Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.
In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.
September 23, 2016
Subjective injuries present a multifaceted problem for defense lawyers. To clarify, subjective injuries refer to instances where a plaintiff makes a claim for chronic pain or a mental illness that is difficult to objectively substantiate through scientific or medical evidence.
This then raises an important question: what is the difference between cases involving chronic pain where the plaintiff receives compensation for his or her injuries and those cases where no such awards are made? The answer appears to be related to the plaintiff’s credibility. Specifically, because of the lack of objective evidence that is available to support a claim for chronic pain, almost all of these cases boil down to the issue of credibility.
McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.
In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.
September 15, 2016
The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties...
In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.
PIPEDA requires the full and timely disclosure of personal information generated in the course of commercial activity. However, personal information does not need to be disclosed when the information is generated in the course of a “formal dispute resolution process”, such as an arbitration. For years now, all insurance companies incorporated in Canada have been required to establish procedures for dealing with complaints. The question then arises: does personal information generated in the course of the complaint become subject to PIPEDA?
The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of “moderate” drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.
A vessel strikes a marine terminal trestle while in port in Vancouver, causing damage in excess of $60 million dollars. The vessel's worth pales in comparison to the damages caused, though there are a number of sister ships also docked at the port. The terminal owner is rightfully concerned that the vessels will simply leave Canadian waters, sailing out of the jurisdiction and taking the opportunity for any realistic recovery along with them. How can the terminal owners guarantee a future judgment will be satisfied when no one ship can satisfy the damages?
It is often said that a bill of lading is not a contract of carriage, but is merely “excellent evidence” of its terms. However, the courts are divided on how far beyond the bill of lading we can go, specifically in terms of declaring the value of a shipment. This unpredictability in the law can mean the difference of hundreds of thousands of dollars for a carrier who has lost or damaged cargo in its possession.
August 12, 2016
Whether an expense or service is “reasonable and necessary” is an important legal test in the context of the Statutory Accident Benefits Schedule (“the Schedule”). It is used to determine entitlement to the majority of benefits available under the Schedule.
The Court of Appeal released a new decision last week on dependency in a priority dispute between Intact and Allstate.
The Court of Appeal reviewed the circumstances of the relationship of the claimants, a woman (Paula) and her two children, who moved in with Paula’s boyfriend (Kyle) only seven weeks before the accident, in order to determine priority...
Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016. The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.
News of the death of Joshua Brown, a Florida man who died following a motor vehicle accident that occurred while his Tesla Model S vehicle was in autopilot mode, has attracted international media attention as he is the first US fatality from a motor vehicle accident where the deceased was in a vehicle that was in self-driving mode. This development provides occasion for us to comment further on the status of autonomous vehicles and the law in Ontario.
July 05, 2016
You will recall that the Ontario Court of Appeal in Keam v Caddey, 2010 ONCA 565 awarded the plaintiff $40,000 in additional costs after an insurer refused (twice) to participate in mediation prior to trial. Aviva Canada took the position that the plaintiff would not be able to meet threshold and therefore Aviva did not believe it was obligated to attend mediation as there was nothing to negotiate.
The Court of Appeal found that the Insurance Act imposes two obligations on the insurer. First, the insurer is obligated to participate in mediation when requested. Second, the insurer is obligated to attempt to settle the claim as expeditiously as possible.
Michael J. Fox is a well-known Canadian comedic actor probably best known for the "Back to the Future" movie trilogy and other successful small screen comedies. In medical circles, he is also known for having Parkinson's disease and as a spokesperson for Parkinson's disease research. But Michael's Parkinson's is a little different. He was a member of a British Columbia production crew in the 1970's. Several of that crew went on to develop Parkinsons at a young age. The statistical probability of a number of persons, or a cluster, in the one production crew developing Parkinson's was very small. Clusters "suggest" an environmental agent at work – whether it is scientifically provable or not.
