Is a defendant entitled to be indemnified by an insurer?

It is trite law to state that the question of whether or not a defendant is entitled to be indemnified by an insurer, in respect of any potential liability to a claimant, is totally irrelevant to determination of the defendant’s liability to that claimant. That, however, is substantially different from a proposition that it is error in law for a judge to acknowledge the existence of an insurer and make decisions respecting procedural matters, even ones having substantive impact, taking the fact of insurance into account where it is otherwise relevant to an issue between the parties. The strict rule that used to be applied was that set out in Bowhey v. Theakston, 1951 CanLII 6 (SCC), [1951] S.C.R. 679. The principle in that case would require automatic dismissal of a civil jury if anything occurred during the course of a trial from which the jury might reasonably infer that the defendant was insured. Even that rule, however, provided for the trial judge, upon dismissal of the jury, to hear from the parties on the issue of how to proceed, and then, in the trial judge’s discretion, decide whether to continue with the trial without a jury or to direct that the case proceed before another jury.