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The Difficulties of Relying on the Minimum Maintenance Standards - Case Study: Lloyd v Bush
by Van Krkachovski
March 24, 2022

In 2020, the Ontario Superior Court of Justice released its decision following the third trial in Lloyd v Bush. The case arose out of a motor vehicle accident that occurred in 2001.

As a result of the accident, Ms. Lloyd sustained serious injuries. She sued not only the operator and owner of the propane tanker but also named the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee as defendants to her claim. At issue in the third trial was the question of liability: how much liability, if any, should be attributed to the municipal defendants for the poor road conditions? And would the municipalities' efforts to meet the minimum maintenance standards absolve them of liability?

(PLUS Download MB's complimentary Minimum Maintenance Standards Chart!)

Striking a Jury Notice – Not so fast!
by Eric W.D. Boate
February 11, 2022

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII), the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

No Escape from a Policy Breach Even Years Later Case Study: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance
by Jessica Grant
February 07, 2022

On November 18, 2021, the Supreme Court of Canada rendered its decision on whereby an insurer may be allowed to deny coverage based on a policy breach discovered several years down the road.

Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05
by Alan S. Drimer
February 03, 2022

In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...

UPDATED VERSION - What are separated parents' rights when one of them refuses to vaccinate their child against COVID-19?
by Dennis Molnar
February 01, 2022

This article has been updated because since this article’s initial publishing in November 2021, the court released its decision in R.S.P. v. H.L.C., 2021 ONSC 8362 challenging various holdings and the general approach/framework concerning issues of medical decision-making for minor children which had arisen in recent family court decisions concerning COVID-19 vaccinations for minor children.

Brain Injuries - Admissibility of SPECT Scans as Evidence - Case Study: Meade v. Hussein, 2021 ONSC 7850
by Alan S. Drimer
December 07, 2021

On November 29, 2021, the Ontario Superior Court of Justice released an important decision in Meade v. Hussein, 2021 ONSC 7850 regarding the use of single-photon emission computed tomography scans (“SPECT scans”). Justice Bale found that SPECT scans failed to meet the reliability foundation test for novel scientific evidence. This is the Court's findings...

What are separated parents' rights when one of them refuses to vaccinate their child against COVID-19?
by Dennis Molnar
November 10, 2021

Major COVID-19 vaccine producers are attempting to have their vaccines approved for use in children as young as five (5) years old.1 With their approval, separated parents' beliefs about whether their child should receive a COVID-19 vaccination is an issue with the potential to further divide families. McCague Borlack LLP's Family Law Practice Group is closely watching how the caselaw develops around COVID-19 vaccinations and children.

In Ontario, some recent cases discuss whether one parent can have exclusive authority over vaccination-related decisions for their child while the other is against it. 

HBC Trademark Troubles: A review of the Zellers trademark dispute between HBC and a Quebec retail family
November 09, 2021

The recent lawsuit initiated by the Hudson's Bay Company (“HBC”) against a Quebec retail family demonstrates how easy it can be for trademark ownership rights to slip through your fingers by simply missing a trademark renewal deadline.

Revisiting Governmental Immunity in Negligence Claims - Case Study: Nelson (City of) v. Marchi
by Alan S. Drimer
October 26, 2021

When is the government entitled to act without the possibility of liability or subsequent second-guessing by the Courts? It is generally accepted that policy decisions made by government actors are immune from findings of liability claimed in negligence.

However, the Supreme Court of Canada in Nelson (City of) v. Marchi, 2021 SCC 41, has provided additional guidance on this topic. 

Amending to Add Family Law Act Claims: Not So Fast! Case Study: Malik v Nikbakht
by Eric W.D. Boate
September 28, 2021

The Ontario Court of Appeal heard an appeal in Malik v. Nikbakht, 2021 ONCA 176, brought by the plaintiff, Sarfraz Malik. The action arose from a 2013 motor vehicle accident in which Mr. Malik was driving with his wife and three sons. In 2018, Mr. Malik brought a motion for leave to amend the Statement of Claim to add a claim for damages pursuant to s.61 of the Family Law Act, RSO 1990, c. F.3., including damages for...

The Pendulum Swings towards Employer-Driven Mandatory Vaccination Policies
by Martin Smith
September 20, 2021

Many employers are beginning to implement mandatory vaccination policies in their workplaces. In doing so, they must balance the risks to their businesses and employees of a workplace outbreak of COVID-19 versus employees' human and contractual rights, along with privacy concerns.

You got hacked: Limits on liability - A Case Study of Owsianik v. Equifax Canada Co, and Intrusion of Seclusion
by Howard Borlack
July 15, 2021

In Owsianik v. Equifax Canada Co (Equifax), 2021 ONSC 4112, the Divisional Court was required to determine the scope of the court to intervene when Equifax's client stored data was hacked by an unknown third party. Specifically, the Court needed to determine whether the Court created tort known as intrusion upon seclusion would include the failure to protect people's private data against a third-party intrusion.

Enforceability of Waivers: An Update - Case Study: Arksey v. Sky Zone
by Alan S. Drimer
July 08, 2021

On June 28, 2021, the Ontario Superior Court of Justice led by Myers J., released a decision in Arksey v. Sky Zone Toronto, 2021 ONSC 4594.

Generally, this was a summary judgement based on the terms of a waiver and the release of liability by the plaintiff. Specifically, whether the plaintiff waived her right to sue arising from injury caused by the defendant's failure to supervise and follow its injury policies.

Punitive Damages v Employee Contributory Negligence Case Comment: Eynon v. Simplicity
by Howard Borlack
July 06, 2021

The decision of the Ontario Court of Appeal in Eynon v Simplicity Air is a significant decision on punitive damages in Canada. The Court upheld a $150,000 jury award of punitive damages in favour of an employee. This decision warns employers that if those left in charge of the workplace create a culture within the company where employees have little regard for the importance of safety practices in the workplace and engage in highly reprehensible misconduct, they can be held liable for significant punitive damages regardless of an employee's contributory negligence leading up to an accident.

All-Inclusive and Without Costs Rule 49 Offers
by Van Krkachovski
June 29, 2021

In 1985, Rule 49 of the Rules of Civil Procedure was introduced to encourage parties to make and accept reasonable offers to settle. This has had the effect of discouraging parties from delaying the judicial process and increasing costs unnecessarily. Rule 49 has had a considerable effect on litigants by virtue of the risk of a large costs award following trial.

To trigger the cost consequences under Rule 49, an offer must meet strict requirements: