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Beware of the Standard of Care in Recreational Sports - Case Comment: Cox v. Miller
by Howard Borlack
February 13, 2024

In Cox v. Miller (Cox), the British Columbia Court of Appeal (the "BCCA") upheld the trial judge's decision by affirming that irrespective of an individual's intent and permissible rules of a game, injuries as a result of reckless and dangerous acts during recreational sports are risks not undertaken by players and are thereby able to constitute liability in negligence.

Can auto insurers require an insured to undergo medical examinations?
by Michael Kennedy
December 12, 2023

The Ontario Superior Court of Justice Divisional Court reviewed a decision of the Licence Appeal Tribunal (the "LAT") and addresses whether auto insurers can require an insured to undergo medical examinations to determine eligibility for prescription medication claims.

Psychotherapist Costs reviewed in a SAB case
by Michael Kennedy
December 12, 2023

The applicant, Johnson, was involved in an automobile accident in 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule (the "Schedule"). The respondent, Aviva Insurance Company of Canada (the "Insurer"), denied psychotherapy benefits. Johnson (the "Applicant") applied to the Licence Appeal Tribunal (LAT) for the resolution of the dispute.

Of the issues adjudicated in this decision, the LAT explored the appropriate rate payable to psychotherapists in the context of statutory accident benefits. 

September 2023 When Is Travel Insurance "Excess" to Auto Insurance? ONSC Clarifies Applicability of s. 268(6) of the Insurance Act
September 08, 2023

In its recent decision of Royal & Sun Alliance Insurance Company of Canada v. SNIC, the Ontario Superior Court of Justice (the "Court") considered the priority of a travel policy and auto policy to pay out of province medical expenses. Both insurers claimed they were excess to each other, with the travel insurer relying upon the Ontario Court of Appeal's ruling in RBC Travel Insurance Company v. Aviva Canada Ltd. ("RBC Travel"), which limited the application of section 268(6) of the Insurance Act (which legislates all other insurance policies to be "excess" insurance to auto policies). However, the auto insurer's counsel (Michael Kennedy with McCague Borlack LLP) successfully argued that RBC Travel should be distinguished, resulting in the auto policy being held to be excess due to section 268(6).

Now or Never - Limitations on Late Expert Reports
by Martin Smith
August 16, 2023

This action concerned a snowmobile accident that took place in 2014. The plaintiff served several expert opinion reports regarding the nature and extent of his injuries. The defendant did not serve any responding expert opinion reports. The matter was set down for trial twice, in 2019 and in September 2023.

In February 2023, the defendant requested the plaintiff's consent to extend the deadline for delivery of a defence medical examination...

Diminishing Returns - Divisional Court Confirms Motor Vehicle Accident Claims for Diminished Value are Statute Barred by Insurance Act
by Matthew Dugas and Sandra White
February 10, 2023
Diminished value claims for property damage to automobiles are statutorily barred by section 263 of the Insurance Act, R.S.O. 1990, c. I.8. 
At least that is what section 263 of the Insurance Act appeared to do. However, Ontario insurers have long been plagued by persistent claims, especially in the Small Claims Court. All of the actual reported decisions dismissed these claims, but the decisions tended to be fact-specific. Without any clear decisions by a higher Court, new claims would arise with some new variation of the diminished value argument. 

Compensation expectations for long-term employees terminated - Case Study: Williams v. Air Canada
by Howard Borlack and Anita Zamani
January 17, 2023

Employers must be wary of what compensation long-term employees are entitled to in lieu of notice when laid off during times of economic uncertainty. The entitled compensation will likely not be the statutory minimum in applicable provincial and federal employment legislation. In Williams v. Air Canada, 2022 ONSC 6616, the Ontario Superior Court granted summary judgment in favour of an Air Canada employee who was dismissed without cause, awarding $132,772.33 in lieu of a 24-month notice period.

Statutory Deductibles & Monetary Thresholds - Increased for MVA Claims
by Eric W.D. Boate
January 04, 2023

On January 1, 2023, the statutory deductibles and corresponding monetary thresholds in motor vehicle accident claims increased significantly by 6.9% due to inflation.

Which doctor's opinion counts on threshold issues? Case Study: Sanson v Paterson v Sanson v Security National Insurance
by Howard Borlack
December 13, 2022

What types of physicians can opine on threshold issues? In the Ontario Superior Court decision, Sanson v Paterson v Sanson v Security National Insurance, Justice W.D Black answers the type of physicians that qualify under section 4.3(3) of O. Reg 461/96.

Are you a creditor and do you have standing? Maybe not. Case Study: YG Limited Partnership and YSL Residences Inc.
by Howard Borlack
December 02, 2022

Justice Osborne of the Ontario Superior Court (Commercial List) recently released his reasons in YG Limited Partnership and YSL Residences Inc., 2022 ONSC 6548, and the implications for future bankruptcy and insolvency proceedings are notable.

The brief facts of the motion were as follows.

You got hacked: Limits on Liability - AN UPDATE: Case Study of Owsianik v. Equifax Canada Co, and Intrusion of Seclusion
by Theresa Hartley
November 30, 2022

This is an update further to the first publication in July 2021 of the same name.

The Ontario Court of Appeal recently held that the tort of intrusion upon seclusion cannot be used to recover damages from a "database defendant" if the information being stored is accessed by independent third-party hackers. A database defendant is one who, "for commercial purposes, collected and stored the personal information of others."

The Divisional Court rules that all employment insurance benefits are deductible under the SABS
by Petra Sbeiti
September 21, 2022

In the recent decision of Aviva Insurance Company of Canada v. SpenceJames Brown of McCague Borlack LLP, on behalf of the Appellant, argued successfully in front of the Divisional Court to have a License Appeal Tribunal (LAT) decision overturned. This LAT decision had found that EI sickness benefits (EI benefits) paid under the Employment Insurance Act (EIA) were not deductible from Income Replacement Benefits (IRB) under the Statutory Accident Benefits Schedule (SABS).

Recent Trends in Civil Litigation as a Result of COVID-19
by Nawaz Tahir
August 31, 2022

In March 2020, the world came to a near standstill because of the COVID-19 pandemic. Like many other industries, civil courts and litigators had to adapt to the forced shift online because even a global pandemic is no excuse for delaying the administration of justice. The digital world is the new world; however, effective August 2, 2022, Chief Justice Morawetz released a Notice to the Profession advising of new Guidelines applicable to proceedings in the Superior Court of Justice. Ultimately, a hybrid model is being endorsed through the establishment of presumptive modes of both in-person and virtual attendances to ensure all participants can fully and equally participate.

The Mechanics of The Duty to Defend, The Duty to Indemnify, And Additional Insureds
by Garett Harper
August 31, 2022

This paper was originally presented at a client seminar and has been updated with new case references from an article of the same title.

The main purpose of commercial general liability insurance policies ("CGL policies") is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties. The first obligation is referred to as the "duty to defend". 

Nuances Between Judge-Alone and Jury Trials
by Van Krkachovski
August 31, 2022

During the COVID-19 pandemic, the courts were unable to hold jury trials for many civil claims, particularly MVA and tort cases. This ended in May 2022, and jury trials for civil cases have since resumed. During this time, many decisions proceeded before only a judge. This paper will outline the major differences between judge-alone and jury trials.