takes time. At best, litigation will take 2 years. With Covid-19, the Courts are now running even further behind. As such, it is possible for litigation to take more than 2 years to come to an end.

IF YOU HAVE ANY QUESTIONS PLEASE LET SAIL NOVA SCOTIA KNOW