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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
by Theomarcus Giannou
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.


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.