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Statute and Common Law: Reconciling PHIPA and the tort of Inclusion upon Seclusion
by Catherine A. Korte
February 25, 2015

On February 18, 2015, Justices Sharpe, van Rensburg and Pardu of the Court of Appeal for Ontario released their long-awaited privacy law decision in Hopkins v. Kay. Despite the fact that the Personal Health Information Protection Act ("PHIPA") is a "lengthy and detailed statute" that comprehensively addresses "the collection, use, disclosure, retention and disposal of personal health information", the Court affirmed that plaintiffs are still entitled to raise the common law tort for breaches of privacy in circumstances involving health information.

Class Actions Certified for Truckers' Overtime Pay: Baroch v. Canada Cartage, 2015 ONSC 40 (January 31, 2015)
by Rory Barnable
February 17, 2015

January 31, 2015 saw the release of a class action certification involving the transportation industry. Continuing the trend of class actions seeking unpaid overtime, the Ontario Superior Court of Justice certified a $100 million class action lawsuit for unpaid overtime against the defendant, Canada Cartage.

The statement of claim alleges Canada Cartage only paid overtime if the 60 hour threshold was exceeded, regardless of the type of employee, and that this policy was contrary to the regulations.

Case Study on Electronic Custodial Care: Shawnoo v. Certas Direct Insurance Co
by Michael Blinick and Eitan Kadouri
February 13, 2015

The plaintiff in this case had suffered a catastrophic brain injury as a result of a motor vehicle accident.

The parties disputed whether she had "incurred" expenses for attendant care services within the meaning of s.3(7)(e) and whether attendant care services can be provided indirectly by electronic means.

This decision will assist first party insurers in determining whether Applicants are entitled to attendant care.

Cyber Liability
by Catherine A. Korte and Laurie Murphy
February 09, 2015
With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:

Ontario Court of Appeal releases decision in expert evidence case
by Laurie Murphy
January 29, 2015

Today the Ontario Court of Appeal released its long-awaited decision inMoore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.

Bad Faith Claims and Bifurcation after Bhasin v. Hrynew: An Insurance Perspective
by Rory Barnable and Alyssa J. Caverson
January 21, 2015
With the recent Supreme Court of Canada decision in Bhasin v. Hrynew, a fair amount of commentary has been written about the emerging importance of good faith in contractual relationships. One should not consider this decision to represent a sudden judicial pronouncement concerning entirely novel duties owed amongst contractual parties; rather, the doctrine of good faith has existed for some time for certain categories of contracting parties and the courts have adopted a distinct method for uniquely assessing the duties imposed. This article reviews the recent Supreme Court of Canada decision under the lens of the pre-existing doctrine of bad faith as it exists between contracting parties in the insurance market.

Case law released concerning when policies must respond in actions involving rented or leased vehicles
January 13, 2015

Important case law has been released concerning when policies must respond in actions involving rented or leased vehicles. The question before Justice Firestone in Elias v. Koochek, 2014 ONSC 5003, was whether or not the policy of a renter would still rank in priority if the renter was a third party and not a defendant in the main action. 

Ever Escalating Claims - Updated: The Evolving Auto Insurance Product Stresses on the System
by Catherine A. Korte
October 31, 2014

The Final Report of the Ontario Automobile Insurance Anti-Fraud Task Force was released. This task force was appointed to advise the government of Ontario on the extent of automobile insurance fraud and what to do about it. Its findings were as follows:

Too big for its britches? Fitting Chronic Pain into the Minor Injury Guideline of Ontario's Accident Benefits Scheme
October 31, 2014
This article explores the interaction between chronic pain and the Minor Injury Guideline (“MIG”), which came into force in Ontario in 2010.

Seeing is Believing
by Michael Blinick
October 31, 2014

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. 

Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.

Establishing Causation in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.

Chronic Pain and Suffering: Non-Pecuniary General Damages Awards in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This article explores the recent trend of general damages awards in chronic pain cases in Ontario. It breaks down the groundbreaking case of Degennaro, which remains the high watermark in these cases. It then looks to the recent case law to contextualize Degennaro andestablish a framework for understanding how courts arrive at these awards.


Future Care Costs: Preparation and Mitigation
by Van Krkachovski
October 31, 2014

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus of this paper is on the changes that have occurred with respect to I. Future Care Costs, II. Guardianship and Management Fees; and III. Risk Premiums.

Eyes Wide Shut: The Best Defence is a Good Offence
by Catherine A. Korte
September 24, 2014

With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:

Cyber and Privacy Risks: Class Action Exposurers
by Howard Borlack and Laurie Murphy
September 24, 2014

Class action litigation arising out of cyber and privacy risks is increasing in Canada. The cases involve a broad range of privacy and cyber risks including lost portable electronic storage devices, uploads to an unsecure website, improper disposal of computer equipment, unauthorized access and dissemination by rogue employees, cybercrime and business practices. More breaches, increased breach notifications, widespread media reports and growing concern about privacy rights have all likely contributed to the increase in class action proceedings. In addition, the recent recognition of a new tort for invasion of privacy by the Ontario Court of Appeal in 2012 has resulted in certification of privacy class actions based on the new tort. This paper will discuss examples of Canadian cyber and privacy cases which have been certified as class actions, cases that have settled, and cases that have been recently commenced as proposed class actions.

Into the Breach: Effective Loss Control
by Jesse Bellam
September 24, 2014
Recent advances in technology have brought about a new age in which commercial enterprises have unprecedented access to the information of private individuals. The positive aspects of these advances are noteworthy; from one-click purchasing online, to targeted marketing and metric analysis, data collection has become an indispensable tool in 21st century commerce. However, enhanced efficiency and practicality come with their own set of costs, the most notable being the risk of data breach. Private entities entrusted with confidential information are becoming increasingly scrutinized, and one mishap with this valuable data can have devastating consequences, both for company and consumer.

The following paper will begin by summarizing the types of breaches and their effects. It will then consider legislative requirements for private organizations. Finally, the paper will provide a series of practical steps a company can take to mitigate losses a breach materialize.

Not Anonymous Anymore: Managing Privacy Concerns
by Matthew Dugas
September 24, 2014

A new risk has entered the marketplace. It is called cyber-risk, and it is responsible for the equivalent of millions of dollars in lost revenue, client loyalty, and goodwill. For the purposes of this paper, cyber risk relates to the mishandling of customer information (CI) throughout its acquisition, retention and destruction – what some business analysts refer to as the lifecycle of customer data. The privacy of CI has become paramount as companies continue to struggle with data management and the ensuing loss of consumer confidence.

As a corporate concept, risk is not new. Insurance companies are in the business of risk. It is what they do, and they manage it well. This paper discusses the management of cyber risk and, specifically, how to implement and execute an effective privacy management program (PMP).

Carriage and Control of the Action and Independent Settlement of the Subrogated Claim
by Hillel David
July 29, 2014

We believe that Farrell Estates Ltd. v Canadian Indemnity Co. and Zurich Insurance Co. v Ison T.H. Auto Sales Inc. were incorrectly decided.

At common law, an insurer’s right of subrogation did not arise until the insured had been fully indemnified for both insured and uninsured losses. One consequence was the subsidiary rule that the insurer had no right to control the action against the wrongdoer until that full indemnity had been achieved by the insured. That common law rule has, however, typically been altered by the terms of the insurance policy and by statute.  Continued... 

Mary Carter Agreements
by Michael Kennedy
June 16, 2014

Why would a settling defendant who has paid the plaintiff money ever want to remain in a lawsuit and incur the costs of going to trial? The fact that there are not many good answers to this question is the reason why Mary Carter agreements are rarely used except in high-exposure cases.

For practical purposes, the only two characteristics of a modern Mary Carter agreement are as follows:

Clearing the Path – The Availability of Summary Judgment
June 12, 2014

Summary judgment is a tool provided under the Rules of Civil Procedure (the “Rules”) that allow the court to, on a motion, make a judgment on an action without a full trial. It can be used to determine the entire action or to determine discrete issues within an action. The Rules, as they once were, specified that summary judgment was available where the court was satisfied that there was “no genuine issue for a trial”.

Rule 20 is the rule that governs summary judgment motions. The rule was added with the hopes that, in certain cases, it could serve to avoid expensive and lengthy litigation. It seemed that the bench was reluctant in exercising these broadened powers.

However, the Supreme Court of Canada, in its recent decision of Hryniak v. Mauldin , has fully endorsed the courts employing the full summary judgment rule...

Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37
June 11, 2014
In a recent Supreme Court of Canada (“SCC”) decision, Sable Offshore Energy Inc. v. Ameron International Corp. , the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.

Paying For The Future: An Analysis Of Large Awards For Future Care Costs
by Catherine A. Korte and David J. Olevson
June 10, 2014

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

The Dubious Status of Henson Trusts
by Desneiges Mitchell and Martin Smith
June 09, 2014

Once a settlement amount is agreed upon, there is often much additional work to be completed prior to closing a file. Structuring a settlement, while typically largely the responsibility of the plaintiff or prospective plaintiff, can often cause significant delay in the final resolution of a file.

In order to maximize the amount received through settlement, plaintiffs who are recipients of benefits through the Ontario Disability Support Program (“ODSP”) will often try to create what is known as a Henson trust, in order to try to avoid negatively affecting their eligibility for benefits. This paper explains the origins and applicability of Henson trusts in personal injury settlements.

The Legal Implications of Concussions in North American Contact Sports
by James Tomlinson and David J. Olevson
May 30, 2014

Sports have long been a part of everyday life for many people, both as spectators and participants. With modern advances in science the true inherent dangers of many of these sports are finally being examined, specifically with regard to concussions. Recent studies have revealed an alarming prevalence of concussions and other head injuries suffered by athletes in contact sports that are played all over the world, such as football, hockey, rugby and soccer. The results of these studies have brought much attention to the laws, rules, and regulations governing the conduct of athletes, coaches, trainers and other key personnel when a potential concussion has been experienced. Due to the possibility of serious and permanent injuries occurring on the field, diamond, rink or other, the potential for high value litigation is ever present.

Concussions and Return to Play Guidelines
by Mark P. MacDonald
May 29, 2014
For far too long, the “get back on the field” or “get back on the ice” mentality has dominated youth sports. Unfortunately, in Canada and the United States, popular sports like hockey, soccer, and football expose young participants to the risk of serious injuries like concussions. Between 2010 and 2011 children accounted for 38% of all Ontario residents visiting emergency rooms for concussions,and hockey accounts for almost half of all traumatic brain injuries among Canadian youth who participate in team sports. Medical investigation has determined that concussions are especially harmful in young athletes and often go undiagnosed because younger athletes may not be able to accurately describe their symptoms. This leads to scenarios where children do not receive enough time to recover and where they are pressured to return to play or to return to the classroom before their brains have recovered from injury.

Bill 171: The Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014
by Catherine A. Korte
May 06, 2014

In the decision of Vijeyekumar and State Farm Mutual Automobile Insurance Company (1999) O.J. No. 2178 (C.A.), the deceased died of asphyxiation caused by carbon monoxide poisoning. He was found in his car, the engine was running and the hose had been attached to the exhaust pipe which ran to the front console inside the car beside the deceased. The deceased’s wife and daughter sued the deceased’s automobile insurer for death benefits under his automobile insurance policy. The Court of Appeal determined the applicable test was:

Ever Escalating Claims: The Evolving Auto Insurance Product Stresses on the System
by Catherine A. Korte
May 06, 2014
For those of you who self insure, let’s say the first million. For those of you who own fleets. For those insurers of cars and trucks. For everyone with an automobile policy of insurance. The following is a discussion of the stresses on the auto insurance product in Ontario.

Identifying Insurance Fraud in Tort Claims
by James Tomlinson
May 06, 2014
“Fraud”, for the purposes of this paper, includes staged accidents, claims for accidents that have not occurred, falsified medical records, and false statements on applications or claims.

Insurance Coverage for Injuries Caused by At-Fault Uninsured, Inadequately Insured and Unidentified Motorists
May 06, 2014

An at-fault party may have no insurance or may be inadequately insured. Further, where an unidentified motorist is at-fault (as in the case of a hit-and-run) there may be no practical means of securing compensation for an injury as the at-fault party and his insurer may never be identified.

The system in Ontario has two mechanisms for dealing with such scenarios: 1. Uninsured / Unidentified Motorist coverage under s. 265 of the Insurance Act

Paying for the Future: An Analysis of Large Awards for Future Care Costs
by James Tomlinson
May 06, 2014

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan15 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

Protection for Settlement Negotiations
March 04, 2014

In a recent Supreme Court of Canada decision, Sable Offshore Energy Inc. v. Ameron International Corp. the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.

The Effect of a Settlement on a Subrogated Action
March 04, 2014

Is an insurer precluded from pursuing a subrogated action if the insured settles its uninsured loss with the third party and signs a general release? This question was answered by the Ontario court in Busgos v. Khamis, a decision of which subrogating insurers should be aware.

Perspectives on Privacy
by Howard Borlack
February 27, 2014

Is installing a telematics device in an insured's vehicle an unreasonable invasion of privacy? Two lawyers debate the issues...

Ontario Automobile Insurance Dispute Resolution System Review - Final Report
February 20, 2014

Catherine Korte, MB's Chair of Accident Benefits, has been making submissions on behalf of the Ontario Bar Association, Toronto Medico-Legal Society and various Insurers to Justice Cunningham regarding proposed changes to the Automobile Dispute Resolution Process in Ontario. Justice Cunningham’s final report has now been released.

Attached is the Ontario Automobile Insurance Dispute Resolution System final review of the Honourable Justice Cunningham.  His final recommendations include:

  • A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
  • Arbitrators should be appointed by order of council on the recommendation of the responsible minister.
  • Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
  • The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
  • The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
  • Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.

Click below to access the report.

Cost Effective Resolution of Low Value Claims
February 06, 2014

Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.

Ontario Privacy Laws for Lawyer: Hot Topics in Privacy Law - 1 of 5
February 03, 2014

Ontario does not have a single overarching privacy and access law. Rather, it is subject to several different pieces of legislation that apply depending on the nature of the organization involved and the type of information that is being collected, used, or disclosed. The principal privacy legislation of interest to lawyers in Ontario is PIPEDA.

Overview of PIPEDA: Hot Topic in Privacy Law - 2 of 5
February 02, 2014

This article describes key concepts of PIPEDA including the application of PIPEDA, what personal information is, the privacy priniciples of PIPEDA, privacy issues in the context of litigation, employee personal information, international issues and using foreign service providers.

Tort of intrusion upon seclusion (Jones v Tsige): Hot Topics in Privacy Law - 3 of 5
February 01, 2014

The facts of Jones v Tsige are fairly straightforward: the plaintiff and the defendant both worked for the Bank of Montreal, albeit at different branches. They also were, at one time or another, involved with the same man; the plaintiff had been married to him previously, while the defendant was common law married to him at the time of the incident. Despite these intersecting facts, the plaintiff and the defendant did not know each other personally.

The defendant, making use of her access as an employee of the bank, accessed the plaintiff's banking information some 174 times.

New Canada Anti-Spam Legislation (CASL): Hot Topics in Privacy Law - 4 of 5
January 31, 2014

Canada's Anti-Spam Legislation (“CASL”) will finally be coming into force on July 1, 2014. CASL has been law for over three years now, but there have been various amendments and changes made to it over that time period. Here we will take a brief look at the main rules and exceptions under CASL, but it ought to be said up-front that CASL is one of the most stringent and restrictive set of anti-spam laws enacted globally.

Business owners ought to take special note of the CASL requirements, as the consequences of infringement can be steep (up to $1 million in fines for individuals, and $10 million for corporations — and once the private right of action provisions come into force, each offending communication can be worth $200 to the recipient in damages).

Key privacy cases for consideration: Hot Topics in Privacy Law - 5 of 5
January 30, 2014

The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression. 

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, employees of the Palace Casino at West Edmonton Mall conducted a lawful strike in 2006 which lasted 305 days. The United Food and Commercial Workers, Local 401 representing the workers (the “Union”) and a security company hired by the employer video-taped and photographed the picketers at the Casino's entrance. The Union posted signs stating that images of persons crossing the picket line may be posted on “”. Several people who were filmed crossing the picket line complained to the Alberta Information and Privacy Commissioner (the “Commissioner”) under PIPA, alleging that the Union infringed their privacy rights by collecting, using and disclosing their personal information without their consent.

Alberta's Personal Information Protection Act Declared Unconstitutional
December 13, 2013

The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression.

Recent Ontario Court of Appeal Decision: All Defence Costs are not Created Equally
by Jennifer E. Kelly
December 13, 2013

In ACE INA Insurance v. Associated Electric, the Ontario Court of Appeal upheld an Ontario Superior Court of Justice decision which held that unless prescribed otherwise by statute, an excess insurer is only required to contribute to defence costs if it has a duty to defend or if such contribution is expressly stated in the policy.

The court looked at the doctrine of equitable contribution and its application to an excess policy which contained no duty to defend.

Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett
by Matthew Dugas
December 11, 2013
FSCO released the appeal decision in Belair Insurance Co. Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants.

Read why this appeal decision is nevertheless favourable to insurers.

Recent Court Decisions: Kruger Products Limited v. First Choice Logistics Inc. et al.
November 27, 2013

When a landlord assumes a contractual obligation to obtain insurance on a property, the landlord may be barred from pursuing a subrogated claim against the tenant for loss or damage caused by the tenant. This is not a new legal principle. In a trilogy of cases from the 1970s, the Supreme Court of Canada held that a landlord, by agreeing to obtain such insurance, assumes the risk of loss or damage to that property even if the tenant was negligent.

A Defence Lawyer's Guide to Investigating Modern Insurance Fraud
by Van Krkachovski
November 06, 2013

Due to the lack of significant institutional measures, it often falls to insurers and defence counsel to investigate instances of fraud on their own. While the bar is not overly familiar with confronting insurance fraud on a macro-level, defence lawyers can certainly identify trends and become experienced with insurance fraud through their work at the case level. This paper details cause for suspicion, response, and how to prove fraud.

Branco v American Home Assurance Company, 2013 SKQB 98
by Michael Blinick
October 11, 2013

This case makes it abundantly clear that insurance companies must treat their insureds fairly. It is a recognized principle of law that many contracts of insurance will be considered peace of mind contracts. If a contract of insurance is considered to be a peace of mind contract, then a plaintiff has the right to sue for damages related to mental distress. If an insurer unfairly denies benefits, unduly lengthens the claim process or causes an insured distress unjustly, this may trigger a significant aggravated damage award. Further, numerous delays and unjustified denial of benefits, could also lead a court to conclude that an insurer has breached their duty of good faith and fair dealing with their insured. If a court finds this to be the case, punitive damages may be awarded on top of the damages for mental distress. Read details...

First FSCO Decision on the Minor Injury Guideline
by Matthew Dugas
October 09, 2013

A recent FSCO decision has found that a claimant is not precluded from claiming housekeeping, attendant care as well as medical and rehabilitation expenses beyond the $3,500 limit within the Minor Injury Guideline. In Lenworth Scarlett and Belair Insurance Company Inc. (FSCO A12-001079), Mr. Scarlett was a passenger in a vehicle involved in a motor vehicle accident and applied for statutory accident benefits. His disability certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine as well as headaches and acute stress reaction.... Arbitrator John Wilson notes...

Unraveling the Mystery of Priority Disputes
October 07, 2013

Since 1995, and the enactment of Ontario Regulation 283/95—Disputes Between Insurers (the “Regulation”), insurers have been obliged to continue payment of Statutory Accident Benefits (SABs) to injured persons even where entitlement to these benefits is disputed. However, priority disputes also present insurers with an opportunity to shift payment of SABs, which may end up saving a savvy insurer a significant amount of money...

The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law
by Martin Smith and Desneiges Mitchell
September 13, 2013

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.

Executive Officers are Employees: The "Gap" Between Workers' Compensation and General Liability Policies
September 12, 2013

Insurance brokers must be cautious when dealing with corporations that opt their executive officers out of Ontario's workers' compensation scheme. A failure to appreciate the relationship between statutory and private coverage risks inadvertent exposure to significant liability.

Unfortunately for one insurance brokerage, this is exactly what happened in the recent Ontario Court of Appeal decision of Sam's Auto Wrecking Co Ltd (Wentworth Metal) v Lombard General Insurance Company of Canada. The unforeseen gap between workers' compensation coverage and general liability insurance coverage ended up costing Dalton Timmis Insurance Group ("Dalton Timmis") hundreds of thousands of dollars.

Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors
by James Tomlinson and Jesse Bellam
September 11, 2013

Unintentional injuries are the leading cause of death among Canadian minors. Between 1990 and 2007, over 1.6 million children and youth received emergency room treatment for unintentional injuries at hospitals across Canada. Sports and other recreational activities are common precipitating events of serious injury among minors. The ramifications of these injuries to a child can be profound, particularly in cases involving even “mild” trauma to the brain. In the context of litigation, the costs associated with the loss of future earnings and future care can be significant, with damages in some cases being assessed in the millions.

While the spectre of eight figure exposure may seem daunting enough, several factors conspire to make cases involving injuries to minors particularly difficult to navigate from the defence perspective. With this in mind, the following paper will address common legal and strategic elements to be considered when attempting to settle cases involving injuries to minors.

The Unpredictability of Children and Sporting Goods: Product Liability and the Child Plaintiff
by Robert McGlashan and Alyssa J. Caverson
September 11, 2013

Product liability claims by minor plaintiffs with respect to injuries sustained while using sports equipment are very prevalent. These claims can range from sports equipment malfunctioning to equipment failing to perform as expected.

This paper will first discuss to whom the manufacturer owes a duty of care, and what a plaintiff must establish to demonstrate that the defendant owed them a duty of care. The paper will then discuss to what standard of care the defendant will be held, and what evidence a plaintiff must lead to show that the defendant fell below the standard. This paper will discuss the difference between child and adult plaintiffs, and the standard of reasonableness the child plaintiff is held to. This paper will also discuss recent cases involving child plaintiffs and product liability and their trends and implications for manufacturers. Finally, the paper will detail available defences, as well as risk management strategies for manufacturers.

Kids May Be Kids, but Adults Oversee: The Liability of Adult Supervisors for Child Injuries
by James Tomlinson and Robert McGlashan
September 11, 2013

The general test for determining whether one person has acted negligently towards another in Canada is contained in the dual concepts of duty of care and standard of care – that is, the hurt party has to show that the party they think is responsible for their harm was under a legal obligation to protect them from or prevent that harm. The Supreme Court of Canada recently looked at the different categories of duty of care in its decision Childs v Desormeaux. The language the court used to describe duty of care is as follows: “A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.”1 Once that link has been established, the standard of care kicks in, dictating how much the individual is required to step in and prevent an injury from occurring.

Where does this leave adult supervisors when the children they are overseeing hurt themselves? This paper will focus on the liability different types of supervisors – teachers, coaches, referees, even parents – may face when supervising children, and how they can effectively protect themselves and the children they are caring for from liability and harm.

Mother May I? The Effectiveness of Waivers and Permission Forms in Cases of Injured Minor Plaintiffs
by James Tomlinson and David J. Olevson
September 11, 2013

The emphasis on holistic learning has led to an increase in field trips and physical activities that are both further from students’ schools and are inherently more dangerous than traditional school activities. This has greatly increased the potential for student accidents and injuries. Many schools attempt to shield themselves from liability by forcing students, and students’ parents, to sign permission forms and/or waivers of liability. However, the content of these forms, and the difference in their purposes, has a tremendous impact on whether or not the Courts will accept these documents as a barrier to potential liability.

Expecting the Unexpected: Occupiers’ Liability and Minor Plaintiffs
by James Tomlinson and Robert McGlashan
September 11, 2013

Exposure for occupiers’ liability is not a novel topic of discussion in the world of tort and insurance law. However, the application of occupiers’ liability to minor plaintiffs is an area of law that has been evolving in recent years. The most dynamic change has been that Courts are more readily finding that occupiers whose premises are geared towards children should expect minors who enter their property to be, to a certain extent, reckless and unpredictable by virtue of their youth and inexperience, and accordingly, ensure their premises are that much safer.

Appropriate Limitation Periods Clarified for All-Risk Business Insurance Policy
August 02, 2013

In Boyce v. Co-Operators General Insurance, 2013 ONCA 298, the Boyces owned and operated a women's fashion boutique. One day, Ms. Boyce entered the boutique to discover a foul odour, and contacted the boutique's insurer the Co-Operators to report the claim. The business was closed for a time because substantial clean-up costs were incurred and a great deal of inventory could not be salvaged. Co-Operators took the position that the smell was caused by a skunk and that the damage was not covered by the policy. The Boyces claimed the business had been vandalized, a peril covered by the policy.

The Boyces issued a Statement of Claim against Co-Operators more than one year after they discovered the foul odour, but less than two years after the incident. Co-Operators moved for summary judgment claiming that the action was time-barred by a one-year limitation period. The judge dismissed Co-Operators' motion. Co-Operators' appealed the decision to the Ontario Court of Appeal.

When it comes to the calculation of the attendant care benefits payable, the Form 1 remains king
July 19, 2013

In the recent decision of the Court of Appeal in Henry v. Gore Mutual Insurance Company, the Court upheld a decision of the lower Court that the amount “incurred” for attendant care benefits is not limited to the amount of the “economic loss” sustained by the caregiver. 

When Does 'Complete' mean 'Less than Everything'?
May 10, 2013
In the recent FSCO arbitration decision Hensworth v. State Farm (March 18, 2013) Arbitrator Joyce Miller awards post-104 week IRBs to a woman who returned to work and earned post-accident income comparable with her pre-accident income.

The impact of social media on hiring and firing decisions
by Sabrina Lucibello
April 09, 2013

The rise of social media has dramatically changed the way in which information is acquired and used in the workplace. Social media includes forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. This includes Facebook, blogs, LinkedIn, and Twitter. These sites can be used to develop social and professional contacts, among other things.

While users of social media can adjust the privacy settings for their profiles on social media sites like Facebook so that only certain other users can access the content, this does not mean that the content is necessarily 'private'. In fact, the courts have noted that Facebook users enjoy a relatively low expectation of privacy when they post material on the site. 

Anti-Spam Law Update: 10 million reasons not to ignore it
April 09, 2013

New Anti-Spam Legislation will likely come into force by the end of 2013. Canadian businesses should become familiar with this law and the impact it will have on the conduct of their employees, who act as agents of their organization. Read up on what the law will prohibit, maximum fines, and what it means for your business.

Privacy and Employer-Issued Computers in the Workplace: A Review of R v Cole (2012 SCC 53)
April 09, 2013

The Supreme Court of Canada (“SCC”) recently considered the extent to which employees have a reasonable expectation of privacy over personal files kept on employer-issued laptops. What is a reasonable expectation of privacy and what are the implications for private employers?

Five Years Later: The Application of the Human Rights Code Today
by Martin Smith and Desneiges Mitchell
April 09, 2013

On June 30, 2008, the Human Rights Code Amendment Act, 2006 came into full force in the Province of Ontario. The amended Human Rights Code (the “Code”) sought to address numerous shortcomings of the prior human rights enforcement system.

Over the course of the last five years, there have been some successes, particularly with respect to efficiency. For cases that proceed to a full hearing on the merits, it now takes, on average, 16.5 months from the initial application filing date to get to the first hearing date. Prior to the amendments, it took, on average 47.6 months to get to a Tribunal hearing. Also, in 2011-2012, for the first time, the Tribunal was able to close more cases than it opened. This trend has continued in early 2012-2013.

While the new Code strived to create a more efficient and effective forum in which to deal with discrimination complaints, it has created new challenges for respondents, the vast majority of which are employers, including the following...

Current Trends and Hazards in the Ontario Human Rights Tribunal
April 09, 2013

In a recent Human Rights Tribunal decision, the Applicant, Timothy Pritchard, filed an Application under the Human Rights Code alleging discrimination with respect to employment on the basis of disability.

The Applicant was employed as Director of Professional Services with the Commissionaires. After the Applicant advised his employer that he would be having hip replacement surgery and would subsequently require 8 to 12 weeks off of work for recovery, approximately one month later and four days prior to his scheduled surgery, the Applicant was advised that his employment was terminated. The Applicant believed “the respondents did not want to pay him during his sick time and terminated his employment as a cost saving measure”...  

There is no automatic duty of care between a diocese and students harmed by priests
by Michael Kennedy
March 22, 2013

On March 8, 2013, the Ontario Court of Appeal in the case of Cavanaugh v. Grenville Christian College (2013 ONCA 139) ruled that students, who had allegedly suffered various forms of abuse at a private Anglican school at the hands of its headmasters, had no cause of action against the Anglican Diocese. Writing for the court, Justice Doherty held that the Diocese owed the students no duty of care. 

Product Liability Claims against Ski Hill Operators: Defective Equipment or Participant Error?
by Sabrina Lucibello and Alyssa J. Caverson
March 20, 2013

In Canada, outdoor winter sports, such as skiing, are popular pastimes. However, speeding down snow and ice-covered ski hills presents considerable risk to participants of these sports, and thus, accidents result. Generally speaking, these accidents arise out of recognized risks inherent to the activities, and the injured party is deemed, by their participation, to have voluntarily undertaken such risks. Regardless, operators of sports events or facilities, such as operators of ski hills, are required to properly administer their events or venues according to industry standards. They also owe a duty of care to their skiers, snowboarders, tubers, and other users of their facilities and rental equipment.

Caution! This pool is unsupervised! Resort liability of unsupervised facilities
by James Tomlinson
March 20, 2013

Swimming pools and gym facilities are a very attractive feature of recreational resorts and hotels. The ‘resort gym’ may be appealing to those seeking to maintain a fitness regimen while travelling and vacationing, particularly to those patrons who might be drawn to recreational resorts and are keen on maintaining an active lifestyle. In the context of ski resorts, specifically, a quick dip in the pool or a lengthy soak in a warm spa are often welcome après-ski. However, the unique nature of recreational resorts raises a number of inherent liability risks for recreational resort owners.

Risky Business: Managing the potential liability of high risk sports facilities: Waivers & Vicarious Liability

The inherent risks of active sports and recreational activities give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of sports resorts, camps, and other recreational facilities. Sports facilities have adapted tools, such as signed releases and waivers, and more recently, ski resorts have printed limitations provisions on lift tickets, in order to further reduce their exposure to liability, particularly deriving from the acts of staff. 

Sometimes a Swimming Pool is just a Swimming Pool
by David Elmaleh
March 01, 2013

On February 7, 2013, the Court of Appeal for Ontario released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75. This case involved the unfortunate death of a guest while swimming in an unattended indoor pool at Blue Mountain Resorts on Christmas Eve, 2007.

The primary issue on appeal was whether Blue Mountain was required to report the death to the Ministry of Labour on the basis that it was a "death or critical injury incurred by a person at a workplace".

Hot Pursuit
by Hillel David
January 31, 2013

Ontario's appeal court was recently the latest stop for two subrogation claims that began their years-long journeys in Small Claims Court to obtain direction regarding who is responsible for damages caused by leaking hot water tanks - the homeowner (or his property insurer) or the company supplying the tank.

The rulings establish that consumers who lease or rent products will generally receive the protection afforded by the CPA throughout the terms of the leases. The ramifications for the insurance industry are very significant given that insurers pay millions of dollars in claims each year as a result of damages caused by such products.

Lessees may recover under a lessor's insurance policy
December 28, 2012

The Ontario Court of Appeal recently held in Siena-Foods Limited v. Old Republic Insurance, 2012 ONCA 583, that a lessor's automobile insurance policy may provide coverage for damage to a lessee's property. 

Siena-foods Limited (“Siena”) rented a truck from Ryder Canada (“Ryder”) to transport a food-packaging machine. The truck was involved in a head-on collision and the food-packaging machine was damaged. Siena sought compensation from Ryder's insurer, Old Republic, for recovery for the damaged machine.

Dismissal with just cause is assessed through contextual approach
December 13, 2012

The Court of Appeal for Ontario upheld a trial judge's finding of dismissal with just cause, concluding that the decision was based on a contextual approach that analyzed the entire factual record. The decision warns employees to be mindful of their language when criticizing their employers among other things. Read the full case... 

An introduction to cargo theft
December 03, 2012

Cargo theft: not a victimless crime. Cargo theft has become a widespread and major challenge for transportation industries in many countries around the world, including Canada. Cargo theft has its roots in a $65 billion Canadian industry—trucking is responsible for transporting 90% of all consumer products and foodstuffs as well as 75% of the goods traded with the USA. The trucking industry also employs hundreds of thousands of people. 

Two deductibles applied when there are two accidents
November 15, 2012

In Martin v. Fleming 2012 ONCA 750, the Ontario Court of Appeal affirmed the decision of the Ontario Superior Court, to stack deductibles, where there are multiple accidents when there is a global assessment of damages.  

Implications of the New Ontario Not-for-profit Corporations Act, 2010
by Alyssa J. Caverson
October 24, 2012

Instead of amending the Ontario Corporations Act  (OCA) to address antiquated flaws dealing with not-for-profit corporations, the Ontario Legislature opted to start fresh with a new statute, removing not-for-profit corporations from the jurisdiction of the OCA. On January 1, 2013, the Ontario Not-for-profit Corporations Act, 2010 (the “ONCA”) comes into force. The ONCA's main objective is to allow not-for-profit corporations to operate within a simpler, more logical operational structure.  This legislative change will affect 16% of all employees in Ontario.  Once the ONCA comes into force next January, the new legislation will give effect to these principles in six key ways. Read about this and which organizations will be affected. 

Part II: Litigating Oil Leak Claims: Trucking and Marine Accidents: Oils Spills and Liability for Environmental Remediation
by Van Krkachovski
October 03, 2012

When an accident occurs, the typical liability issues arise. Upon receipt of a claim, insurers are prompted to consider a number of important questions. Such questions include whether the accident was a result of the action or inaction of the driver; what if anything could have been done to avoid the accident or mitigate the consequences; what kinds of contributing factors may have been at play (such as the road or weather conditions), among other considerations.

When an accident involving a transport truck or marine vessel occurs, there are also often cargo and fuel considerations and more specifically, environmental considerations relating to fuel and cargo spills. It is this very issue that some insurers have been failing to turn their minds to; more specifically, the environmental liability aspects of accidents that result in fuel or oil spills, both from trucks and ships.

This paper endeavours to elucidate some of the relevant statutes to consider when such an accident occurs and shed light on the appropriate steps an insurer ought to take upon receiving such claims.

FSCO orders insurer to fund medicinal marijuana purchase
by Michael Kennedy
October 01, 2012

A recent FSCO decision has found marijuana to be payable by accident benefits insurers in certain circumstances. In T.N.and Personal Insurance Company of Canada (FSCO A06–000399), a catastrophically impaired claimant sought, among other benefits, entitlement to the purchase of medical marijuana. While the claimant had used marijuana in the past, her use (which was approved by Health Canada) had increased since the accident. The insurer unsuccessfully argued that the claimant's marijuana treatment was experimental and therefore not payable. Find out why...

A "catastrophic impairment" requires only one (out of four) functions at the marked impairment (class 4) level
by Michael Kennedy
September 30, 2012

It is now easier for injured claimants with psychological impairments to qualify as “catastrophically impaired” and consequently be entitled to enhanced statutory accident benefits. The Court of Appeal inPastore v. Aviva Canada Inc., 2012 ONCA 642, has held that a “catastrophic impairment” requires only one (out of four) functions at the marked impairment (class 4) level.

As accident benefits insurers are aware, paragraph (g) of subsection 2(1.1) of the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996 defines “catastrophic impairment” to include the following...

Occupiers' Liability and Sports Fans: Legal Implications and Risk Management Strategies for Sports and Entertainment Facility Operators
by James Tomlinson and Adrian Nicolini
September 26, 2012

Fans attend sporting events every day across Canada and throughout the world. Many fans are there to cheer on their favourite teams, witness a historical game between long-standing rivals, and simply enjoy the traditions associated with attending such an event. These games may attract large crowds and stir emotions, particularly as there is a culture of alcohol often associated with professional sports. While one may reasonably expect to witness a player hurt themselves on the field or on the ice, spectators do not often expect that they themselves will be injured.

This paper examines a range of situations in which liability may attach to sports and entertainment facility owners and operators when spectators are injured during sporting events, as well as how such liability may be avoided. Attention is given to the courts’ interpretation of the legislative provisions in Ontario’s Occupiers’ Liability Act. This area of law serves as an abundant source of Canadian sports law jurisprudence. The discussion proceeds with an outline of categories of available defences to spectator claims, followed by an examination of select issues of significance to Canadian sports facility owners and operators. Finally, new frontiers in spectator liability are explored, as well as risk management strategies for avoiding spectator claims.

Szilvasy v Reliance Home Comfort
by Hillel David
September 24, 2012

On December 7, 2011 the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks.  In each case the hot water tank, located in the basement of the homeowner, developed a leak which resulted in damage to the home and contents.  Leave to appeal to the Court of Appeal has been granted in both cases.  The date for the hearing of those appeals has not yet been set.

The major issue in these cases is the question whether the condition of fitness for intended purpose that is implied in the lease of a product that is subject to the Consumer Protection Act will apply not only at the outset of the lease, but throughout the term of the lease.

Coverage Issues in the Manufacturing/Distribution Chain
by Rory Barnable
September 24, 2012

The purpose of this paper is to outline some coverage concerns that can arise in the manufacturing and distribution chain. These issues of coverage apply equally to those parties seeking to obtain cover from another or seeking to avoid a coverage obligation being imposed upon it. This general discussion of coverage issues applies within the context of vendors, distributors and manufacturers1facing a claim by a plaintiff, or many plaintiffs, arising from harm incurred through the use of a product.

The following discusses the notion of risk transfer in this distribution chain, the underlying rationale of vendors in seeking to transfer risk, and the possible considerations applicable to affixing liability along the distribution chain.

Distributors' Liability in Canada for Defective Products
by Alyssa J. Caverson
September 24, 2012

In today's expanding global marketplace, product liability claims are common. Typically, these claims involve a chain of defendants of whose hands the product has passed through. Liability stemming from negligence can occur at any stage of the process, from design, to manufacturing, to consumption. Thus, anyone involved in the process of creating a product can find themselves held liable when the product is defective and/or if the product injures a plaintiff.

The distributors of products typically have no involvement in the manufacturing of the products that they distribute and put into circulation.3 However, a distributor's negligence could contribute to or cause a plaintiff's injury. As a result, distributors are not held strictly liable for every defective product that they distribute. The distributor's liability will depend on...

Muskoka Fuels v. Hassan Steel Fabricators Limited: Application of the Sale of Goods Act to Manufacturing Defects
September 24, 2012

The case of Muskoka Fuels v. Hassan Steel Fabricators Limited raises some interesting questions regarding the application of the Sale of Goods Act to claims involving manufacturing defects. In particular, Muskoka Fuels, which involved the environmental contamination of land due to the failure of a diesel fuel tank, raises questions regarding the extent to which the cause of a defect must be proven in order for liability under the Sale of Goods Act to be established.

At trial, Justice Healey came to the following conclusions based on the evidence...

Gordyukova v. Certas Direct Insurance Company, 2012 ONCA 563
September 13, 2012

On August 30, 2012, the Ontario Court of Appeal released the long awaited decision of Gordyukova v. Certas Direct Insurance Company.

In 2001, the claimant, Gordyukova, was involved in a MVA. She sought statutory accident benefits from her insurer. After an unsuccessful FSCO mediation regarding her entitlement to medical benefits, she issued a Statement of Claim in 2002 seeking damages and a declaration that she was entitled to continued accident benefits.

At issue in the case is the interpretation of the limitation period set out in section 281.1(1) of the Insurance Act, which provides that an arbitration or court action must be commenced within two years.  Read full article...

UPDATE: Liability Waivers

The British Columbia Court of Appeal recently released a decision on the case "Loychuk v Cougar Mountain Adventures" which has significant implications for the law regarding the enforceability of liability waivers. 

At the trial level, the plaintiffs sought damages for personal injuries sustained in a zip-lining accident. The tour involved strapping a person into a harness, which would then be sent down a line, reaching speeds of up to 100 km an hour over a distance, on some lines, greater than 1,500 feet. 

This article reviews many aspects of the case including the two elements that must be established before a contract can be set aside on the grounds of unconscionability; and a three stage analysis which must be applied in order to determine whether a signed release of liability is valid.

Fixed term employees no longer have a duty to mitigate their damages - Bowes v. Goss 2012 (ONCA)
August 15, 2012

It is well established that employees who are subject to indefinite term contracts are required to mitigate their damages by searching for alternate employment upon termination of their employment contract. However, in Bowes v. Goss (cite), a recent Ontario Court of Appeal decision, the court ruled that employees subject to a fixed term contract will not be subject to the same requirement, even where the employment contract between the parties is silent on the duty to mitigate...

Carriage and Control of Litigation in Subrogated Actions
by Alyssa J. Caverson
August 14, 2012

The Ontario Court of Appeal's recent decision in Zurich Insurance Company Ltd. et al. v. Ison T.H. Auto Sales Inc. sets out important principles on the issue of who has the right of carriage and control of litigation in circumstances where there is a combined subrogated and uninsured claim.

Demers v. Monty, 2012 ONCA 384
July 03, 2012

The plaintiff, injured in a car accident, sued the at-fault motorist for damages including, inter alia, loss of income and loss of earning capacity. At the date of loss, the plaintiff was employed and she continued her pre-accident employment for several years after the accident, but ultimately ceased working “due to disability”. She applied for and received disability benefits through the Canada Pension Plan (CPP) and Hospitals of Ontario Pension Plan (HOOP).

A motion was brought to determine if the CPP and HOOP disability benefits would be deductible from any award for loss of income or loss of earning capacity and if the deduction should be gross or net of income tax.

FSCO Counsel Meeting May 25th: Current Issues
June 14, 2012

At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.

Some of the issues discussed during the meeting held on May 25, 2012, included: a discussion on the Parveen v. Aviva decision, Notifying FSCO when files settle, Consent failures, and Outsourcing mandatory mediations.

UPDATE: Downer v. Personal Insurance
by Michael Kennedy
May 10, 2012

Justice Murray of the Ontario Superior Court of Justice held on August 23, 2011 that an assault during an attempted car-jacking qualified as an accident pursuant to the Statutory Accident Benefits Schedule. A synopsis of this decision and its implications for the insurance industry was reported in the October 2011 edition of McCague Borlack's Transportation Newsletter.

The Personal Insurance Company appealed Justice Murray's ruling and, on May 9, 2012, the Ontario Court of Appeal overturned Justice Murray's decision, in part.

Recent Decision: Case Summary: Aweys and Intact Insurance
April 15, 2012

Arbitrator Richard Feldman released the decision in Aweys and Intact Insurance on March 19, 2012.

Four Insurance companies brought a motion for a stay of proceedings in 15 arbitration cases pending at the Financial Services Commission of Ontario (FSCO). The motions were heard together.
The cases all involved claims for statutory accident benefits submitted by or on behalf of insured persons from three rehabilitation facilities.
The Insurers take the position that the Facilities are related to each other and that many of the claims submitted were of dubious merit, that the Facilities engaged in conduct that was deliberately intended to unjustly enrich the Facilities, and in some instances, allegations of misrepresentation to the Insurers.

FSCO Counsel Meeting Summary: How to address the mediation backlog
April 09, 2012

At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.  At the meeting held on March 30, 2012, the main topic was How to address the mediation backlog.

While the volume of Applications for Mediation being filed and the limited number of FSCO mediators available to handle them are the primary source of the problem, this article will address three factors that are exacerbating the problem.

A Challenge to Anonymity for Donor Offspring
March 31, 2012

The British Columbia Adoption Act1 and Adoption Regulation2 provide adopted children with access to medical and social information about their biological parents. But the same legislation and its associated regulations fail to include children conceived through sperm or egg donors, keeping them from accessing this information.

In a groundbreaking ruling, the Court ruled that certain provisions within this legislation discriminate against donor offspring vis-à-vis adopted children, even though both groups have similar needs for information about biological parents...

Concussions and Injuries in Canadian and American Contact Sports: A Legal Perspective
by Adrian Nicolini and James Tomlinson
March 28, 2012

The prevalence of concussions and other head injuries suffered by athletes in contact sports, such as football, hockey and soccer, has garnered significant attention in Canada and the United States of America (USA). An athlete’s decision to return to play following an injury typically involves multiple parties, such as the coach, team, sports organization or school board, thus, exposing these parties to potential legal liability.

Therefore the question that emerges is which of these parties, or a combination thereof, bears the legal responsibility for the injuries suffered by these athletes?

Product Liability Claims in Sports: The Decision in More v. Bauer Nike Hockey Inc.
by Sabrina Lucibello
March 28, 2012

In Canada, all amateur hockey players playing organized hockey are required to wear a Canadian Standards Association (CSA) approved helmet. Indeed, while CSA approved helmets are required, any helmet lacking CSA approval is a prohibited product under the Hazardous Products Act and is not permitted to be sold in Canada. Given the popularity of ice hockey in Canada and the risk of serious injuries, such as concussions, while playing hockey, it is not surprising that manufacturers of ice hockey helmets are open to potential liability in negligence for the design and manufacture of their products.

"Bad faith" is not a claim governed by the insurance contract
by Michael Kennedy
March 25, 2012

The Ontario Court of Appeal released a decision on March 22, 2012, that deals with an insurer's alleged failure to settle a third party claim in a timely manner. The court decided that this claim for "bad faith" is not a breach of contract, but rather a breach of the independent duty to act in the utmost good faith.

Dundas v. Zurich Canada (2012 ONCA 181) involved a motor vehicle accident in which plaintiffs sued an at-fault motorist for an amount in excess of the insured's policy limits. Read why this case is important to the insurers...

Apportioning Liability in Single-Vehicle Accidents: The Clash between Contributory Negligence, the Driver’s Liability, and a Municipality’s Duty of Care
by David Elmaleh
March 01, 2012

When single-vehicle accidents lead to a fatality, apportioning liability is often a daunting task for courts to undertake. In Morsi v. Fermar Paving Ltd., the Ontario Court of Appeal overturned a trial judge’s decision. This case is significant for the insurance industry as it reaffirms the duties owed by municipalites and outlines the test that courts take when apportioning liability in a single-vehicle accident.

Accessibility for Ontarians with Disabilities Act: How to Comply with the Customer Services Standard
February 29, 2012

The Accessibility for Ontarians with Disabilities Act (AODA) came into force in 2005 with the goal of making Ontario completely accessible for persons with disabilities by January 2025. The AODA mandates the creation of standard development committees in five general areas: Customer Service, Transportation, Employment, Information and Communication and Built Environment.

To date, only the Customer Service Standard has been enacted, with the Accessibility Standards for Customer Service Regulation (CSS) coming into force on January 1, 2008. The CSS sets out the requirements for ensuring that providers of goods and services in Ontario have policies in place that accommodate the needs of customers with disabilities.

Starting on January 1, 2012, almost all businesses operating in Ontario will be required to comply with the CSS. The CSS applies to: 

Recent Decisions: Mediations not occuring within '60 days' deemed to have failed
February 24, 2012

Two recent decisions, one of the Ontario Superior Court, the other an arbitral decision of the Financial Services Commission, have interpreted the “60 day” mediation provisions at section 19 of the Dispute Resolution Practice Code as mandatory. Where mediation does not occur within 60 days, the mediation is deemed to have failed, and the insured person may pursue arbitration or litigation. Read full article including the case summaries...

Case Study - Kusnierz v. Economical - Decision from the Court of Appeal
by Michael Blinick
January 06, 2012

On December 23, 2011, the Ontario Court of Appeal released its decision in Kusnierz v. Economical, 2011 ONCA 823 dealing with the issue of whether a trier of fact is to combine physical and psychological impairment when determining whether a person is “catastrophically impaired” as it relates to "impairment of the whole person" under section 2(1.1)(f) of the Statutory Accident Benefits Schedule (SABS).   Read the full case summary... | Read the Court Decision...

The Interpretation of Contracts: When Courts refuse to use Extrinsic Evidence
by David Elmaleh
January 01, 2012

When litigation arises regarding the proper interpretation of a contract, a common question courts consider is whether extrinsic evidence can be used to vary or modify seemingly unambiguous terms of the binding agreement. SeaWorld Parks & Entertainment LLC v. Marineland of Canada Inc., 2011 ONCA 616, is a recent example of an appellate decision that deals with this issue.

In this case, emotions were heightened and the stakes were high, as the contract in question involved two competitors who entered into an agreement to loan each other marine animals...

Insurance coverage for injuries caused by at-fault uninsured, inadequately insured and unidentified motorists
November 09, 2011

What happens when an at-fault party has no insurance or may be inadequately insured. Or where an unidentified motorist is at-fault (as in the case of a hit-and-run) there may be no practical means of securing compensation for an injury as the at-fault party and his insurer may never be identified...  The system in Ontario has two mechanisms for dealing with such scenarios.

Recent commentaries on the deductibility of collateral benefits in income loss claims
November 09, 2011

Black's Law Dictionary defines the collateral source-rule, also known as the collateral benefits rule, as “the doctrine that if an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay.”1 Over time, this rule has evolved to allow tortfeasors and/or their insurers to deduct certain amounts already received by the plaintiff in order to ensure that the plaintiff does not receive double recovery.

Videotaping Defence Medical Examinations: An Overview of the Case Law
November 09, 2011

In a personal injury action, the defence medical examination (“DME”) is the most potent tool that a defendant has to test and respond to a plaintiff’s allegations. Plaintiff counsel have increasingly been requesting, and receiving, court orders that DMEs be videotaped. This has naturally caused concern among defence counsel.

A year, if a day: What insurers are talking about one year after the introduction of the "New Regs"
November 09, 2011

We have chosen a few key topics that have been repeating themselves in conversations with our clients, adjusters, claims handlers and risk managers over the course of the past year. In the absence of any defining or guiding arbitral or court decisions arising from the 2010 Regulations, it has been an opportunity to think creatively with clients whether discussing what is needed to prove economic loss, or the effect of changes to loss transfer regulations. Following are some thoughts distilled from the past year.

The use of no-fault reports by a tort defendant: Beasley revisited, one year later
by James Tomlinson and Adrian Nicolini
November 09, 2011

Since 2010, the Beasley case has been considered and distinguished by further caselaw, including the cases of Grigoroff v. Wawanesa Mutual Insurance Co. 1 and McNeill v. Filthaut 2.  Those cases provide alternate means by which a defendant can rely on the evidence of doctors retained by the no-fault insurers. 

Recent Developments in Loss Transfer
November 09, 2011

In May the Supreme Court of Canada dismissed the application for leave to appeal in Primmum Insurance Company v. Allstate Insurance Company.1 doing so it left standing the Ontario Court of Appeal decision confirming that the loss transfer provisions of the Ontario's Insurance Act will apply to all insurers, who are licensed to sell insurance in Ontario, regardless of where the policy was issued.

Should Psychological Injuries Be Combined With Physical Injuries To Determine Catastrophic Impairment?
by Michael Blinick
November 09, 2011

**Please note that the appeal of this decision is scheduled to be heard on November 16, 2011**

On October 19, 2010, the Honourable Justice Lauwers released his decision in the case of Kusnierz v. The Economical Mutual Insurance Company, 2010 ONSC 5749, addressing the definition of "catastrophic injury". In particular, the Honourable Justice Lauwers was asked to determine whether it is permissible for a trier of fact to assign a percentage rating in respect of Mr. Kusnierz's psychological impairments and to then combine that percentage with the percentage ratings in respect of his physical impairments for the purposes of determining whether Mr. Kusnierz was "catastrophically impaired".

Liability of Vehicle Owners: The Ontario Superior Court of Justice's Decision in Case v. Coseco Insurance Co.
by David Elmaleh
November 09, 2011

The Ontario Superior Court rendered a decision in the case of Case v. Coseco Insurance Co.1 this case reviewed an array of issues, including the law regarding the vicarious liability of a motor vehicle owner for loss or damages sustained when the vehicle was in the possession of another person. The Court also delved into the oft-analyzed issue of consent; specifically, whether an owner of a vehicle can be found vicariously liable for giving consent to have possession of the vehicle, even though it expressly prohibits the other person from operating the vehicle.

Effective Claims Management: The Client – Lawyer Partnership in Subrogation
November 04, 2011

Those lawyers who practice subrogation recognize that handling a subrogation file is very different from handling a defence file and requires a different mindset from practicing other areas of insurance law. Insurance companies are recognizing this as well. 

For many insurers, subrogation has become an integral part of the business of insurance... and as a result they have invested substantial resources in developing subrogation departments and in training recovery specialists.  How do lawyers and adjusters work together?

Effective Claims Management: The role of the crisis communication strategy
November 04, 2011

Crisis communication is a strategic component of an organization's overall operational response to a crisis. The significance of the communication plan, in the over all crisis management model, is many times under estimated. During a crisis, effective messaging to shareholders, stakeholders and the public, can be determinative as to how an organization's reputation, ie. it's brand and image, will be maintained. In addition, any crisis represents the potential for findings of liability down the road. As such, it is crucial to ensure that the messages of today never become the evidence of tomorrow, which will be used against the insured at a trial in the future.

Effective Claims Management: Managing the Legal Journey with Your Counsel
November 04, 2011

Today, preparation for and seeking opportunities to avoid litigation prior to the loss even occurring is an integral part of the claim management process. It has become more complex not only because insurers and their insureds are more educated but they also, separately and together, want to be involved and understand the litigation process. It is also important to highlight that insureds, in particular, have developed higher expectations not only of the information they receive, but also the service they receive and the overall experience from the time they report the claim until resolution.

Effective Claims Management: Ambiguous Policy Wordings and Court Interpretations
November 04, 2011

Insurance policies must be interpreted in accordance with the well-established rules of policy interpretation... ambiguities in insurance contracts are to be construed against the insurer. This paper will give you tips and samples on watching for industry jargon, fancy grammar, consistency and broad terms.

Enforcing Letters Rogatory: A warning to connected businesses operating in multiple jurisdictions
by David Elmaleh
October 31, 2011

Courts are sensitive to the increasingly international nature of business and the inextricable links between connected corporate entities. International business entities should be aware of this decision and note the liberal approach to requests for judicial assistance. This case is significant because it confirms the broad powers of our courts to enforce letters rogatory and compel corporations within Ontario to produce and appear in U.S. proceedings, notwithstanding that the corporation is not a party the proceedings. Details...

Case Study: Zurich Insurance Company Ltd. v Ison T.H. Auto Sales Inc
October 27, 2011

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged.

The matter was somewhat complicated by the fact that a class action had been commenced as a result of the loss event, and the insured had opted out of that class action, although the separate action commenced by the insured was ordered to be tried together with the class action and the two actions were being jointly case-managed.

Attempted car-jacking qualifies as an accident pursuant to the Statutory Accident Benefits Schedule (SABS)
by Michael Kennedy
October 22, 2011

A plaintiff drove his vehicle into a gas station and was assaulted by multiple attackers while his engine remained running. The plaintiff was ultimately able to put his vehicle into gear and escape, but not before sustaining serious injuries. Worthy of note is that the plaintiff's insurer paid him $73,061.27 in accident benefits before taking the position that the plaintiff was not involved in an accident, consequently seeking repayment of all amounts paid. Is a car jacking considered an "accident"?

Reckless driver solely at fault for single-vehicle accident despite poor road construction
by Michael Kennedy
October 22, 2011

A driver was speeding along an under-construction roadway that transitioned from asphalt to loose gravel. The motorist's velocity greatly exceeded that of both temporary and permanent speed advisory signs. The driver ultimately lost control upon the gravel road and was tragically killed. The motorist's family sued the regional municipality and road maintenance company for allegedly failing in their duties to properly maintain the road. Who's at fault?

Repairing a vehicle is not an ordinary use to which vehicles are put
by Michael Kennedy
October 22, 2011

The claimant was hired to effect body work repairs to a truck that he normally operated. The claimant's last memory was standing on the hood of the truck. He was found the next morning in a pool of blood and awoke in the hospital a few days later. He had sustained serious fractures and a brain injury. Arbitrator Feldman inferred from the evidence that the claimant had fallen from the truck while attempting to effect repairs to the roof. Is this an accident as defined by the Schedule?

Change in circumstances permits multiple applications for determination of catastrophic impairment
September 26, 2011

In McLinden v. Payne (2011 ONCA 439), the Ontario Court of Appeal considered whether s. 40(4) of the Statutory Accident Benefits Schedule precludes a person from making more than one application for a determination that he or she suffered a catastrophic impairment.

Legal determination that an at-fault motorist is underinsured is required before a plaintiff's OPCF 44R coverage is triggered
September 26, 2011

In Maccaroni v. Kelly (2011 ONCA 441), the Ontario Court of Appeal set aside an order dismissing an insured's action against her insurer, ING, for damages claimed pursuant to an OPCF 44R underinsured motorist endorsement. In this particular case, both the tortfeasor's insurance policy and the appellant's OPCF 44R endorsement had coverage limits of $1,000,000.00.

In the original action arising from the motor vehicle accident at issue, Co-operators General Insurance Company added itself as a statutory third party pursuant to s. 285 of the Insurance Act, R.S.O. 1990 c. I.8. Co-operators took the position that its insured (the tortfeasor) was in breach of the statutory conditions of his policy and that, as a result, the insured's policy limits were reduced to $200,000.00 pursuant to s. 258(11) of the Insurance Act.

Clarifying pollution exclusions in commercial insurance policies
August 18, 2011

The Ontario Court of Appeal recently delivered a decision interpreting the pollution exclusion commonly found in commercial general liability (CGL) insurance policies. Such exclusions typically preclude coverage for the insured's liability for the release or escape of pollutants at or from the insured's premises.

Motor and Marine Carrier Cargo Claims
by Stephen Barbier
June 06, 2011

Shipment of goods from one place to another involves complex networks of players, from shippers to cargo carriers, load brokers to stevedores, consignors to freight intermediaries, and so on. Given the volume and value of goods being shipped daily across the country and the world, international and domestic laws have been developed in order to ensure that the interests of the various parties are protected in the event that the goods are damaged while in transit.

Product Liability: Jurisdictional Issues In Canada
May 31, 2011

The proliferation of international trade and commerce has led to increasingly complex product liability litigation with potential parties located across all parts of the globe. Simply stated, a person could be hurt in Ontario by a product designed in Germany, sold in Pennsylvania, and assembled in India with parts manufactured in Japan. With each party in the chain of commerce a potential defendant, there are important jurisdictional issues which arise in the product liability context.

In cases of multi-jurisdiction litigation, three issues frequently arise...

Identifying and Addressing the Limitations of Waivers and Permission Forms in a School Setting
by Robert McGlashan
April 14, 2011

It is common practice for schools to offer enhancements to the curriculum in the form of field trips and extra curricular activities. These trips and activities may have certain risks associated with them depending on the activity. Examples of activities with risks associated are football, rugby, ski trips and climbing.

Two options to manage the risks associated with these types of activities are waivers and permission forms.

Suspending the Ability to Litigate
by Robert McGlashan
April 14, 2011

Difficult and tenacious litigants are individuals who are exceedingly dedicated and vindictive in their litigation. They are individuals who often have multiple actions against the same or different individuals or corporate entities, frequent appeals, actions against employees of corporations, actions that are obviously not going to succeed, frequent interlocutory motions and failing to pay costs. These individuals in many cases, are unrepresented or if represented, they may frequently change counsel. This type of litigant will become a source of frustration and for opposing counsel and they will increase the cost of the litigation. It is important for counsel to have a strategy to dispose of this type of claim expeditiously.

The Superior Court Expands Who is Considered a Child of the Marriage Under the Divorce Act With Respect to Child Support
by Robert McGlashan
April 04, 2011

Whether an adult child who has completed a post-secondary degree and contemplating a second post-secondary degree will be considered a child of the marriage under the Divorce Act and eligible for child support is one of the most highly contested issues with respect to child support in family law.

This issue essentially dictates when a parent's obligation to pay child support ends. 

The Modified Duty of Care for Ski Resorts and Recreational Landowners: A Case Note on Schneider v. St. Clair
by Robert McGlashan
April 04, 2011

In drafting the Occupiers’ Liability Act (“the Act)”, the Ontario Legislature balanced its concern for the safety of people entering a premises with the competing interest that occupiers be encouraged to allow for recreational use of their property.

Because of these opposed considerations, Section 4(4) of the Act provides for a lower standard of care where occupiers allow individuals to make recreational use of their premises.

Ski Resort Liability
by James Tomlinson and Adrian Nicolini
March 02, 2011

The inherent risks of active sports such as skiing give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of ski resorts. Ski resorts have developed a number of important and evolving legal strategies to limit their exposure to such claims. These strategies have evolved with the changes in the law over time and continue to grow with it. 

Spectator Liability in Canada: An Overview
by Sabrina Lucibello
March 02, 2011

A spectator that becomes injured during the course of a sporting event will generally commence an action against the occupier of the facility where the sporting event was held. Occasionally, the action will include the individual participant, team, league, or others that may be appropriate in the circumstances.

In determining whether an occupier has in fact discharged its duty, the courts take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information on what the industry standard is for safety precautions in a given sport.

Sports Camp/Clinic Liability
by Martin Smith and Sabrina Lucibello
March 02, 2011

In the context of sports camps, the risk for insureds lies in claims made against them in negligence. Specifically, insureds are at risk of patrons at a day camp making allegations that they failed to fulfill the duty of care owed to them to keep them safe while engaging in a potentially dangerous activity offering horseback riding.

Product Recall in Canada 2011
February 28, 2011

The Canadian chapter from the text entitled Product Recall has been updated for 2011.  The text is a comparative analysis of product recall legislation in 26 jurisdictions worldwide. Product liability law in Canada is governed by the common law in all provinces and territories except Quebec which is a civil law jurisdiction. While there are some differences in the legislation and case law across the common law jurisdictions, the law is fairly similar. The answers provided in this chapter are based on product liability law in the common law jurisdictions of Canada although some references to Quebec civil law are also included. 

Court holds there is no duty to defend when policy limits are exhausted
by Michael Kennedy
February 28, 2011

In Dominion of Canada v. Kingsway,1 the Ontario Superior Court of Justice addressed an insurer’s duty to defend in cases where an insured’s policy limits have been exhausted. The facts were such that a defendant’s policy limits of $200,000.00 were offered and accepted at mediation on the condition that a plaintiff with Family Protection coverage through Dominion could pursue her underinsured claim against her own insurer. Dominion would then receive an assignment of the judgment and could pursue the defendant personally for contribution.

Court voids claims waiver on basis of power imbalance between adjuster and plaintiff
by Michael Kennedy
February 28, 2011

In Jones v. Jenkins,1 an ING adjuster negotiated a settlement with a self-represented plaintiff. The plaintiff was seriously injured in a motor vehicle accident, but had not commenced an action against ING's insured, who was allegedly at fault. ING's adjuster directly corresponded with the plaintiff, requesting settlement proposals and making counter-proposals until a final agreement of $19,411.00 was reached and a release was signed. The plaintiff subsequently retained counsel and a Statement of Claim was issued. The defendant and his insurers argued that the signed release barred the proceeding.

New Canadian Legislation Alert - CCPSA
January 04, 2011

On December 14, 2010, the Parliament of Canada passed the Canada Consumer Product Safety Act (CCPSA).  Royal Assent, the last step required in the creation of new law, was granted on December 15, 2010.  It is anticipated that an accelerated implementation plan will be developed by the Federal Government in order to facilitate the CCPSA coming into force in the next few months. 

Opening Statements Should Be Persuasive Not Insulting
by Robert McGlashan
December 31, 2010

When crafting an opening statement for trial, the opening statement is an opportunity to present your case and evidence to the jury and not an opportunity to attack the other party or make argument.

The purpose of this article is to discuss the decision in Spittal v. Thomas, [2006] O.J. no. 1617, where Justice Glass considered a motion for the judge to instruct a jury to correct improper remarks by plaintiff’s counsel in an opening address.

Plaintiffs Cannot Bargain Away Their Insurer's Rights and Still Hope to Recover from their Insurer
by Robert McGlashan
November 30, 2010

During multiparty motor vehicle accident litigation, plaintiff’s counsel often claims tactical advantage against one defendant by threatening to settle with other defendant.  If the plaintiff is not careful, this type of settlement can prove improvident and will frustrate the plaintiff’s efforts at further recovery.

Enough is Enough: When Will Plaintiff’s Case Be Dismissed For Delay
by Robert McGlashan
November 30, 2010

A Case Comment on the Court of Appeals’ Decision in Riggitano v. Standard Life Assurance Co.

In some circumstances, a plaintiff will initiate an action against a defendant and then fail to take the necessary steps to move this action towards a trial.

The Use of No-Fault Reports by a Tort Defendant
by Adrian Nicolini and James Tomlinson
September 22, 2010

The case of Beasley and Scott v. Barrand,1 decided by Moore J.of the Ontario Superior Court, appears at first blush to be a bar to the use at trial by a tort defendant of expert reports commissioned by a no-fault insurer. However, rather than barring the use of such reports by tort defendants, a careful review of this case reveals that it provides guidance on the proper practice to be followed by defence counsel when they seek to do so.

The Impact of the New Pleasure Craft Operating Card
June 30, 2010

A brief history lesson comparing drivers’ licenses and the PCO Card and some thoughts on the future.  

Journalist-Confidential Source Privilege May Exist In Canada
May 31, 2010

A journalist does not have the constitutional right to protect a confidential source. That is the ruling of the Supreme Court of Canada in R v National Post, released on May 7th.

Supreme Court Reconsiders the Meaning of "Accident"
May 31, 2010

The Supreme Court of Canada recently released its decision in the case of Co-operators Life Insurance v. Gibbens, 2009 SCC 59, in which an insured sought coverage under a group accident insurance policy for having contracted a sexual disease after having engaged in unprotected sex with a number of women. 

Ottawa-Carleton Standard Condominium Corporation 687 v ING Novex (1)
by Hillel David
May 31, 2010

Three important, and in two of the three instances perhaps questionable, principles are considered in this recent decision of the Ontario Court of Appeal. The factual background of the case may be briefly stated as follows:  There was a fire protection system in the insured condominium complex.  As a result of a faulty design/installation an event occurred, resulting in flooding. Although only part of the equipment was damaged, the insured replaced, and made a claim under the policy for, all.  This was based on the position that the system as a whole was damaged and the unsupported allegation that it was a reasonable and responsible step to replace it in its entirety...

The Duty to Defend, Revisited
May 31, 2010

Many insurers for maintenance contractors have taken the position that so long as there is some allegation in the statement of claim that touches on some independent act of negligence on the part of the property owner, there is no duty to defend under this clause. However, last year in Riocan Real Estate v. Lombard, Madam Justice Hennessey concluded that so long as the “true crux” of the claim falls within the scope of the duty to defend...

Bill C-311: The Climate Change Accountability Act
May 31, 2010

On May 5, 2010, Bill C-311, the Climate Change Accountability Act (the “Act”) was passed by the House of Commons. The Act will require that the federal government set regulations to attain a reduction in greenhouse gas emissions to 25 percent below 1990 levels by 2020. The Act also sets a more aggressive long term target to bring greenhouse gas emissions to 80 percent below 1990 levels by 2050.

Whether Sexually Transmitted Diseases Contracted During Unprotected Sex Meet the Definition of Accident
by Robert McGlashan
April 30, 2010

When an individual sustains losses from personal injury from illness and then seeks to have their accident insurance policy cover these losses, decisions must be made as to whether these losses are covered by the policy and the specifically, if they fit within the definition of accident.  Throughout the jurisprudence, the definition of accident has been the subject of exceedingly complex litigation.

Self-proclaimed Self-employed Contractor Entitled to Income Replacement Benefits Calculated as an Employee
by Michael Kennedy
February 28, 2010

In Ligocki v. Allianz Insurance Company of Canada, 2010 ONSC 1166,,the Ontario Superior Court, on February 22, 2010,  confirmed that a self-proclaimed "self-employed contractor" may be entitled to income replacement benefits calculated as an employee.

Professional Liability and the Financial Advisor
by Howard Borlack and Laurie Murphy
February 16, 2010

A financial advisor cannot guarantee the financial success of their professional services. This is certainly the situation with financial advisors over the past 18 months since the banking crisis of 2008. Where advise is provided, the advisor is obliged to advsie with reasonable care, skill and diligence and will be held to an objective standard. This paper will provide an overview of the regulatory and legal obligations of financial advisors and the liability they face in providing their unique services.

A Dirt Bike is Considered an Automobile by the Ontario Court of Appeal
January 31, 2010

Rougoor v. Co-operators General Insurance Co., 99 O.R. (3d) 139, involved an action which arose as a result of a dirt-bike incident that occurred in Florida. The appellant was insured under a standard automobile policy with the respondent. Her policy of insurance with the respondent, listed, among other family-owned vehicles, one off-road dirt bike of which she was listed as the principal driver. The appellant was also listed as a secondary driver for another off-road dirt bike under the same policy of insurance.

Loss transfer regime is applicable even when the accident occurred outside of Ontario, if Ontario insurers are involved
January 31, 2010

Primmum Insurance Company v. Allstate Insurance Company, 2010 ONSC 986, involved an application for the appointment of an arbitrator in respect of a loss transfer dispute between Primmum Insurance Company and Allstate Insurance Company.

The School Board and Principal Have Significant Discretion When Dealing With Parent Volunteers
by Robert McGlashan
January 31, 2010

The recent decision of Foschia v. Conseil Des Ecoles Catholiques de Langue (hereinafter Foschia) defined the school’s duty when dealing with a parent volunteer that the school does not want to volunteer or even be on the school premises.

When a parent volunteers at a school, it in many cases can be beneficial for the school, the parent and the students.  In some cases, it can create a difficult situation for the school.  Parent volunteers are untrained and come from a wide range of backgrounds and have varied goals with respect to their involvement with the school.  On occasion, it can expose the school to the risk of liability or complaint from other parents. 

Product Liability in Canada 2010
by Laurie Murphy
December 31, 2009

Product liability law in Canada is governed by the common law in all provinces and territories except Quebec which is a civil law jurisdiction. While there are some differences in the legislation and case law across the common law jurisdictions, the law is fairly similar. The answers provided in this chapter are based on product liability law in the common law jurisdictions of Canada although some references to Quebec civil law are also included.

Early Claims Resolution Strategies
by Van Krkachovski
December 31, 2009

Point form information on claim resolutions strategies incliding early investigation, plaintiff productions, investigation and surveillance, experts, early settlement meeting, offer to settle, motion for summary judgment, meditation, bifurcation of trial, advance payment and appraisal of property claims.

Claimant can meet one definition of catastrophic impairment but not the other: Pastore v. Aviva
December 31, 2009

Pastore v. Aviva, FSCO A04-002496, involved a claimant, Anna Pastore, who was a pedestrian involved in a motor vehicle accident on November 16, 2002. The matter proceeded to Arbitration on a number of issues including whether Ms. Pastore suffered a catastrophic impairment...

Whether a psychological injury in conjunction with a physical injury can be considered catastrophic: Fourniev v. Coachman
December 31, 2009

In Fourniev v. Coachman, the claimant was injured in an MVA on August 11, 2004.  He applied to Coachman Insurance for a determination of catastrophic impairment under the Schedule and Coachman concluded that he was not catastrophically impaired.  The parties applied for Arbitration since they were unable to resolve their dispute through mediation. The issue in dispute was whether the claimant suffered a catastrophic impairment...

General Damages which are exactly $100,000.00 are subject to the statutory deductible: Winckle v. Siodlowski
December 31, 2009

In the recent Ontario decision, Winckle v. Siodlowski, [2009] O.J. No. 4807 (Ont. S.C.J.)., Justice Hockin decided the applicability of the statutory deductible in a case where damages were assessed at exactly $100,000.

Ontario Court of Appeal Sends Strong Message about Mandatory Mediation
December 31, 2009

The Ontario Court of Appeal, in  Keam v. Caddey, 2010 ONCA 565, has awarded plaintiffs $40, 000 in additional costs after an insurer refused to participate in mediation prior to trial. 

The Notional Equivalent of Being Struck by an Automobile: Tucci v. Pugliese
December 31, 2009

The plaintiff, in Tucci v. Pugliese, [2009] O.J. No. 2956, Maria Tucci, was seated in her kitchen when an uninsured motor vehicle driven by the defendant, Giuseppe Pugliese, ran into a wall of her house.  The collision caused a sudden, loud bang and violent shaking of the house, which allegedly caused tremendous shock to the plaintiff and inflicted damage to the home estimated at between $85,000 and $100,000...

Before You Settle - Lockhard v. Quiroz v. C.A.A. Insurance Co. (Ontario)[1]
December 31, 2009

In Lockhard, the plaintiff Lockhard was injured in a single-vehicle accident when her vehicle was being driven by the defendant Quiroz with her consent. At the time of the accident, the plaintiff's vehicle was insured by the third party C.A.A. Insurance Co. (Ontario) ("CAA"). The plaintiff sued the driver for damages.

Accident benefits priority dispute between driver's own insurer and company car's insurer
December 31, 2009

In ACE INA Insurance v. Co-operators General Insurance Co., 2009 CarswellOnt 1668 (Ont. S.C.J.), the claimant initially applied to the driver’s insurer, the Co-operators, for payment of accident benefits. However, the Co-operators took the matter to arbitration and argued that, under the “company car” provision, the claimant was a named insured under the ACE policy which made ACE solely responsible for his accident benefits claim. The arbitrator agreed with the Co-operators and ACE appealed the decision.

Mustapha Revisited: Is the job only half-done?
by Hillel David and Lisa La Horey
December 31, 2009

In the Mustapha decision,1 the Supreme Court of Canada conclusively established the objective nature of the foreseeability test to be applied in the determination of causation in law or, as the issue is sometimes described, remoteness of damage, in claims for psychological injury. What it did not do, however, was set down ground rules for the type and quality of evidence suitable for that determination...

Does the Province of Ontario Owe a Duty of Care When Transporting Accident Victims?
by Robert McGlashan
December 31, 2009

When accidents happen at ski lodges or other remote locations, decisions have to be made about when, how and to where victims are to be transported. The Province of Ontario’s guidelines on how these decisions are to be made and the way these guidelines are administered could subject the Province to a private law duty of care, the Court of Appeal has recently held.

Case Summary: Tridan Developments Ltd. v. Shell Canada Products Ltd.
December 31, 2009

In Tridan Developments Ltd. v. Shell Canada Products Ltd., 2002, CanLII 20789 (ON C.A.), the Court dealt with an appeal from an assessment of damages arising from the contamination of the respondent's Tridan Developments Ltd. property by a gasoline spill from the appellant's Shell Canada Products Ltd. neighbouring gas station.

Recent Court Decisions, Mohamed v. Banville
December 30, 2009

In order to establish negligence where careless smoking is alleged to have caused a fire, there must be evidence that smoking occurred proximate to the time and place of the origin of the fire.

An Update on Waivers: A Comment on Gallant v. Fanshawe College et al.
by Robert McGlashan
November 30, 2009

The issue of whether and in what circumstances a waiver is a defence to an action for negligence is important and complex.  The recent case of Gallant v. Fanshawe College et al. articulates the court's considerations with respect to when a waiver is a defence to an action for negligence.  Gallant outlines the factors considered by the court including, the circumstances in which the contract is signed, the intentions of the parties, and the type of activity that is involved.

Unidentified Motorists Claims in Ontario - An Overview
October 31, 2009

Unidentified motorist claims are, at times, challenging to investigate and resolve. Frequently, all the liability eveidence is solely within the knowledge of the plaintiff. There is some comfort to be had in an initial scene investigation by the police, and supporting eveidence arising form the property damage to the vehicle. In the event more than one vehicle was involved in the accident, witness statements are generally supportive of the plaintiff's allegations of a John Doe causing the accident.

Limitation Periods in Canada
by Stephen Barbier
September 30, 2009

Limitation periods vary across Canada, but generally range from 1 to 2 years for most causes of actions. The recent trend in Canadian courts has been to strictly enforce limitation periods, making it important for subrogation professionals handling claims in Canada to be mindful of the applicable limitation period and act timely and efficiently to ensure that the opportunity for recovery on potential claims is not lost.

Serial and Independent Concurrent Causes in Insurance Law
by Hillel David
August 31, 2009

Until the decision in C.C.R. Fishing Ltd. v Tomenson Inc., the element of causation in insurance law, particularly in the context of insuring provisions, revolved largely around the concept of proximate cause, meaning the effective and dominant cause of the loss.  Since that decision, the focus has shifted to a consideration of the impact of concurrent causes, both in regard to insuring agreements and exclusion clauses.

An area that has not, however, received the attention it merits is the distinction between serial and independent concurrent causes.

SCC Narrows 'Faulty Design' Exclusion
by Rory Barnable
January 15, 2009

A long-standing insurance dispute over the failure of a massive tunnel boring machine (“TBM”) ended in late November 2008 with a ruling by the Supreme Court of Canada awarding nearly $40 million to the insured. The decision addresses the “faulty or improper design” exclusion common to most “all-risks” property policies.

Driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim
December 31, 2008

The recent Court of Appeal decision in Miller v. Carluccio (2008), 91 O.R. (3d) 638 (C.A.) makes it clear that driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim. Although the case was decided on the issue of coverage, it has important implications for subrogation.

Ontario Court of Appeal confirms that home buyers are not barred by the provisions of the Ontario New Home Warranties Plan Act from pursuing remedies in the courts
December 31, 2008

Until recently, there have been conflicting decisions as to whether the Ontario New Home Warranties Plan Act (the “Act”) constitutes an exclusive statutory scheme for dealing with claims by new home buyers against builders. The Court of Appeal has recently confirmed that home buyers can pursue remedies against builders in the courts.

On Your Bike
by Van Krkachovski
November 30, 2008

A municipality's obligations are the same for bicyclists as they are for pedestrians. It is obligated to keep the road and sidewalks in a reasonable state of repair and that responsibility covers not just problems that can be readily spotted but those hazards that may not be so obvious as well.

Lights and Siren
by Van Krkachovski
August 31, 2008

Whether it is a police officer responding to a call, an ambulance rushing to help a critically ill patient, or a fire truck speeding to a fire, intersections crashes are the most common and almost always the most serious collisions involving emergency vehicles.

Cracks in the Defence, Sidewalk Maintenance and Municipal Liability
by Van Krkachovski
May 31, 2008

A thumb is about an inch wide which makes a handy rule when it comes to sidewalk deflections. As a rule of thumb, if a sidewalk has a crack or deflection of more than a thumb width, a municipality may well be liable for any injuries resulting from a trip or fall.

Escalating Damages in Canada
by Van Krkachovski
February 29, 2008

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus on this paper is on the changes that have occurred with respect to: Future Care Costs, guardianship and management fees, and risk premiums.

Treading on Thin Ice, Keeping Sidewalks Safe
by Van Krkachovski
January 31, 2008

Municipalities are responsible for keeping sidewalks clear of snow and ice and that means they may also be liable for any personal injury damages resulting from a slip and fall. But getting a handle on just what keeping sidewalks in a "reasonable state of repair" means can be as slippery as the footing underneath.

E-Discovery: Overview and Latest Developments in Ontario and Canada
by Howard Borlack, Laurie Murphy and Alana Abells
August 31, 2007

In today's ever increasing technological society, more so then ever companies and individuals are relying on electronic means to communicate, exchange and store documents and infomation. Whether it is via email or word processing, companies and individuals are moving away from hard copies and are depending increasingly on electronically stored information (ESI). More importantly and sometimes unbeknownst to the companies, individuals or their counsel, information and documentation are being stored indefinitely well beyond the previous retention of paper stored documents. ESI has created new challenges for the discovery process and implications for litigants.

Tort Liability of a Manufacturer for Defective Components
by Hillel David
July 31, 2007

Few manufacturers produce every part of their product. Almost all incorporate one or more components purchased from independent suppliers.  Many "manufacturers" are, in truth, little more than assemblers of components that they themselves to not make. This raises the following issue: where there is no contractual relationship with the claimant and no actual or constructive knowledge of any defect on the part of the manufacturer, should the manufacturer be liable for injury arising from a defective component purchased fro a reputable supplier?

Cross Border Issues: The Current Automobile Insurance Legislations in Ontario
by Van Krkachovski
March 27, 2006

The automobile insurance legislation in Ontario has undergone numerous amendments over the past 15 years which began with the introduction of a partial no-fault system in 1990 that replaced a pure tort system. As a result, a person injured in a motor vehicle accident as two types of claims...

Proving Causation Where the But for Test is Unworkable

On a practical level, causation simply means that the current condition or circumstances would be different had an act or omission not occurred. The alteration in circumstances can be positive, negative, or just a maintenance of the status quo.  The critical matter is that the situation would not be what it is had there been no act or omission; otherwise, the act or omission cannot be said to have had any effect on the current situation.  The “but for” test is merely another way of expressing this concept of change or difference in the current situation that would not otherwise have been present. 

Social Host Liability - A Fresh Approach
by Hillel David
July 31, 2005

Since the landmark decision in Menow v Honsberger, the potential liability of taverns and other commercial hosts for alcohol-related injuries has been well established.  In the 30-plus years since that decision, however, social hosts have received a free pass in cases where their involvement in the intoxication which led to the injury has been real and significant.  The purpose of this article is to suggest a new approach to the consideration of the liability of social hosts, one that promotes the policy considerations essential to this type of claim and, at the same time, accords with basic principles of law.

The Florida Vote Count Decisions: A Canadian Perspective
by Hillel David
January 31, 2001

Canada followed with interest the dramatic aftermath to what may have been the closest presidential election in the history of its great neighbour to the south. While the constitutions and systems of government in the two nations are substantially different, democracy is the underlying foundation in both. The authors, who profess no expertise in American constitutional law, are therefore able to express opinions in this article that are founded on common basic principles of law and universally accepted tenets of fairness.

Thin-Skull Claims: Recovery for Accident Neurosis
by Hillel David
November 30, 1988

Those of us who practice involves personal-injury cliams have seen a large increase in "accident neurosis" claims in the past several years. These are claims in which the plaintiff's complaints are significantly more serious than the objective physiological injuries (if any) that occur. In many such claims, the complaints are so unusual as to warrant the description "bizarre".