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.
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.
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...
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.
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...
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.
Canadian citizens, and those not as fortunate to live in Canada, have the perception that 'uniform publicly funded' medical-related services are available nationwide in Canada and are 'free'... that is what it is to be Canadian. However, contrary to popular belief, there is no unified single professional regulatory, or single-payer national healthcare system in Canada. To the extent that there is healthcare that is publicly funded in Canada, it is funded on a provincial or territorial basis [here-in-after collectively 'provincial' or 'province'] and supplemented with federal funds that are 'conditionally' transferred to the province.
It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.
Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.
The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo...
What kind of evidence is likely to cause an automobile tort claim to flop?
A threshold decision of Justice P. J. Monahan released December 13, 2017, provides useful guidance on the issue.
The circumstances will sound familiar to insurers and their counsel.
Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?
The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.
In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.
The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340 Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000.00 in advance of the trial scheduled for November 2018.
The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015 following her admission of liability.
In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 (“HTA”). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.
Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.
This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward.
December 19, 2017
The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.
This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. The Lawyers of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.
