Articles & Publications

Search Articles & Publications

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.


Case Study on Electronic Custodial Care: Shawnoo v. Certas Direct Insurance Co
February 13, 2015

The plaintiff in this case had suffered a catastrophic brain injury as a result of a motor vehicle accident.

The parties disputed whether she had "incurred" expenses for attendant care services within the meaning of s.3(7)(e) and whether attendant care services can be provided indirectly by electronic means.

This decision will assist first party insurers in determining whether Applicants are entitled to attendant care.


Cyber Liability
by Catherine A. Korte
February 09, 2015
With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:

Ontario Court of Appeal releases decision in expert evidence case
January 29, 2015

Today the Ontario Court of Appeal released its long-awaited decision inMoore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.


Bad Faith Claims and Bifurcation after Bhasin v. Hrynew: An Insurance Perspective
January 21, 2015

With the recent Supreme Court of Canada decision in Bhasin v. Hrynew, a fair amount of commentary has been written about the emerging importance of good faith in contractual relationships. One should not consider this decision to represent a sudden judicial pronouncement concerning entirely novel duties owed amongst contractual parties; rather, the doctrine of good faith has existed for some time for certain categories of contracting parties and the courts have adopted a distinct method for uniquely assessing the duties imposed. This article reviews the recent Supreme Court of Canada decision under the lens of the pre-existing doctrine of bad faith as it exists between contracting parties in the insurance market.


Case law released concerning when policies must respond in actions involving rented or leased vehicles
January 13, 2015

Important case law has been released concerning when policies must respond in actions involving rented or leased vehicles. The question before Justice Firestone in Elias v. Koochek, 2014 ONSC 5003, was whether or not the policy of a renter would still rank in priority if the renter was a third party and not a defendant in the main action. 


Ever Escalating Claims - Updated: The Evolving Auto Insurance Product Stresses on the System
by Catherine A. Korte
October 31, 2014

The Final Report of the Ontario Automobile Insurance Anti-Fraud Task Force was released. This task force was appointed to advise the government of Ontario on the extent of automobile insurance fraud and what to do about it. Its findings were as follows:


Too big for its britches? Fitting Chronic Pain into the Minor Injury Guideline of Ontario's Accident Benefits Scheme
October 31, 2014

This article explores the interaction between chronic pain and the Minor Injury Guideline (“MIG”), which came into force in Ontario in 2010.


Seeing is Believing
October 31, 2014

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. 

Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.


Establishing Causation in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.


Chronic Pain and Suffering: Non-Pecuniary General Damages Awards in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This article explores the recent trend of general damages awards in chronic pain cases in Ontario. It breaks down the groundbreaking case of Degennaro, which remains the high watermark in these cases. It then looks to the recent case law to contextualize Degennaro andestablish a framework for understanding how courts arrive at these awards.

 

Future Care Costs: Preparation and Mitigation
by Van Krkachovski
October 31, 2014

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus of this paper is on the changes that have occurred with respect to I. Future Care Costs, II. Guardianship and Management Fees; and III. Risk Premiums.


Eyes Wide Shut: The Best Defence is a Good Offence
by Catherine A. Korte
September 24, 2014

With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles: