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The Test for Misfeasance of Public Office: Case Comment: Capital Solar Power v OPA
November 12, 2019

In Capital Solar Power Corporation v The Ontario Power Authority, Howard Borlack of McCague Borlack LLP represented the Ontario Power Authority before Justice Toscano Reccamo of the Ontario Superior Court of Justice for a claim alleging the tort of misfeasance of public office.


Do priority provisions in s. 268 of the Ontario Insurance Act apply to an out-of-province insurer for an accident that took place in Ontario? Case Study: Coseco v. Liberty, 2019 ONSC 4918
by Van Krkachovski
October 01, 2019

Where an MVA occurs in Ontario, and there is an out-of-province insurer policy covering the claimant, and that insurer has signed the Power of Attorney and Undertaking (PAU), the insurer is bound by s. 268 of the Insurance Act in its entirety.


If you take the wheel, you take control: Case Study: McKay v. Park, 2019 ONCA 659
by Van Krkachovski
September 30, 2019

A front-seated passenger who unexpectedly grabbed the wheel of a vehicle, causing an accident, is considered to have operated the vehicle without the driver's consent. It was not foreseeable the passenger would grab the wheel, despite the fact that the driver and passenger were arguing and emotional.

The owner of the vehicle in such a situation is not vicariously liable under s. 192(2) of the Highway Traffic Act. Summary judgment in favour of a dismissal against the owner was upheld.


Who is an insured person? Case Study: Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656
by Van Krkachovski
September 27, 2019

The Court of Appeal determined that to be covered under s. 239 of the Insurance Act, an occupant's liability for loss or damage must arise from the use or operation of the vehicle. Mr. Hunt and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman, who was driving impaired. Ms. Dingman held an automobile insurance policy at the time with Peel Mutual Insurance Company.

Amelia's injuries arose from the impaired driver's use of the vehicle. However, Mr. Hunt's liability arises from negligent parenting, not from his actions as an occupant of the vehicle.


Cheech and Chong Get into a Car Accident Case Commentary: F. F. and Aviva Insurance Canada
by Christopher Macaulay
September 03, 2019

“Do my insurance benefits cover my medical marijuana costs?”

It’s a question that claimants are increasingly asking of their first-party healthcare insurers and one that is not always easily answered. 

On one hand, the use of cannabis as a legitimate treatment option has grown exponentially in recent years. On the other, the associated medical literature is in somewhat of a nascent stage, and it is not always clear whether marijuana will aid an injured party with their recovery (at least in any clinically verifiable sense).


A Landlord's duty to maintain a residential property
by Marla Kuperhause
August 23, 2019

As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.


Procedural Differences Between Civil Actions in British Columbia and Ontario
by Adam Grant
August 15, 2019

As we have developed greater and more rapid business relationships across greater distances, there has inevitably come with this trend a larger emphasis on cross-jurisdictional litigation. While Canadian common law is fairly uniform in its basic components, there are notable elements that have slight, yet potentially critical, differences. In this discussion, we will endeavour to identify some of the most important differences specifically between civil procedure in Ontario and British Columbia.

As a starting point, it is helpful to know that the BC Supreme Court Civil Rules are very similar to the Rules of Civil Procedure in Ontario, so the vast majority of matters in BC will proceed in a similar fashion to the way they do in Ontario.


What To Consider When Choosing An Expert: Maxrelco Inc. V. Lumipro Inc.
by Alex Robineau and Martin Smith
August 15, 2019

In its seminal decision of Westerhof v Gee Estate,1 the Court of Appeal for Ontario provided the general framework for the admissibility of expert evidence in Ontario. Specifically, it clarified the role of participant experts at trial and confirmed that compliance with Rule 53.03 of the Rules of Civil Procedure was not required for their evidence to be admissible, as opposed to the evidence of litigation experts. As the Court indicated, participant experts are witnesses, albeit ones with special skill, knowledge, training or expertise, who are not engaged by a party to form their opinions, and who do not form their opinions for the purpose of the litigation.


So You've Released a Defendant Municipality: Can you Still Have a Jury Trial?
by Van Krkachovski
August 15, 2019

Jury trials provide the opportunity for a group of people, selected at random from the community, to decide issues of fact or assess damages in a Superior Court action. An action can be tried with a jury if a jury notice is delivered by one of the parties before the close of pleadings, which is typically early on in the life of an action. After pleadings are closed, a jury notice can only be delivered with leave of the court.


The New (and Improved?) Rule 76 Simplified Procedure
by Michael Kennedy
August 15, 2019

Imagine the following scenario: A plaintiff sues to recover $150,000 in damages. The defendant refuses to pay anything and forces the plaintiff to trial. After a ten-day trial, the plaintiff is wholly successful and obtains $150,000 in damages, plus costs of $100,000 and disbursements of $50,000. The defendant who lost has to pay the plaintiff his/her damages and costs, as well as the defendant's legal costs of $100,000 and disbursements of $30,000. In other words, the cost of defending the plaintiff's claim cost the defendant $280,000 in costs and disbursements alone–a number nearly twice the amount of the plaintiff's damages. While costs are meant to discourage frivolous litigation, the costs should not be so disproportionate to the relief being claimed so as to lead to unfairness.


The Minor Injury Guideline
by Eric W.D. Boate
July 16, 2019
Under the Statutory Accident Benefit Schedule (“Schedule”), those injured in a motor vehicle accident are entitled to different levels of benefits according to the severity and classification of their impairments. These levels are broken down into one of three categories: minor impairments non-catastrophic impairments and catastrophic impairments. 
 
This paper is devoted to minor impairments, which are handled under the Minor Injury Guideline (MIG).1 
 
The MIG provides a framework for the treatment of insured persons involved in a motor vehicle accident who sustain “minor injuries.” 

Limitations Law in Accident Benefits Cases
by Michael Kennedy
July 16, 2019
A limitations defence is perhaps the most powerful defence in existence. Its application completely extinguishes a person’s claim, essentially on a technicality, regardless of whether such claim has merits.
 
The limitation period for accident benefits claims is defined in section 56 of the Statutory Accident Benefits Schedule. It states that arbitration in respect of a benefit “shall be commenced within two years after the insurer’s refusal to pay the amount claimed.” This limitation period was not changed in the 2010 or 2016 amendments and, therefore, should apply to all open claims...

Application For Accident Benefits Primer (OCF-1) Primer
by Catherine A. Korte and Mahroze Khan
July 16, 2019
Section 32 of the SABS indicates that an applicant shall submit a completed and signed Application for Accident Benefits (OCF-1) within 30 days of receiving the application package. However, Section 34 of the Schedule states that a person's failure to comply with the time limit does not disentitle the person to a benefit if the person has a reasonable explanation...

Loss Transfer - When Accident Benefits May Be Transferred to Another Insurer
by Matthew Dugas
July 16, 2019
In Ontario, Insurers are subject to a “Loss Transfer” regime. Loss Transfer applies when an accident involves specific types of vehicles. These are either a “heavy commercial vehicle”, motorcycles, motorized snow vehicles or an off-road vehicle.
 
When one of these vehicles is involved in an accident, the Loss Transfer regime may be applicable. In essence, in some specific situations, the entire Accident Benefits claim for an accident under the Statutory Accident Benefits Schedule, can be transferred from the injured person’s “first party insurer” to an insurer of an at-fault vehicle, often referred to as a “second party insurer”. 

AB from Sea to Sea: A Look at Accident Benefits across Canada
by Catherine A. Korte
June 25, 2019

The concept of accident benefits is well-known in almost every Canadian jurisdiction. This paper will focus on how the different systems operate, the benefits available, and practice tips that can be applied in cross-border cases. Comparisons between jurisdictions and unique facts about the different systems will also be discussed.