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Improper Policy Cancellation Leads to "Risky Business"- Case Comment: Minister of Finance v AXA Insurance
by Howard Borlack
March 26, 2018

The appeal decision in Ontario (Minister of Finance) v AXA Insurance1 is an important lesson for insurers who claim to have cancelled an insured's automobile policy, specifically when a priority dispute later arises.

In this case, the claimant was involved in a motor vehicle accident on December 29, 2011. He received accident benefits from the Motor Vehicle Accident Claims Fund (“the Fund”), which is administered by the Minister of Finance. The Fund disputed its priority to pay benefits and argued that the claimant had a valid automobile policy with Elite Insurance (“Elite”) on the date of loss.

Case Management: Be Zealous But Be Reasonable
March 23, 2018

The purpose of case management in the Ontario civil justice system is to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just conclusion. As part of this system, all the steps in a particular case might be heard by one particular judge. This mechanism often provides parties with “repeated, privileged access to a judge” to help streamline an action.

However, when case management is abused by parties and/or their counsel, the Court will not hesitate to remove the matter from case management and will likely also chastise the parties and their counsel in the process. Justice Frederick Myers did just that in a recent Endorsement which arose in the context of a heavily litigated trusts and estates matter.

Autonomous Vehicles vs. Pedestrians: Who is at fault?
by Van Krkachovski
March 22, 2018

The recent tragic accident in Arizona involving an autonomous vehicle and a pedestrian raises some important questions about liability. While not yet available to consumers, self-driving cars are being tested on streets throughout the United States and Canada in order to fine-tune and develop the emerging technology with the ultimate goal of reducing collisions involving motor vehicles.

The question this unfortunate accident raises is who is at fault? Is it the test driver behind the wheel? The manufacturers of sensors or radar? The developer of the software? The owner of the vehicle? Or was it purely contributory negligence on the part of the pedestrian?

Cloudy with a Chance of Money: Overcoming Obstacles in Subrogated Claims
March 21, 2018

Subrogation is the process under which an insurer, which has paid a loss under an insurance policy, becomes entitled to the rights and remedies of its insured against the party responsible for the loss. Because an insurer pays on its policy for losses suffered by the insured to make that policyholder whole, subrogation can be an effective mechanism for an insurer to recover its losses from the responsible party, depending on how the claim has been handled. Subrogation cases are often won and lost as a result of the actions and steps taken within the first few days of the incident. As a result, active involvement in the process, alongside open communication with all involved parties, is crucial to maximizing recovery.

Duty to Mitigate
by Eric W.D. Boate
March 21, 2018

Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.

While a plaintiff bears the burden of proving the fact that he has suffered a loss and the quantum of that damage, the defendant bears the onus of proving, on a balance of probabilities...

Immunities and Exploits: Considerations for Subrogation as against Municipal or Regional Governments
by Adam Grant
March 21, 2018

As a result of the special nature of local governments, including cities, towns, counties, regional municipalities, etc., they enjoy a special role in respect of litigation, and have a number of unique defences at their disposal which can often discourage or thwart subrogation efforts altogether. However, it is important to understand that such defences are not insurmountable, but only require special consideration in order to deal with.

More importantly, a detailed understanding of the available defences typically asserted by municipalities can actually make it more likely that actions can succeed as against them.

Face the Music: Once Requested, A Mediation Must be Scheduled Forthwith
March 12, 2018

Recently, the Ontario Superior Court of Justice in Thomson v Portelance, 2018 ONSC 1278, reminded the Bar that a party to motor vehicle accident litigation in Ontario must schedule a mediation once requested.

In Thomson, Justice Firestone presided over a case conference requested by the plaintiff in a situation where the defendant refused to schedule mediation until after examinations for discovery were complete...

Legislature Passes Concussion Safety Legislation with Bill 193: Rowan's Law (Concussion Safety), 2018
by James Tomlinson
March 07, 2018

On March 6, 2018, Bill 193: Rowan’s Law (Concussion Safety), 2018(“Rowan’s Law”) passed its third reading. The Bill will next go before the Lieutenant Governor to receive Royal Assent.

Rowan’s Law is named for Rowan Stringer, a 17-year-old rugby player who died after sustaining a traumatic brain injury in a rugby game. The Bill will come into force on the day it receives Royal Assent, although this day has not been announced (section 9(1)).

Overall, Rowan’s Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. 

A “sport organization” will be required to:

The Fast & the Furious: Hard Drugs, Fast Cars & Untimely Death Case Study: Isaac Estate v Matuszynska
March 02, 2018

In the midst of a crisis, the common law Doctrine of Emergency is a defendant's saving grace.

When faced with a sudden emergency that a driver is not responsible for creating, he or she cannot be held to a standard of conduct of a reasonable driver in ordinary circumstances – the unique and exigent circumstances must be taken into account when measuring the appropriate standard of care and whether or not there was a breach.

On February 23, 2018, in a split-decision, the Ontario Court of Appeal in Isaac Estate v Matuszynska1 upheld a lower court's decision granting summary judgment and dismissing the action, where the Doctrine of Emergency was found to apply in a drug transaction that went horribly wrong.

Fifty Shades of Grey: Contractual Interpretation in the World of Email Negotiation and Sex Toys
February 23, 2018

Even amongst sophisticated companies (or consenting adults for that matter), it is sometimes difficult to determine when a contract is entered into. On February 14, 2018, the Ontario Court of Appeal allowed an appeal in Cana International Distributing Inc. v. Standard Innovation Corporation, 2018 ONCA 145, which involved an alleged breach of a contract for, among other things, the exclusive distribution rights in retail shops, drug stores and sex toy retail outlet stores regarding a sex toy called “We-Vibe”.

This case is a cautionary tale that counterfactual negotiations – even if they are not signed at the same time – can nevertheless be considered binding.

Collaborative Care and Vicarious Liability
February 16, 2018

This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.

Latency of Claims for Allied Healthcare Providers
February 16, 2018

Limitation periods, sometimes referred to as proscription periods, refer to the time that a party has to commence an originating court process. They are governed by provincial statutes.

The main purposes of limitation periods are to provide certainty and finality, as well as to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9...

Legal Themes utilized for Medical Liability
by Catherine A. Korte
February 16, 2018

The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.

Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient. 

Do Excluded Drivers have access to AB Coverage? See Court of Appeal Ruling
February 14, 2018

A recent Court of Appeal decision1 has clarified two issues that are of relevance to insurers involved in priority disputes.

Both appeals involved individuals who were claiming accident benefits although they were listed as excluded drivers in their parents' policies.

The first issue relates to whether excluded drivers in a household may be entitled to accident benefit coverage from the insurers who issue the given policy.

The second issue relates to what is the appropriate standard of review for an insurance arbitrator's decision involving specialized expertise...

Emerging Trends in Personal Injury Damage Awards
by Van Krkachovski
February 13, 2018

In recent years, there have been a number of developments in the law which have resulted in escalating damage awards, particularly in catastrophic injury cases. The paper will outline some of these developments relating to:

I. Future Care Costs;
II. Guardianship and Management Fees; and
III. Risk Premiums.