Two recent Ontario Court of Appeal decisions have provided clarity on the uncertain relationship between tort damage awards and Statutory Accident Benefits (SABs) under s 267.8 of the Insurance Act.
While heard together, these cases address different aspects of the tort damage award/SABs relationship. Cadieux v Cloutier addressed the deductibility of SABs paid before trial, whereas Carroll v McEwan addressed the deductibility and assignment of SABs to be paid after trial.
Appeals to the public for donations are a feature of everyday life. Appeals that occur on a regular basis are usually conducted by registered charities and other organizations having the benefit of experienced fundraisers and professional advice. However, after a disaster, spontaneous appeals frequently occur as well. Although the organizer of a spontaneous appeal may not be aware of it, their public appeal is at the centre of a complex web of trust and charity law, much of which is obscure and inaccessible. For example, what happens when an informal fundraising campaign raises more money than needed for its stated purpose? What happens to the remainder? Who does it belong to? Does it have to be returned? In the era of social media and crowdfunding platforms like GoFundMe, Kickstarter, and Indigogo, these complicated issues are likely to become exacerbated.
November 27, 2018
In the recent Ontario Court of Appeal decision Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. (“Hashemi-Sabet”),1the court addressed the principles of offer and acceptance in the context of multiple Rule 49 offers, and the enforcement of a Rule 49 offer to settle. As Justice Pepall noted, “Rule 49.09 of the Rules of Civil Procedure provides that a party may bring a motion for judgment in the terms of an accepted offer and the judge may grant judgment accordingly or continue the proceeding as if there had been no accepted offer to settle.” In this case, the appellants argued that the motion judge erred in giving judgment to a Rule 49 offer which they argued had been revoked before it had been accepted. The respondents argued that the offer had not been properly revoked.
In the recent decision, Hampton Securities Limited v. Dean, the Ontario Court of Appeal affirmed the detailed trial decision of Justice Koehnen with respect to an employment-related action involving a proprietary trader. The decision serves as a cautionary tale for employers when disclosing the reason(s) for the termination of an employee.
Christina Dean began working with Hampton Securities Limited (“Hampton”) as a propriety trader of securities on March 6, 2008. Her employment ended 13 months later on April 3, 2009. Hampton took the position that Ms. Dean had been terminated for cause for failing to follow trading policies and engaging in unauthorized trading, while Ms. Dean took the position that she had been constructively dismissed.
October 28, 2018
On September 17, 2018, Justice Coroza of the Ontario Superior Court of Justice released his decision in Bucknol v. 2280882 Ontario Inc1(“Bucknol”),a motion for summary judgement dealing with commercial host liability and outlining the pillars of claims of negligence. Interestingly, Justice Coroza originally heard the motion in January of 2018 and reserved his decision. In June of 2018, counsel for the defendant (moving party) brought to his Honour's attention the May 2018 Supreme Court of Canada decision of Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”) and further written submissions were requested of counsel.
By way of background in Bucknol, the plaintiff was struck by a beer bottle that had been thrown by an unknown assailant at Classic Lounge Nightclub...
In the recent decision of Caryk v Karlsson,1 the Ontario Superior Court of Justice refused to compel Erik Karlsson's wife to provide evidence relating to allegations that she was cyberbullied by the partner of one of her husband's former teammates. In doing so, Mullins J. provided an overview of the Norwich Order remedy, and found that the interests of justice would not be well served by granting such an Order. This decision is noteworthy because it confirms that the Norwich Order is an extraordinary form of relief that will only be granted in very limited circumstances. This holds true even in cases dealing with allegations of cyberbullying.
October 27, 2018
Attempting to introduce surveillance as evidence at trial is becoming increasingly more challenging. In order to use surveillance as substantive evidence at trial, the Court has made it abundantly clear that certain requirements must be met.
Surveillance evidence is among the most powerful tools available to a defence lawyer and their client. Correctly deployed, surveillance can be a fatal blow to a plaintiff's claim. Triers of fact, jurors particularly, cannot help but be impacted by surveillance evidence. Numerous studies show that visual memory retention far exceeds audio recall. Due to the power of surveillance evidence relative to cost, many insurers have at least some experience in obtaining this form of evidence. Since the Ontario Court of Appeal handed down its decision in Iannarella v Corbett, the tactical landscape for surveillance has changed and the use of surveillance evidence has been under court scrutiny.
October 27, 2018
The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.
In order for surveillance to be admissible as substantive evidence, the first hurdle it must satisfy is being accurate in truly representing the facts. The courts have been clear that a surveillance report must include...
October 27, 2018
If a picture is worth a thousand words, then a video is worth more than a million. This is why surveillance evidence in bodily injury actions is such a powerful and persuasive tool – a fact that has been recognized by judges, who are very careful when admitting surveillance into the record as substantive evidence.
Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs or applicants that legitimately suffer from chronic pain and those who do not. The plaintiff's or applicant's credibility becomes a central issue in the litigation, and counsel often looks to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's or applicant's credibility and challenge the validity of his or her claim.
In the absence of any human input in the operation of vehicles (level 5),drivers are rendered passengers and any liability for causinOKg an accident inevitably shifts from the motorist to the manufacturer; from the person to the product.
In addressing what that might look like into the future and how an adjuster could handle litigation involving autonomous vehicles ...
September 19, 2018
After a comprehensive regulatory consultation period with Canadians, municipal, provincial, and territorial governments, law enforcement officials, public health representatives, stakeholders, and Indigenous governments and representative organizations, among others, the federal government published the Cannabis Regulations to support the coming into force of the Cannabis Act (the “Act”) in the Canada Gazette on July 11, 2018.
September 19, 2018
In July 2018, the Ontario Court of Appeal handed down its decision in Gillham v Lake of Bays (Township) (“Gillham”),1 wherein the Court of Appeal struggled with the issue of whether a claim made after the limitation period could be permitted.
