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Court of Appeal released a decision Developments in Loss Transfer: Defence of laches is not available to bar delayed claims
November 12, 2015

Today the Court of Appeal has released a decision that has significant consequences for insurers of heavy commercial vehicles, or for the insurers of vehicles that collide with motorcycles or motorized snow vehicles.

Read up on the decision of the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and the findings...


Developments in Loss Transfer: Does the doctrine of laches apply to bar delayed claims?
November 11, 2015
Canada v. Lombard General Insurance Company of Canada1 and Zurich Insurance Company v. TD General Insurance Company2, have left the law unclear with respect to the doctrine of laches as applied to Ontario's loss transfer regime. 
 
This paper is a summary of both cases...

Autonomous Vehicles - The Next Frontier
November 10, 2015

According to the Centre for Automotive Research, the first commercially available, fully autonomous vehicles could arrive on dealership floors as early as 2019.

The final manifestation of autonomous vehicles will largely depend on the manner in which regulators balance the issues that arise at the intersection of liability, freedom, and privacy. This paper will provide insights into the current state of the technology of autonomous vehicles and autonomous trucks before delving into a discussion about the shifting scope of liability and the potential consequences this may have on the calculus insurance companies use to apportion risk and determine the cost of premiums.

Termination Provisions and Employment Contracts: The New Order
by Martin Smith
November 09, 2015

Some employers do not see the value in executing employment contracts. However, without termination clauses which limit an employee's entitlements upon termination without cause, damages awarded can be significant. Long gone is the traditional common law "rule of thumb" of one month's notice per year of service. The notice period can be dramatically extended by the court when weighing various factors.


Probationary Employees: Employers' Termination Rights and Restrictions
by Martin Smith
November 06, 2015

Given that employers have an implied contractual right to dismiss a probationary employee without notice and without giving reasons, many employers believe that they are immune from claims brought against them after terminating an employee within his or her probationary period. Unfortunately for employers, this is not the case. Despite the existence of probationary periods, there are many limitations facing employers who wish to fire their probationary employees. It is crucial that employers understand these limitations in order to prevent claims from being brought against them.


Case Commentary: Trimmeliti v. Blue Mountain Resorts Ltd.
by Garett Harper
October 27, 2015

The Superior Court of Justice of Ontario recently released a decision that provided additional comments on the efficacy of waivers and the development of waiver defences in Ontario. 

In Trimmeliti v. Blue Mountain Resorts Limited,1 decided by the Honourable Mr. Justice Dunphy, the plaintiff, a season pass holder, was night skiing with friends on the defendant’s premises when he collided with a fluorescent orange mesh ribbon that was used to close a run.  As a result of this collision, the plaintiff suffered a fractured clavicle...


The Best Defence is Sometimes Not the Best Offence: the Value of a Well-Drafted Waiver
October 27, 2015

The Ontario Superior Court of Justice recently examined the effectiveness of a signed waiver as a full defence in the context of injuries sustained during recreational sports play in Levita v. Alan Crew et al.

In this case, the plaintiff, Robbie Levita, was a player on a recreational hockey team in a league operated by the defendant, True North Hockey Canada (“True North”). Of note, this was a “no-contact” recreation league, which means body checking was prohibited. During the course of a game, the plaintiff suffered a fractured tibia and fibula as a result of being checked from behind into the boards by the defendant.


State Farm v. Old Republic Insurance, 2015 ONCA 699: Re: Heavy Commercial Vehicles
October 23, 2015
The Ontario Court of Appeal has recently released a decision that will be widely applauded by the insurers of heavy commercial vehicles. 
 
The Court of Appeal has clarified that only insurers of vehicles directly struck by heavy commercial vehicles will be entitled to indemnification through loss transfer while insurers of vehicles involved in a ‘chain reaction accident’ but not directly struck by the heavy commercial vehicle will have no recourse.

A "Victory for Common Sense": Uber Continues to Operate Legally in London, UK
by James Tomlinson
October 20, 2015

In a decision Uber is calling a "victory for common sense", the UK High Court ruled that Uber was not in contravention of existing London regulations with respect to taxicab meters...


Happy Trails: Strategies for reducing a recreational trail occupier's exposure to liability
May 14, 2015
For private enterprise, inviting the public to access recreational areas can be a particularly lucrative opportunity.
There is a potentially high risk that comes with owning and maintaining recreational property.
 
Ontario’s Occupiers’ Liability Act requires that trail managers take a certain level of care in warning and protecting the public.2 Clients are often shocked to hear that they even owe a duty to those who are trespassing!
 
This paper will focus on what trail managers should be aware of in order to minimize this risk.

Waiver of Liability vs. Public Policy - Which Takes Precedence?
by James Tomlinson
May 14, 2015
A waiver of liability is one of the most effective means that an occupier can employ to protect itself from liability arising from dangerous activities on its property. If properly implemented, a waiver can completely bar a claim brought by an injured party as against an occupier.
 
This paper will provide an overview of the law as it pertains to waivers and discuss current case law.

Know your limits! Contributory Negligence in a sport and recreation context
by James Tomlinson and Garett Harper
May 14, 2015

Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury? 

This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.


Fault Exclusions in Course of Construction Policies: Ledcor and Acciona Infrastructure
April 30, 2015

Course of construction policies ("COC"), also known as builders' risk or all-risks policies, underwrite specific risk that arise during the construction process. A significant amount of judicial ink continues to be spilled in Canada (and abroad) about the common exclusion clauses within such policies pertaining to faulty or improper workmanship, design, or materials.

This paper addresses some of the recent case law involving faulty design/faulty workmanship exclusions in the context of construction projects.

Discovering Potential Third Parties in Motor Vehicle Accident Claims: Who Should We Consider?
by James Tomlinson and Garett Harper
April 15, 2015
In today’s litigious world, claims related to motor vehicle accidents are exceptionally common. With the number of these cases on the rise, defence counsel has had to become more creative in defending them. One way to effectively defend these claims is to consider whether the accident may have been caused by someone else who may be required to assume your defence or indemnify you. Specifically, we recommend always considering whether the accident could have been caused by a mechanical failure in the defendant vehicle.

A Tomato Wagon? Defining 'Automobiles' Under Ontario's Insurance Legislation
by Catherine A. Korte
April 15, 2015
To the uninitiated, it might seem that defining the word “automobile” … should be a relatively simple matter. Those familiar with the byzantine nature of
insurance legislation know better.