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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.

Off the Beaten Path: Occupiers and Trail Liability in Ontario
by Garett Harper
April 15, 2015
The purpose of this paper is to provide the state of the law as it currently exists and recommend ways in which large landowners can reduce their exposure for harm suffered by users of recreational trails. It will highlight the legal relationship that exists between occupiers and users of land pursuant to the Occupiers’ Liability Act “OLA”). This paper will first define the duties of landowners to individuals who are taking part in recreational activities on their premises. In doing so, this paper will analyze the impact of whether these individuals are invited upon the land or if they have simply trespassed onto the land to take part in recreational activities. Furthermore, this paper will discuss the corresponding standard of care that accompanies the relationship that is created between occupier and user.

What is a Motor Vehicle and What Constitutes its use and Operation: An Investigation into Policy Applicability and Coverage
by James Tomlinson
April 15, 2015

This paper addresses two important questions that are integral to determining whether a negligence action arises from the use and operation of a motor vehicle. Firstly, this paper seeks to determine whether a particular vehicle involved in an accident actually constitutes a motor vehicle.

Secondly, this paper seeks to determine what constitutes the use and operation of a motor vehicle.

No Man's Land - Cyberbullying and the Canadian Legal Landscape
by Catherine A. Korte
April 09, 2015

To put cyberbullying into perspective, in 2010, 49.5% of students in 33 Toronto junior high and high schools reported that they were bullied online. Cyberbullying, thankfully, has not gone unnoticed. Regulators, parents, and the courts alike have grappled with the best way to address the phenomenon and find productive solutions. From properly defining and identifying the issue, current enforcement strategies, anti-bullying legislation, and even with respect to insurance and coverage issues, cyberbullying is proving to be one of the most pressing social issues particularly among young Canadians moving into the 21st century.

Case Comment: Iannarella v Corbett
April 01, 2015

The Court of Appeal released an important decision for all lawyers practicing in the field of civil litigation and personal injury, in particular.Iannarella v Corbett clarifies the onus of proof regarding liability in a rear-end collision and reinforces the ongoing disclosure obligations of surveillance throughout the litigation process.

What Landlords need to know about Property Tax
by Stephen Barbier
March 12, 2015

Some municipalities now engage in the practice of adding tenants' unpaid hydro bills to an owner's property tax. Landlords are then forced to chase previous tenants to recover these losses. Where does the municipality get the authority to do this? How can landlords help protect themselves?

What Landlords need to know about PIPEDA
by Stephen Barbier
March 12, 2015

The Personal Information Protection and Electronic Data Act (PIPEDA) governs how private sector organizations collect, use and disclose personal information in the course of commercial business. For the purposes of PIPEDA, a landlord is an organization engaged in a commercial activity and is therefore required to comply with the Act. PIPEDA defines “Personal Information” as information about an identifiable individual, but does not include the name, title business address or telephone number of an employee of an organization

Pet Problems: Avenues for Landlords to Deal with Problem Pets
by Martin Smith
March 12, 2015

Landlords have long since struggled with the issue of "problem pets" in their residential units. Cleanliness, property damage and liability for injuries caused by tenants' pets are all common concerns. What does provincial legislation say about pets in residential complexes and what options are available to landlords?

Altering the Litigation Landscape: Mary Carter Agreements and Stamatopoulos et al v. Harris et al, 2014 ONSC 6313
by Van Krkachovski
March 02, 2015

Mary Carters and Pierrenger Agreements are types of agreements used in multi-defendant litigation. Both agreements involve settlement between the plaintiff, and some, but not all, of the defendants. In essence, they allow for actions to partially settle. While these agreements appear useful, the law concerning them (in particular, Mary Carters) is both complex and rapidly evolving.  Read the full case study and details on both...

Statute and Common Law: Reconciling PHIPA and the tort of Inclusion upon Seclusion
by Catherine A. Korte
February 25, 2015

On February 18, 2015, Justices Sharpe, van Rensburg and Pardu of the Court of Appeal for Ontario released their long-awaited privacy law decision in Hopkins v. Kay. Despite the fact that the Personal Health Information Protection Act ("PHIPA") is a "lengthy and detailed statute" that comprehensively addresses "the collection, use, disclosure, retention and disposal of personal health information", the Court affirmed that plaintiffs are still entitled to raise the common law tort for breaches of privacy in circumstances involving health information.

Class Actions Certified for Truckers' Overtime Pay: Baroch v. Canada Cartage, 2015 ONSC 40 (January 31, 2015)
February 17, 2015

January 31, 2015 saw the release of a class action certification involving the transportation industry. Continuing the trend of class actions seeking unpaid overtime, the Ontario Superior Court of Justice certified a $100 million class action lawsuit for unpaid overtime against the defendant, Canada Cartage.

The statement of claim alleges Canada Cartage only paid overtime if the 60 hour threshold was exceeded, regardless of the type of employee, and that this policy was contrary to the regulations.