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An Updated Case Comment: Jung v Cloverdale Mall Inc., et al - 2015 ONSC 2386
Michael Blinick and Paul Jonah
July 24, 2015

Michael Blinick and Paul Jonah are successful in defending the various owners and operators of Cloverdale Mall, in the case of Jung v Cloverdale Mall Inc., et al. In the recent decision of Justice Harvison Young, the moving party's motion for leave to appeal the Order of Akhtar, J., was denied and further costs were awarded to MB's clients.

The learned judge indicated that there are two possible branches upon which leave may be granted, both of which involve a two-part test....


Featured Case: Brentnell and Wawanesa Mutual Insurance Co. - FSCO A13-008004
Michael Kennedy
July 06, 2015

An arbitration decision in favour of McCague Borlack LLP's client was released on June 29, 2015.

Following a three day arbitration dealing with the claimant's entitlement to accident benefits, Arbitrator Mongeon decided that the claimant was not entitled to any of the benefits in dispute (including income replacement, medical expenses, or a special award).

Arbitrator Mongeon determined...


Simser v. Aviva Canada Inc., 2015 ONSC 2363 (Div. Ct.); (January 9, 2014), FSCO P13-00004 (Blackman); (January 16, 2013), FSCO A11-004610 (Lee)
James M. Brown
June 02, 2015

This case was the first reported decision to address the interpretation of “economic loss” for the requirement that expenses be “incurred” under the SABS-2010.  The claimant sought to adduce evidence that his spouse had lost income and his child had missed school in order to provide him with attendant care and housekeeping services. 


Henry v. Aviva Canada Inc. (May 29, 2014), FSCO P13-00016 (Blackman)
James M. Brown
June 02, 2015

This case was an appeal decision, which overturned the decision of the arbitrator to stay a proceeding seeking a designation of catastrophic impairment and various benefits due to a lack of capacity. 


Leduc v. Aviva Canada Inc. (June 25, 2014), FSCO A12-001105 (Ahlfeld)
James M. Brown
June 02, 2015

This case involved a preliminary issue hearing to determine whether the claimant was precluded from advancing a claim for income replacement benefits under the SABS-2010 because he had been driving with a suspended licence at the time of the accident. 


Navage v. Aviva Canada Inc. (May 6, 2014), FSCO A13-0000006 (Mutch)
James M. Brown
June 02, 2015

This case involved a preliminary issue hearing to determine whether the claimant could proceed to arbitration when she refused to attend for an assessment of her attendant care needs. 


Shaughnessy v. Aviva Canada Inc., 2011 ONSC 1566 (Div. Ct.); (October 2, 2009), FSCO P07-00036 (Evans); (November 6, 2007), FSCO A06-001546 (Wilson)
James M. Brown
June 02, 2015

This case involved a challenge by the insurer to the results of a CAT DAC under the SABS-1996. The claimant had undergone a multi-disciplinary CAT DAC assessment, which had concluded that she had sustained a catastrophic impairment as a result of the accident. 


Abrams v. Aviva Insurance Co. of Canada (June 26, 2009), FSCO P08-00027 (Blackman)
James M. Brown
June 02, 2015

This was an appeal of an award of death benefits, interest and a special award and includes a change of evidence by the insured.


Vieira v. Aviva Canada Inc. (March 9, 2012), FSCO A08-001537 (Ashby); (April 16, 2012), FSCO A08-001537 (Ashby); (December 2, 2011), FSCO A08-001537 (Ashby)
James M. Brown
June 02, 2015

This case involved claims for caregiver benefits, attendant care benefits, housekeeping benefits and the cost of assessments under the SABS-1996.  


Case Summary: Carneiro et al and Regional Municipality of Durham et al and Zurich Insurance Company Ltd., 2015 ONSC 2427
Van Krkachovski
May 19, 2015

This matter arose out of a tragic motor vehicle accident that occurred in the Region of Durham during a long winter storm. Durham contracted out the winter maintenance of its roads to Miller Maintenance Ltd. with the requirement that Miller obtain a Comprehensive General Liability (CGL) policy of insurance for public liability and property damage naming Durham as an additional insured. Pursuant to the contract however, the CGL only insured Durham “in respect of all operations performed by or on behalf of Miller” and did not include damages caused by the negligence of Durham or its employees.

The main issue in this motion was whether Zurich was contractually obligated to indemnify Durham for the claims alleged by the plaintiffs.


Featured Case: Cirque du Soleil Inc. v. Volvo Group Canada Inc. et al
The Ontario Superior Court of Justice recently released the decision Cirque du Soleil Inc. v. Volvo Group Canada Inc. where Michael Blinick, partner at McCague Borlack, with the assistance of Matthew Malcolm, associate, successfully defeated a motion to dismiss the claim by one defendant on the basis that the defendant corporation had been previously dissolved pursuant to California law. Costs were also awarded for Michael’s victory.
 
This case offers insight into issues arising from conflict of laws between jurisdictions. It stands for the principle that a corporation cannot simply file for dissolution and expect to be immune from liability arising from its alleged negligence committed prior to dissolution unless this is contemplated in the jurisdiction of incorporation (an obvious rarity).

Featured Case: Jung v Cloverdale Mall., et. al.
Michael Blinick
May 01, 2015

The Ontario Superior Court of Justice recently released the decision Jung v Cloverdale Mall Inc. where Michael Blinick, partner at McCague Borlack, successfully opposed a summary judgment motion and was awarded costs in the amount of $17,000.

 

Ontario Court of Appeal Decision - Sanofi Pasteur Limited v. UPS SCS, Inc. 2015 ONCA 88
Hillel David
February 11, 2015

Hillel David, the senior appellate lawyer at McCague Borlack LLP, was one of several counsel responding to the appeal by the plaintiff in Sanofi Pasteur Limited v UPS SCS, Inc. 2015 ONCA 88. The major issues on the appeal were the effect of an insurance covenant in a contract made between the plaintiff and one of the defendants (UPS) in a significant claim involving damage to vaccines stored in a temperature-controlled environment, and whether the defendants other than UPS, including Hilly's client, were entitled to take the benefit of the insurance covenant.

The Court of Appeal held both that...


TD ats Kakoutis
Michael Blinick
May 09, 2013
Application brought by insurer regarding applicability of limitation defences.

Implied Conditions in Rental Agreements: Szilvasy and Collett claims against Reliance Home Comfort
Hillel David
November 30, 2012

McCague Borlack LLP lawyers Mark Mason and Hillel David were Counsel in The Court of Appeal when the claims against Reliance Home Comfort for damages arising from leaking hot water tanks were heard on October 23rd 2012. Decisions were released on November 27th 2012. These claims are amongst the very few  that have travelled from Small Claims Court all the way to the Ontario Court of Appeal. 


Thayalan and Wawanesa Mutual Insurance
Michael Kennedy
June 13, 2012

Arbitrator Fadel with the Financial Services Commission of Ontario (FSCO) released a decision in favour of McCague Borlack's client concerning an applicant's entitlement to accident benefits.

This case highlights credibility of the applicant is essential for his or her success at Arbitration. Thorough expert reports that address the issues without bias or the appearance of bias are also of utmost importance if the Insurer wishes to have its position recognized at Arbitration and, in particular, to defend a claim for special award. Read full case summary or read Arbitrator Fadel's report.


Case Study: Rideau Acres Ltd. v. Lombard Canada Ltd.
Van Krkachovski
April 29, 2012

On April 13, 2012, Justice Sheffield of the Ontario Superior Court of Justice released his decision granting an order for summary judgment in our client’s favour. The issue before Justice Sheffield was whether the plaintiffs’ liability coverage was improperly removed by their insurance broker and our client, Lombard Canada Ltd., such that coverage should have responded and indemnified the plaintiffs for an underlying claim in negligence. See the full summary or read the court file.


McCague Borlack on winning side of two cases released by the Supreme Court of Canada this week
Rory Barnable and Howard Borlack
April 19, 2012

On April 18, 2012, the Supreme Court of Canada released its long-awaited “Jurisdiction Trilogy”, three decisions considering private international law as it relates to litigating claims with extra-jurisdictional elements. McCague Borlack LLP was involved in two of the three cases and is pleased to announce that the Supreme Court upheld the positions of its clients in both.

The Jurisdiction Trilogy provides clarification as to when a court may assume jurisdiction over claims, known as jurisdiction simpliciter, and further, when a court may decline jurisdiction on the grounds that another forum is clearly more appropriate. 


Collett v. Reliance Home Comfort | Szilvasy v. Reliance Home Comfort
Hillel David
December 07, 2011

On December 7, 2011, the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks. In each case the hot water tank, located in the homeowner's basement, developed a leak which resulted in damage to the home and contents.

The appeals raised a number of issues relating to implied warranties in lease agreements, the application of the Consumer Protection Act, the time period during which the implied warranties were operative, the time period during which the product was defective, the differences between sale and lease agreements, and the duty to warn. While most of those issues were not dealt with, the decision nevertheless is one of considerable importance, not just because there are literally hundreds (perhaps thousands) of similar claims that awaited the outcome, but more importantly because of the confirmation of the principle that implied warranties applicable to a leased product apply not only at the outset of the term of the lease but throughout that term.  Read the full case summary... | Read The Toronto Star article coverage... | Read Canadian Underwriters coverage... | Read the court decision...


Zurich Ins. / Chartis Ins. and Ison T.H. Auto Sales Inc.
Hillel David
October 18, 2011

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The decision on appeal affirmed the decision made by Strathy J. on an application made by insurers seeking carriage and control of an action that had been commenced by the insured, in which both the uninsured loss and subrogated claims were advanced. The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged. The insurer paid out the net sum (after credit for salvage recovery) of $1.1 million to the insured under the first party property loss coverage in the policy. The uninsured loss claim was in the amount of $700,000, representing alleged loss of profit and goodwill that was excluded under the policy.  Read the full case summary... | Read the court decision

Goodyear Canada Inc. v. American International Companies
Rory Barnable
September 15, 2011

On September 16, Justice Stinson of the Ontario Superior Court of Justice released a significant decision in our clients’ favour concerning liability insurance coverage for “long tail” latent bodily injury claims.  The insured asbestos manufacturer asked that the Court impose a coverage allocation method known as the “Stonewall principle” as adopted by some U.S. courts.  This method would require the manufacturer’s previous insurers to continue to provide coverage for bodily injury occurring well after their policy periods, starting from the time the insured could no longer voluntarily insure itself because of the insurance industry’s market-wide adoption of an asbestos exclusion (i.e. 1986).  The Ontario Court refused to accept the Stonewall principle.  It also found in favour of the insurers on a second issue – each claim is subject to the deductible under each policy cumulatively without proration.  


North Toronto Chinese Alliance Church v. Gartner Lee Ltd.
September 08, 2011

The Court is naturally reluctant to deprive a litigant of their right to bring an action to trial, and motions to dismiss a claim for delay are infrequently brought and even more infrequently granted.  Gosia Bawolska celebrated a significant win for our client, an engineering company, when she persuaded the Court that the plaintiff’s delay in bringing the claim to trial had resulted in significant prejudice to our client’s ability to defend itself should the matter proceed to trial.  The Court not only agreed with Ms. Bawolska’s submissions, it also awarded the cost of the entire action to our client. 

The Court’s decision in our client’s favour confirmed that a defendant is presumed to have suffered prejudice due to the plaintiff’s delay, and that the burden then shifts to the plaintiff to rebut that presumption.  If the plaintiff is not successful in rebutting that presumption, the Court may exercise its inherent jurisdiction to dismiss the claim as a fair trial is no longer possible.