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Jury Questions: When to Ask for Reasons - Case Study: Cheung v. Samra 2020 ONSC 4904
by Michael Kennedy
September 28, 2020

In Ontario, there is a well-established practice of asking jurors to provide reasons for their verdicts. The jury is not absolutely required to provide this information. There is a presumption of integrity regarding general verdicts; simply because the jury did not explain its verdict is not a ground for appeal.

The exception to this presumption arises in professional negligence cases...


The Court exercises its "Fact Finding Powers" - Case Study: Carmichael v. GSK Inc.
by Howard Borlack
September 26, 2020

In Ontario, s.4 of the Limitations Act, 2002, (“Act”) establishes a two-year limitation period for a claimant to commence an action, which begins to run once the claim is discovered. However, there exists an exception for those claimants that are “incapable” to commence the proceeding.

In this case study, a man suffering from mental illness and psychotic delusions, killed his son and later commenced an action against the drug company...


In the Wake of Waksdale: A Recent Decision with Serious Consequences for Ontario Employers
by Martin Smith and Carly Jacuk
September 18, 2020

When it comes to claims for wrongful dismissal, without cause termination provisions have received almost all of the attention in recent years.

However, in the wake of a recent landmark decision by the Court of Appeal for Ontario (“ONCA”), employers should now be turning their attention to the other portions of the termination provisions in their non-unionized employees’ contracts.


Striking jury notices during the COVID-19 Pandemic When is it more likely to happen?
by Alan S. Drimer and Ryan R. Taylor
September 15, 2020

Access to well-functioning justice and court systems are fundamental to a just and fair Canadian society. However, the COVID-19 pandemic has created challenges that have impacted the Canadian justice system.

Recently, the Ontario Superior Court of Justice has struck civil juries in two personal injury actions...


Priority dispute determined by financial dependency: Featured Case Study: TD Insurance and Intact Insurance
by Howard Borlack
September 01, 2020

In TD Insurance and Intact Insurance, McCague Borlack LLP successfully argued that Intact Insurance, not TD insurance, had priority to pay statutory accident benefits to a claimant for personal injuries sustained in an October 30, 2017, motor vehicle accident.

The question before Arbitrator Bialkowski was whom a 17-year-old claimant was principally financially dependent on – the claimant's father (Intact) or the claimant's stepmother (TD). To complicate matters, the claimant was a passenger in the vehicle owned by her stepmother and had recently moved from her biological mother's home to reside with her father and stepmother at the time of the accident.


Ontario Courts updating online infrastructures to accommodate COVID-19 needs for safety
by Howard Borlack
August 11, 2020

Amid the ongoing COVID-19 pandemic, courts in Ontario have been working to modify existing online infrastructures and acquire new technologies in order to meet the needs of Ontarians and to maintain the safety of those who work in the courts. In doing so, the Ministry of the Attorney General ("MAG") has recently expanded the Justice Services Online platform and procured "CaseLines" for the use of the Ontario Superior Court of Justice.


Updates around Civil Matters in the Superior Court of Justice in the Central East Region
by Howard Borlack
August 10, 2020

The following are some updates around civil matters in the Superior Court of Justice in the Central East Region. Please note they are all subject to change.


Corrosion Exclusion II - Resulting Physical Damage An exception to the exclusion in case: MDS Inc. v Factory Mutual Insurance
by Hillel David
July 03, 2020

In an earlier paper, the author commented on the interpretation and (non-) application of a corrosion exclusion in the decision in MDS Inc. v Factory Mutual Insurance Company. He turns now to a consideration of that exception to the exclusion.


Corrosion exclusion denied due to ambiguity: This author disagrees with the determination in case: MDS Inc. v Factory Mutual Insurance
by Hillel David
June 24, 2020

The interpretation of a corrosion exclusion was one of the major issues considered in the recent decision in MDS Inc. v Factory Mutual Insurance Company. For reasons outlined below, I believe the interpretation and determination regarding its applicability in the circumstances of the case were incorrect.


Can a condominium corporation seek recovery of subrogated interests from a unit owner?
by Martin Smith and Marla Kuperhause
June 09, 2020

Subrogation is the process whereby an insurer, after indemnifying its insured, assumes its insured's right to recover damages as against a tortfeaser who is liable for causing the damages. Since the insurer's right to subrogate is derivative, the insurer is subject to the same limitations that the insured would be when seeking recovery from third parties.


A Plea for Simple Pleadings
by Christopher Macaulay and Brittany Rizzo
May 31, 2020

You have just been sued for breach of contract by a former business partner.

As you skim through a legal document that sets out a laundry list of your alleged failures and faux pas, a few paragraphs jump out at you. Why does the document make reference to an argument over the design of your company's logo? And why is there commentary on the not-so-secret office romance between two of your employees? As far as you can tell, neither of these issues have anything to do with the contract in dispute.


Factors to consider during the tendering process - Case Study: Aquatech Canadian Water Services v Alberta (Minister of Environment and Parks)
by Howard Borlack
May 23, 2020

This appeal concerns the tendering process used by Alberta Environment and Parks to solicit bids for a contract for the operation, monitoring and servicing of water and wastewater services in the Kananaskis Region.

This case highlights three important factors to consider during the tendering process...


2 Insurance Policies, 1 Insured: Who Defends the Action, Who Pays the Costs of the Defence, and Who Controls the Defence? Case Study: Markham (City) v. AIG
by Van Krkachovski and Ryan Smith
May 22, 2020

This was a dispute between AIG Insurance Company of Canada and Lloyd's Underwriters in respect of the duty to defend a claim brought against the City of Markham.

The City rented a hockey rink to the Markham Waxers Hockey Club and associated entities. A young boy was injured while attending a game at the hockey rink. He sued the City, Hockey Canada and the Waxers for damages resulting from his injuries.


It's 2020: Bringing the Courts in Line with the Times During COVID-19 - Case Study: Arconti v. Smith
by Van Krkachovski and Ryan Smith
May 21, 2020

The issue in this case was whether the plaintiffs ought to be required to conduct an examination out-of-court by videoconference, rather than in- person at a later date, due to the COVID-19 pandemic.

The plaintiffs sued the defendants for negligently causing them to unjustly be found liable for securities fraud by the Ontario Securities Commission, among other causes of action. 


The Doctrine of Discoverability and Accident Benefits Claims: Special Considerations following Tomec and Pafco
by Carly Jacuk and Jennifer E. Kelly
May 11, 2020

Ontario courts and tribunals have recently considered the application of the doctrine of discoverability in the context of accident benefit claims. These considerations have developed the common law in notable ways for insurers and insureds alike. Specifically, special considerations now arise in the context of Accident Benefits where limitation periods are concerned...