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SPECT Scan Evidence: A Diagnostic Aid or a Novel Science? Case Comment: Kolapully v. Myles
by Eric W.D. Boate
June 06, 2024

The recent Court of Appeal decision in Kolapully v. Myles is significant for two key reasons. First, it addresses the admissibility of Single Photon Emission Computed Tomography ("SPECT") scan evidence, particularly in the context of novel and contested science. Second, it examines the deductibility of non-earner benefits from an award of loss of income under s. 267.8 of the Insurance Act.

Data Breach: A Cautionary Tale of What Legal Privilege Can be Asserted Over in a Cybersecurity Investigation Case Comment: LifeLabs LP v. Information and Privacy Commr (Ontario)
by Howard Borlack
May 22, 2024

On April 30, 2024, the Divisional Court of the Ontario Superior Court of Justice (the "Court") released its decision in LifeLabs LP v. Information and Privacy Commr. (Ontario),1 where the Court dismissed LifeLabs LP's ("LifeLabs") application for judicial review. The Court held that the Privacy Commissioners of Ontario and British Columbia did breach LifeLabs' right to procedural fairness and that they did not err in their application of the law on solicitor-client privilege and litigation privilege.

An Employer's Right to Dismiss an Employee is not Absolute - Case Comment: Dufault v The Corporation of the Township of Ignance
by Martin Smith
May 16, 2024

In Dufault v The Corporation of the Township of Ignance, 2024, ONSC 1029, the court found that the plaintiff was wrongfully dismissed from her employment because a provision contained in her employment agreement allowed her employer to terminate her employment "at its sole discretion" and "at any time", in violation of the provisions of the Employment Standards Act.

Tick Tock, Tick Tock... The New Timing Rules for Expert Reports
by Nawaz Tahir
April 25, 2024

Recent amendments to the Rules of Civil Procedure1 impose stricter limits when it comes to the admissibility of such evidence where there is a delay in serving the expert reports.

Fundamentally Different: Supreme Court of Canada on Statutory Rights of Appeal and Judicial Review
by Howard Borlack
April 09, 2024

In discussing limited rights of appeal pertaining to questions of law, The Supreme Court of Canada ("SCC") in Yatar v. TD Insurance Meloche Monnex unanimously held that both the Divisional Court and Court of Appeal for Ontario erred when they respectively concluded that only in "exceptional circumstances" and "rare cases" would judicial review be available for questions of fact or mixed fact and law.

Proposed Changes to Ontario Accident Benefits, and Potential Impacts on Tort Claims
by Christopher D. Gallo
April 09, 2024

The 2024 Ontario Provincial Budget, titled "Building a Better Ontario" was recently released, and it proposes several changes to the automobile insurance regime, which could have profound impacts if adopted.

The first and most immediate impact would be the change of mandatory and optional benefits under an automobile insurance policy.

Multiple Policies, Class Actions with Continuous Losses- Oh My! Case Comment: Loblaw Companies v Royal & Sun Alliance Insurance Co.
by Howard Borlack and Hillel David
March 08, 2024

As stated at the outset of this decision, "The allocation of defence costs amongst serial insurers who owe their insured a duty to defend raises complex issues in the context of consecutive coverage periods and multiple class action claims that span lengthy time frames." Even more graphic was the following remark: "The challenge presented by these appeals is what to do with the cost of defending claims that involve allegations of continuous or progressive injury that span many years (long-tail claims) where there are insurance policies with different insurers, different provisions involving deductibles and SIRs, and consecutive rather than concurrent coverage periods and therefore different risks. The American Professor Leo P. Martinez aptly described this as 'among the thorniest problems in insurance law'".

In this case, there were multiple class actions relating to the sale of opioids, with claims amounting to billions of dollars and involving a time span of more than 20 years.

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.

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. 

Can auto insurers require an insured to undergo medical examinations?
by Michael Kennedy
December 11, 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.

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
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.