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

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

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

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


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

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


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

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

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


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

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


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

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


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

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


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

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

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

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

AB from Sea to Sea: A Look at Accident Benefits across Canada

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


My House Burned Down, Now I Can Buy Two - Featured Case Study: Groupone Insurance and Lloyd's - and - Wenhao (Melissa) Li and Darko Strukan
June 05, 2019

Acting for the Applicants, Howard Borlack, Partner at McCague Borlack LLP had a favourable decision from the Ontario Divisional Court when they recently quashed an award by an Umpire arising from an appraisal pursuant to a homeowners policy and the Insurance Act. The insured's house sustained a fire and was beyond repair. The insured and insurer could not agree on the Actual Cash Value which the insured was entitled to under its Policy. The appraisals on behalf of both the insured and the insurer were approximately the same based to a great extent on comparable houses in the area.


Just When You Thought It Could Not Get Any Harder: Changes Could Be Coming to Proceedings Against the Crown
by Theomarcus Giannou and Theresa Hartley
May 01, 2019

Ontario's Conservative government recently proposed Bill 100, also known as the Protecting What Matters Most Act, which primarily addresses new budget measures. Also contained within the Bill, however, is the proposed repealing of the Proceedings Against the Crown Act [PACA] which was enacted in 1990 and governs how litigation is commenced against the Provincial Crown. It will be subsequently replaced with the Crown Liability and Proceedings Act [CLPA]. The CLPA proposes substantial changes to Crown liability, including limitations thereon, and sets out the procedural rules that will apply in proceedings against the Crown.


Cyber risks to your organization and its consequences: New reporting standards from the Office of the Privacy Commissioner of Canada
April 25, 2019

As technology quickly advances, different industries are finding several ways to innovate, adapt, and evolve their practices to generate larger profits, create operational efficiencies, and respond to people's needs. The unfortunate consequence of this rapid proliferation of technology is that many firms are unaware, or under-prepared for the risks that technology can attract and the consequences that follow when your data is stolen.


Navigating Subrogation in Canada: A Look at Subrogation Rights for Out-of-Province Insurers Arising from Motor Vehicle Accidents
by Adam Grant
April 12, 2019

CLC Article - Co-written by:

Adam Grant, McCague Borlack LLP (Toronto, ON)
David Pick, Brownlee LLP (Calgary, AB)
Franco Cabanos, Whitelaw Twining Law Corp. (Vancouver, BC)

Given the proximity between the two countries, at some point, most American-based subrogation professionals will become involved with a claim containing a motor vehicle accident that occurred in Canada. An understanding of Canadian subrogation principles is, therefore, an invaluable asset to ensuring that claims are dealt with promptly and appropriately.

In order to provide some clarity in respect of subrogation arising from motor vehicle accidents, this article will provide the legal foundation necessary to understand the subrogation rights (and limitations) as they apply to out-of-province insurers in three Canadian provinces: Ontario, British Columbia, and Alberta.