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Employers Beware: An Employee Charged Criminally for Sexual Assault May Not Be Sufficient Grounds To Terminate with Cause
February 26, 2016

In Merritt v. Tigercat Industries, 2016 ONSC 1214, the Honourable Justice D.J. Gordon ruled that an employer was not justified in terminating its employee for cause who had, among other things, been charged criminally with two counts of sexual assault against a minor. Justice Gordon granted the plaintiff employee summary judgment in the action and awarded him damages amounting to 10 months' pay in lieu of reasonable notice.

Goodbye FSCO, Hello LAT!
by Michael Kennedy
February 22, 2016

It's no joke—April Fools' (April 1, 2016) marks the day when accident benefit arbitration applications will begin to be received by the Licence Appeals Tribunal (“the LAT”) instead of by FSCO.

But fear not! The LAT's process, while new and unfamiliar, is in fact quite similar to that of the dispute resolution process at FSCO.

The requirement to provide "medical reasons" when denying treatment plans: a ticking time bomb?
February 22, 2016

For an accident benefits insurer, the denial of a treatment plan used to be such a simple thing.

In an attempt to reduce the costs associated with insurer's examinations, the Ontario Legislature made insurer's examinations optional. In doing this, however, it introduced new procedural hurdles that insurers must overcome in order to properly deny treatment plans.

Superior Court Re-Affirms that Bus Drivers are Held to a Higher Standard of Care
February 18, 2016

In the recently decided case of Gardiner v. MacDonald, 2016 ONSC 602, Madame Justice Roccamo presided over a trial arising from a brutal collision where a public transit bus T-boned an SUV at 1:54 a.m., on a cold, January morning, in Ottawa.

The public transit bus was travelling northbound on a well-travelled road in the "bus lane", and entered the intersection on a green light. The SUV was travelling westbound and entered the same intersection on a red light when it was struck by the bus, and propelled in a northerly direction until it came to a rest in the snowy and slushy street. The collision was so bad that the bus crossed a snow-covered median before coming to rest in a ditch.

Alcohol use by the driver of the SUV was a factor in the collision; no charges were laid against the bus driver as a result of the accident, but tragically, 3 of the occupants of the SUV, including the driver, were fatally injured. A fourth occupant sustained catastrophic injuries.

The only issue at trial was whether the bus driver (and by extension the municipality) was partially liable for the collision.

Divisional Court Comments on Termination Rights of Employer during Probation Period
February 09, 2016

Are there ANY limits on an employer firing an employee during the initial probation period?

The Divisional Court recently weighed in on this evolving issue inNagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (Div. Ct.).

Nagribianko is a significant decision addressing the conflicting rights of employers and employees during probation periods.

New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X
February 03, 2016

The relentless expansion of the internet into all facets of our lives has created many opportunities for the advancement of the law. Cyberspace is the modern frontier for the law to tame. On any given day, the facets of the internet are built upon by the contributions of billions of people. As a result of its directly democratic nature, it contains examples of the full spectrum of human behaviour that runs from selfless altruism to selfish insecurities and hatred.

Justice Stinson's recent decision in Jane Doe 464533 v. X (the defendant's name is subject to a publication restriction) is a step in remedying the excesses of internet use.

Third-Party Litigation Funding in Canada
by Howard Borlack
February 02, 2016

The class action lawsuit is a unique legal procedure. Like any other court proceeding, class actions are a risk-reward proposition. The potential for settlement or damages must be weighed against the expense of litigation and, in some jurisdictions, the risk of an adverse cost award. As such, deep pockets and a high tolerance for risk are often critical to pursue a good case on the merits. 

In this article, we discuss the treatment of third party funding agreements (TPA) by Canadian courts. After a review of the relevant legal principles, we outline the hallmarks of a properly drafted TPA as defined by the courts and discuss undefined areas for future consideration. Virtually all of the substantive case law on third-party funding agreements in the class action context stem from Ontario courts. We therefore focus on these decisions...

Judiciary to the Bar: Make Contemporaneous Notes and Take Written Instructions
January 28, 2016

This Case Summary is  a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's “contemporaneous, reliable, objective records.”

Employment Termination Clauses: Failure to Specify Minimum Statutory Benefits after Dismissal, but Voluntary Provision of Those Benefits
January 20, 2016
Two recent Ontario decisions have considered an offshoot of that issue:
If a termination clause provides for the minimum statutory notice period but fails to specify the continuation of minimum statutory benefits after dismissal without cause, does that trigger the right to the common law remedy even if the employer voluntarily provides those minimum statutory benefits after dismissal? 
Both decisions held that the answer is Yes. We express a contrary view.

For Want of Jurisdiction
January 05, 2016

A recent dismissal by the Court of Appeal for Ontario reaffirms that plaintiffs are required to commence their actions for underinsured, uninsured or unidentified coverage in the jurisdiction in which the contract was made, and for tort actions to be made in a jurisdiction with a presumptive connecting factor.

The Court of Appeal for Ontario recently handed down its latest views regarding when an Ontario court can assume jurisdiction over a non-resident defendant. 

Employment Contracts: New Term? New Consideration!
December 22, 2015

The recent judgment of the Ontario Court of Appeal in Holland v. Inc., 2015 ONCA 762, sheds light on the (in)ability of employers to alter employment contracts after an employee has already commenced employment.

Holland v. Inc. is a cautionary tale for employers.

Condominium Corporation Issues: The President's View
by Peter F. Yaniszewski
December 16, 2015

This paper contains information regarding insurance provisions in the Condominium Act, 1998, along with terms and definitions.

Spreading Fires: Issues that Arise When Fires Originate at a Neighbour's House
December 16, 2015

The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:

When all is said and done: Final Releases
by Adam Grant
December 16, 2015

The purpose of a full and final release is simple. It is an explicit acknowledgement by the settling Plaintiff that it has agreed to resolve its claims as against one or more Defendants, and as a result of that settlement, it is releasing those Defendants from the claims at issue. A full and final release acts as a complete defence in the event that a subsequent action is brought by the same party, for the same cause of action.

This paper will go into details regarding final releases, settlement agreements and the definitions of terms used. 

Who's to Blame? Tips for Early Identification of Subrogation and Potentially Liable Parties
by Adam Grant
December 16, 2015

In order to determine whether or not subrogation is a viable option with respect to any loss, it is first necessary to consider the cause of the loss, followed closely by who is responsible for the loss.