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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
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
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
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.