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A crack in the armour? Waivers and the use of the Consumer Protection Act
by Garett Harper and James Tomlinson
May 10, 2017

A recent decision emerging from the Ontario Superior Court of Justice will likely have a significant impact on the viability of waivers in the defence of personal injury actions in Ontario.

Although the ruling in Schnarr v Blue Mountain Resorts is under appeal, the effect of the decision in Schnarr on the enforceability of waivers in Ontario is profound.

Buyers and Agents Beware: BC Court Rules That Representative Is Responsible for Tax Owed by Buyer
April 03, 2017

In Canada, resident sellers of a principal residence are usually eligible for an exemption from the capital gains tax that would otherwise be triggered by the sale of a principal residence. On the other hand, non-resident sellers must pay a capital gains tax of 25% on the profits from the sale of a residential property.

In Mao v Liu (2017 BCSC 226), the Court was asked to determine whether a notary public was negligent and therefore obligated to pay the capital gains tax triggered by the sale of a residential property...

Mediating a Road Authority Claim on Behalf of a Municipality
by Van Krkachovski
April 03, 2017

Mediation is an increasingly common form of dispute resolution and one which provides many benefits to any party who would otherwise engage in litigation. However, there are several benefits and concerns which are unique to municipalities named as defendants in motor vehicle accident claims...

The Municipal Act: Minimum Maintenance Standards Revisited by the Ontario Court of Appeal
by James Tomlinson
March 31, 2017

On Monday, March 28, 2017, the Ontario Court of Appeal released their decision, Lloyd v. Bush, 2017 ONCA 252. This case was an appeal by the County of Lennox and Addington (the "County") and the Corporation of the Town of Greater Napanee ("the Town") from a trial level decision that found the respective municipalities liable for damages arising out of a motor vehicle accident.

In deciding the case, the Court of Appeal provided comprehensive analysis, which will provide guidance in similar cases, involving winter maintenance and duties owed by municipal defendants under the Municipal Act.

Legalizing Marijuana: And The Litigation Begins...
March 08, 2017

As the access to and use of marijuana becomes increasingly legitimate and common, it is reasonable to assume that the businesses that operate within this environment will experience significant legal "growing pains". Specifically, the operational risks that companies within the marijuana space face are significant given the limited involvement of regulators, and the attributes commonly associated with consumption. As a result, it is not surprising to see the start of what we believe to be a significant volume of litigation targeting many of the largest players in the industry.

Stipulated Remedy Clauses
by Hillel David
February 24, 2017

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The Tenant refused to vacate, despite offers for compensation from the Landlord. The Landlord issued a notice to vacate and the Tenant sought and obtained an injunction...

Injunctions To Restrain Breach Of Contract
by Hillel David
February 24, 2017

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The premises constituted approximately 3% of the rentable area of the building. All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar premises in an adjoining building, and to pay compensation. After some bargaining, the Tenant refused to move...

Legalizing Marijuana: Drug Recognition Experts and Drug-Impaired Driving - Additional Considerations for Insurers following Supreme Court decision
February 23, 2017

With the legalization of marijuana appearing more like a certainty than a possibility, legislators ought to be determining how best to address the increased societal risks associated with drug-impaired driving.

Currently, the Government has authorized a 12-part evaluation for drug impairment of motorists.

Earlier today, the Supreme Court of Canada released a decision in R v. Bingley that provided guidance to lower courts on how evidence of drug-impaired driving is to be admitted...

Keeping the Mould Away: Application of Mould-Based Policy Exclusions
by Matthew Dugas
February 17, 2017

Several ground-breaking cases, especially in the US, several years ago made mould claims a prominent issue within the insurance industry. One reaction is that many policies now have exclusions specifically relating to mould. However, the application of this common policy exclusion is rarely clear-cut. In fact, an overview of some of the key decisions demonstrates the complexity when this exclusion is applied to actual claims.

Do Parents Know Best? An Update on the Enforceability of Waivers Executed on Behalf of Infants
February 10, 2017

The absence of a law on parental waivers is of particular concern for the countless number of businesses and organizations such as schools, recreational sport facilities, and children's summer camps (to name a few) that rely on these waivers in carrying out their regular activities. However, it appears that clarity may be forthcoming as indicated in a recent New Brunswick case, Dewitt v. Strang...

Autonomous vs Semi-Autonomous Vehicles: The Liability Distinction
by Eric W.D. Boate
February 10, 2017

This first of its kind collision sparked concern in the technology industry. Debates ensued as to whether the safety feature created to eliminate (or at the very least, reduce) motor vehicle accidents was the cause of the accident, whether human error was to blame, or some combination of the two...

Medical Marijuana: Considerations for Employers
by Sophia Souffront
February 08, 2017

As physicians become more at ease in prescribing marijuana for medical purposes, it is reasonable to forecast an increase in the number of employees in the workplace with a prescription for the drug. This raises challenges for employers that have a duty to accommodate their "disabled employees" and further conflicts with an employer's desire for a drug-free environment.

Injunctions to Restrain Breach of Contract - Stipulated Remedy Clauses - Old Habits Die Hard
by Hillel David
February 07, 2017

The issues that were before the court in 1465152 Ontario Limited v Amexon Development Inc.1 are substantial and far-reaching, particularly for the commercial real estate leasing industry.  The decision is an excellent vehicle for the discussion of important issues relating to injunctions in the context of contractual property rights, equitable extortionate conduct, abuse of process, permissible breaches of contract on the basis of economic efficiency, and the interpretation and enforceability of contractual limitation of remedies clauses, particularly in the context of a claim that can be made under a concurrent tort.

Overview - The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property.  The premises constituted approximately 3% of the rentable area of the building.  All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar (and better) premises in an adjoining building owned by the Landlord and to pay compensation.  After some bargaining, the Tenant refused to move. It was the Landlord’s position that the only reason for the Tenant’s refusal to relocate was its desire to extract as much money from the Landlord as possible. FULL VERSION PDF  *Reproduced by permission of Thomson Reuters Canada Limited.

Privacy Law for AB Insurers
by Catherine A. Korte
February 06, 2017

The last 20 years have seen radical advances in technology, the like humankind has never known. The revolutionary way in which data can now be stored, catalogued, and shared has arguably led to a significant “digitization” of individuals. Simply, more of our lives are being recorded than ever before, whether it be voluntary (Facebook, Instagram, Snapchat etc.) or involuntary (intelligence gathering, surveillance etc.).

In light of this digitization, there has been a growing pressure to carve out a space where neither corporations nor government can intrude on the individual, and when they do, to govern what can be made of that information. This is essentially the concept the law recognizes as “privacy”.

Combatting Exposure: Utiization of Waivers by Ski Hill and Resort Operators - A Defence Perspective
by James Tomlinson
February 02, 2017

With the commencement of the annual winter ski season, the legal exposure to ski hill and resort operators arising from injuries suffered by skiers and resort guests alike consequently increases. One of the most common forms of protection from this increase in risk is through the use of waivers.

This paper will also explore the utility of summary judgment motions in defending personal injury lawsuits where an executed waiver has been obtained by the defendant(s).