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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.


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
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
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
by Catherine A. Korte
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: