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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.


Tips for Pursuing a Claim Under the Provisions of the Sale of Goods Act
by Marla Kuperhause
August 31, 2022

In the context of subrogated claims, the Ontario Sale of Goods Act (“SOGA”) gives rise to a potential cause of action that must be considered in order to ensure that all potential defendants are named in the claim. As claims handlers and counsel, it is important to determine whether a party to a sales contract upheld its obligations, namely that the goods sold were fit for the intended purpose and were of merchantable quality.


Strategies for Proactively Advancing a Subrogated Claim
by Adam Grant
August 31, 2022

Subrogated claims require a distinct approach from defense cases; not only is the onus on the plaintiff to move the case forward, but it is also in their direct financial interest to do so. The faster a case can move along, the faster it can be settled or otherwise resolved. However, pushing a matter relentlessly through the typical litigation steps can miss important opportunities to potentially resolve a claim. Because of this, managing subrogation matters involves a tempered balance of aggressive pursuit of recovery and cooperation with counsel to make it easier for the defendants to settle.


Ontario Court of Appeal Upholds Decision to Deny Coverage for Tort of Intrusion upon Seclusion Claims - Case Comment: Demme v. HIROC
by Eric Turkienicz
July 28, 2022

This past month, the Ontario Court of Appeal released its decision of Demme v. Healthcare Insurance Reciprocal of Canada (HIROC) 2022 ONCA 503, which considered a commercial liability insurer's duty to defend in actions based on the tort of intrusion upon seclusion. Justice Brown ultimately found that the insurer had a right to deny coverage to an employee of the insured under its policy.


Determination of Notice Periods for Rehired Employees Post CCAA Proceedings: Case Comment: Antchipalovskaia v. Guestlogix
by Howard Borlack
July 12, 2022

In Antchipalovskaia v. Guestlogix Inc.,1 released on June 9, 2022, the Ontario Court of Appeal held that in cases where an employee is terminated and subsequently rehired at the time of proceedings under the Companies' Creditors Arrangement Act ("CCAA"), the employee's prior period of employment is relevant in determining what notice period the employee is entitled to.


Judge vs. Jury: Considerations for Medical Malpractice Cases
by Martin Smith
June 29, 2022

There has been a shift in attitudes towards juries in medical malpractice cases over time. In 1998, the America Medical Association, a professional association and lobbying group for physicians and medical students, explained their position as follows...


Breaking The Blunt Arrow: Bill 27's Ban on Non-Compete Agreements
by Martin Smith
June 24, 2022
  1. What was the legal landscape prior to the amendments to the Employment Standards Act, 2000?
     
  2. What are the new amendments to the ESA?
     
  3. What are the exceptions?
     
  4. What if clients are still using precedents with non-competition clauses for contracts entered into after October 25, 2021?
     
  5. Are there any creative solutions for employers who want to restrict competition?

BC Court Decides CERB Payments Should Count Against Damages for Wrongful Dismissal
by Martin Smith and Tess Doane
May 03, 2022

Recently in Reotech Construction Ltd. v. Snider, 2022 BCSC 317 the BC Supreme Court determined that CERB payments should be deducted from an ex-employee's damage award for wrongful dismissal.

On appeal to the British Columbia Supreme Court, the court relied on two judicial precedents to determine the trial judge had erred...


Minimum Maintenance Standards and Municipal Sidewalks - Case Study: Cromarty v. Waterloo (City)
by Van Krkachovski and Conner Sipa
April 28, 2022

In the recent decision of Cromarty v. Waterloo (City), Justice D.A. Broad of the Ontario Superior Court of Justice dealt with the applicability of the Minimum Maintenance Standards2 as a defence to municipal liability in the case of a pedestrian trip and fall on a municipally-owned sidewalk.


Passing the Buck: Payment of Productions in Personal Injury Litigation Case Comment: Endale v. Parker
by Garett Harper and Conner Sipa
April 25, 2022

In the recently released Endale v. Parker, the Superior Court of Justice has clarified which party ought to pay for obtaining documents, whether by undertaking or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.


Not-for-profits ~ BEWARE: Federal privacy laws can apply to not-for-profit corporations
by Theresa Hartley and Paul A. Jacoby
April 18, 2022

The Personal Information Protection and Electronic Documents Act (PIPEDA) can apply to not-for-profits. PIPEDA applies to organizations that collect, use or disclose personal information in the course of commercial activities. While commercial activities may seem to be a blanket statement indicating that PIPEDA applies only to for-profit corporations, the relevant authorities suggest otherwise.


Unparalleled Production and Lessons for U.S. Litigants Seeking to Compel Discovery of Third-Parties in Ontario - Case Study: Activa TV Inc. v Matvil Corp
by Howard Borlack and Conner Sipa
April 01, 2022

In Actava TV Inc. v. Matvil Corp, released on February 19, 2021, the Ontario Court of Appeal clarified the law on letters of request for third-party production.

The crux of the dispute in this case centred around a 'letter of request'. A letter of request, sometimes called a letter rogatory, "is the medium whereby one country, [...] seeks foreign judicial assistance that allows for the taking of evidence for use in legal proceedings[.]" In this case, the U.S. District Court, Southern District of New York, issued a letter to the Ontario Superior Court of Justice. At its core, the letter is merely a request, and as such, must be endorsed or made enforceable by the recipient jurisdiction.