December 30, 2016
In the recent decision of Raubvogel et al v. The City of Vaughan et al (“Raubvogel”), the Ontario Superior Court outlines the distinction between a municipality's policy and operational decisions. Specifically, the City of Vaughan (“the City”) argued that it did not owe a duty of care to the plaintiffs on the basis that its decision not to replace the incident water main was an issue of policy. Accordingly, the City argued that the plaintiffs' claim was barred by section 450 of the Municipal Act (“the Act”). However, counsel for the plaintiffs, Adam Grant, a partner at McCague Borlack LLP, was successful in demonstrating that such a failure in these circumstances was an operational decision as there was “no apparent reason” for the failure to replace the water main.
December 12, 2016
The Licence Appeal Tribunal (“LAT”) acted quickly and efficiently to correct an error that was contained in the decision of 16-000179 - Raho Mohamud v. Old Republic Insurance Company that was released by the tribunal earlier this month. Go to the Case Study... or click for the decision below.
November 25, 2016
Michael was successful in arguing the plaintiff (who was driving one of the vehicles) was the sole cause of the accident. The result was the plaintiff’s Statement of Claim being dismissed. Plus See Featured Case Article
September 23, 2016
McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.
In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.
In a recent motion for summary judgment, McCague Borlack LLP successfully argued for the dismissal of Third Party and Fourth Party actions against its clients as it was determined that there were no genuine issues requiring a trial. While the facts of the case were unique, clients can take heed in the fact that summary judgment is available in claims for contribution and indemnity when the proper facts present themselves.
June 30, 2016
In a 2014 decision, Justice Lemon of the Ontario Superior Court of Justice upheld the decision of Wein J. to dismiss the plaintiff's action for failure to comply with undertakings and to pay costs.1 The issue before Lemon J. was whether or not the material placed before Wein J. regarding outstanding undertakings on the ex-parte motion was full, frank and fair...
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....
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...
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.
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.
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.
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.
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.
This was an appeal of an award of death benefits, interest and a special award and includes a change of evidence by the insured.
This case involved claims for caregiver benefits, attendant care benefits, housekeeping benefits and the cost of assessments under the SABS-1996.
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.
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.
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...
May 09, 2013
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.
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.
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.
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.
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...
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.
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.
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.