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Cost Effective Resolution of Low Value Claims
February 06, 2014

Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.

Ontario Privacy Laws for Lawyer: Hot Topics in Privacy Law - 1 of 5
February 03, 2014

Ontario does not have a single overarching privacy and access law. Rather, it is subject to several different pieces of legislation that apply depending on the nature of the organization involved and the type of information that is being collected, used, or disclosed. The principal privacy legislation of interest to lawyers in Ontario is PIPEDA.

Overview of PIPEDA: Hot Topic in Privacy Law - 2 of 5
February 02, 2014

This article describes key concepts of PIPEDA including the application of PIPEDA, what personal information is, the privacy priniciples of PIPEDA, privacy issues in the context of litigation, employee personal information, international issues and using foreign service providers.

Tort of intrusion upon seclusion (Jones v Tsige): Hot Topics in Privacy Law - 3 of 5
February 01, 2014

The facts of Jones v Tsige are fairly straightforward: the plaintiff and the defendant both worked for the Bank of Montreal, albeit at different branches. They also were, at one time or another, involved with the same man; the plaintiff had been married to him previously, while the defendant was common law married to him at the time of the incident. Despite these intersecting facts, the plaintiff and the defendant did not know each other personally.

The defendant, making use of her access as an employee of the bank, accessed the plaintiff's banking information some 174 times.

New Canada Anti-Spam Legislation (CASL): Hot Topics in Privacy Law - 4 of 5
January 31, 2014

Canada's Anti-Spam Legislation (“CASL”) will finally be coming into force on July 1, 2014. CASL has been law for over three years now, but there have been various amendments and changes made to it over that time period. Here we will take a brief look at the main rules and exceptions under CASL, but it ought to be said up-front that CASL is one of the most stringent and restrictive set of anti-spam laws enacted globally.

Business owners ought to take special note of the CASL requirements, as the consequences of infringement can be steep (up to $1 million in fines for individuals, and $10 million for corporations — and once the private right of action provisions come into force, each offending communication can be worth $200 to the recipient in damages).

Key privacy cases for consideration: Hot Topics in Privacy Law - 5 of 5
January 30, 2014

The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression. 

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, employees of the Palace Casino at West Edmonton Mall conducted a lawful strike in 2006 which lasted 305 days. The United Food and Commercial Workers, Local 401 representing the workers (the “Union”) and a security company hired by the employer video-taped and photographed the picketers at the Casino's entrance. The Union posted signs stating that images of persons crossing the picket line may be posted on “”. Several people who were filmed crossing the picket line complained to the Alberta Information and Privacy Commissioner (the “Commissioner”) under PIPA, alleging that the Union infringed their privacy rights by collecting, using and disclosing their personal information without their consent.

Alberta's Personal Information Protection Act Declared Unconstitutional
December 13, 2013

The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression.

Recent Ontario Court of Appeal Decision: All Defence Costs are not Created Equally
by Jennifer E. Kelly
December 13, 2013

In ACE INA Insurance v. Associated Electric, the Ontario Court of Appeal upheld an Ontario Superior Court of Justice decision which held that unless prescribed otherwise by statute, an excess insurer is only required to contribute to defence costs if it has a duty to defend or if such contribution is expressly stated in the policy.

The court looked at the doctrine of equitable contribution and its application to an excess policy which contained no duty to defend.

Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett
by Matthew Dugas
December 11, 2013
FSCO released the appeal decision in Belair Insurance Co. Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants.

Read why this appeal decision is nevertheless favourable to insurers.

Recent Court Decisions: Kruger Products Limited v. First Choice Logistics Inc. et al.
November 27, 2013

When a landlord assumes a contractual obligation to obtain insurance on a property, the landlord may be barred from pursuing a subrogated claim against the tenant for loss or damage caused by the tenant. This is not a new legal principle. In a trilogy of cases from the 1970s, the Supreme Court of Canada held that a landlord, by agreeing to obtain such insurance, assumes the risk of loss or damage to that property even if the tenant was negligent.

A Defence Lawyer's Guide to Investigating Modern Insurance Fraud
by Van Krkachovski
November 06, 2013

Due to the lack of significant institutional measures, it often falls to insurers and defence counsel to investigate instances of fraud on their own. While the bar is not overly familiar with confronting insurance fraud on a macro-level, defence lawyers can certainly identify trends and become experienced with insurance fraud through their work at the case level. This paper details cause for suspicion, response, and how to prove fraud.

Branco v American Home Assurance Company, 2013 SKQB 98
October 11, 2013

This case makes it abundantly clear that insurance companies must treat their insureds fairly. It is a recognized principle of law that many contracts of insurance will be considered peace of mind contracts. If a contract of insurance is considered to be a peace of mind contract, then a plaintiff has the right to sue for damages related to mental distress. If an insurer unfairly denies benefits, unduly lengthens the claim process or causes an insured distress unjustly, this may trigger a significant aggravated damage award. Further, numerous delays and unjustified denial of benefits, could also lead a court to conclude that an insurer has breached their duty of good faith and fair dealing with their insured. If a court finds this to be the case, punitive damages may be awarded on top of the damages for mental distress. Read details...

First FSCO Decision on the Minor Injury Guideline
by Matthew Dugas
October 09, 2013

A recent FSCO decision has found that a claimant is not precluded from claiming housekeeping, attendant care as well as medical and rehabilitation expenses beyond the $3,500 limit within the Minor Injury Guideline. In Lenworth Scarlett and Belair Insurance Company Inc. (FSCO A12-001079), Mr. Scarlett was a passenger in a vehicle involved in a motor vehicle accident and applied for statutory accident benefits. His disability certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine as well as headaches and acute stress reaction.... Arbitrator John Wilson notes...

Unraveling the Mystery of Priority Disputes
October 07, 2013

Since 1995, and the enactment of Ontario Regulation 283/95—Disputes Between Insurers (the “Regulation”), insurers have been obliged to continue payment of Statutory Accident Benefits (SABs) to injured persons even where entitlement to these benefits is disputed. However, priority disputes also present insurers with an opportunity to shift payment of SABs, which may end up saving a savvy insurer a significant amount of money...

The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law
by Martin Smith
September 13, 2013

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.