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.
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.
May 03, 2018
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:
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”.
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"?
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.
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.
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”).
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.
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?
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.
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...
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.
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.
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?
