Articles & Publications

Search Articles & Publications

Just When You Thought It Could Not Get Any Harder: Changes Could Be Coming to Proceedings Against the Crown
by 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.

Egg on your face - you may have a claim: Case Comment: Gilbrairth v. Intact Insurance
by Howard Borlack
April 08, 2019

In Gilbraith v. Intact Insurance Company,1 the Ontario Superior Court of Justice offered clarification on the degree of assistance an expert report submitted as an attachment to a solicitor's affidavit can provide in a summary judgment motion. The Court also determined whether the throwing of an object out of a moving vehicle classified as an intervening act sufficient to break the causative link between the plaintiff's injuries and the use and operation of a motor vehicle. This case is significant as it introduces unique analysis that can be used to attribute more injuries to the use and operation of an automobile as well as provide an additional tool to defend a summary judgment motion.

Is anyone ensuring that your Mink Lashes are cruelty-free? An Overview of the Regulation of Fur Farming in Canada
March 21, 2019

This article takes a high-level perspective of the regulation of the fur farming industry in Canada, with a specific focus on the predominant fur-bearing species raised on fur farms in Canada: minks and foxes.

Canada's robust fur trade saw over 2.3 million minks and foxes bred on fur farms in 2017, generating approximately $800 million dollars. As of 2017, there were over 200 mink and fox fur farms across Canada, which produced over 2 million pelts. Even now, there is a trend towards the use of mink fur in eyelash extensions. However, despite the size of the industry, the legislative framework is surprisingly inconsistent and often under-regulated. 

Sex, Lies & VideoTape: Where do Canadian's have a reasonable expectation of Privacy
March 18, 2019

The recent Supreme Court of Canada decision in R v Jarvis is the high court's most recent pronouncement on privacy rights. Jarvis concerned a high school English teacher who used a pen camera to surreptitiously record videos of female students. Charged with the criminal code offence of voyeurism the courts below grappled with the issues of whether Mr. Jarvis recorded the students for a sexual purpose, and whether the students had a reasonable expectation of privacy while at school. Ultimately, Mr. Jarvis's conviction was upheld and the matter remitted for sentencing, but along the way, the court laid down some important principles which will affect the judicial interpretation of privacy in all areas going forward.

Jam Session Gone Wrong: How an Office Party Created a Coverage Debacle - Case Study: RSA v. Intact
by Christopher Macaulay
March 08, 2019

The recent case of Royal & Sun Alliance Insurance Company v. Intact Financial Corp. addressed a coverage litigation extravaganza involving a set of disjointed decisions from the Ontario Superior Court.

Stephen Novak attended an “after hours jam session” at the office of his friend, Sanjay Patel. The office space was occupied by Mr. Patel's engineering firm, while the office building as a whole was owned by Mr. Patel's separate numbered company (106220 Ontario Inc.). Unfortunately, Mr. Novak fell off a ladder at the party and sustained serious injuries. 
Mr. Novak's ensuing lawsuit named three defendants. Accordingly, three insurance policies were potentially triggered to respond to the loss.

Getting "Ahead" of the Changes Rowan's Law and the Potential Impact on Insureds – Further Updates
by Michelle Legault and James Tomlinson
February 28, 2019

Note: This paper has been updated from a prior version published in May 2018 to reflect recent developments in the legislation and potential regulations

Overall, Rowan's Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. The legislation will apply to any “sport organization”, defined as “a person or entity that carries out, for profit or otherwise, a prescribed activity in connection with an amateur competitive sport.”18 A “sport organization”, which may be further defined by regulation, will be required to:

Taking A Dip Into Public Pool Liability: Municipal and Resort Related Liability
by James Tomlinson
February 28, 2019

This article is our latest update in our swimming pool liability series, following our 2013 paper. 

This year's approach will focus on public pools encompassing not only municipally funded facilities but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act, we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act (“HPPA”) then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.

When the Love is Equal, but the Will is Not: Disinheriting Your Wealthy Son so the Poorer Son Could Catch Up
February 20, 2019

Parents of multiple children often try to steer clear from favouritism, to ensure that each child is treated and cared for equally. This consideration often extends beyond a parent's lifetime as evidenced in their will, when instructions are provided for the equal division of assets between the children. When a testator's direction indicates otherwise, it often ignites sibling rivalry and results in will challenges, and a tremendous amount of court time. That is precisely what happened in Quaggiotto v Quaggiotto, 2019 ONCA 107, where one brother felt that the other wrongfully got more.

Unpacking the Crate: A Carrier's Tools for Collecting Unpaid Freight Charges
by Ben Tustain
February 15, 2019

The modern shipping industry has drastically influenced the complexity of cargo movements. With this growing complexity of logistics transactions and the industry as a whole, carriers often risk losing out on the payment of freight charges if an intermediary goes bankrupt or otherwise decides to withhold payment.

Although the law in Canada is not so straightforward, carriers have a myriad of legal tools to collect on unpaid freight charges beyond merely advancing a claim for breach of contract against the party by whom they were retained...

Home Sweet Home: What Constitutes "Living in the Same Household" in a Home Insurance Policy
February 05, 2019

In the recent decision in Ferro v. Weiner (“Ferro”), the Court of Appeal for Ontario provided clarity as to what constitutes “living in the same household” in a home insurance policy.

Enid Weiner owned a house on Lake Eugenia, which was used as a cottage until the late 1980's when it became Enid's sole residence (the “Property”). When Weiner moved to a nursing home around 2008, her three adult children and their families used the Property as their vacation home...

Some Diamonds are Not Forever: The Insurance Case of the $580,000 Stolen Ring
February 05, 2019

It is common for insurance companies to face claims arising from questionable circumstances and reasonable for adjusters and claims handlers to investigate claims with a certain amount of skepticism.

However, a recent judgment from the Ontario Superior Court of Justice has emphasized the principle of fairness in the investigative process...

It's Not Over Until the Three Judges Sing: Divisional Court says Wills are not Trusts
January 31, 2019

The Ontario Superior Court of Justice decision in Milne Estate (Re), 2018 ONSC 4174, alarmed the Estate Bar and left people wondering whether they had to put on their running shoes and scurry to their lawyer's office to redraft what they once believed to be a valid will. Fortunately, the apprehension can be put to rest, as this decision was successfully appealed at the Divisional Court level, allowing people to delete from their calendars “see lawyer re: redraft will”.

Constructively Dismissed? You May Have To Go Work for Your Old Boss
January 28, 2019

The recently released Ontario Superior Court of Justice decision, Gent v Strone Inc. reiterates the importance of an employee's duty to mitigate damages by accepting an offer of re-employment from his or her former employer after being constructively dismissed.

Approximately 2.5 Million Dollars Gone in Approximately 2.5 Seconds: An Insurance Coverage Nightmare
by Howard Borlack
January 28, 2019

Dentons LLP has recently become embroiled in a coverage dispute with its insurer over an approximate 1.7 million dollar loss after falling victim to an email scam. Recent Ontario Superior Court decision, Dentons Canada LLP v. Trisura Guarantee Insurance Company tells the tale of how an email scam induced the large multinational law firm into misdirecting approximately $2.5 million dollars of a client's funds which were held in trust.

When is a Commercial Owner Liable for a Fall on an Adjacent Sidewalk?
January 28, 2019


In its recent summary judgment decision, Janssen v. William and Markle Jewellers Ltd., the Ontario Superior Court of Justice considered the scope of control required for a commercial owner to be an occupier under the Occupiers' Liability Act.

A plaintiff slipped and fell on an icy sidewalk outside the entrance of the defendant's jewellery store. This jewellery store was located in a two storey building. The defendant was a tenant of this building. The owner, surprisingly, was not named in this action.

Summary Judgment Motions in MVA Cases: A Viable Option for Defendants
January 17, 2019

In Pavlovic v. Vankar, 2019 ONSC 61, Justice Nightingale of the Ontario Superior Court of Justice granted a summary judgment motion in favour of the defendant Pavlovic, dismissing the plaintiff's action and the cross-claim of the co-defendants as against him despite conflicting evidence on a key liability issue.

The defendant Pavlovic brought this motion for summary judgement to dismiss the plaintiff's action and the cross-claim of the co-defendants Vankar against him...

Court of Appeal Clarifies Approach to Overlapping Insurance Coverage: Case Study: TD v. Intact
January 17, 2019

In TD General Insurance Company v. Intact Insurance Company, the Ontario Court of Appeal provided clarity on the issue of overlapping insurance coverage.

The case involved a boating accident. The owner of the boat held a TD homeowner's policy that covered the driver, who was driving the boat with the owner's permission. The driver was also covered by his own homeowner's policy, issued by Intact. Both insurance policies contained identical “other insurance” clauses, stipulating that the policy would be considered excess if there was other insurance that applied to a claim.

When Can a Lawyer's Representations Repudiate a Binding Settlement Agreement?
January 04, 2019

Lawyers during litigation at-times provide false or misleading statements. But when do those statements cross the threshold from innocently misleading to fraudulent? The Ontario Court of Appeal recently answered this question in Paulus v. Fleury (“Paulus”), therefore shining a light on what is considered to be a notoriously grey area of law. In overturning the motion judge's refusal to enforce a settlement, the Court of Appeal stated that the correct approach to civil fraud in the context of submissions made by counsel is to determine whether the submissions were made (1) on a reasonable basis and (2) in good faith.

Uber Class Action Gets Green Light, Proceeds to Certification
January 04, 2019

The past decade has given rise to the ‘sharing economy', which has since become ubiquitous and has raised an assortment of legal issues for stakeholders and policymakers as a result.

In Heller v Uber Technologies Inc. the Ontario Court of Appeal reversed a decision to uphold an arbitration (and effectively, forum selection and choice of law) clause in an Uber services agreement, finding it both unenforceable and unconscionable.

Rebutting the Breathalyzer Presumptions Moving Beyond the Theoretical, Towards Concrete Evidence
January 03, 2019

In R. v. Cyr-Langlois, the Supreme Court of Canada offered clarification on the type of evidence that is required to rebut the presumptions of accuracy and identity applicable to breathalyzer test results under section 258(1)(c) of the Criminal Code (“Code”). In doing so, Wagner C.J., writing for the majority, confirmed that the evidence must amount to more than conjecture or speculation. This case is significant for defence lawyers, as it demonstrates that an accused will likely need to adduce concrete factual evidence in order to rebut the breathalyzer presumptions.

Tick Tock, Watch Your Clock: Estate Trustees are not Litigation Guardians under s.7 of the Limitations Act
December 20, 2018

In Lee v Ponte, 2018 ONCA 1021, the Ontario Court of Appeal considered whether S.7 of the Limitations Act, wherein the basic limitation period of two years does not run during the time in which the person with the claim is incapable and is not represented by a litigation guardian, applies to extend the time within which an estate trustee can bring a claim that the deceased person had before death.

It's Not Complicated (Anymore): Court of Appeal Explains the Relationship between SABS and Tort Damage Awards
December 13, 2018

Two recent Ontario Court of Appeal decisions have provided clarity on the uncertain relationship between tort damage awards and Statutory Accident Benefits (SABs) under s 267.8 of the Insurance Act.

While heard together, these cases address different aspects of the tort damage award/SABs relationship. Cadieux v Cloutier addressed the deductibility of SABs paid before trial, whereas Carroll v McEwan addressed the deductibility and assignment of SABs to be paid after trial.

Bucking the Legal Lacuna: The Humboldt Bronco's Record Setting GoFundMe Campaign and Saskatchewan's Informal Public Appeals Act
December 07, 2018

Appeals to the public for donations are a feature of everyday life. Appeals that occur on a regular basis are usually conducted by registered charities and other organizations having the benefit of experienced fundraisers and professional advice. However, after a disaster, spontaneous appeals frequently occur as well. Although the organizer of a spontaneous appeal may not be aware of it, their public appeal is at the centre of a complex web of trust and charity law, much of which is obscure and inaccessible. For example, what happens when an informal fundraising campaign raises more money than needed for its stated purpose? What happens to the remainder? Who does it belong to? Does it have to be returned? In the era of social media and crowdfunding platforms like GoFundMe, Kickstarter, and Indigogo, these complicated issues are likely to become exacerbated.

A Battle of Offers: Case Study: Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. ("Hashemi-Sabet")
by Jessica Grant
November 27, 2018

In the recent Ontario Court of Appeal decision Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. (“Hashemi-Sabet”),1the court addressed the principles of offer and acceptance in the context of multiple Rule 49 offers, and the enforcement of a Rule 49 offer to settle. As Justice Pepall noted, “Rule 49.09 of the Rules of Civil Procedure provides that a party may bring a motion for judgment in the terms of an accepted offer and the judge may grant judgment accordingly or continue the proceeding as if there had been no accepted offer to settle.” In this case, the appellants argued that the motion judge erred in giving judgment to a Rule 49 offer which they argued had been revoked before it had been accepted. The respondents argued that the offer had not been properly revoked.

A Cautionary Tale for Employers A Case Study - Hampton Securities Ltd. v. Dean
by Sabrina Lucibello
November 16, 2018

In the recent decision, Hampton Securities Limited v. Dean, the Ontario Court of Appeal affirmed the detailed trial decision of Justice Koehnen with respect to an employment-related action involving a proprietary trader. The decision serves as a cautionary tale for employers when disclosing the reason(s) for the termination of an employee.

Christina Dean began working with Hampton Securities Limited (“Hampton”) as a propriety trader of securities on March 6, 2008. Her employment ended 13 months later on April 3, 2009. Hampton took the position that Ms. Dean had been terminated for cause for failing to follow trading policies and engaging in unauthorized trading, while Ms. Dean took the position that she had been constructively dismissed.

The Foreseeability of a Flying Bottle: A Case Study of Bucknol v. 2280882 Ontario Inc.
by Jessica Grant
October 28, 2018

On September 17, 2018, Justice Coroza of the Ontario Superior Court of Justice released his decision in Bucknol v. 2280882 Ontario Inc1(“Bucknol”),a motion for summary judgement dealing with commercial host liability and outlining the pillars of claims of negligence. Interestingly, Justice Coroza originally heard the motion in January of 2018 and reserved his decision. In June of 2018, counsel for the defendant (moving party) brought to his Honour's attention the May 2018 Supreme Court of Canada decision of Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”) and further written submissions were requested of counsel.

By way of background in Bucknol, the plaintiff was struck by a beer bottle that had been thrown by an unknown assailant at Classic Lounge Nightclub...

The Real NHL Hockey Wives: Cyberbullying, Norwich Orders, and Locker Room Soap Operas
October 28, 2018

In the recent decision of Caryk v Karlsson,1 the Ontario Superior Court of Justice refused to compel Erik Karlsson's wife to provide evidence relating to allegations that she was cyberbullied by the partner of one of her husband's former teammates. In doing so, Mullins J. provided an overview of the Norwich Order remedy, and found that the interests of justice would not be well served by granting such an Order. This decision is noteworthy because it confirms that the Norwich Order is an extraordinary form of relief that will only be granted in very limited circumstances. This holds true even in cases dealing with allegations of cyberbullying.

You're on Candid Camera! Legal requirements for having surveillance admitted into evidence at trial
by Alan S. Drimer and Melissa Parravano
October 27, 2018

Attempting to introduce surveillance as evidence at trial is becoming increasingly more challenging. In order to use surveillance as substantive evidence at trial, the Court has made it abundantly clear that certain requirements must be met.

Watching the Watchers: Judicial Limitations on the use of surveillance evidence
October 27, 2018

Surveillance evidence is among the most powerful tools available to a defence lawyer and their client. Correctly deployed, surveillance can be a fatal blow to a plaintiff's claim. Triers of fact, jurors particularly, cannot help but be impacted by surveillance evidence. Numerous studies show that visual memory retention far exceeds audio recall. Due to the power of surveillance evidence relative to cost, many insurers have at least some experience in obtaining this form of evidence. Since the Ontario Court of Appeal handed down its decision in Iannarella v Corbett, the tactical landscape for surveillance has changed and the use of surveillance evidence has been under court scrutiny.

Recent Decisions regarding the Admissibility of Surveillance in Accident Benefits and Tort Claims
by Catherine A. Korte
October 27, 2018

The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.

Accuracy of Surveillance ReportsAccuracy of Surveillance Reports
October 27, 2018

In order for surveillance to be admissible as substantive evidence, the first hurdle it must satisfy is being accurate in truly representing the facts. The courts have been clear that a surveillance report must include...

Reliable Footage: The Importance of Unedited Video and Investigator Testimony at Trial
by Michael Kennedy
October 27, 2018

If a picture is worth a thousand words, then a video is worth more than a million. This is why surveillance evidence in bodily injury actions is such a powerful and persuasive tool – a fact that has been recognized by judges, who are very careful when admitting surveillance into the record as substantive evidence.

Surveillance: Activities and Problems
by Bogdan Miscevic
October 27, 2018

Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs or applicants that legitimately suffer from chronic pain and those who do not. The plaintiff's or applicant's credibility becomes a central issue in the litigation, and counsel often looks to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's or applicant's credibility and challenge the validity of his or her claim.

From Motorist to Manufacturer: Adjusting to AV Litigation
by Peter W. Vlaar
September 24, 2018

In the absence of any human input in the operation of vehicles (level 5),drivers are rendered passengers and any liability for causinOKg an accident inevitably shifts from the motorist to the manufacturer; from the person to the product.

In addressing what that might look like into the future and how an adjuster could handle litigation involving autonomous vehicles ...

Legislative Progress Towards Legalization: An Overview of the Recently Published Cannabis Regulations
by Howard Borlack
September 19, 2018

After a comprehensive regulatory consultation period with Canadians, municipal, provincial, and territorial governments, law enforcement officials, public health representatives, stakeholders, and Indigenous governments and representative organizations, among others, the federal government published the Cannabis Regulations to support the coming into force of the Cannabis Act (the “Act”) in the Canada Gazette on July 11, 2018.

Down the Path to the End Finality: A Case Study of Gillham v. Lake of Bays (Township)
by Jessica Grant
September 19, 2018

In July 2018, the Ontario Court of Appeal handed down its decision in Gillham v Lake of Bays (Township) (“Gillham”),1 wherein the Court of Appeal struggled with the issue of whether a claim made after the limitation period could be permitted. 

What Happens When You Tell Your Boss You Want to Retire... and then Change Your Mind?
September 14, 2018

In English v Manulife Corporation, 2018 ONSC 5135, the Ontario Superior Court of Justice considered the legal question of whether an employee who has resigned by way of a notice of retirement may later rescind her written notice of retirement.

If an employee has a change of heart and wishes to resile from retirement after formally providing notice, is an employer on the hook for wrongful dismissal if they chose to uphold the notice of resignation?

Lets talk about Sexts: Is my teenager in possession of child pornography?
September 14, 2018

The Ontario Court of Appeal has struck down the mandatory minimum sentence for possession of child pornography. The Appellant, Nathaniel John, in R v John, 2018 ONCA 702, successfully convinced three judges that imposition of a mandatory minimum sentence of six months imprisonment is grossly disproportionate to the conduct of a reasonably hypothetical offender, using, for example, a youth “sexting”.

Attendant Care Benefits: Family Members & Professional Health Care Designations
by Bogdan Miscevic
September 12, 2018

Careful analysis of relevant case law dealing with family members claiming attendant care benefits pursuant to s. 3(7)(e)(iii)(A) of the Statutory Accident Benefits Schedule [“Schedule”] indicates that there are numerous factors to consider when determining eligibility. This case law examines whether a professional health care provider that is also a family member of the claimant (i) worked in that capacity at some point prior to the subject accident or at the time the attendant care services were provided; OR (ii) if not, he or she actively sought employment in that capacity at the time of the accident or at the time the services were provided.1 In addition, this case law reviews this family   (Along with a handy table for easy reference)...

No Playing Around: An UPDATE on Tort Liability and School Yard Injuries
by Michelle Legault
September 11, 2018

Our previous article covered a pushing incident on a Toronto Catholic District School Board (“TCDSB”) playground in March 2015. Following our previous article, the mother of the injured boy discontinued the lawsuit in question. The TCDSB later discontinued their crossclaim against the two students. While some school boards, students, and parents may be relieved to hear this news, a discontinued claim should not lead them to believe similar claims will simply disappear in the future.

Subrogating Claims in the Construction Context: They Do Exist
by Jessica Grant
September 08, 2018

Oftentimes, builder's risk policies contain waivers of subrogation, and contractors, more often than not, are listed as additional insureds. For this reason, subrogated claims are few and far between in the construction context. However, the recent case of Maio v. Mer Mechanical Inc., 2018 ONSC 4426 (“Maio”) suggests that subrogation may be possible.

Acting for both Insured and Insurer: What Counsel Need to Know
by Jessica Grant
September 08, 2018

You have been retained to act for the insurer and the driver as a result of a rear-end motor vehicle accident in which the driver has been rear-ended. There is likely no liability against your client and there are no mechanical issues with the vehicle. Unfortunately, and not surprisingly, you encounter a difficult insured who refuses to co-operate and fails to reply to your letters, phone calls, or requests (pleas), that they attend examination for discovery. What do you do?

Casino Niagara: Rolling the Dice on Constructive Dismissal
August 07, 2018

In Filice v Complex Services Inc., the Ontario Court of Appeal overturned a trial judge's decision by significantly lowering the reasonable notice period arising from the constructive dismissal of an employee and finding that punitive damages were not appropriate in the circumstances despite the trial judge awarding $100,000 in punitive damages.

The case has several implications for employees under investigation, both administratively and criminally, and should be considered by all employers and human resource departments country-wide.

Strategic Lawsuits Against Public Participation - A "Win" for Freedom of Expression Featured Case Study: Lascaris v B'nai Brith, 2018 ONSC 3068
July 12, 2018

In seeking an order to dismiss the plaintiff's action pursuant to s. 137.1(3) of the Courts of Justice Act, McCague Borlack LLP litigator successfully used the new Anti-Strategic Lawsuit Public Participation (Anti-SLAPP) legislation to have the case dismissed for their client B'nai Brith Canada.

In Lascaris v B'nai Brith, the plaintiff, a former securities class action lawyer and former Justice Critic of the Green Party of Canada, sued the defendant B'nai Brith Canada for libel after the organization published an article and a Tweet on political issues in the Middle East. The publications suggested that Lascaris used social media to advocate on behalf of terrorists.

World Cup of Violence: Are Soccer Clubs and Leagues Liable for "On Field" Fisticuffs?
July 11, 2018

To what extent can sports clubs, facilities and leagues be held responsible for the violent outbursts of a player during a game?

The Ontario Court of Appeal in Da Silva v. Gomes, 2018 ONCA 610 recently upheld the principle that supervising authorities are generally not legally responsible for "a sudden unexpected event in the midst of an acceptable, safe activity."

Justice Must Not Only Be Done, it Must be Seen - The LAT's Mandate to Ensure Both the Existence and the Appearance of Adjudicative Independence in their Decision-Making Processes
by Matthew Dugas
July 09, 2018

This decision, Mary Shuttleworth v. License Appeal Tribunal, 2018 ONSC 3790, concerns a claimant who brought a dispute over statutory accident benefits to the License Appeal Tribunal (“LAT”), arising from a motor vehicle collision. The LAT has statutory authority to hear all disputes related to benefits under the Statutory Accident Benefits Schedule (“SABS”).

The LAT Adjudicator decided that the claimant's injuries did not warrant a designation of catastrophic impairment as defined in the SABS. A designation of catastrophic impairment under the SABS increases limits of some benefits and is a prerequisite for other benefits.

To Warn or Not To Warn: An Explanation of the Duty to Warn and the Reasonable Foreseeability Analysis: Case Comment: Maxrelco (Immeubles) v Lumipro Inc.
by Howard Borlack
June 29, 2018

To what extent must service technicians warn their customers of particular risks associated with the product they are servicing? After presiding over a seven-day trial on liability alone, Madame Justice S. Gomery grappled with this very question and provided a framework to help answer it in her recent decision in Maxrelco v Lumipro Inc., 2018 ONSC 3638.

This decision explains what factors would trigger the duty to warn and in what circumstances would they attract liability.

Secrets Between Children and Parents Are Litigation Records of a Children's Lawyer subject to Father's Freedom of Information Request?
June 28, 2018

In Ontario (Children's Lawyer for Ontario) v Ontario (Information and Privacy Commissioner) 2018 ONCA 599, the Court of Appeal for Ontario considered the novel issue of whether a child-client's litigation records with the Children's Lawyer should be subject to a father's freedom of information access request. The Adjudicator at first instance determined that the records were “in custody or under the control” of the Attorney General (“MAG”) and ordered that MAG respond to the father's request. On judicial review at the Divisional Court, the court upheld the order of the Adjudicator. In a rare move, the Children's Lawyer appealed...

Insurers Beware: Ontario Court Rules Underwriting and Broker Files are Producible in Tort Litigation when Consent is a "Live Issue"
June 27, 2018

In a decision that will likely be replicated by other courts nationwide, Master MacAfee in Robichaud v McAulay, 2018 ONSC 3636, ordered production of an insurer's underwriting file along with the relevant insurance broker's file.

The underlying litigation involved a 2012 motor vehicle accident. The defendant, Kyriakos Constantinidis, was driving his mother's car and rear-ended the plaintiff. The insurer denied coverage to Kyriakos, claiming that he did not have consent to possess his mother's vehicle. The plaintiff pled that Kyriakos had consent, whereas the mother denied providing consent.

Common Interest Privilege: A New Tool in the Litigation Basket
by Howard Borlack
May 25, 2018

In a recent decision, the Federal Court of Appeal confirmed that common interest privilege (“CIP”) is a principle of Canadian law. This principle is unlike solicitor-client privilege, in that communication between counsel and a third party may be considered privileged if the shared information is to benefit both parties, especially with respect to the furtherance of a commercial transaction. The court overturned a Federal Court decision which held that that CIP is not a principle of Canadian law.

Risk Management and Cannabis in Ontario What is going to be legalized and when?
May 24, 2018

The Federal Government of Canada has yet to set a date for the legalization of recreational cannabis in Canada. Current forecasts estimate that it will be legalized in the summer of 2018, but this may be optimistic. Once recreational cannabis is legalized, its sale and distribution will be regulated by the provinces leading to different rules province to province, like the regulation of alcohol.

Autonomous Vehicles and the Future of Litigation
by Peter W. Vlaar
May 24, 2018

Autonomous vehicles use artificial intelligence and sense their environment using sensors and GPS coordinates to drive themselves without human input. However, this is a very broad term that encompasses everything from cars assisting with keeping themselves in their lane to cars that require no human input.

Eyes Wide Shut: The Best Defence is a Good Offence Cyber Liability
by Catherine A. Korte
May 24, 2018

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...

Here, There and Everywhere, Chasing Fraudsters - An Indictment in a New York Slip and Fall Scheme raises concerns about Insurance Fraud
by Howard Borlack and Michelle Legault
May 23, 2018

The United States Attorney's Office, Southern District of New York, has charged five individuals with defrauding businesses and insurance companies of more than $31.7 million in an elaborate slip and fall scheme dating back to 2013.

Peter Kalkanis, Bryan Duncan, Kerry Gordon, Robert Locust, and Ryan Rainford (“the accused”) are charged with conspiracy to commit mail and wire fraud, mail fraud, and wire fraud. Peter Kalkanis, the alleged “ringleader” of the scheme, is also charged with aggravated identity theft.These charges relate to how the fraud scheme was allegedly carried out...

Discoverability Dilemma: Limitation Periods for Contribution and Indemnity Claims
by Adam Grant
May 09, 2018

In the recent decision of Mega International Commercial Bank (Canada) v. Yung (“Mega International”), the Ontario Court of Appeal provided an analysis of the contentious issue of whether the limitation period for a contribution and indemnity claim (under section 18 of the Limitations Act, 2002 (“the Act”)) is an absolute limitation period, or if it is subject to issues of discoverability.

Marshall Report: Progress To Date
by James Tomlinson and Melissa Parravano
May 03, 2018

On April 11, 2017, David Marshall, Special Advisor to the Minister of Finance, released his final 103-page report regarding Ontario's auto insurance system. The report was entitled: Fair Benefits Fairly Delivered (the “Report”).

The Report's introduction outlines the purpose of David Marshall's role as Special Advisor and the purpose of his appointment, by Order in Council, to review and make recommendations for improvements in the auto insurance system in Ontario. Marshall explains that Ontario is often criticized as having the most expensive auto insurance in Canada.

The Art of Due Diligence: Priority Disputes Among Insurers

The enactment of Ontario Regulation 283/95 – Disputes Between Insurers (the “Regulation”) has obliged insurers to continue payment of Statutory Accident Benefits (“SABS”) to injured person even where entitlement to these benefits is disputed. At the same time, the insurers ‘battle it out' behind the scenes over which has higher priority and should be paying for the claimed benefits.

A priority dispute arises when there are multiple motor vehicle liability policies which might respond to a SABS claim made by an individual involved in a motor vehicle accident.

Section 268(2) of the Ontario Insurance Act sets out the hierarchy of insurers obligated to pay SABS with respect to the occupant claimants, as follows:

Duty to Defend an Additional Insured Under a CGL Policy
by Matthew Dugas
May 03, 2018

Service contracts as between sophisticated parties often contain numerous indemnity and insurance provisions, subject to specific terms. Determining whether a duty to defend an additional insured under a Commercial General Liability Policy (“CGL Policy”) is triggered in a particular instance is, therefore, an intricate exercise. Many CGL Policies provide that one party, for example, a subcontractor or service provider, agrees to defend (and often indemnify) the owner of the property and add them as an “additional insured”.

Old McDonald had a Farm and Kids: A Tale of Succession and Unjust Enrichment Case Comment: McDonald v McDonald
by Howard Borlack
April 27, 2018

The day-to-day life of a farm kid is exceedingly different from that of a “city" boy or girl. While some children are told to take out the trash, clear the table, and tidy up their bedrooms, children of farmers are expected to be up at the crack of dawn to engage in unpaid, arduous labour to support the viability of the farm and to prepare the next generation to take over. What happens when these children grow up and feel they should now be compensated for their "family chores"?

Security Breach Reporting Requirements under the PIPEDA starting November 2018
by Michelle Legault
April 24, 2018

On March 26, 2018, the Government of Canada passed an Order in Council fixing November 1, 2018, as the date on which section 10 of the Digital Privacy Act (“the DPA”) comes into force. This section creates a new division in the Personal Information Protection and Electronic Documents Act (“PIPEDA”) that will require private commercial enterprises to report certain breaches of security safeguards.

Couple Caught in Bidding War Frenzy Reneges on Purchase of Dream Home, Liable for Damages
April 18, 2018

Much ink has been spilled analyzing and assessing the macro impacts of the residential real estate market worldwide. Canada and its largest cities are no exception, particularly in Vancouver, Toronto and the surrounding areas. When the residential real estate market rises, many people, perhaps with the exception of first-time buyers, are joyful homeowners and investors. When the market turns and drops, it is not for the faint of heart.

In Gamoff v. Hu, 2018 ONSC 2172, Justice Edwards presided over the sad facts of how one family, desperate for their dream home, became embroiled in a bidding war and overextended their ability to finance the purchase price of that home. Regrettably, the tragic facts of this case are not uncommon.

Location Matters: Superior Court Rescinds a $95,000 Contract for Toronto Maple Leafs' Season Tickets
April 15, 2018

In the recent decision TMJ Hygiene Service Corporation v Aces Capital Inc.,1Monahan J. rescinded a $95,000 contract for the sale of two seat licenses at the Air Canada Centre. Justice Monahan found that the vendor, Aces Capital Inc. (“Aces”), misrepresented the location of the tickets associated with the seat licenses to the purchaser, TMJ Hygiene Service Corporation (“TMJ”).

Waive Goodbye to the Consumer Protection Act for those who are both Occupiers & Suppliers
April 12, 2018

In the recent decisions in Schnarr v Blue Mountain and Woodhouse v Snow Valley, the Court of Appeal for Ontario held that the Occupiers' Liability Act ("OLA") prevails over the general provisions of the Consumer Protection Act ("CPA").

This decision, where MB's James Tomlinson and Garett Harper successfully represented the intervener Canadian Defence Lawyers, reaffirms the jurisprudence surrounding waivers in Ontario and confirms that waivers are still an effective means of managing risk for occupiers who also meet the definition of "supplier" under the CPA.

Occupier's Liability: A Board Meeting Gone Wrong Case Comment: Omotayo v Da Costa et al.
April 10, 2018

Anyone who has ever been to a board meeting (or a partners, shareholders, town hall, or any similar type of meeting) can attest to the tension that often arises. The law is clear that occupiers have a duty to maintain their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the Board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?

The Production of Cell Phone Records in the Age of Distracted Driving Expanding the Limits of Disclosure
by Eric W.D. Boate
April 10, 2018

In an increasingly technological age, the production of cell phone records is becoming a common undertaking request in actions arising out of motor vehicle accidents. In Austin v. Smith,1 the Court recognized the importance of these records and ordered production of them, even where there was no evidence that the cell phone was in use at the time of the accident.Rather, the mere admission that the driver had a cell phone in his or her vehicle at the time of the accident was sufficient to warrant the production of the cell phone records.

Freedom of Expression in the 'Trump Era' Is a "Trump is right. F**k China. F**k Mexico" Sign Protected Speech?
March 27, 2018

Passionate political supporters often choose to convey their message in a manner that grasps observer's immediate attention, regardless of how it may be interpreted. This is the precise fashion in which Fredrick Bracken decided to transmit his electoral support for the current United States President, Donald Trump, while at Niagara Parks. In choosing Niagara Parks as his political forum, Mr. Bracken prompted, for the first time, the Court of Appeal's interpretation and constitutional analysis of section 2(9)(a) of Niagara Parks Act, Regulation 829...

Improper Policy Cancellation Leads to "Risky Business"- Case Comment: Minister of Finance v AXA Insurance
by Howard Borlack and Michelle Legault
March 26, 2018

The appeal decision in Ontario (Minister of Finance) v AXA Insurance1 is an important lesson for insurers who claim to have cancelled an insured's automobile policy, specifically when a priority dispute later arises.

In this case, the claimant was involved in a motor vehicle accident on December 29, 2011. He received accident benefits from the Motor Vehicle Accident Claims Fund (“the Fund”), which is administered by the Minister of Finance. The Fund disputed its priority to pay benefits and argued that the claimant had a valid automobile policy with Elite Insurance (“Elite”) on the date of loss.

Case Management: Be Zealous But Be Reasonable
March 23, 2018

The purpose of case management in the Ontario civil justice system is to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just conclusion. As part of this system, all the steps in a particular case might be heard by one particular judge. This mechanism often provides parties with “repeated, privileged access to a judge” to help streamline an action.

However, when case management is abused by parties and/or their counsel, the Court will not hesitate to remove the matter from case management and will likely also chastise the parties and their counsel in the process. Justice Frederick Myers did just that in a recent Endorsement which arose in the context of a heavily litigated trusts and estates matter.

Autonomous Vehicles vs. Pedestrians: Who is at fault?
by Peter W. Vlaar and Van Krkachovski
March 22, 2018

The recent tragic accident in Arizona involving an autonomous vehicle and a pedestrian raises some important questions about liability. While not yet available to consumers, self-driving cars are being tested on streets throughout the United States and Canada in order to fine-tune and develop the emerging technology with the ultimate goal of reducing collisions involving motor vehicles.

The question this unfortunate accident raises is who is at fault? Is it the test driver behind the wheel? The manufacturers of sensors or radar? The developer of the software? The owner of the vehicle? Or was it purely contributory negligence on the part of the pedestrian?

Cloudy with a Chance of Money: Overcoming Obstacles in Subrogated Claims
March 21, 2018

Subrogation is the process under which an insurer, which has paid a loss under an insurance policy, becomes entitled to the rights and remedies of its insured against the party responsible for the loss. Because an insurer pays on its policy for losses suffered by the insured to make that policyholder whole, subrogation can be an effective mechanism for an insurer to recover its losses from the responsible party, depending on how the claim has been handled. Subrogation cases are often won and lost as a result of the actions and steps taken within the first few days of the incident. As a result, active involvement in the process, alongside open communication with all involved parties, is crucial to maximizing recovery.

Duty to Mitigate
by Eric W.D. Boate
March 21, 2018

Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.

While a plaintiff bears the burden of proving the fact that he has suffered a loss and the quantum of that damage, the defendant bears the onus of proving, on a balance of probabilities...

Immunities and Exploits: Considerations for Subrogation as against Municipal or Regional Governments
by Adam Grant
March 21, 2018

As a result of the special nature of local governments, including cities, towns, counties, regional municipalities, etc., they enjoy a special role in respect of litigation, and have a number of unique defences at their disposal which can often discourage or thwart subrogation efforts altogether. However, it is important to understand that such defences are not insurmountable, but only require special consideration in order to deal with.

More importantly, a detailed understanding of the available defences typically asserted by municipalities can actually make it more likely that actions can succeed as against them.

Face the Music: Once Requested, A Mediation Must be Scheduled Forthwith
March 12, 2018

Recently, the Ontario Superior Court of Justice in Thomson v Portelance, 2018 ONSC 1278, reminded the Bar that a party to motor vehicle accident litigation in Ontario must schedule a mediation once requested.

In Thomson, Justice Firestone presided over a case conference requested by the plaintiff in a situation where the defendant refused to schedule mediation until after examinations for discovery were complete...

Legislature Passes Concussion Safety Legislation with Bill 193: Rowan's Law (Concussion Safety), 2018
by James Tomlinson and Michelle Legault
March 07, 2018

On March 6, 2018, Bill 193: Rowan’s Law (Concussion Safety), 2018(“Rowan’s Law”) passed its third reading. The Bill will next go before the Lieutenant Governor to receive Royal Assent.

Rowan’s Law is named for Rowan Stringer, a 17-year-old rugby player who died after sustaining a traumatic brain injury in a rugby game. The Bill will come into force on the day it receives Royal Assent, although this day has not been announced (section 9(1)).

Overall, Rowan’s Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. 

A “sport organization” will be required to:

The Fast & the Furious: Hard Drugs, Fast Cars & Untimely Death Case Study: Isaac Estate v Matuszynska
March 02, 2018

In the midst of a crisis, the common law Doctrine of Emergency is a defendant's saving grace.

When faced with a sudden emergency that a driver is not responsible for creating, he or she cannot be held to a standard of conduct of a reasonable driver in ordinary circumstances – the unique and exigent circumstances must be taken into account when measuring the appropriate standard of care and whether or not there was a breach.

On February 23, 2018, in a split-decision, the Ontario Court of Appeal in Isaac Estate v Matuszynska1 upheld a lower court's decision granting summary judgment and dismissing the action, where the Doctrine of Emergency was found to apply in a drug transaction that went horribly wrong.

Fifty Shades of Grey: Contractual Interpretation in the World of Email Negotiation and Sex Toys
February 23, 2018

Even amongst sophisticated companies (or consenting adults for that matter), it is sometimes difficult to determine when a contract is entered into. On February 14, 2018, the Ontario Court of Appeal allowed an appeal in Cana International Distributing Inc. v. Standard Innovation Corporation, 2018 ONCA 145, which involved an alleged breach of a contract for, among other things, the exclusive distribution rights in retail shops, drug stores and sex toy retail outlet stores regarding a sex toy called “We-Vibe”.

This case is a cautionary tale that counterfactual negotiations – even if they are not signed at the same time – can nevertheless be considered binding.

Collaborative Care and Vicarious Liability
February 16, 2018

This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.

Latency of Claims for Allied Healthcare Providers
February 16, 2018

Limitation periods, sometimes referred to as proscription periods, refer to the time that a party has to commence an originating court process. They are governed by provincial statutes.

The main purposes of limitation periods are to provide certainty and finality, as well as to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9...

Legal Themes utilized for Medical Liability
by Catherine A. Korte and Bogdan Miscevic
February 16, 2018

The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.

Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient. 

Do Excluded Drivers have access to AB Coverage? See Court of Appeal Ruling
February 14, 2018

A recent Court of Appeal decision1 has clarified two issues that are of relevance to insurers involved in priority disputes.

Both appeals involved individuals who were claiming accident benefits although they were listed as excluded drivers in their parents' policies.

The first issue relates to whether excluded drivers in a household may be entitled to accident benefit coverage from the insurers who issue the given policy.

The second issue relates to what is the appropriate standard of review for an insurance arbitrator's decision involving specialized expertise...

Emerging Trends in Personal Injury Damage Awards
by Van Krkachovski
February 13, 2018

In recent years, there have been a number of developments in the law which have resulted in escalating damage awards, particularly in catastrophic injury cases. The paper will outline some of these developments relating to:

I. Future Care Costs;
II. Guardianship and Management Fees; and
III. Risk Premiums.

Malpractice & Health Litigation Basics in Canada: A Statistical Primer for Practitioners, Professionals, Hospitals, and Insurers
by Dr. Brian Murphy
February 12, 2018

Canadian citizens, and those not as fortunate to live in Canada, have the perception that 'uniform publicly funded' medical-related services are available nationwide in Canada and are 'free'... that is what it is to be Canadian. However, contrary to popular belief, there is no unified single professional regulatory, or single-payer national healthcare system in Canada. To the extent that there is healthcare that is publicly funded in Canada, it is funded on a provincial or territorial basis [here-in-after collectively 'provincial' or 'province'] and supplemented with federal funds that are 'conditionally' transferred to the province.

Cargo Storage: A Minefield of Regulation
February 08, 2018

It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.

Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.

The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo...

When is income 'earned' and therefore deductible? Case Study: A.S. and Economical
January 29, 2018
When is post-accident income considered “earned” and therefore deductible from an Income Replacement Benefit?
A January 10, 2018, decision of Adjudicator Robert Watt provides useful guidance on the issue.
The issue becomes contentious with claimants who continue to earn income after an accident at a changed or reduced capacity...

What will cause an automobile tort claim to flop? Case Comment: Nadarajah v. Aviva Canada
January 19, 2018

What kind of evidence is likely to cause an automobile tort claim to flop?

A threshold decision of Justice P. J. Monahan released December 13, 2017, provides useful guidance on the issue.

The circumstances will sound familiar to insurers and their counsel.

Insurer's Duty of Good Faith will not be expanded by Supreme Court Case Comment: Usanovic v. Penncorp
January 09, 2018

Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?

The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.

In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.

Court Orders Up to $600,000 Advance Payment in Advance of Personal Injury Med-Mal Trial
by Danielle Ralph
December 21, 2017

The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340 Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000.00 in advance of the trial scheduled for November 2018.

The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015 following her admission of liability.

Teenagers will be Teenagers: Did a Mother Give (Implied) Consent for Her Son to Possess and Operate Her Car?
December 20, 2017

In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 (“HTA”). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.

The Personal Injury Bar's Worst Fear: Not Enough Evidence to Put Question to a Jury
December 20, 2017

Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.

This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward. 

HPARB Rules on Kinesiologists and FAE Reports Featured Case: C.M. & P.M.
by Howard Borlack
December 19, 2017

The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.

This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. The Lawyers of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.

Show Me the Money? Only If You Can Show Me the Hazard!
by Melissa Parravano
December 18, 2017

On September 14, 2017, Justice Sanfilippo of the Ontario Superior Court of Justice granted summary judgment dismissing the plaintiff's occupiers' liability claim, stating that without objective evidence pointing to the cause of her slip and fall, the claim could not succeed.

The plaintiff, Mrs. Hamilton, a nine-year resident of an apartment building owned by the defendant, Toronto Community Housing Corporation (“TCHC”), alleged that on May 7, 2012, she slipped and fell in the 4th-floor hallway leading to her apartment unit...

A Chiropractic Malpractice Case
November 20, 2017

The Ontario Superior Court of Justice recently released the trial decision where Martin Smith, with the assistance of Desneiges Mitchell, successfully defended a chiropractic malpractice case where the plaintiff,  (Patient), sued the defendant chiropractor for negligence and battery for alleged improper chiropractic treatments.

Alcohol, Snowmobiling, Breaching a Probation Order and Insurance Coverage
November 13, 2017

Recently in Middleton v Pankhurst,1 the Court of Appeal confirmed the parameters in which insurers may deny coverage on the basis that the insured was not a “person authorized by law” in accordance to Statutory 4 (1) Condition of O. Reg. 777/93:

Authority to drive 
4 (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless...

Falling Back to More Pedestrian and Cyclist Motor Vehicle Accidents
by Michelle Legault
November 09, 2017

As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.

This article will review post-accident steps for insurers and drivers.

The Supreme Court of Canada keeps the onus on banks over innocent drawers for fraudulent bills of exchange
November 02, 2017

In Teva Canada Ltd. v. TD Canada Trust, the Supreme Court of Canada considered the defence to the tort of conversion under s. 20(5) of the Bills of Exchange Act. The judges split 5-4, ultimately upholding the recent jurisprudence on the test for non-existing or fictitious payees instead of returning to a purely objective approach, as suggested by the dissenting judges.

The dispute arose from the fraudulent actions of Teva's finance manager. 

The IPC clarifies when insurers may and may not collect Health Card numbers
November 02, 2017

The Office of the Information and Privacy Commissioner of Ontario (“IPC”) recently considered whether and under what circumstances insurers could collect health card numbers from their insureds.

The issue arose when the Ministry of Health and Long-term Care informed the IPC that individuals’ health card numbers were compromised by criminal activity and were being used to file fraudulent claims...

The Court of Appeal's Take on Deductible & Prejudgment Interest in MVA Claims
October 30, 2017

Non-pecuniary damages (also called general damages) are awarded to a plaintiff that sustained a non-monetary loss. These damages are not capable of exact quantification. Examples of such losses include, inter alia, pain and suffering. 

On August 1, 2015, legislative reform to the Insurance Act2 took effect. The statutory deductible applicable to damages for a non-pecuniary loss was increased.

The amendments to the Insurance Act did not contain specified dates upon which the increased deductible and lower prejudgment interest rate were to come into effect. Naturally, the questions that arose from the above-described legislative changes were as follows...

Case Comment: Whether A Constructive Trust Should Be Imposed Because Of Unjust Enrichment
by Hillel David
October 25, 2017

Michelle Constance Moore (“Moore”) married Lawrence Anthony Moore (“the deceased”) in 1979. They had three children and cohabited until December 1999. The deceased began living together with Risa Lorraine Sweet (“Sweet”) in her apartment in the summer of 2000, and they cohabited until his demise on June 20, 2013. In the interim, Moore and the deceased were divorced in October 2003.

In October 1985, while married to and cohabiting with Moore, the deceased obtained a life insurance policy in the amount of $250,000. Moore was named the beneficiary, but was not made an irrevocable beneficiary pursuant to certain provisions in the Insurance Act (Ontario).

The issue is whether the proceeds of the life policy upon the death of the deceased were payable to the original beneficiary (who continued to pay the policy premiums) or the new beneficiary.

Is This The End of Civil Jury Trials in Motor Vehicle Accident Cases?
by Annette Uetrecht-Bain
October 25, 2017

Complaints about civil jury trials in motor vehicle cases are not novel or uncommon. It is the perception of some (most notably the plaintiff bar) that jury results are typically unfavourable to plaintiffs. Recently, the complaints have increased to the point where even the Judiciary is weighing in.

For example, in 2016 a Superior Court Judge commented in a threshold decision... 

Navigating Through Challenging Mediations: Creating Value in the Midst of Obstacles
by Van Krkachovski
October 24, 2017

Mediation is a process in which a neutral third party assists the disputing parties in reaching a mutually acceptable resolution. Mediation is designed to be a confidential and voluntary process, free of the formality and adversarial nature of court proceedings. Due to the benefits that the mediation process has yielded, Rule 24.1 of the Rules of Civil Procedure enforces mandatory mediation in some locations and for certain civil actions.

This article details reasons why a matter may not resolve at mediation, and still can list the benefits the process can offer disputing parties.

The Sharing Revolution – Accident Benefits Coverage For Uber Drivers & Passengers
by Bogdan Miscevic
October 16, 2017

In his infamous article, “The Sharing Revolution – It's About More Than Just Getting Twice the Value For Half the Cost”, Paul Z. Pilzer, an American economist and self-proclaimed ‘social entrepreneur', discusses a phenomenon he refers to as “the sharing revolution”. He calls it the most significant change in the history of the Western world since the nineteenth century when the creation of affordable automobiles forever shaped our society. Mr. Pilzer argues that Uber is only a part of this Sharing Revolution in which everything – how we drive, what we eat, where we sleep – is becoming shared by more than one individual in order to halve the cost. It is this sharing revolution that, according to Mr. Pilzner, will surpass our conventional service providers, will allow for cheaper goods and services and ultimately revolutionize our society.

Liability Exposure for Uber Drivers after a Fare is Dropped Off
by James Tomlinson and Melissa Parravano
October 16, 2017

Over the years, Canadian courts have spent considerable time answering the question: “whether an insured's negligence while using or operating a motor vehicle has ‘caused' – in its recognized legal sense – the injuries sustained by the victim.”1 Now that Uber has revolutionized the way we transport passengers to their chosen destinations, this will inevitably add to the number of vehicle-for-hire on the road. Given this increase, we can expect an escalation of lawsuits involving the liability for vehicles-for-hire. Some of these lawsuits will involve Uber driver's liability. When these circumstances arise, the Courts will have to decide what principles to apply. The cases discussed will provide some guidance as to how the courts may deal with these issues in the future.

The Future of Litigation and Autonomous Vehicles
by Peter W. Vlaar
October 16, 2017

Autonomous vehicles are defined as self-driving vehicles capable of sensing their environment using artificial intelligence, sensors and GPS coordinates to drive themselves without human input.1 However, not all cars with autonomous features necessarily operate on the same level of automation. The Society of Automotive Engineers (SAE) International issued a standard classification for defining the various levels of automation in a car. They have identified 6 levels in total, from 0-5...

Four Million Dollar Price Tag to Fix an Actress's Reputational Damage
September 20, 2017
Ms. Wilson, an Australian actress and star of several Hollywood movies, sued the defendants for defamation based on eight separate publications published over a three-day period.
On September 13, 2017, Justice John Dixon of the Supreme Court of Victoria, Australia, awarded Ms. Rebel Wilson an unprecedented amount in damages for defamatory articles published by Bauer Media Pty Ltd. and Bauer Media Australia Pty Ltd...

LAT Broadens the Definition of Accident as per SABS Case Comment: 16-00218 v. Aviva Insurance
by Bogdan Miscevic
September 20, 2017

The recent LAT decision in 16-000218 v. Aviva Insurance broadens the definition of the term “accident” as per SABS and potentially opens doors for accident benefits claims being brought forward that don't necessarily fit neatly into the classic category of what we are used to thinking about as an “accident”.

A seven-year old elementary school student suffering from cerebral palsy and quadriplegia was picked up by a school bus at her home. The driver was to take the applicant to school, but instead, with the applicant still in the vehicle, travelled to the driver's own house, got into a different vehicle, and left. The applicant remained in the school bus, alone and unattended, for approximately two hours...

Marijuana Legalization: Ontario Weighs In 
September 18, 2017

To the disappointment of many and the surprise of few, the Ontario Government has decided to provide access to recreational cannabis through a government corporation similar to the LCBO. Ontario plans to open 40 stores across the province by July 2018 when cannabis becomes legal with another 110 by summer of 2020. It also will allow for the purchase of cannabis online through the governing body's website. While this may sound sufficient, it is worth highlighting that there are over 650 LCBO locations throughout the province.

No Playing Around: Tort Liability and School Yard Injuries
by Michelle Legault
September 18, 2017

Recently, the public learned of a lawsuit against two children regarding a schoolyard incident in 2015. With school back in session, what does this current state of affairs mean for students, school boards – and even parents moving forward? Furthermore, what should insurers be thinking about as children fill the halls and playgrounds for another year?

Auditor Held Liable in Negligence for Non-Clients' Losses - Case Comment: Lavender v. Miller Bernstein
by Howard Borlack
August 10, 2017

The recent Ontario Superior Court decision, Lavender v Miller Bernstein,1serves as a reminder – and a warning – that the Canadian jurisprudence is beginning to recognize a cause of action in negligence emerging from a negligent misrepresentation where the representor owes a duty of care to the representee. In this case, an auditor was found liable for the substantial financial loss of a securities dealer's clients, though it was the security dealer who fraudulently misrepresented information to its clients.

The fact that the plaintiffs were non-clients of the defendant and may have not even been aware of the defendant's role at the time of the loss is irrelevant, broadening the scope of liability for future negligence claims alike.

Tug-of-War Gone Wrong: Who is Liable when Participant's Arm is Amputated - Case Study: Bonello v. Gores Landing Marina
August 10, 2017

The stage was set. The tug-of-war pitted 20 or so trailer renters against 20 or so cottage renters. Disaster ensued.

In Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, the Plaintiff, Timothy Bonello ("Bonello"), sought relief from an injury arising from a game of tug-of-war.

Bonello brought an action against several parties, including the Marina, Davies Junior and Joseph Davies Sr. (“Davies Senior”), the principal of the Marina. In Bonello's claim, he asserted that the Marina and Davies Senior were negligent and also liable pursuant to the Occupiers' Liability Act. In addition, Bonello claimed that the defendants were vicariously liable for the negligent actions of Davies Junior. The Marina and Davies Senior responded with a summary judgment motion to dismiss the action.

One small step for summary judgements, one giant leap for efficiency
by Howard Borlack
August 04, 2017
The Ontario Superior Court's recent decision in Fairfield Sentry Limited et al v PWC et al signals a widening role for summary judgement procedures.
This action arises from the infamous Ponzi scheme perpetrated by Bernie Madoff until 2008. The plaintiff's, through the liquidators, brought this action against Price Waterhouse Cooper and Stephen Wall (collectively PWC”) claiming breach of contract and/or negligence for not raising concerns about the Bernard L. Madoff Investment Securities LLC during their audit of the Fairfield Funds on April 24, 2007. The plaintiffs claimed because of PWC's failure to discover Madoff's scheme, they suffered monetary losses.

Medical Records: Personal Privacy in Conflict with the Rule of Law
by Howard Borlack
August 02, 2017

Case Study: HMTQ v Philip Morris International, Inc., 2017 BCCA 69

British Columbia's controversial Tobacco Damages and Health Care Costs Recovery Act (“the Act”) is back in the courts. This time around the dispute isn't on the Acts constitutionality, but instead pits the right to privacy in medical data against a persons or corporation's right to a “fair playing field” in litigation, or the principle of procedural fairness grounded in the Rule of Law.

Court of Appeal Declines Remedies against Person Harassing Mayor, Township
August 01, 2017

The Ontario Court of Appeal has recently upheld an application judge's decision to deny the mayor and Town of Rainy River relief from the harassment of a local resident in its recent decision, Rainy River (Town) v. Olsen.

In this case, a local resident of the Town Rainy River had an interest in horticulture and town beautification. He began writing to the mayor and council with ideas concerning a variety of issues such as agriculture, gardening, and general community beautification. Unsatisfied with the responses he received, his communications to the mayor and council allegedly grew increasingly abrasive and insulting. On one occasion, he attended the mayor's workplace and verbally harassed her.

Legalizing Marijuana: Potential Impact on Social Hosts
August 01, 2017

All hosts know there are several elements that need to be properly planned when hosting a social function: the company, the food, the music and, of course, the refreshments. With the anticipated legalization of recreational marijuana in Canada, however, could a social host face exposure if marijuana is provided and something unexpected happens?

Canadian jurisprudence has consistently held that special relationships exist whereby commercial organizations and establishments that serve alcohol or other impairing products owe their patrons a duty to ensure that no foreseeable harm occurs while on or after leaving the premises. These duties include the following:

The Oppression Remedy: Greater Risk of Personal Liability for Directors and Officers
July 26, 2017

In the recent decision of Wilson v Alharayeri,1 the Supreme Court of Canada unanimously found that directors and officers of a corporation can be personally liable for corporate oppression pursuant to section 241 of the Canada Business Corporations Act (“CBCA”). In doing so, Cóté J., writing for the Court, clarified the test for when personal liability may be imposed on corporate directors for oppression.

Ultimately, this decision broadens the application of the oppression remedy and exposes corporate directors and officers to a greater risk of personal liability.

Your Reservation has changed... Airbnb Regulation in Toronto and Insurance Coverage Issues
by Matthew Dugas
July 15, 2017

Airbnb, and other similar businesses offering “Short Term Rentals”, are not presently regulated in any significant way in the Toronto area, despite the fact that its main competitors - hotels, and bed and breakfasts (“B&Bs”) - are regulated. However, the City of Toronto is moving towards creating regulations for Airbnb, with recommendations released in June 2017.

A less publicized grey area is the home insurance implications of a homeowner using their residence for Airbnb listings. Short Term Rentals of a residence are inconsistent with most standard home insurance policies.

Automobile Insurance Fraud: Prevalence, Prevention, and Response
July 10, 2017

Insurance fraud is a tale as old as time. The earliest recorded incident occurred in Ancient Greece, around 300 BC. Hegestratos, a merchant, took out an insurance policy which required payment (with interest) upon his ship's safe arrival to its destination. Failing to repay the loan would result in repossession of the ship and its cargo. Hegestratos conspired to commit insurance fraud by sinking his empty ship and selling the cargo, thereby keeping the loan. For the record, he was unsuccessful, as he drowned trying to escape his crew who caught on to his plans.1

Since then, transportation methods have evolved, and so have opportunities for fraud.

A summary of threshold decisions from 2016 and 2017: Which got through and which got bounced
by Michael Kennedy
July 10, 2017

Trial judges in motor vehicle accident cases are like bouncers — plaintiffs show up to their courtrooms asking to be let over the threshold. While their cases may not be perfect, a judge will be more inclined to let their cases through if the plaintiffs are likable and if the judge is reasonably satisfied their decision will not cause him or her problems after-the-fact (namely an appeal or an unfair result).

While certainly the main issue upon a threshold decision is whether or not a plaintiff meets the test (namely whether his or her employment, education or activities of daily living are impaired to the requisite degree for the foreseeable future), a plaintiff's credibility and presentation is important to keep in mind when reading a threshold decision.

Subrogation: Recommendations for Early Investigation
by Adam Grant
July 10, 2017

At the outset of a loss, it is most critical to begin preserving evidence and investigating the cause of the loss. This is beneficial both to preserve future subrogation potential, but also to determine whether there may be any issues that may affect coverage under the policy.

As soon as access is provided to a scene, the first person to enter, along with the adjuster, should be a forensic engineer. For fire losses, it is well understood that a review of the scene, prior to the commencement of repair efforts, is critical to determining the origin and cause of the fire. However, it is common for this approach to be ignored with other types of losses.

For example, in the cause of a failure of plumbing components, there is a tendency for a contractor to remove the part that they consider to be the point of failure, to be provided to an engineer at a later time. This can potentially destroy evidence of the condition of the scene, and also creates issues with the chain of custody.

Making Use of Unusual Torts in Subrogation
by Adam Grant
July 10, 2017

Historically, separate and distinct causes of action developed within the law of torts. Suits had to be pleaded within an existing and recognized form of action in order to succeed. This pleading requirement was abolished by the Common Law Procedure Act 1852, the principles of which have been accepted into Canadian provincial law. It is now only necessary to plead facts that may, if proven, give rise to a cause of action in tort. It is not necessary to identify or name the specific nominate tort that constitutes the basis of the action.

In practice, we usually lay out which tort we will be leading facts to prove. In insurance subrogation, we usually work within the framework of negligence, but this doesn't mean that we are limited to it when it comes to executing our subrogated right of action. A review of some lesser known torts demonstrates the spectrum of torts available at common law which can be useful in advancing a subrogation claim.

Insurers Beware: Recent Developments in the Duty to Defend and Indemnify
by Alan S. Drimer
July 10, 2017

The scope of an insurer's responsibility regarding the duty to defend and indemnify has increased. This increased responsibility can be observed with respect to an insurer's duties to an additional insured, an insurer's duties in a situation involving a conflict of interest, and an insurer's duties in a situation involving a breach of contract.

What is the duty to defend versus the duty to indemnify?

Commercial general liability (CGL) insurance policies are primarily used to provide financial protection to an insured party in the event that it issued by a third party. CGL policies result in the insurer assuming two obligations towards the insured:...

A Lawyer's Guide to Discoveries and Timing of IMEs
by Annette Uetrecht-Bain
July 10, 2017

In bodily injury claims, there are typically two types of examination of the plaintiff that take place: (1) Examinations for Discovery, and (2) Independent Medical Examinations.

The following are issues that typically arise in scheduling examinations for discovery and independent medical assessments.

Everything You Need to Know About Trial Insurance: Security Against Bad Outcomes at Trial For Sale!
July 10, 2017

After the Event Insurance (“Trial Insurance”) is a type of insurance that protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial. Generally, unsuccessful parties bear the responsibility of paying a, sometimes significant, portion of the successful side's legal costs in addition to their own. The availability of Trial Insurance changes the landscape of personal injury litigation for everyone involved. While the concept of Trial Insurance is relatively new in Ontario, it is already rapidly evolving and becoming more prevalent. How it Works...

The Effect of "After The Event" Insurance on the Litigation Process
by Howard Borlack
July 05, 2017

Imagine trading peace of mind for a chance to give someone a piece of your mind. Welcome to “After The Event" (ATE) insurance policies – the instigators of the insurance policy world. In general, Legal Expense Insurance (LEI) products exist to provide coverage for various legal costs and disbursements during the litigation process. These products include “Before The Event" insurance, which provides coverage for a future incident, and “After The Event" insurance, which is obtained specifically to litigate an incident after it has already occurred.

Take control of public space and liability may follow: Case Comment - MacKay v Starbucks
by Eric Turkienicz
June 23, 2017

At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act (“the Act”).

Proposed changes to Ontario's Construction Lien Act - Update 2
by Eric Turkienicz
June 23, 2017

The Construction Lien Act can be a daunting piece of legislation to approach. Combining tight deadlines, technical definitions, and a sometimes complex interplay between its own provisions, it is no wonder that it is often viewed with some trepidation by lawyers and clients alike. 

A Bill to overhaul the Construction Lien Act has recently passed its first reading before the Legislative Assembly. These changes, if ultimately passed, will be a welcome change to a piece of legislation that has (in this lawyer’s opinion) caused more arguments than it has solved.

Defamation in the Internet Age: The Law and Social Media
June 13, 2017

Defamation law, mostly conceived in an old-media world, historically balanced one person's right to freedom of speech with another's to not have his or her reputation unfairly attacked. The emergence of social media has made it more difficult to navigate the application of these long-standing principles. Unlike the traditional letter to the editor, comments on social media can be posted instantly, often in the heat of emotion, and many people who post comments do so under the mistaken belief that they will remain anonymous. Social media has the ability to create a false sense of intimacy, as users may mistakenly believe they are only speaking to a small, well-known group of individuals...

Taxi Company Not Vicariously Liable When Employee Sexually Assaults Client
June 08, 2017

In an important decision released June 2, 2017, the Court of Appeal of Ontario considered the novel issue of whether a taxi company is liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part.

A unanimous Court of Appeal ruled that the taxi company was not vicariously liable, suggesting that not all employers are vicariously liable for the intentional acts of their employees, even when their clientele may find themselves in the most vulnerable of situations.

What's in a Name? Upcoming Changes to the Definition of a Motor Vehicle: Road-Building Machines
June 08, 2017

Effective July 1, 2017, the definition of a Road-Building Machine (RBM) will be narrowed, pursuant to Ontario Regulation 398/16. Accordingly, certain vehicles will no longer be considered road-building machines, but instead will be deemed Commercial Motor Vehicles (CMVs).

This paper provides the impact and Implications for Insurers...

Recovery for Mental Injuries: Dispensing with the Requirement of Expert Evidence
June 07, 2017

Amongst the most challenging personal injury cases to defend are those where a Plaintiff's accident-related injuries are solely psychological in nature. As there is no objective evidence for defence lawyers to look to when attempting to verify or challenge a Plaintiff's account of their injuries or impairments caused by an accident, Defendants have no choice but to rely on the expertise of experts when attempting to determine the severity of a Plaintiff's psychological and emotional injuries and impairments.

The Supreme Court of Canada has released a decision that makes this determination that much more challenging for defence lawyers by finding that expert evidence of a recognized psychiatric or psychological illness is not required for a plaintiff to recover damages for mental injuries.

The timing of mandatory mediations in Toronto has changed
May 23, 2017

As of May 1, 2017, the practice direction regarding the timing of mandatory mediations in Toronto has changed.

Mandatory mediations must now be completed prior to an action being set down for trial unless a judge or case management master orders otherwise.  This is a significant change from the past practice direction that only required mandatory mediations to be scheduled before the action could be set down for trial. This change applies to all Toronto files that have not yet been set down for trial.

We anticipate that this change to the practice direction will lead to earlier mediations on Toronto matters. We are already starting to see the impact of this change, in terms of plaintiffs' counsel reaching out earlier than ever to schedule mediations, some even seeking to schedule same at the same time as scheduling discoveries.

Retroactivity, Retrospectivity & Immediate Applicability
by Bogdan Miscevic
May 16, 2017

It is hoped that the recent appeal decision in MVACF and Barnes will shed some light on this turbulent, but interesting, area of accident benefits.

The issue, in this case, was whether the amendment applied to the Applicant for services provided after its effective date.

The United Airlines debacle in the context of Canadian tort law
May 15, 2017

Airlines have faced increased legal, public relations and operational challenges ever since Dr. David Dao’s forcible removal from his United Airlines flight on April 9, 2017. These challenges can lead to a perfect storm in which airlines may find themselves exposed to significant claims for damages.

This paper will briefly discuss the extent to which airlines may be exposed to liability for domestic and international travel.

* Addendum added May 23, 2017

A crack in the armour? Waivers and the use of the Consumer Protection Act
by Garett Harper and James Tomlinson
May 10, 2017

A recent decision emerging from the Ontario Superior Court of Justice will likely have a significant impact on the viability of waivers in the defence of personal injury actions in Ontario.

Although the ruling in Schnarr v Blue Mountain Resorts is under appeal, the effect of the decision in Schnarr on the enforceability of waivers in Ontario is profound.

Buyers and Agents Beware: BC Court Rules That Representative Is Responsible for Tax Owed by Buyer
April 03, 2017

In Canada, resident sellers of a principal residence are usually eligible for an exemption from the capital gains tax that would otherwise be triggered by the sale of a principal residence. On the other hand, non-resident sellers must pay a capital gains tax of 25% on the profits from the sale of a residential property.

In Mao v Liu (2017 BCSC 226), the Court was asked to determine whether a notary public was negligent and therefore obligated to pay the capital gains tax triggered by the sale of a residential property...

Mediating a Road Authority Claim on Behalf of a Municipality
by Van Krkachovski
April 03, 2017

Mediation is an increasingly common form of dispute resolution and one which provides many benefits to any party who would otherwise engage in litigation. However, there are several benefits and concerns which are unique to municipalities named as defendants in motor vehicle accident claims...

The Municipal Act: Minimum Maintenance Standards Revisited by the Ontario Court of Appeal
by James Tomlinson
March 31, 2017

On Monday, March 28, 2017, the Ontario Court of Appeal released their decision, Lloyd v. Bush, 2017 ONCA 252. This case was an appeal by the County of Lennox and Addington (the "County") and the Corporation of the Town of Greater Napanee ("the Town") from a trial level decision that found the respective municipalities liable for damages arising out of a motor vehicle accident.

In deciding the case, the Court of Appeal provided comprehensive analysis, which will provide guidance in similar cases, involving winter maintenance and duties owed by municipal defendants under the Municipal Act.

Legalizing Marijuana: And The Litigation Begins...
March 08, 2017

As the access to and use of marijuana becomes increasingly legitimate and common, it is reasonable to assume that the businesses that operate within this environment will experience significant legal "growing pains". Specifically, the operational risks that companies within the marijuana space face are significant given the limited involvement of regulators, and the attributes commonly associated with consumption. As a result, it is not surprising to see the start of what we believe to be a significant volume of litigation targeting many of the largest players in the industry.

Stipulated Remedy Clauses
by Hillel David
February 24, 2017

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The Tenant refused to vacate, despite offers for compensation from the Landlord. The Landlord issued a notice to vacate and the Tenant sought and obtained an injunction...

Injunctions To Restrain Breach Of Contract
by Hillel David
February 24, 2017

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The premises constituted approximately 3% of the rentable area of the building. All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar premises in an adjoining building, and to pay compensation. After some bargaining, the Tenant refused to move...

Legalizing Marijuana: Drug Recognition Experts and Drug-Impaired Driving - Additional Considerations for Insurers following Supreme Court decision
February 23, 2017

With the legalization of marijuana appearing more like a certainty than a possibility, legislators ought to be determining how best to address the increased societal risks associated with drug-impaired driving.

Currently, the Government has authorized a 12-part evaluation for drug impairment of motorists.

Earlier today, the Supreme Court of Canada released a decision in R v. Bingley that provided guidance to lower courts on how evidence of drug-impaired driving is to be admitted...

Keeping the Mould Away: Application of Mould-Based Policy Exclusions
by Matthew Dugas
February 17, 2017

Several ground-breaking cases, especially in the US, several years ago made mould claims a prominent issue within the insurance industry. One reaction is that many policies now have exclusions specifically relating to mould. However, the application of this common policy exclusion is rarely clear-cut. In fact, an overview of some of the key decisions demonstrates the complexity when this exclusion is applied to actual claims.

Do Parents Know Best? An Update on the Enforceability of Waivers Executed on Behalf of Infants
by Peter W. Vlaar and Sabrina Lucibello
February 10, 2017

The absence of a law on parental waivers is of particular concern for the countless number of businesses and organizations such as schools, recreational sport facilities, and children's summer camps (to name a few) that rely on these waivers in carrying out their regular activities. However, it appears that clarity may be forthcoming as indicated in a recent New Brunswick case, Dewitt v. Strang...

Autonomous vs Semi-Autonomous Vehicles: The Liability Distinction
by Eric W.D. Boate
February 10, 2017

This first of its kind collision sparked concern in the technology industry. Debates ensued as to whether the safety feature created to eliminate (or at the very least, reduce) motor vehicle accidents was the cause of the accident, whether human error was to blame, or some combination of the two...

Medical Marijuana: Considerations for Employers
by Sophia Souffront
February 08, 2017

As physicians become more at ease in prescribing marijuana for medical purposes, it is reasonable to forecast an increase in the number of employees in the workplace with a prescription for the drug. This raises challenges for employers that have a duty to accommodate their "disabled employees" and further conflicts with an employer's desire for a drug-free environment.

Injunctions to Restrain Breach of Contract - Stipulated Remedy Clauses - Old Habits Die Hard
by Hillel David
February 07, 2017

The issues that were before the court in 1465152 Ontario Limited v Amexon Development Inc.1 are substantial and far-reaching, particularly for the commercial real estate leasing industry.  The decision is an excellent vehicle for the discussion of important issues relating to injunctions in the context of contractual property rights, equitable extortionate conduct, abuse of process, permissible breaches of contract on the basis of economic efficiency, and the interpretation and enforceability of contractual limitation of remedies clauses, particularly in the context of a claim that can be made under a concurrent tort.

Overview - The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property.  The premises constituted approximately 3% of the rentable area of the building.  All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar (and better) premises in an adjoining building owned by the Landlord and to pay compensation.  After some bargaining, the Tenant refused to move. It was the Landlord’s position that the only reason for the Tenant’s refusal to relocate was its desire to extract as much money from the Landlord as possible. FULL VERSION PDF  *Reproduced by permission of Thomson Reuters Canada Limited.

Privacy Law for AB Insurers
by Catherine A. Korte and Bogdan Miscevic
February 06, 2017

The last 20 years have seen radical advances in technology, the like humankind has never known. The revolutionary way in which data can now be stored, catalogued, and shared has arguably led to a significant “digitization” of individuals. Simply, more of our lives are being recorded than ever before, whether it be voluntary (Facebook, Instagram, Snapchat etc.) or involuntary (intelligence gathering, surveillance etc.).

In light of this digitization, there has been a growing pressure to carve out a space where neither corporations nor government can intrude on the individual, and when they do, to govern what can be made of that information. This is essentially the concept the law recognizes as “privacy”.

Combatting Exposure: Utiization of Waivers by Ski Hill and Resort Operators - A Defence Perspective
by James Tomlinson
February 02, 2017

With the commencement of the annual winter ski season, the legal exposure to ski hill and resort operators arising from injuries suffered by skiers and resort guests alike consequently increases. One of the most common forms of protection from this increase in risk is through the use of waivers.

This paper will also explore the utility of summary judgment motions in defending personal injury lawsuits where an executed waiver has been obtained by the defendant(s).

Fans Beware: The Risks of Watching Your Favourite Athletes
by James Tomlinson and Garett Harper
February 02, 2017

Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations. 

Occupiers are not required to maintain an absolutely risk-free environment. Rather courts will consider the type of event, the inherent risks involved, and the industry safety standards when determining whether an injury to a fan was reasonably foreseeable. This paper will discuss common claims pursued by spectators as well as possible defences that can be employed by occupiers.

Inherent Risks in Hockey: Recent Developments in the Law
by James Tomlinson
February 02, 2017

Those who have watched or participated in a hockey game will know that rough play is an inherent risk of the sport. What constitutes an inherent risk in hockey if not an illegal check from behind? Are all illegal manoeuvres that violate the rules of the league tortious? What mental element must be present for liability to attach? How do these factors determine the availability of insurance coverage? Each of these questions will be addressed.

Driving Outside of the Lines: Regulatory System v. Autonomous Vehicles
by Peter W. Vlaar
January 30, 2017

In recent months, tensions have risen between regulators and companies developing autonomous vehicles. Applying and waiting for the approval of permits may seem inordinate for developers eager to test out and improve their autonomous technology in a highly competitive and fast-paced field. Regulators, on the other hand, must balance the competing interests of private business as well as the safety and integrity of the roads for the public. The following are a few examples of this tension at play.

Deference to Reasonable Decision made by Condo Boards
January 20, 2017

Directors and officers, acting as a manager of a condominium, have a number of obligations and responsibilities that they are required to carry out. Section 37 of the Condominium Act, 1998 sets out the standard of care which directors and officers are held to...

If a director or officer fails to meet its standard of care prescribed by the Condominium Act, the courts may rule that the director or officer is in breach of its fiduciary duty and could be held personally responsible for any resultant damages.

The Corporate Veil won't cover Personal Misrepresentations
January 20, 2017

In the recent case of Meridian Credit Union Limited v Baig, the Court of Appeal considered the duties owed by various parties to be honest and to not mislead each other during the course of real estate transactions. The Court of Appeal emphasized the obligation purchasers owe to be clear about all of the facts relevant in a transaction. Moreover, the Court of Appeal affirmed that corporate directors can be held liable for fraudulent misrepresentations made during the sale of a property.

Featured Case Study: Water Damage Raubvogel et al v. The City of Vaughan et al
January 18, 2017

In the recent decision of Raubvogel et al v. The City of Vaughan et al (“Raubvogel”)the Ontario Superior Court outlines the distinction between a municipality's policy and operational decisions. Specifically, the City of Vaughan (“the City”) argued that it did not owe a duty of care to the plaintiffs on the basis that its decision not to replace the incident water main was an issue of policy. Accordingly, the City argued that the plaintiffs' claim was barred by section 450 of the Municipal Act (“the Act”). However, counsel for the plaintiffs, Adam Grant, a partner at McCague Borlack LLP, was successful in demonstrating that such a failure in these circumstances was an operational decision as there was “no apparent reason” for the failure to replace the water main.

Legalizing Marijuana: Drugged driving and how insurers can manage risk
January 13, 2017

With the release of the Marijuana Task Force Report that made recommendations associated with the potential framework for the Legalization and Regulation of Cannabis, the legalization of marijuana seems imminent. While the report made many recommendations, it left unanswered questions relating to how the justice system ought to deal with drivers impaired by marijuana ("drugged driving").

Legalizing Marijuana: Product Liability for Producers, Distributors, and Dispensers
December 14, 2016

With the legalization of marijuana appearing to be more like an inevitability than a possibility, the options for consuming marijuana continue to expand. Individuals can now consume marijuana in a variety of different forms, including various edible products (baked goods, teas, oils and capsules, with more products being developed each month). As marijuana has the capacity to cause significant impairment, producers, distributors, and dispensers of both marijuana and marijuana-based edible products will likely be found to owe certain duties to consumers.

Mould Growth Personal Injury Claims Spreading
by Matthew Dugas
December 13, 2016

Several years ago, mould issues in residential or commercial buildings would only have been a major concern in exceptional circumstances. However, technology and detection techniques have resulted in a proliferation of mould based claims and associated legal issues. Allegations of health impacts caused by mould are common in so-called “sick building syndrome” litigation. Property damage claims relating to mould also increasingly include some personal injury allegations, perhaps based on nothing more than common respiratory symptoms or rashes.

Featured Case Study: Raho Mohamud v. Old Republic Insurance Company
by Garett Harper
December 12, 2016

The Licence Appeal Tribunal (“LAT”) acted quickly and efficiently to correct an error that was contained in the decision of 16-000179 - Raho Mohamud v. Old Republic Insurance Company that was released by the tribunal earlier this month. This matter, which proceeded by way of a written hearing, dealt with entitlement to pre-104 week IRBs.

Back to Basics on Betterment: A Primer on Recent Judicial Decisions Pertaining to the Issue of Betterment
December 07, 2016

One alternative measure of damages for real property, is based on the cost of repair reduced by the amount to which those repairs will better the property; a concept known as betterment. Betterment and the court's interpretation...

Back-up Servers and Privacy Legislation: When information is "reasonably retrievable" under the Privacy Act
December 05, 2016

Professor Anton Oleynik of Memorial University in Newfoundland and Labrador was denied a research grant by the Social Sciences and Humanities Research Council of Canada (commonly known as “SSHRC”) in 2007.  That denial set off a firestorm of legal proceedings throughout the country that has now spanned nearly a decade.  

The decision of Justice Boswell in Oleynik v. The Office of the Privacy Commissioner of Canada, released on October 19, 2016, is the latest chapter in this chronicle..

Featured Case: Aranas v. Kolodziej The buck stops here: A rare summary judgment win for the defence
by Michael Kennedy and Marla Kuperhause
December 02, 2016

In the recent decision of Aranas v. Kolodziej, Michael Kennedy of McCague Borlack was successful in securing a dismissal of the action as against its client on summary judgment. Despite the challenges routinely presented by these motions in the motor vehicle accident context, the defendants led sufficient evidence to establish that there was no genuine issue requiring trial.

Self-Driving Cars: Taking the Wheel out of your Hands
by Eric W.D. Boate
November 30, 2016

Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover's Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru's EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla's vehicles are equipped with a system, aptly named "autopilot", that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it's probably already in your own driveway to some degree...

Legalizing Marijuana: Are Dispensaries and Vapour Lounges the new Tavern?
November 29, 2016

With the government's stated intention to legalize marijuana, and the current challenge with policing these new businesses, dispensaries and vapour lounges can now be found in many urban and suburban areas. While many of these cater to individuals with needs for medicinal marijuana and require prescriptions before dispensing, some dispensaries and vapour lounges are less scrupulous when selling marijuana or marijuana-based products to their customers. 

As there are few laws and regulations governing the actions of the dispensaries and the vape lounges, one must ask how are these companies likely to be treated by the courts when they are eventually sued?

First Party Claims: Affidavit of Documents (and Conclusion) - Part 7 of 7
November 28, 2016

Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.

We will focus on what needs to be included in the affidavit of documents for first party actions.

First Party Claims: Pleadings - Part 6 of 7
November 27, 2016

We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured...

First Party Claims: Special Considerations - Part 5 of 7
November 26, 2016

Statutory conditions contained within the policy, relief from forfeiture, and limitation period issues, are examples of special considerations when dealing with first party claims...

First Party Claims: Is Bad Faith Pleaded? - Part 4 of 7
November 25, 2016

In your drafting of a Statement of Claim, consider whether there is sufficient evidence to support a finding of bad faith against the insurer. If an insured can prove bad faith against an insurer on a first party claim, the court may award punitive damages against the insurer. However, in our experience, insurers react to a claim for bad faith in a different manner than to a claim for other damages, so you will ‘up the ante' if you plead bad faith... 

First Party Claims: Responsibilities of the Insurer and Insured - Part 3 of 7
November 24, 2016

The insurance contract is a contract of utmost good faith. This duty is reciprocal. This duty not only requires insurers to respond to and investigate claims in good faith, but also requires insureds to present their claims in good faith. This duty of utmost good faith is an implied term of the insurance contract and should be maintained throughout every step of the claim process.


The duty of good faith of the insurer towards the insured has two components...

First Party Claims: The Insurance Policy - Part 2 of 7
November 23, 2016

Generally, an insurance policy will contain the following key information:...

First Party Claims: Defining First Party Claims - Part 1 of 7
November 22, 2016

An insurance policy is a contract between the insurer and the insured. A ‘first party' is the party who is insured under an insurance policy and is often referred to as the policyholder or the insured. If an insured makes a claim directly against his/her own insurance company (the ‘insurer') in reliance on an insurance policy, this is referred to as a ‘first party claim'.

Some common examples of a first party claim are...

Important decision on when catastrophic accident benefits become overdue
by Bogdan Miscevic
November 07, 2016

The Court of Appeal has released a decision placing the onus on an insurer for determining whether a claimant is catastrophically impaired. Specifically, if an insurer withholds catastrophic benefits until it receives an OCF-19, then it could be faced with a massive interest award from the date the catastrophic impairment arose (not the date the OCF-19 was submitted or accepted by the insurer).

In this case, Economical appealed the order of the application judge that required it to pay the applicant interest...

How serious must a serious impairment be? Case Study
November 06, 2016

How “serious” does a “serious impairment” have to be for a Plaintiff to pass the threshold under section 267.5 of the Insurance Act?

A recently released appeal decision of the Divisional Court provides useful guidance on the pitfalls awaiting Plaintiffs in their attempts to establish a threshold injury.

The Canadian Inter-Company Arbitration Agreement: How does it work?
by Peter F. Yaniszewski
November 03, 2016

It is not news to anyone that resolving civil claims is a long and costly process. A great deal of time and money is regularly lost due to the back-logged court system and legal expenses associated with mandatory procedure that must be followed, all while the procedure and jurisdiction of the court are not needed to come to a resolution. It is often in the best interests of insurers to resolve subrogated claims that are defended by insurers without the involvement of the courts.

The Canadian Inter-Company Arbitration Agreement ("the agreement") is an initiative designed to streamline claims disputes as between insurance companies who are signatories to the agreement. All insurance companies who are signatories to the agreement are therefore bound to comply with the obligations set-out therein. The process encourages efficient and cost-effective resolution to these claims.

Ontario Is Making Roads Safer One Winter Tire At A Time
by Eric W.D. Boate
October 20, 2016

The Government of Ontario is striving to make the roads in this province a safer place. In one of its latest endeavors, Ontario has implemented a new regulation in an effort to promote safer driving during those slushy and icy winter months.

The new regulation pertains to offering Ontario drivers an incentive to get winter tires on their vehicles.

This paper includes case law that indicates not having winter tires could perhaps affect the outcome of a decision.

Human Rights Claims: Part 6 of 6
by Sabrina Lucibello and Marla Kuperhause
October 13, 2016

Discrimination is a "distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups, not imposed on others." Such burdens "withhold or limit access to opportunities, benefits, and advantages available to other members of society.

Torts that Flow from a Wrongful Dismissal Claim - Part 5 of 6
by Sabrina Lucibello and Marla Kuperhause
October 12, 2016

In Lloyd v. Imperial Parking Ltd, the Court held that "[a] fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity."1 The exact standard that the employer must adhere to depends on the particular work environment. If that standard is breached, the employee can make a claim for damages.

Employment Law: Notice: Part 4 of 6
by Sabrina Lucibello and Marla Kuperhause
October 11, 2016

The notice period for terminating an employee may be dictated by contract, statute, or common law. 

Causation, Causation, Causation — Is What's Old New Again or Are Times A "Changing"
by Catherine A. Korte and Bogdan Miscevic
October 11, 2016

Just as Confucius guided us so many centuries ago, similarly, in order to understand the concept of causation in accident benefits context, we must look to the past...   

Although tort law clearly limited the use of the "material contribution" test, the accident benefits jurisprudence continued to use it in many instances as the appropriate test for causation. 

How Much Is This Lawsuit Going to Cost Me? Case Study No. 1 of 2: Corbett v. Odorico
October 07, 2016

Local Decisions on Costs

The litigation stemmed from a motor vehicle accident that occurred on December 5, 2009. The plaintiff, Sara Corbett, was a homemaker with two young sons. Her motor vehicle was hit by an oncoming vehicle while she was stopped and preparing to turn into a driveway. The vehicle's air bags did not deploy. Ms. Corbett declined to go to the hospital when the ambulance arrived.

As a result of the accident, Ms. Corbett developed whiplash type symptoms, which evolved into chronic pain syndrome. During trial, Ms. Corbett's evidence was that her chronic pain led to the breakup of her marriage. The jury awarded the plaintiff and her family a total of...

How Much Is This Lawsuit Going to Cost Me? Case Study No. 2 of 2: Carroll (Litigation guardian of) v. McEwen
October 07, 2016

This case involved an action for damages arising from a motor vehicle accident. The Jury divided liability in the proportion of 62/38 between the Plaintiffs and the Defendants. The Plaintiff, Barbara Carroll, was awarded ...

During the course of the trial, the Defendants were taken by surprise on several occasions.

Subrogation and Assessment of Claims
by Adam Grant
October 07, 2016

Some subrogation opportunities are not obvious and will require investigation and creative thinking. This article will go over when an insurer can pursue subrogation, what claims are suitable for subrogation? Establishing liability, causation, and damages.  And will provide early investigation steps.

Termination / Dismissal Part 3 of 6
by Sabrina Lucibello and Marla Kuperhause
October 07, 2016

This article will give a breakdown on the subject of employee termination / dismissal. Along with definitions on just cause, tests for just cause. Detailing dismissal without cause, mitigation, notice requirement, constructive dismissal, workplace harassment, with a discussion on toxic work environments.

Expert Review of Ontario's Construction Lien Act
by Eric Turkienicz
October 06, 2016

On April 30, 2016, an expert review of Ontario's Construction Lien Act was submitted to the Ministry of the Attorney General and the Ministry of Economic Development, Employment, and Infrastructure. This review, which was just released to the public, contains recommendations which will be considered in drafting legislation to be presented in Spring 2017. If the recommendations are implemented, even in part, it would form a sea of change in construction law and the most significant reform to this area of law in 33 years.

While the review recommends a reform to virtually every aspect of the Construction Lien Act, some of the most remarkable recommendations are as follows:

The Supreme Court Rules on Faulty Workmanship Exclusions and Interpreting Standard Form Contracts
October 06, 2016

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”), the Supreme Court of Canada clarified the construction of ‘faulty workmanship' exclusions in all-risk policies and the level of deference an appeal court must give regarding a lower court's interpretation of a contract.

The decision in Ledcor may be praised for providing greater clarity to insurers and insureds, but may also be an unwelcome development to those who embraced the Supreme Court's 2014 decision in Sattva Capital Corp. v. Creston Moly Corp. (“Sattva”) as a bar to extensive litigation over contractual interpretation.

Spoliation 101
October 05, 2016

Spoliation occurs where a party has intentionally destroyed evidence relevant to current or contemplated litigation and a reasonable inference can be drawn that the evidence was destroyed in order to affect the litigation. All types of evidence can be subject to spoliation and spoliation can occur in various ways. For example, 

Duties and Liabilities of Directors and Officers
October 05, 2016

Directors and officers, acting as a manager of a corporation, have a number of duties and responsibilities that they are required to carry out. These duties are largely set in place to protect the interests of shareholders and other individuals who are not shareholders but nevertheless have a stake in the corporation, such as creditors.1 While most of these duties were established at common law, the majority of Canadian jurisdictions have codified them.2 Often times, if these duties are not met, directors and officers will be personally liable. A finding of liability will often result in remuneration to the corporation.

The following paper will outline the main duties that directors and officers have. Further, the following article will examine the liability that will ensue for the breach of such duties.

Employee & Employer Obligations Part 2 of 6
by Sabrina Lucibello and Marla Kuperhause
October 05, 2016

Whether or not expressly mentioned in the employment contract, all employees (and employers) have the following fundamental obligations. 

Employment Law: Terminology - Part 1 of 6
by Sabrina Lucibello and Marla Kuperhause
October 03, 2016

Employment Law articles handled in 6 parts: Terminology, Obligations, Termination, Notice, Torts, Human Rights. Part 1 - Terminology, for example Contract, indefinite vs. fixed vs. Independent. Contract OF Services vs. Contract FOR Services, etc.

Primer on Director and Officer Liability Insurance
by Adam Grant
October 03, 2016

As a means of attracting and retaining qualified directors and officers, corporations have chosen to shield their directors and officers from personal liability. The Supreme Court of Canada has recognized that protection from liability is necessary to promote entrepreneurialism.

A corporation, if it so chooses, to indemnify directors and officers against all costs reasonably incurred through any criminal, civil, administrative or investigation deriving from the director's or officer's association with the corporation. However, in order for the director or officer to take advantage of these protections, they must...

Mitigation: Loss Control & Failure to Prevent
October 03, 2016

Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.

While a plaintiff bears the burden of proving the fact that he has suffered a loss and the quantum of that damage, the defendant bears the onus of proving, on a balance of probabilities, that...

Caring for the Elderly and the Duty to Supervise
September 30, 2016

One of the hardest decisions to make is when to deem an elder relative incapable of caring for themselves independently. When does a duty arise on behalf of an adult child to supervise an elderly relative who is living independently? This question and its possible ramifications provide an opportunity to revisit the case of Morrison, et al. v. Hooper and v. Young, et al.

The “Lullaby Standard of Care” for Tavern Owners Case Study: Linton v. Tholos Restaurant
September 28, 2016

Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.

In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.

Strategies for Managing Claims related to Subjective Illnesses or Injuries in a Mediation
by Van Krkachovski
September 23, 2016

Subjective injuries present a multifaceted problem for defense lawyers. To clarify, subjective injuries refer to instances where a plaintiff makes a claim for chronic pain or a mental illness that is difficult to objectively substantiate through scientific or medical evidence.

This then raises an important question: what is the difference between cases involving chronic pain where the plaintiff receives compensation for his or her injuries and those cases where no such awards are made? The answer appears to be related to the plaintiff’s credibility. Specifically, because of the lack of objective evidence that is available to support a claim for chronic pain, almost all of these cases boil down to the issue of credibility.

No Nonsense LAT — MB at the forefront!
by Bogdan Miscevic
September 23, 2016

McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.

In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.

The Mechanics of the Duty to Defend
by Garett Harper
September 15, 2016

The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties... 

Circumstantial Evidence should not be Overlooked by Claims Adjusters
September 14, 2016

In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.  

Traditionally, inferences had to be taken from direct evidence of facts. Villaroman has changed this thought process; the Supreme Court of Canada ruled that it is now acceptable to pull inferences from circumstantial evidence. 

PIPEDA and the Internal Complaints Process of Insurers and Banks Case Study: Decision from the Office of the Privacy Commissioner of Canada
September 13, 2016

PIPEDA requires the full and timely disclosure of personal information generated in the course of commercial activity. However, personal information does not need to be disclosed when the information is generated in the course of a “formal dispute resolution process”, such as an arbitration. For years now, all insurance companies incorporated in Canada have been required to establish procedures for dealing with complaints. The question then arises: does personal information generated in the course of the complaint become subject to PIPEDA?

How to "knock out" claims to Tavern Owners sued for injuries sustained in bar fights
August 31, 2016

The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of “moderate” drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.

Lockdown at the Harbour: Arresting Multiple Ships? To safeguard eventual judgment
August 23, 2016

A vessel strikes a marine terminal trestle while in port in Vancouver, causing damage in excess of $60 million dollars. The vessel's worth pales in comparison to the damages caused, though there are a number of sister ships also docked at the port. The terminal owner is rightfully concerned that the vessels will simply leave Canadian waters, sailing out of the jurisdiction and taking the opportunity for any realistic recovery along with them. How can the terminal owners guarantee a future judgment will be satisfied when no one ship can satisfy the damages?

Declaring Values on "Contracts of Carriage" in Ontario
August 17, 2016

It is often said that a bill of lading is not a contract of carriage, but is merely “excellent evidence” of its terms. However, the courts are divided on how far beyond the bill of lading we can go, specifically in terms of declaring the value of a shipment. This unpredictability in the law can mean the difference of hundreds of thousands of dollars for a carrier who has lost or damaged cargo in its possession.

Reasonable and Necessary: Defining the elusive test from the Statutory Accident Benefits Schedule
by Michael Kennedy
August 12, 2016

Whether an expense or service is “reasonable and necessary” is an important legal test in the context of the Statutory Accident Benefits Schedule (“the Schedule”). It is used to determine entitlement to the majority of benefits available under the Schedule.

The undefined nature of the “reasonable and necessary” test can make adjusting claims a nightmare for adjusters who understandably want to rely upon their experts, but are left in the middle of competing opinions. Shedding some light on the important yet ambiguous “reasonable and necessary” test should help end the nightmare.

Court of Appeal Decision on Dependency in a Priority Dispute Dealing with New Relationships
August 05, 2016

The Court of Appeal released a new decision last week on dependency in a priority dispute between Intact and Allstate.

The Court of Appeal reviewed the circumstances of the relationship of the claimants, a woman (Paula) and her two children, who moved in with Paula’s boyfriend (Kyle) only seven weeks before the accident, in order to determine priority...

Pokémon Go: Augmented Reality is the New Reality for Liability Insurers
by Michelle Legault
July 15, 2016

Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016. The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.

Update on Issues relating to Autonomous Vehicles: Recent Fatality & the Anticipated Challenges arising from the Accident
by Michelle Legault
July 08, 2016

News of the death of Joshua Brown, a Florida man who died following a motor vehicle accident that occurred while his Tesla Model S vehicle was in autopilot mode, has attracted international media attention as he is the first US fatality from a motor vehicle accident where the deceased was in a vehicle that was in self-driving mode. This development provides occasion for us to comment further on the status of autonomous vehicles and the law in Ontario.

An overview of the statutory obligations for insurers to participate in mediation and to attempt to settle
by Van Krkachovski
July 05, 2016

You will recall that the Ontario Court of Appeal in Keam v Caddey, 2010 ONCA 565 awarded the plaintiff $40,000 in additional costs after an insurer refused (twice) to participate in mediation prior to trial. Aviva Canada took the position that the plaintiff would not be able to meet threshold and therefore Aviva did not believe it was obligated to attend mediation as there was nothing to negotiate.

The Court of Appeal found that the Insurance Act imposes two obligations on the insurer. First, the insurer is obligated to participate in mediation when requested. Second, the insurer is obligated to attempt to settle the claim as expeditiously as possible.

Back to the Future Causation Alert: Clusters Trumps Medical Causation in Judicial Review of Technicians' Breast Cancer
by Dr. Brian Murphy
June 29, 2016

Michael J. Fox is a well-known Canadian comedic actor probably best known for the "Back to the Future" movie trilogy and other successful small screen comedies. In medical circles, he is also known for having Parkinson's disease and as a spokesperson for Parkinson's disease research. But Michael's Parkinson's is a little different. He was a member of a British Columbia production crew in the 1970's. Several of that crew went on to develop Parkinsons at a young age. The statistical probability of a number of persons, or a cluster, in the one production crew developing Parkinson's was very small. Clusters "suggest" an environmental agent at work – whether it is scientifically provable or not.

Mandatory Training for Commercial Truckers a Welcome Change
by Peter W. Vlaar
June 29, 2016

On June 28, 2016, the Ontario Ministry of Transportation (the Ministry) made an announcement that has significant implications for both the trucking and insurance industry. As of July 1, 2017, individuals seeking to obtain their Class A license for commercial trucks will be required to successfully complete an entry-level training course before being permitted to take their Class A road test.

When to say Enough? Marfo v. Ahmed: A restatement of the law regarding defence medical examinations
by Katie McBride
June 15, 2016

On June 6, 2016, the Superior Court of Justice released its decision inMarfo v. Ahmed.1 In this case, the defendants, having already obtained a defence physiatrist assessment, requested that the plaintiff undergo a defence orthopedic assessment to counter the orthopedic report served by the plaintiff. Master Muir rejected the request and dismissed the defendants' motion, with costs. Here's why...

Lights, camera, financial transaction: Auditor liability after the Livent decision
by Peter W. Vlaar
June 10, 2016

Updated June 2016 - The Ontario Court of Appeal's decision in Livent is complex in detail but simple in outcome. Auditors carry more responsibility when auditing publicly-traded corporations because the potential fallout from their negligence is greater.

The key legal and policy points arising from Livent appeal form the basis of this short case comment. While we largely agree with the court's decision, we also offer some constructive commentary in anticipation of a potential appeal to the Supreme Court of Canada.

Severe Head Injury Claims
by James Tomlinson and Melissa Parravano
June 01, 2016

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.

Public Sharing of Private and Personal Information and Videos: Cyberbullying and the Implications for Insurers
May 02, 2016

There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. It has resulted in various high-profile suicides involving teens and has contributed to some of the most horrific events of recent years.

A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'.

Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for insurers.

Bring out your calculators! Retroactive Attendant Care and SABS interest
by Catherine A. Korte and Bogdan Miscevic
May 02, 2016

Section 42(1) of the current Statutory Accident Benefits Schedule,requires an insured to apply for attendant care benefits by submission of a Form 1, the “Assessment of Attendant Care Needs”, completed by an occupational therapist or registered nurse. Typically the Form 1 is submitted and – subject to insurer's evaluation of the claim – reasonable and necessary attendant care benefits are paid out on an ongoing basis.

However, the Schedule does not address what occurs when the Form 1 determines the attendant care benefits which were already previously incurred by the insured for a period in the past. These are known as “retroactive” applications and are rising in popularity.

Waivers Gain Additional "Armor" in the Defence of Personal Injury Litigation
by Garett Harper
April 25, 2016

In Jensen v. Fit City Health Centre Inc., the plaintiff, who was a member of the defendant’s gym, was injured while using a shoulder press machine caused by the defendant allegedly allowing the machine to exist in a defective condition.  At trial, the jury found that the defendant was not negligent and, therefore, not liable for the plaintiff’s loss. Following the completion of the trial, the Court was tasked with making a determination on the validity of a waiver entered into between the plaintiff and the defendant that was contained within the gym’s membership agreement and associated membership renewal documentation. 

Is there a 10 day time period on EUOs? Case Comment: Choeun ats Allstate
April 07, 2016

Is an insurer's right to request or conduct an Examination Under Oath limited to the 10 day time period described in Section 36(4) and Section 33 (1) of the SABS?

FSCO was required to revisit the issue in a preliminary decision of Choeun ats Allstate issued by Arbitrator Janette Mills on March 14, 2016... 

Update from the Trenches: The Court of Appeal Denies the Availability of the Doctrine of Laches in Loss Transfer Disputes
April 07, 2016

While the law was clear that a first party insurer ‘discovers' its claim for loss transfer on the day after it makes a request for indemnification, it was unclear whether there are any limitation periods relating to when a first party insurer must deliver an indemnification request to be entitled to seek indemnification under the loss transfer provision of the Insurance Act. This gap in the legislation was clarified in November when the Court of Appeal released its decision in the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and found that the doctrine of laches is not available to second party insurers when defending a claim for loss transfer. 

An Update on Uber and Autonomous Vehicles
by Peter W. Vlaar
April 07, 2016

This paper is intended to serve as a brief update on two topics that we focused on in our previous papers: Uber and autonomous vehicles. Given the rapidly evolving nature of both of these topics, we thought it prudent to provide a brief update on latest developments along with their implications for the insurance industry. 

Changes to the Accident Benefits Regime
by Catherine A. Korte and Bogdan Miscevic
April 07, 2016

In August of 2015, the Ontario government proposed significant amendments to the province's no-fault automobile benefits regime, effective June 1, 2016.1 These amendments, made primarily to two existing regulations, echo announcements made by the government in its 2015 Budget.

The most notable changes are to the following areas: (a) non-earner benefits; (b) non-catastrophic and catastrophic benefits limits; and perhaps most important, (c) the definition of what constitutes a catastrophic impairment. 

Utilizing New Medical Technology in Today's Litigation
by James Tomlinson and Garett Harper
April 07, 2016

Although the courts are sceptical of “dubious science”, the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

The Importance of Clear, Unequivocal Refusals Case Comment: Falcon and State Farm
March 28, 2016

What constitutes a valid refusal of an accident benefit on the part of an insurer?

FSCO Arbitrator Anne Morris was required to revisit the issue in the hearing of Jody Falcon ats State Farm, with reasons released on February 16, 2016.

The Arbitrator's conclusion will be a surprise to many in the insurance industry as all three Explanations of Benefits ("OCF-9s") delivered by State Farm were considered to be invalid. As a consequence, no limitation period had been triggered, allowing the insured to pursue entitlement to an Income Replacement Benefit notwithstanding the passage of five and a half years since entitlement was disputed.

Insurers Seeking Recovery of Overpayment? Beware of Notice Requirements Case Comment: Intact Insurance v. Marianayagam 2016
March 18, 2016

A decision released on March 1, 2016 by Justice Perell of the Superior Court serves as a useful reminder to insurers of the demanding notice requirements that apply to requests for repayment under Section 47 of the SABS.

The decision provides useful guidance to insurers about what to do in the face of a Plaintiff who resists a request for repayment.

John Hancock would be proud: Chaparina and State Farm and the importance of signatures on accident benefits treatment plans
March 14, 2016

In this age of fingerprint readers and PINs, I find it relieving to see that the old-fashioned signature can still hold sway. Indeed, the existence of a signature in accident benefits claims can make or break a file. In the recent case of Chaparina and State Farm1, Arbitrator Sapin, the procedural maven of the Financial Services Commission2, concluded that State Farm did not have to pay disputed medical benefits because treatment plans were not signed by both the claimant and the health practitioner who allegedly completed it. This ruling proves that accident benefits insurers must pay close attention to the details of treatment plans.

Will the Cap on Attendant Care Benefits Have Retroactive Effect? Superior Court Says 'No' - Case Comment: Davis ats Wawanesa 2015
March 14, 2016

A newly released decision of the Superior Court has put time limits on the application of legislation that sought to “cap” the amount payable in respect of attendant care benefits.

Effective February 1, 2014 Ontario Regulation 347/13 provided that attendant care benefits provided by a family member were to be “capped” at the “amount of the economic loss sustained by that family member” as a result of providing the care.

The regulation was silent on the issue of whether it applied to claims arising from accidents occurring before February 1, 2014. This decision sheds some light.

$30,000 Awarded for Defamatory Statements Made on Facebook
February 26, 2016

As I stated in a previous post Jane Doe 464533 v. X, courts must always adapt the common law to meet the needs of the digital age. Justice Faieta's decision in Hardev Kumar v. Vinod Khurana, 2015 ONSC 7858 is an example of this trend. Unlike the case that I profiled previously, where the court recognized a new tort to compensate the victim of so-called “revenge porn”, the court in Kumar v. Khurana simply applied an age-old tort, defamation, with special sensitivity to the realities of internet communication.

Employers Beware: An Employee Charged Criminally for Sexual Assault May Not Be Sufficient Grounds To Terminate with Cause
February 26, 2016

In Merritt v. Tigercat Industries, 2016 ONSC 1214, the Honourable Justice D.J. Gordon ruled that an employer was not justified in terminating its employee for cause who had, among other things, been charged criminally with two counts of sexual assault against a minor. Justice Gordon granted the plaintiff employee summary judgment in the action and awarded him damages amounting to 10 months' pay in lieu of reasonable notice.

Goodbye FSCO, Hello LAT!
by Michael Kennedy
February 22, 2016

It's no joke—April Fools' (April 1, 2016) marks the day when accident benefit arbitration applications will begin to be received by the Licence Appeals Tribunal (“the LAT”) instead of by FSCO.

But fear not! The LAT's process, while new and unfamiliar, is in fact quite similar to that of the dispute resolution process at FSCO.

The requirement to provide "medical reasons" when denying treatment plans: a ticking time bomb?
February 22, 2016

For an accident benefits insurer, the denial of a treatment plan used to be such a simple thing.

In an attempt to reduce the costs associated with insurer's examinations, the Ontario Legislature made insurer's examinations optional. In doing this, however, it introduced new procedural hurdles that insurers must overcome in order to properly deny treatment plans.

Superior Court Re-Affirms that Bus Drivers are Held to a Higher Standard of Care
February 18, 2016

In the recently decided case of Gardiner v. MacDonald, 2016 ONSC 602, Madame Justice Roccamo presided over a trial arising from a brutal collision where a public transit bus T-boned an SUV at 1:54 a.m., on a cold, January morning, in Ottawa.

The public transit bus was travelling northbound on a well-travelled road in the "bus lane", and entered the intersection on a green light. The SUV was travelling westbound and entered the same intersection on a red light when it was struck by the bus, and propelled in a northerly direction until it came to a rest in the snowy and slushy street. The collision was so bad that the bus crossed a snow-covered median before coming to rest in a ditch.

Alcohol use by the driver of the SUV was a factor in the collision; no charges were laid against the bus driver as a result of the accident, but tragically, 3 of the occupants of the SUV, including the driver, were fatally injured. A fourth occupant sustained catastrophic injuries.

The only issue at trial was whether the bus driver (and by extension the municipality) was partially liable for the collision.

Divisional Court Comments on Termination Rights of Employer during Probation Period
February 09, 2016

Are there ANY limits on an employer firing an employee during the initial probation period?

The Divisional Court recently weighed in on this evolving issue inNagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (Div. Ct.).

Nagribianko is a significant decision addressing the conflicting rights of employers and employees during probation periods.

New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X
February 03, 2016

The relentless expansion of the internet into all facets of our lives has created many opportunities for the advancement of the law. Cyberspace is the modern frontier for the law to tame. On any given day, the facets of the internet are built upon by the contributions of billions of people. As a result of its directly democratic nature, it contains examples of the full spectrum of human behaviour that runs from selfless altruism to selfish insecurities and hatred.

Justice Stinson's recent decision in Jane Doe 464533 v. X (the defendant's name is subject to a publication restriction) is a step in remedying the excesses of internet use.

Third-Party Litigation Funding in Canada
by Howard Borlack
February 02, 2016

The class action lawsuit is a unique legal procedure. Like any other court proceeding, class actions are a risk-reward proposition. The potential for settlement or damages must be weighed against the expense of litigation and, in some jurisdictions, the risk of an adverse cost award. As such, deep pockets and a high tolerance for risk are often critical to pursue a good case on the merits. 

In this article, we discuss the treatment of third party funding agreements (TPA) by Canadian courts. After a review of the relevant legal principles, we outline the hallmarks of a properly drafted TPA as defined by the courts and discuss undefined areas for future consideration. Virtually all of the substantive case law on third-party funding agreements in the class action context stem from Ontario courts. We therefore focus on these decisions...

Judiciary to the Bar: Make Contemporaneous Notes and Take Written Instructions
January 28, 2016

This Case Summary is  a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's “contemporaneous, reliable, objective records.”

Employment Termination Clauses: Failure to Specify Minimum Statutory Benefits after Dismissal, but Voluntary Provision of Those Benefits
January 20, 2016
Two recent Ontario decisions have considered an offshoot of that issue:
If a termination clause provides for the minimum statutory notice period but fails to specify the continuation of minimum statutory benefits after dismissal without cause, does that trigger the right to the common law remedy even if the employer voluntarily provides those minimum statutory benefits after dismissal? 
Both decisions held that the answer is Yes. We express a contrary view.

For Want of Jurisdiction
January 05, 2016

A recent dismissal by the Court of Appeal for Ontario reaffirms that plaintiffs are required to commence their actions for underinsured, uninsured or unidentified coverage in the jurisdiction in which the contract was made, and for tort actions to be made in a jurisdiction with a presumptive connecting factor.

The Court of Appeal for Ontario recently handed down its latest views regarding when an Ontario court can assume jurisdiction over a non-resident defendant. 

Employment Contracts: New Term? New Consideration!
December 22, 2015

The recent judgment of the Ontario Court of Appeal in Holland v. Inc., 2015 ONCA 762, sheds light on the (in)ability of employers to alter employment contracts after an employee has already commenced employment.

Holland v. Inc. is a cautionary tale for employers.

Condominium Corporation Issues: The President's View
by Peter F. Yaniszewski
December 16, 2015

This paper contains information regarding insurance provisions in the Condominium Act, 1998, along with terms and definitions.

Spreading Fires: Issues that Arise When Fires Originate at a Neighbour's House
by Mark P. MacDonald
December 16, 2015

The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:

When all is said and done: Final Releases
by Adam Grant
December 16, 2015

The purpose of a full and final release is simple. It is an explicit acknowledgement by the settling Plaintiff that it has agreed to resolve its claims as against one or more Defendants, and as a result of that settlement, it is releasing those Defendants from the claims at issue. A full and final release acts as a complete defence in the event that a subsequent action is brought by the same party, for the same cause of action.

This paper will go into details regarding final releases, settlement agreements and the definitions of terms used. 

Who's to Blame? Tips for Early Identification of Subrogation and Potentially Liable Parties
by Adam Grant
December 16, 2015

In order to determine whether or not subrogation is a viable option with respect to any loss, it is first necessary to consider the cause of the loss, followed closely by who is responsible for the loss.


Liability Limits in Subrogation
by Adam Grant
December 11, 2015

In order to fully consider the viability of subrogation in any given action, it is important to determine any limitations on recovery which may be in place. In the context of carriage for reward, it is well understood that limitation of liability clauses are usually inserted into Bills of Lading or other agreements, and are often established by statute, or international convention.

Outside of the realm of carriage of goods, limitation of liability clauses have gained far more acceptance since the 2010 decision of the Supreme Court of Canada...

The Benefits of Employment Liability Practices Coverage: Civil Case Studies
by Martin Smith
December 10, 2015

Employment practices liability (EPL) coverage protect employers from a variety of actions brought by employees, including wrongful dismissal, sexual harassment, accommodation, discrimination, negligence, unjust enrichment, breach of contract, and breach of duty of good faith actions. This paper will examine cases that demonstrate the potential consequences of failing to have an EPL policy in place.

The Benefits of Employment Liability Practices Coverage: Human Rights Tribunal Cases
December 09, 2015

Given that human rights judges can make any award apart from legal fees to remedy discrimination, the possibility of an employee bringing a claim before the Human Rights Tribunal is an important reason for employers to have employment practices liability (EPL) coverage. Some of the available remedies at the Human Rights Tribunal are mandatory reinstatement with back pay, general damages for discrimination, wage loss recovery, forced sensitivity courses, and human rights training. This paper will examine Human Rights Tribunal cases that emphasize the importance of EPL coverage.

Transportation Case Law Updates
by Garett Harper
November 30, 2015

This paper contains an update to three areas of transportation law with three recent cases from the Ontario Superior Court of Justice and the Ontario Court of Appeal across three diverse issues that can impact a wide array of parties.

The first case is Baroch v. Canada Cartage which dealt with a class action dispute relating to unpaid overtime. The second case is A&A Trading Ltd. v. Dil's Trucking Inc. which dealt with issues relating to bills of lading, undeclared values and contracts of carriage. The third case is Fernandes v. Araujo, which provides an update into the Ontario Court of Appeal's ongoing development of vicarious liability and motor vehicles in Ontario.

Fans: Enter at Your Own Risk
by James Tomlinson, Sabrina Lucibello and Garett Harper
November 25, 2015

Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will 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 regarding the industry standard for safety precautions in a given sport.

Passing the Buck: Risks Willingly Assumed and Liability Apportionment at Resorts
by Bogdan Miscevic
November 25, 2015

This paper will set out the common law defences available to a resort, its owners, and its insurers, when a patron is injured on their premises. Secondly, it will explore and discuss aspects of tavern liability and its application to resorts. Finally, this paper will provide several recommendations that resorts can enact to assist in limiting their exposure to liability.

Real and Substantial Connections and Beyond: Responding to Foreign Lawsuits and Challenging Jurisdiction
by James Tomlinson
November 25, 2015

With the increased frequency of travel outside province and country, comes a corresponding increase in activity-related injuries. These can result in lawsuits for injuries sustained abroad. Managing where lawsuits may be commenced becomes a source of concern for those involved in the travel industry, such as resort and tour operators and their insurers. Ontario hotel and resort operators may therefore unknowingly find themselves being named as defendants in actions commenced outside of Ontario. This will cover, how it happens, how to challenge it, and managing location in the future.

Uber Now Delivers
November 12, 2015

Uber's most recent venture is UberCargo, a new program that ventures into the logistics business. The service allows users to call a van to transport large items for moving or for delivery purposes. UberCargo has only launched in Hong Kong, and at present seems to be geared mainly to business users for their logistical needs.

Should UberCargo or like services arrive in Ontario, it is questionable whether they would fall within the carrier regulatory scheme currently in place.

Court of Appeal released a decision Developments in Loss Transfer: Defence of laches is not available to bar delayed claims
November 12, 2015

Today the Court of Appeal has released a decision that has significant consequences for insurers of heavy commercial vehicles, or for the insurers of vehicles that collide with motorcycles or motorized snow vehicles.

Read up on the decision of the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and the findings...

Developments in Loss Transfer: Does the doctrine of laches apply to bar delayed claims?
November 11, 2015
Canada v. Lombard General Insurance Company of Canada1 and Zurich Insurance Company v. TD General Insurance Company2, have left the law unclear with respect to the doctrine of laches as applied to Ontario's loss transfer regime. 
This paper is a summary of both cases...

Autonomous Vehicles - The Next Frontier
November 10, 2015

According to the Centre for Automotive Research, the first commercially available, fully autonomous vehicles could arrive on dealership floors as early as 2019.

The final manifestation of autonomous vehicles will largely depend on the manner in which regulators balance the issues that arise at the intersection of liability, freedom, and privacy. This paper will provide insights into the current state of the technology of autonomous vehicles and autonomous trucks before delving into a discussion about the shifting scope of liability and the potential consequences this may have on the calculus insurance companies use to apportion risk and determine the cost of premiums.

Termination Provisions and Employment Contracts: The New Order
by Martin Smith
November 09, 2015

Some employers do not see the value in executing employment contracts. However, without termination clauses which limit an employee's entitlements upon termination without cause, damages awarded can be significant. Long gone is the traditional common law "rule of thumb" of one month's notice per year of service. The notice period can be dramatically extended by the court when weighing various factors.

Probationary Employees: Employers' Termination Rights and Restrictions
by Martin Smith
November 06, 2015

Given that employers have an implied contractual right to dismiss a probationary employee without notice and without giving reasons, many employers believe that they are immune from claims brought against them after terminating an employee within his or her probationary period. Unfortunately for employers, this is not the case. Despite the existence of probationary periods, there are many limitations facing employers who wish to fire their probationary employees. It is crucial that employers understand these limitations in order to prevent claims from being brought against them.

Case Commentary: Trimmeliti v. Blue Mountain Resorts Ltd.
by Garett Harper
October 27, 2015

The Superior Court of Justice of Ontario recently released a decision that provided additional comments on the efficacy of waivers and the development of waiver defences in Ontario. 

In Trimmeliti v. Blue Mountain Resorts Limited,1 decided by the Honourable Mr. Justice Dunphy, the plaintiff, a season pass holder, was night skiing with friends on the defendant’s premises when he collided with a fluorescent orange mesh ribbon that was used to close a run.  As a result of this collision, the plaintiff suffered a fractured clavicle...

The Best Defence is Sometimes Not the Best Offence: the Value of a Well-Drafted Waiver
October 27, 2015

The Ontario Superior Court of Justice recently examined the effectiveness of a signed waiver as a full defence in the context of injuries sustained during recreational sports play in Levita v. Alan Crew et al.

In this case, the plaintiff, Robbie Levita, was a player on a recreational hockey team in a league operated by the defendant, True North Hockey Canada (“True North”). Of note, this was a “no-contact” recreation league, which means body checking was prohibited. During the course of a game, the plaintiff suffered a fractured tibia and fibula as a result of being checked from behind into the boards by the defendant.

State Farm v. Old Republic Insurance, 2015 ONCA 699: Re: Heavy Commercial Vehicles
by Bogdan Miscevic
October 23, 2015
The Ontario Court of Appeal has recently released a decision that will be widely applauded by the insurers of heavy commercial vehicles. 
The Court of Appeal has clarified that only insurers of vehicles directly struck by heavy commercial vehicles will be entitled to indemnification through loss transfer while insurers of vehicles involved in a ‘chain reaction accident’ but not directly struck by the heavy commercial vehicle will have no recourse.

A "Victory for Common Sense": Uber Continues to Operate Legally in London, UK
by James Tomlinson
October 20, 2015

In a decision Uber is calling a "victory for common sense", the UK High Court ruled that Uber was not in contravention of existing London regulations with respect to taxicab meters...

Happy Trails: Strategies for reducing a recreational trail occupier's exposure to liability
May 14, 2015
For private enterprise, inviting the public to access recreational areas can be a particularly lucrative opportunity.
There is a potentially high risk that comes with owning and maintaining recreational property.
Ontario’s Occupiers’ Liability Act requires that trail managers take a certain level of care in warning and protecting the public.2 Clients are often shocked to hear that they even owe a duty to those who are trespassing!
This paper will focus on what trail managers should be aware of in order to minimize this risk.

Waiver of Liability vs. Public Policy - Which Takes Precedence?
by James Tomlinson
May 14, 2015
A waiver of liability is one of the most effective means that an occupier can employ to protect itself from liability arising from dangerous activities on its property. If properly implemented, a waiver can completely bar a claim brought by an injured party as against an occupier.
This paper will provide an overview of the law as it pertains to waivers and discuss current case law.

Know your limits! Contributory Negligence in a sport and recreation context
by James Tomlinson and Garett Harper
May 14, 2015

Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury? 

This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.

Fault Exclusions in Course of Construction Policies: Ledcor and Acciona Infrastructure
April 30, 2015

Course of construction policies ("COC"), also known as builders' risk or all-risks policies, underwrite specific risk that arise during the construction process. A significant amount of judicial ink continues to be spilled in Canada (and abroad) about the common exclusion clauses within such policies pertaining to faulty or improper workmanship, design, or materials.

This paper addresses some of the recent case law involving faulty design/faulty workmanship exclusions in the context of construction projects.

Discovering Potential Third Parties in Motor Vehicle Accident Claims: Who Should We Consider?
by James Tomlinson and Garett Harper
April 15, 2015
In today’s litigious world, claims related to motor vehicle accidents are exceptionally common. With the number of these cases on the rise, defence counsel has had to become more creative in defending them. One way to effectively defend these claims is to consider whether the accident may have been caused by someone else who may be required to assume your defence or indemnify you. Specifically, we recommend always considering whether the accident could have been caused by a mechanical failure in the defendant vehicle.

A Tomato Wagon? Defining 'Automobiles' Under Ontario's Insurance Legislation
by Catherine A. Korte
April 15, 2015
To the uninitiated, it might seem that defining the word “automobile” … should be a relatively simple matter. Those familiar with the byzantine nature of
insurance legislation know better.

Off the Beaten Path: Occupiers and Trail Liability in Ontario
by Garett Harper
April 15, 2015
The purpose of this paper is to provide the state of the law as it currently exists and recommend ways in which large landowners can reduce their exposure for harm suffered by users of recreational trails. It will highlight the legal relationship that exists between occupiers and users of land pursuant to the Occupiers’ Liability Act “OLA”). This paper will first define the duties of landowners to individuals who are taking part in recreational activities on their premises. In doing so, this paper will analyze the impact of whether these individuals are invited upon the land or if they have simply trespassed onto the land to take part in recreational activities. Furthermore, this paper will discuss the corresponding standard of care that accompanies the relationship that is created between occupier and user.

What is a Motor Vehicle and What Constitutes its use and Operation: An Investigation into Policy Applicability and Coverage
by James Tomlinson
April 15, 2015

This paper addresses two important questions that are integral to determining whether a negligence action arises from the use and operation of a motor vehicle. Firstly, this paper seeks to determine whether a particular vehicle involved in an accident actually constitutes a motor vehicle.

Secondly, this paper seeks to determine what constitutes the use and operation of a motor vehicle.

No Man's Land - Cyberbullying and the Canadian Legal Landscape
by Catherine A. Korte
April 09, 2015

To put cyberbullying into perspective, in 2010, 49.5% of students in 33 Toronto junior high and high schools reported that they were bullied online. Cyberbullying, thankfully, has not gone unnoticed. Regulators, parents, and the courts alike have grappled with the best way to address the phenomenon and find productive solutions. From properly defining and identifying the issue, current enforcement strategies, anti-bullying legislation, and even with respect to insurance and coverage issues, cyberbullying is proving to be one of the most pressing social issues particularly among young Canadians moving into the 21st century.

Case Comment: Iannarella v Corbett
April 01, 2015

The Court of Appeal released an important decision for all lawyers practicing in the field of civil litigation and personal injury, in particular.Iannarella v Corbett clarifies the onus of proof regarding liability in a rear-end collision and reinforces the ongoing disclosure obligations of surveillance throughout the litigation process.

What Landlords need to know about Property Tax
by Stephen Barbier
March 12, 2015

Some municipalities now engage in the practice of adding tenants' unpaid hydro bills to an owner's property tax. Landlords are then forced to chase previous tenants to recover these losses. Where does the municipality get the authority to do this? How can landlords help protect themselves?

What Landlords need to know about PIPEDA
by Stephen Barbier
March 12, 2015

The Personal Information Protection and Electronic Data Act (PIPEDA) governs how private sector organizations collect, use and disclose personal information in the course of commercial business. For the purposes of PIPEDA, a landlord is an organization engaged in a commercial activity and is therefore required to comply with the Act. PIPEDA defines “Personal Information” as information about an identifiable individual, but does not include the name, title business address or telephone number of an employee of an organization

Pet Problems: Avenues for Landlords to Deal with Problem Pets
by Martin Smith
March 12, 2015

Landlords have long since struggled with the issue of "problem pets" in their residential units. Cleanliness, property damage and liability for injuries caused by tenants' pets are all common concerns. What does provincial legislation say about pets in residential complexes and what options are available to landlords?

Altering the Litigation Landscape: Mary Carter Agreements and Stamatopoulos et al v. Harris et al, 2014 ONSC 6313
by Van Krkachovski
March 02, 2015

Mary Carters and Pierrenger Agreements are types of agreements used in multi-defendant litigation. Both agreements involve settlement between the plaintiff, and some, but not all, of the defendants. In essence, they allow for actions to partially settle. While these agreements appear useful, the law concerning them (in particular, Mary Carters) is both complex and rapidly evolving.  Read the full case study and details on both...

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)
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
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
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
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
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 Exposures
by Howard Borlack
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 Alex Robineau
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
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 Melissa Parravano
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
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
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
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
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
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
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
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
by James Tomlinson
March 20, 2013

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
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
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
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
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
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
by James Tomlinson
August 27, 2012

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
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 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
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
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
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
by Alan S. Drimer
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
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?
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.
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
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
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
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
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
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
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 Alan S. Drimer and 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
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
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
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 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
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
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
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
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
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?
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.
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.

A Canadian Perspective: Recent Developments and Emerging Issues Concerning the Design Professional
by Howard Borlack
November 30, 2009

A primary concern for the design professional has always been the length of time during which claims can be brought in respect of work performed. In some cases, including those involving latent defects, proceedings are commenced long after the work in issue has been completed.

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
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 and Laurie Murphy
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".