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Can a claim be denied due to criminal history from 20 years ago?: Case Study: Mohammed v The Manufacturers Life Insurance Company
by Van Krkachovski
March 12, 2020

In Mohammed v The Manufacturers Life Insurance Company, the Ontario Court of Appeal clarified the meaning of material fact to include criminal activities 20 years prior to obtaining life insurance.


Can a pseudonym screen name protect you from a lawsuit?: Case Study: Theralase Technologies Inc. v Lanter
by Van Krkachovski
March 12, 2020

In Theralase Technologies Inc. v Lanter, the issue of whether judgement can be granted against a defendant whose identity is unknown was considered.


Analyzing Use or Operation of a Vehicle - Case Comment: Hunt v Peel Mutual Insurance
by Howard Borlack
February 14, 2020

In October of this year, our office released a case comment concerning the decision in Hunt v Peel Mutual Insurance Company. In the case, Mr. Hunt (the appellant) and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman. Ms. Dingman was driving while impaired at the time.  In this case comment. we will further analyze why the Court of Appeal found that Amealia's allegations did not pertain to Mr. Hunt's use or operation of a vehicle.


Beware of Presumption of Management or Control of a Director - Case Comment: Alizadeh v Ontario
by Howard Borlack
January 30, 2020

In Alizadeh v Ontario (Ministry of Environment, Conservation and Parks) (“Alizadeh”), the Court highlighted the high evidentiary burden on rebutting a presumption of management and control by a director in a Director's Order, emphasizing the importance of meeting environmental protection objectives.


A Duty of Good Faith is Foundational: Case Study: Demetriou v. AIG Insurance Company of Canada (2019 ONCA 855)
by Theresa Hartley and Van Krkachovski
January 13, 2020

A duty of good faith is foundational to nearly every contract of insurance, imposing on all parties a duty to act fairly and in good faith in their dealings with one another. In Whiten v. Pilot Insurance Co., the Supreme Court of Canada affirmed the reciprocal duty of good faith, a breach of which would constitute an “independent actionable wrong” compensable through the imposition of punitive damages.


Location of Loss Case Study: Benson v. Belair Insurance Company (2019 ONCA 840)
by Theresa Hartley and Van Krkachovski
January 13, 2020

This case involves two accidents involving two recreational off-road vehicles – an all-terrain vehicle (“ATV”) and a dirt bike – heard together because they raise the same jurisdictional issue at law.... The issue before the Court was whether Ontario's statutory accident benefits regime applies differently if the subject accident occurs outside of Ontario.


A power outage may not qualify for damage on premise: Case Study: La Rose Bakery 2000 Inc. v. Intact Insurance Company (2019 ONCA 850)
by Theresa Hartley and Van Krkachovski
January 13, 2020

The appellant in this matter operates a commercial bakery located inside of a shopping mall. The ice storm did not cause any physical damage to the shopping mall or to the bakery, but the resulting power outage caused spoilage within the bakery. Appellant failed to show...


Construction Act Reforms: Now in Effect! - Ontario Dispute Adjudication for Construction Contracts (ODACC)
by Stephen Barbier and Eric Turkienicz
November 15, 2019

Recently, the Ontario Government has been working toward enacting an overhaul of the Construction Act in hopes to modernize the legislation. The transition rules for these changes are set out in section 87.3 of the amended legislation. As of July 1, 2018, amendments to the construction lien and holdback rules came into effect. A new round of changes are now about to come into effect on October 1, 2019, pertaining to the prompt payment and adjudication process, and amendments related to liens.


The Test for Misfeasance of Public Office: Case Comment: Capital Solar Power v OPA
November 12, 2019

In Capital Solar Power Corporation v The Ontario Power Authority, Howard Borlack of McCague Borlack LLP represented the Ontario Power Authority before Justice Toscano Reccamo of the Ontario Superior Court of Justice for a claim alleging the tort of misfeasance of public office.


Do priority provisions in s. 268 of the Ontario Insurance Act apply to an out-of-province insurer for an accident that took place in Ontario? Case Study: Coseco v. Liberty, 2019 ONSC 4918
by Van Krkachovski
October 01, 2019

Where an MVA occurs in Ontario, and there is an out-of-province insurer policy covering the claimant, and that insurer has signed the Power of Attorney and Undertaking (PAU), the insurer is bound by s. 268 of the Insurance Act in its entirety.


If you take the wheel, you take control: Case Study: McKay v. Park, 2019 ONCA 659
by Van Krkachovski
September 30, 2019

A front-seated passenger who unexpectedly grabbed the wheel of a vehicle, causing an accident, is considered to have operated the vehicle without the driver's consent. It was not foreseeable the passenger would grab the wheel, despite the fact that the driver and passenger were arguing and emotional.

The owner of the vehicle in such a situation is not vicariously liable under s. 192(2) of the Highway Traffic Act. Summary judgment in favour of a dismissal against the owner was upheld.


Who is an insured person? Case Study: Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656
by Van Krkachovski
September 27, 2019

The Court of Appeal determined that to be covered under s. 239 of the Insurance Act, an occupant's liability for loss or damage must arise from the use or operation of the vehicle. Mr. Hunt and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman, who was driving impaired. Ms. Dingman held an automobile insurance policy at the time with Peel Mutual Insurance Company.

Amelia's injuries arose from the impaired driver's use of the vehicle. However, Mr. Hunt's liability arises from negligent parenting, not from his actions as an occupant of the vehicle.


Cheech and Chong Get into a Car Accident Case Commentary: F. F. and Aviva Insurance Canada
by Christopher Macaulay
September 03, 2019

“Do my insurance benefits cover my medical marijuana costs?”

It’s a question that claimants are increasingly asking of their first-party healthcare insurers and one that is not always easily answered. 

On one hand, the use of cannabis as a legitimate treatment option has grown exponentially in recent years. On the other, the associated medical literature is in somewhat of a nascent stage, and it is not always clear whether marijuana will aid an injured party with their recovery (at least in any clinically verifiable sense).


A Landlord's duty to maintain a residential property
by Marla Kuperhause
August 23, 2019

As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.


Procedural Differences Between Civil Actions in British Columbia and Ontario
by Adam Grant
August 15, 2019

As we have developed greater and more rapid business relationships across greater distances, there has inevitably come with this trend a larger emphasis on cross-jurisdictional litigation. While Canadian common law is fairly uniform in its basic components, there are notable elements that have slight, yet potentially critical, differences. In this discussion, we will endeavour to identify some of the most important differences specifically between civil procedure in Ontario and British Columbia.

As a starting point, it is helpful to know that the BC Supreme Court Civil Rules are very similar to the Rules of Civil Procedure in Ontario, so the vast majority of matters in BC will proceed in a similar fashion to the way they do in Ontario.