Articles & Publications

Search Articles & Publications

Medical Records: Personal Privacy in Conflict with the Rule of Law
by Howard Borlack
August 02, 2017

Case Study: HMTQ v Philip Morris International, Inc., 2017 BCCA 69

British Columbia's controversial Tobacco Damages and Health Care Costs Recovery Act (“the Act”) is back in the courts. This time around the dispute isn't on the Acts constitutionality, but instead pits the right to privacy in medical data against a persons or corporation's right to a “fair playing field” in litigation, or the principle of procedural fairness grounded in the Rule of Law.

Court of Appeal Declines Remedies against Person Harassing Mayor, Township
August 01, 2017

The Ontario Court of Appeal has recently upheld an application judge's decision to deny the mayor and Town of Rainy River relief from the harassment of a local resident in its recent decision, Rainy River (Town) v. Olsen.

In this case, a local resident of the Town Rainy River had an interest in horticulture and town beautification. He began writing to the mayor and council with ideas concerning a variety of issues such as agriculture, gardening, and general community beautification. Unsatisfied with the responses he received, his communications to the mayor and council allegedly grew increasingly abrasive and insulting. On one occasion, he attended the mayor's workplace and verbally harassed her.

Legalizing Marijuana: Potential Impact on Social Hosts
August 01, 2017

All hosts know there are several elements that need to be properly planned when hosting a social function: the company, the food, the music and, of course, the refreshments. With the anticipated legalization of recreational marijuana in Canada, however, could a social host face exposure if marijuana is provided and something unexpected happens?

Canadian jurisprudence has consistently held that special relationships exist whereby commercial organizations and establishments that serve alcohol or other impairing products owe their patrons a duty to ensure that no foreseeable harm occurs while on or after leaving the premises. These duties include the following:

The Oppression Remedy: Greater Risk of Personal Liability for Directors and Officers
July 26, 2017

In the recent decision of Wilson v Alharayeri,1 the Supreme Court of Canada unanimously found that directors and officers of a corporation can be personally liable for corporate oppression pursuant to section 241 of the Canada Business Corporations Act (“CBCA”). In doing so, Cóté J., writing for the Court, clarified the test for when personal liability may be imposed on corporate directors for oppression.

Ultimately, this decision broadens the application of the oppression remedy and exposes corporate directors and officers to a greater risk of personal liability.

Your Reservation has changed... Airbnb Regulation in Toronto and Insurance Coverage Issues
by Matthew Dugas
July 15, 2017

Airbnb, and other similar businesses offering “Short Term Rentals”, are not presently regulated in any significant way in the Toronto area, despite the fact that its main competitors - hotels, and bed and breakfasts (“B&Bs”) - are regulated. However, the City of Toronto is moving towards creating regulations for Airbnb, with recommendations released in June 2017.

A less publicized grey area is the home insurance implications of a homeowner using their residence for Airbnb listings. Short Term Rentals of a residence are inconsistent with most standard home insurance policies.

Automobile Insurance Fraud: Prevalence, Prevention, and Response
July 10, 2017

Insurance fraud is a tale as old as time. The earliest recorded incident occurred in Ancient Greece, around 300 BC. Hegestratos, a merchant, took out an insurance policy which required payment (with interest) upon his ship's safe arrival to its destination. Failing to repay the loan would result in repossession of the ship and its cargo. Hegestratos conspired to commit insurance fraud by sinking his empty ship and selling the cargo, thereby keeping the loan. For the record, he was unsuccessful, as he drowned trying to escape his crew who caught on to his plans.1

Since then, transportation methods have evolved, and so have opportunities for fraud.

A summary of threshold decisions from 2016 and 2017: Which got through and which got bounced
by Michael Kennedy
July 10, 2017

Trial judges in motor vehicle accident cases are like bouncers — plaintiffs show up to their courtrooms asking to be let over the threshold. While their cases may not be perfect, a judge will be more inclined to let their cases through if the plaintiffs are likable and if the judge is reasonably satisfied their decision will not cause him or her problems after-the-fact (namely an appeal or an unfair result).

While certainly the main issue upon a threshold decision is whether or not a plaintiff meets the test (namely whether his or her employment, education or activities of daily living are impaired to the requisite degree for the foreseeable future), a plaintiff's credibility and presentation is important to keep in mind when reading a threshold decision.

Subrogation: Recommendations for Early Investigation
by Adam Grant
July 10, 2017

At the outset of a loss, it is most critical to begin preserving evidence and investigating the cause of the loss. This is beneficial both to preserve future subrogation potential, but also to determine whether there may be any issues that may affect coverage under the policy.

As soon as access is provided to a scene, the first person to enter, along with the adjuster, should be a forensic engineer. For fire losses, it is well understood that a review of the scene, prior to the commencement of repair efforts, is critical to determining the origin and cause of the fire. However, it is common for this approach to be ignored with other types of losses.

For example, in the cause of a failure of plumbing components, there is a tendency for a contractor to remove the part that they consider to be the point of failure, to be provided to an engineer at a later time. This can potentially destroy evidence of the condition of the scene, and also creates issues with the chain of custody.

Making Use of Unusual Torts in Subrogation
by Adam Grant
July 10, 2017

Historically, separate and distinct causes of action developed within the law of torts. Suits had to be pleaded within an existing and recognized form of action in order to succeed. This pleading requirement was abolished by the Common Law Procedure Act 1852, the principles of which have been accepted into Canadian provincial law. It is now only necessary to plead facts that may, if proven, give rise to a cause of action in tort. It is not necessary to identify or name the specific nominate tort that constitutes the basis of the action.

In practice, we usually lay out which tort we will be leading facts to prove. In insurance subrogation, we usually work within the framework of negligence, but this doesn't mean that we are limited to it when it comes to executing our subrogated right of action. A review of some lesser known torts demonstrates the spectrum of torts available at common law which can be useful in advancing a subrogation claim.

Insurers Beware: Recent Developments in the Duty to Defend and Indemnify
by Alan S. Drimer
July 10, 2017

The scope of an insurer's responsibility regarding the duty to defend and indemnify has increased. This increased responsibility can be observed with respect to an insurer's duties to an additional insured, an insurer's duties in a situation involving a conflict of interest, and an insurer's duties in a situation involving a breach of contract.

What is the duty to defend versus the duty to indemnify?

Commercial general liability (CGL) insurance policies are primarily used to provide financial protection to an insured party in the event that it issued by a third party. CGL policies result in the insurer assuming two obligations towards the insured:...

A Lawyer's Guide to Discoveries and Timing of IMEs
by Annette Uetrecht-Bain
July 10, 2017

In bodily injury claims, there are typically two types of examination of the plaintiff that take place: (1) Examinations for Discovery, and (2) Independent Medical Examinations.

The following are issues that typically arise in scheduling examinations for discovery and independent medical assessments.

Everything You Need to Know About Trial Insurance: Security Against Bad Outcomes at Trial For Sale!
July 10, 2017

After the Event Insurance (“Trial Insurance”) is a type of insurance that protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial. Generally, unsuccessful parties bear the responsibility of paying a, sometimes significant, portion of the successful side's legal costs in addition to their own. The availability of Trial Insurance changes the landscape of personal injury litigation for everyone involved. While the concept of Trial Insurance is relatively new in Ontario, it is already rapidly evolving and becoming more prevalent. How it Works...

The Effect of "After The Event" Insurance on the Litigation Process
by Howard Borlack
July 05, 2017

Imagine trading peace of mind for a chance to give someone a piece of your mind. Welcome to “After The Event" (ATE) insurance policies – the instigators of the insurance policy world. In general, Legal Expense Insurance (LEI) products exist to provide coverage for various legal costs and disbursements during the litigation process. These products include “Before The Event" insurance, which provides coverage for a future incident, and “After The Event" insurance, which is obtained specifically to litigate an incident after it has already occurred.

Take control of public space and liability may follow: Case Comment - MacKay v Starbucks
by Eric Turkienicz
June 23, 2017

At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act (“the Act”).

Proposed changes to Ontario's Construction Lien Act - Update 2
by Eric Turkienicz
June 23, 2017

The Construction Lien Act can be a daunting piece of legislation to approach. Combining tight deadlines, technical definitions, and a sometimes complex interplay between its own provisions, it is no wonder that it is often viewed with some trepidation by lawyers and clients alike. 

A Bill to overhaul the Construction Lien Act has recently passed its first reading before the Legislative Assembly. These changes, if ultimately passed, will be a welcome change to a piece of legislation that has (in this lawyer’s opinion) caused more arguments than it has solved.