January 30, 2020
In Alizadeh v Ontario (Ministry of Environment, Conservation and Parks) (“Alizadeh”), the Court highlighted the high evidentiary burden on rebutting a presumption of management and control by a director in a Director's Order, emphasizing the importance of meeting environmental protection objectives.
A duty of good faith is foundational to nearly every contract of insurance, imposing on all parties a duty to act fairly and in good faith in their dealings with one another. In Whiten v. Pilot Insurance Co., the Supreme Court of Canada affirmed the reciprocal duty of good faith, a breach of which would constitute an “independent actionable wrong” compensable through the imposition of punitive damages.
This case involves two accidents involving two recreational off-road vehicles – an all-terrain vehicle (“ATV”) and a dirt bike – heard together because they raise the same jurisdictional issue at law.... The issue before the Court was whether Ontario's statutory accident benefits regime applies differently if the subject accident occurs outside of Ontario.
The appellant in this matter operates a commercial bakery located inside of a shopping mall. The ice storm did not cause any physical damage to the shopping mall or to the bakery, but the resulting power outage caused spoilage within the bakery. Appellant failed to show...
November 15, 2019
Recently, the Ontario Government has been working toward enacting an overhaul of the Construction Act in hopes to modernize the legislation. The transition rules for these changes are set out in section 87.3 of the amended legislation. As of July 1, 2018, amendments to the construction lien and holdback rules came into effect. A new round of changes are now about to come into effect on October 1, 2019, pertaining to the prompt payment and adjudication process, and amendments related to liens.
In Capital Solar Power Corporation v The Ontario Power Authority, Howard Borlack of McCague Borlack LLP represented the Ontario Power Authority before Justice Toscano Reccamo of the Ontario Superior Court of Justice for a claim alleging the tort of misfeasance of public office.
October 01, 2019
Where an MVA occurs in Ontario, and there is an out-of-province insurer policy covering the claimant, and that insurer has signed the Power of Attorney and Undertaking (PAU), the insurer is bound by s. 268 of the Insurance Act in its entirety.
September 30, 2019
A front-seated passenger who unexpectedly grabbed the wheel of a vehicle, causing an accident, is considered to have operated the vehicle without the driver's consent. It was not foreseeable the passenger would grab the wheel, despite the fact that the driver and passenger were arguing and emotional.
The owner of the vehicle in such a situation is not vicariously liable under s. 192(2) of the Highway Traffic Act. Summary judgment in favour of a dismissal against the owner was upheld.
September 27, 2019
The Court of Appeal determined that to be covered under s. 239 of the Insurance Act, an occupant's liability for loss or damage must arise from the use or operation of the vehicle. Mr. Hunt and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman, who was driving impaired. Ms. Dingman held an automobile insurance policy at the time with Peel Mutual Insurance Company.
Amelia's injuries arose from the impaired driver's use of the vehicle. However, Mr. Hunt's liability arises from negligent parenting, not from his actions as an occupant of the vehicle.
“Do my insurance benefits cover my medical marijuana costs?”
It’s a question that claimants are increasingly asking of their first-party healthcare insurers and one that is not always easily answered.
On one hand, the use of cannabis as a legitimate treatment option has grown exponentially in recent years. On the other, the associated medical literature is in somewhat of a nascent stage, and it is not always clear whether marijuana will aid an injured party with their recovery (at least in any clinically verifiable sense).
August 23, 2019
As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.
August 15, 2019
As we have developed greater and more rapid business relationships across greater distances, there has inevitably come with this trend a larger emphasis on cross-jurisdictional litigation. While Canadian common law is fairly uniform in its basic components, there are notable elements that have slight, yet potentially critical, differences. In this discussion, we will endeavour to identify some of the most important differences specifically between civil procedure in Ontario and British Columbia.
As a starting point, it is helpful to know that the BC Supreme Court Civil Rules are very similar to the Rules of Civil Procedure in Ontario, so the vast majority of matters in BC will proceed in a similar fashion to the way they do in Ontario.
August 15, 2019
In its seminal decision of Westerhof v Gee Estate,1 the Court of Appeal for Ontario provided the general framework for the admissibility of expert evidence in Ontario. Specifically, it clarified the role of participant experts at trial and confirmed that compliance with Rule 53.03 of the Rules of Civil Procedure was not required for their evidence to be admissible, as opposed to the evidence of litigation experts. As the Court indicated, participant experts are witnesses, albeit ones with special skill, knowledge, training or expertise, who are not engaged by a party to form their opinions, and who do not form their opinions for the purpose of the litigation.
August 15, 2019
Jury trials provide the opportunity for a group of people, selected at random from the community, to decide issues of fact or assess damages in a Superior Court action. An action can be tried with a jury if a jury notice is delivered by one of the parties before the close of pleadings, which is typically early on in the life of an action. After pleadings are closed, a jury notice can only be delivered with leave of the court.
August 15, 2019
Imagine the following scenario: A plaintiff sues to recover $150,000 in damages. The defendant refuses to pay anything and forces the plaintiff to trial. After a ten-day trial, the plaintiff is wholly successful and obtains $150,000 in damages, plus costs of $100,000 and disbursements of $50,000. The defendant who lost has to pay the plaintiff his/her damages and costs, as well as the defendant's legal costs of $100,000 and disbursements of $30,000. In other words, the cost of defending the plaintiff's claim cost the defendant $280,000 in costs and disbursements alone–a number nearly twice the amount of the plaintiff's damages. While costs are meant to discourage frivolous litigation, the costs should not be so disproportionate to the relief being claimed so as to lead to unfairness.
