Articles & Publications

Search Articles & Publications

Determination of Notice Periods for Rehired Employees Post CCAA Proceedings: Case Comment: Antchipalovskaia v. Guestlogix
by Howard Borlack
July 12, 2022

In Antchipalovskaia v. Guestlogix Inc.,1 released on June 9, 2022, the Ontario Court of Appeal held that in cases where an employee is terminated and subsequently rehired at the time of proceedings under the Companies' Creditors Arrangement Act ("CCAA"), the employee's prior period of employment is relevant in determining what notice period the employee is entitled to.

Judge vs. Jury: Considerations for Medical Malpractice Cases
by Martin Smith
June 29, 2022

There has been a shift in attitudes towards juries in medical malpractice cases over time. In 1998, the America Medical Association, a professional association and lobbying group for physicians and medical students, explained their position as follows...

Breaking The Blunt Arrow: Bill 27's Ban on Non-Compete Agreements
by Martin Smith
June 24, 2022
  1. What was the legal landscape prior to the amendments to the Employment Standards Act, 2000?
  2. What are the new amendments to the ESA?
  3. What are the exceptions?
  4. What if clients are still using precedents with non-competition clauses for contracts entered into after October 25, 2021?
  5. Are there any creative solutions for employers who want to restrict competition?

BC Court Decides CERB Payments Should Count Against Damages for Wrongful Dismissal
by Martin Smith
May 03, 2022

Recently in Reotech Construction Ltd. v. Snider, 2022 BCSC 317 the BC Supreme Court determined that CERB payments should be deducted from an ex-employee's damage award for wrongful dismissal.

On appeal to the British Columbia Supreme Court, the court relied on two judicial precedents to determine the trial judge had erred...

Minimum Maintenance Standards and Municipal Sidewalks - Case Study: Cromarty v. Waterloo (City)
by Van Krkachovski
April 28, 2022

In the recent decision of Cromarty v. Waterloo (City), Justice D.A. Broad of the Ontario Superior Court of Justice dealt with the applicability of the Minimum Maintenance Standards2 as a defence to municipal liability in the case of a pedestrian trip and fall on a municipally-owned sidewalk.

Passing the Buck: Payment of Productions in Personal Injury Litigation Case Comment: Endale v. Parker
by Garett Harper
April 25, 2022

In the recently released Endale v. Parker, the Superior Court of Justice has clarified which party ought to pay for obtaining documents, whether by undertaking or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.

Not-for-profits ~ BEWARE: Federal privacy laws can apply to not-for-profit corporations
by Theresa Hartley
April 18, 2022

The Personal Information Protection and Electronic Documents Act (PIPEDA) can apply to not-for-profits. PIPEDA applies to organizations that collect, use or disclose personal information in the course of commercial activities. While commercial activities may seem to be a blanket statement indicating that PIPEDA applies only to for-profit corporations, the relevant authorities suggest otherwise.

Unparalleled Production and Lessons for U.S. Litigants Seeking to Compel Discovery of Third-Parties in Ontario - Case Study: Activa TV Inc. v Matvil Corp
by Howard Borlack
April 01, 2022

In Actava TV Inc. v. Matvil Corp, released on February 19, 2021, the Ontario Court of Appeal clarified the law on letters of request for third-party production.

The crux of the dispute in this case centred around a 'letter of request'. A letter of request, sometimes called a letter rogatory, "is the medium whereby one country, [...] seeks foreign judicial assistance that allows for the taking of evidence for use in legal proceedings[.]" In this case, the U.S. District Court, Southern District of New York, issued a letter to the Ontario Superior Court of Justice. At its core, the letter is merely a request, and as such, must be endorsed or made enforceable by the recipient jurisdiction.

Financial Planner and Advisor Titles: A New Framework is Announced
by Howard Borlack
April 01, 2022

Ontario's Finance Ministry has officially approved a new set of rules governing employees in the financial services industry who use the titles "financial planner" or "financial adviser". The implementation of these standards, which have been absent in the past, will offer security to investors from conducting business with individuals who are unqualified or under-qualified.

Dispensing with dispensaries: Pot shops on every corner
by Eric Turkienicz
March 30, 2022

You're walking to grab a bite to eat from your favourite sushi place down the street. It's a warm, clear night and you pass the local businesses which give your neighbourhood its sense of character. An organic coffee shop. A marijuana dispensary. A vintage bookstore. Another dispensary. Maybe the grocer has those strawberries you like. Yeah, that sounds good. Yet another dispensary. A fourth dispensary. A fifth dispensary – this one with a clever name. Were there always this many?

The Difficulties of Relying on the Minimum Maintenance Standards - Case Study: Lloyd v Bush
by Van Krkachovski
March 24, 2022

In 2020, the Ontario Superior Court of Justice released its decision following the third trial in Lloyd v Bush. The case arose out of a motor vehicle accident that occurred in 2001.

As a result of the accident, Ms. Lloyd sustained serious injuries. She sued not only the operator and owner of the propane tanker but also named the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee as defendants to her claim. At issue in the third trial was the question of liability: how much liability, if any, should be attributed to the municipal defendants for the poor road conditions? And would the municipalities' efforts to meet the minimum maintenance standards absolve them of liability?

(PLUS Download MB's complimentary Minimum Maintenance Standards Chart!)

Striking a Jury Notice – Not so fast!
by Eric W.D. Boate
February 11, 2022

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII), the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

No Escape from a Policy Breach Even Years Later Case Study: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance
by Jessica Grant
February 07, 2022

On November 18, 2021, the Supreme Court of Canada rendered its decision on whereby an insurer may be allowed to deny coverage based on a policy breach discovered several years down the road.

Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05
by Alan S. Drimer
February 03, 2022

In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...

UPDATED VERSION - What are separated parents' rights when one of them refuses to vaccinate their child against COVID-19?
by Dennis Molnar
February 01, 2022

This article has been updated because since this article’s initial publishing in November 2021, the court released its decision in R.S.P. v. H.L.C., 2021 ONSC 8362 challenging various holdings and the general approach/framework concerning issues of medical decision-making for minor children which had arisen in recent family court decisions concerning COVID-19 vaccinations for minor children.