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Expecting the Unexpected: Occupiers’ Liability and Minor Plaintiffs
by James Tomlinson
September 11, 2013

Exposure for occupiers’ liability is not a novel topic of discussion in the world of tort and insurance law. However, the application of occupiers’ liability to minor plaintiffs is an area of law that has been evolving in recent years. The most dynamic change has been that Courts are more readily finding that occupiers whose premises are geared towards children should expect minors who enter their property to be, to a certain extent, reckless and unpredictable by virtue of their youth and inexperience, and accordingly, ensure their premises are that much safer.

Appropriate Limitation Periods Clarified for All-Risk Business Insurance Policy
August 02, 2013

In Boyce v. Co-Operators General Insurance, 2013 ONCA 298, the Boyces owned and operated a women's fashion boutique. One day, Ms. Boyce entered the boutique to discover a foul odour, and contacted the boutique's insurer the Co-Operators to report the claim. The business was closed for a time because substantial clean-up costs were incurred and a great deal of inventory could not be salvaged. Co-Operators took the position that the smell was caused by a skunk and that the damage was not covered by the policy. The Boyces claimed the business had been vandalized, a peril covered by the policy.

The Boyces issued a Statement of Claim against Co-Operators more than one year after they discovered the foul odour, but less than two years after the incident. Co-Operators moved for summary judgment claiming that the action was time-barred by a one-year limitation period. The judge dismissed Co-Operators' motion. Co-Operators' appealed the decision to the Ontario Court of Appeal.

When it comes to the calculation of the attendant care benefits payable, the Form 1 remains king
July 19, 2013

In the recent decision of the Court of Appeal in Henry v. Gore Mutual Insurance Company, the Court upheld a decision of the lower Court that the amount “incurred” for attendant care benefits is not limited to the amount of the “economic loss” sustained by the caregiver. 

When Does 'Complete' mean 'Less than Everything'?
May 10, 2013
In the recent FSCO arbitration decision Hensworth v. State Farm (March 18, 2013) Arbitrator Joyce Miller awards post-104 week IRBs to a woman who returned to work and earned post-accident income comparable with her pre-accident income.

The impact of social media on hiring and firing decisions
April 09, 2013

The rise of social media has dramatically changed the way in which information is acquired and used in the workplace. Social media includes forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. This includes Facebook, blogs, LinkedIn, and Twitter. These sites can be used to develop social and professional contacts, among other things.

While users of social media can adjust the privacy settings for their profiles on social media sites like Facebook so that only certain other users can access the content, this does not mean that the content is necessarily 'private'. In fact, the courts have noted that Facebook users enjoy a relatively low expectation of privacy when they post material on the site. 

Anti-Spam Law Update: 10 million reasons not to ignore it
April 09, 2013

New Anti-Spam Legislation will likely come into force by the end of 2013. Canadian businesses should become familiar with this law and the impact it will have on the conduct of their employees, who act as agents of their organization. Read up on what the law will prohibit, maximum fines, and what it means for your business.

Privacy and Employer-Issued Computers in the Workplace: A Review of R v Cole (2012 SCC 53)
April 09, 2013

The Supreme Court of Canada (“SCC”) recently considered the extent to which employees have a reasonable expectation of privacy over personal files kept on employer-issued laptops. What is a reasonable expectation of privacy and what are the implications for private employers?

Five Years Later: The Application of the Human Rights Code Today
by Martin Smith
April 09, 2013

On June 30, 2008, the Human Rights Code Amendment Act, 2006 came into full force in the Province of Ontario. The amended Human Rights Code (the “Code”) sought to address numerous shortcomings of the prior human rights enforcement system.

Over the course of the last five years, there have been some successes, particularly with respect to efficiency. For cases that proceed to a full hearing on the merits, it now takes, on average, 16.5 months from the initial application filing date to get to the first hearing date. Prior to the amendments, it took, on average 47.6 months to get to a Tribunal hearing. Also, in 2011-2012, for the first time, the Tribunal was able to close more cases than it opened. This trend has continued in early 2012-2013.

While the new Code strived to create a more efficient and effective forum in which to deal with discrimination complaints, it has created new challenges for respondents, the vast majority of which are employers, including the following...

Current Trends and Hazards in the Ontario Human Rights Tribunal
April 09, 2013

In a recent Human Rights Tribunal decision, the Applicant, Timothy Pritchard, filed an Application under the Human Rights Code alleging discrimination with respect to employment on the basis of disability.

The Applicant was employed as Director of Professional Services with the Commissionaires. After the Applicant advised his employer that he would be having hip replacement surgery and would subsequently require 8 to 12 weeks off of work for recovery, approximately one month later and four days prior to his scheduled surgery, the Applicant was advised that his employment was terminated. The Applicant believed “the respondents did not want to pay him during his sick time and terminated his employment as a cost saving measure”...  

There is no automatic duty of care between a diocese and students harmed by priests
by Michael Kennedy
March 22, 2013

On March 8, 2013, the Ontario Court of Appeal in the case of Cavanaugh v. Grenville Christian College (2013 ONCA 139) ruled that students, who had allegedly suffered various forms of abuse at a private Anglican school at the hands of its headmasters, had no cause of action against the Anglican Diocese. Writing for the court, Justice Doherty held that the Diocese owed the students no duty of care. 

Product Liability Claims against Ski Hill Operators: Defective Equipment or Participant Error?
March 20, 2013

In Canada, outdoor winter sports, such as skiing, are popular pastimes. However, speeding down snow and ice-covered ski hills presents considerable risk to participants of these sports, and thus, accidents result. Generally speaking, these accidents arise out of recognized risks inherent to the activities, and the injured party is deemed, by their participation, to have voluntarily undertaken such risks. Regardless, operators of sports events or facilities, such as operators of ski hills, are required to properly administer their events or venues according to industry standards. They also owe a duty of care to their skiers, snowboarders, tubers, and other users of their facilities and rental equipment.

Caution! This pool is unsupervised! Resort liability of unsupervised facilities
by James Tomlinson
March 20, 2013

Swimming pools and gym facilities are a very attractive feature of recreational resorts and hotels. The ‘resort gym’ may be appealing to those seeking to maintain a fitness regimen while travelling and vacationing, particularly to those patrons who might be drawn to recreational resorts and are keen on maintaining an active lifestyle. In the context of ski resorts, specifically, a quick dip in the pool or a lengthy soak in a warm spa are often welcome après-ski. However, the unique nature of recreational resorts raises a number of inherent liability risks for recreational resort owners.

Risky Business: Managing the potential liability of high risk sports facilities: Waivers & Vicarious Liability
by James Tomlinson
March 20, 2013

The inherent risks of active sports and recreational activities give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of sports resorts, camps, and other recreational facilities. Sports facilities have adapted tools, such as signed releases and waivers, and more recently, ski resorts have printed limitations provisions on lift tickets, in order to further reduce their exposure to liability, particularly deriving from the acts of staff. 

Sometimes a Swimming Pool is just a Swimming Pool
March 01, 2013

On February 7, 2013, the Court of Appeal for Ontario released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75. This case involved the unfortunate death of a guest while swimming in an unattended indoor pool at Blue Mountain Resorts on Christmas Eve, 2007.

The primary issue on appeal was whether Blue Mountain was required to report the death to the Ministry of Labour on the basis that it was a "death or critical injury incurred by a person at a workplace".

Hot Pursuit
by Hillel David
January 31, 2013

Ontario's appeal court was recently the latest stop for two subrogation claims that began their years-long journeys in Small Claims Court to obtain direction regarding who is responsible for damages caused by leaking hot water tanks - the homeowner (or his property insurer) or the company supplying the tank.

The rulings establish that consumers who lease or rent products will generally receive the protection afforded by the CPA throughout the terms of the leases. The ramifications for the insurance industry are very significant given that insurers pay millions of dollars in claims each year as a result of damages caused by such products.