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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In the recent decision TMJ Hygiene Service Corporation v Aces Capital Inc.,1Monahan J. rescinded a $95,000 contract for the sale of two seat licenses at the Air Canada Centre.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
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 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
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.