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Lessees may recover under a lessor's insurance policy
December 28, 2012

The Ontario Court of Appeal recently held in Siena-Foods Limited v. Old Republic Insurance, 2012 ONCA 583, that a lessor's automobile insurance policy may provide coverage for damage to a lessee's property. 

Siena-foods Limited (“Siena”) rented a truck from Ryder Canada (“Ryder”) to transport a food-packaging machine. The truck was involved in a head-on collision and the food-packaging machine was damaged. Siena sought compensation from Ryder's insurer, Old Republic, for recovery for the damaged machine.

Dismissal with just cause is assessed through contextual approach
December 13, 2012

The Court of Appeal for Ontario upheld a trial judge's finding of dismissal with just cause, concluding that the decision was based on a contextual approach that analyzed the entire factual record. The decision warns employees to be mindful of their language when criticizing their employers among other things. Read the full case... 

An introduction to cargo theft
December 03, 2012

Cargo theft: not a victimless crime. Cargo theft has become a widespread and major challenge for transportation industries in many countries around the world, including Canada. Cargo theft has its roots in a $65 billion Canadian industry—trucking is responsible for transporting 90% of all consumer products and foodstuffs as well as 75% of the goods traded with the USA. The trucking industry also employs hundreds of thousands of people. 

Two deductibles applied when there are two accidents
November 15, 2012

In Martin v. Fleming 2012 ONCA 750, the Ontario Court of Appeal affirmed the decision of the Ontario Superior Court, to stack deductibles, where there are multiple accidents when there is a global assessment of damages.  

Implications of the New Ontario Not-for-profit Corporations Act, 2010
October 24, 2012

Instead of amending the Ontario Corporations Act  (OCA) to address antiquated flaws dealing with not-for-profit corporations, the Ontario Legislature opted to start fresh with a new statute, removing not-for-profit corporations from the jurisdiction of the OCA. On January 1, 2013, the Ontario Not-for-profit Corporations Act, 2010 (the “ONCA”) comes into force. The ONCA's main objective is to allow not-for-profit corporations to operate within a simpler, more logical operational structure.  This legislative change will affect 16% of all employees in Ontario.  Once the ONCA comes into force next January, the new legislation will give effect to these principles in six key ways. Read about this and which organizations will be affected. 

Part II: Litigating Oil Leak Claims: Trucking and Marine Accidents: Oils Spills and Liability for Environmental Remediation
by Van Krkachovski
October 03, 2012

When an accident occurs, the typical liability issues arise. Upon receipt of a claim, insurers are prompted to consider a number of important questions. Such questions include whether the accident was a result of the action or inaction of the driver; what if anything could have been done to avoid the accident or mitigate the consequences; what kinds of contributing factors may have been at play (such as the road or weather conditions), among other considerations.

When an accident involving a transport truck or marine vessel occurs, there are also often cargo and fuel considerations and more specifically, environmental considerations relating to fuel and cargo spills. It is this very issue that some insurers have been failing to turn their minds to; more specifically, the environmental liability aspects of accidents that result in fuel or oil spills, both from trucks and ships.

This paper endeavours to elucidate some of the relevant statutes to consider when such an accident occurs and shed light on the appropriate steps an insurer ought to take upon receiving such claims.

FSCO orders insurer to fund medicinal marijuana purchase
by Michael Kennedy
October 01, 2012

A recent FSCO decision has found marijuana to be payable by accident benefits insurers in certain circumstances. In T.N.and Personal Insurance Company of Canada (FSCO A06–000399), a catastrophically impaired claimant sought, among other benefits, entitlement to the purchase of medical marijuana. While the claimant had used marijuana in the past, her use (which was approved by Health Canada) had increased since the accident. The insurer unsuccessfully argued that the claimant's marijuana treatment was experimental and therefore not payable. Find out why...

A "catastrophic impairment" requires only one (out of four) functions at the marked impairment (class 4) level
by Michael Kennedy
September 30, 2012

It is now easier for injured claimants with psychological impairments to qualify as “catastrophically impaired” and consequently be entitled to enhanced statutory accident benefits. The Court of Appeal inPastore v. Aviva Canada Inc., 2012 ONCA 642, has held that a “catastrophic impairment” requires only one (out of four) functions at the marked impairment (class 4) level.

As accident benefits insurers are aware, paragraph (g) of subsection 2(1.1) of the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996 defines “catastrophic impairment” to include the following...

Occupiers' Liability and Sports Fans: Legal Implications and Risk Management Strategies for Sports and Entertainment Facility Operators
by James Tomlinson
September 26, 2012

Fans attend sporting events every day across Canada and throughout the world. Many fans are there to cheer on their favourite teams, witness a historical game between long-standing rivals, and simply enjoy the traditions associated with attending such an event. These games may attract large crowds and stir emotions, particularly as there is a culture of alcohol often associated with professional sports. While one may reasonably expect to witness a player hurt themselves on the field or on the ice, spectators do not often expect that they themselves will be injured.

This paper examines a range of situations in which liability may attach to sports and entertainment facility owners and operators when spectators are injured during sporting events, as well as how such liability may be avoided. Attention is given to the courts’ interpretation of the legislative provisions in Ontario’s Occupiers’ Liability Act. This area of law serves as an abundant source of Canadian sports law jurisprudence. The discussion proceeds with an outline of categories of available defences to spectator claims, followed by an examination of select issues of significance to Canadian sports facility owners and operators. Finally, new frontiers in spectator liability are explored, as well as risk management strategies for avoiding spectator claims.

Szilvasy v Reliance Home Comfort
by Hillel David
September 24, 2012

On December 7, 2011 the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks.  In each case the hot water tank, located in the basement of the homeowner, developed a leak which resulted in damage to the home and contents.  Leave to appeal to the Court of Appeal has been granted in both cases.  The date for the hearing of those appeals has not yet been set.

The major issue in these cases is the question whether the condition of fitness for intended purpose that is implied in the lease of a product that is subject to the Consumer Protection Act will apply not only at the outset of the lease, but throughout the term of the lease.

Coverage Issues in the Manufacturing/Distribution Chain
September 24, 2012

The purpose of this paper is to outline some coverage concerns that can arise in the manufacturing and distribution chain. These issues of coverage apply equally to those parties seeking to obtain cover from another or seeking to avoid a coverage obligation being imposed upon it. This general discussion of coverage issues applies within the context of vendors, distributors and manufacturers1facing a claim by a plaintiff, or many plaintiffs, arising from harm incurred through the use of a product.

The following discusses the notion of risk transfer in this distribution chain, the underlying rationale of vendors in seeking to transfer risk, and the possible considerations applicable to affixing liability along the distribution chain.

Distributors' Liability in Canada for Defective Products
September 24, 2012

In today's expanding global marketplace, product liability claims are common. Typically, these claims involve a chain of defendants of whose hands the product has passed through. Liability stemming from negligence can occur at any stage of the process, from design, to manufacturing, to consumption. Thus, anyone involved in the process of creating a product can find themselves held liable when the product is defective and/or if the product injures a plaintiff.

The distributors of products typically have no involvement in the manufacturing of the products that they distribute and put into circulation.3 However, a distributor's negligence could contribute to or cause a plaintiff's injury. As a result, distributors are not held strictly liable for every defective product that they distribute. The distributor's liability will depend on...

Muskoka Fuels v. Hassan Steel Fabricators Limited: Application of the Sale of Goods Act to Manufacturing Defects
September 24, 2012

The case of Muskoka Fuels v. Hassan Steel Fabricators Limited raises some interesting questions regarding the application of the Sale of Goods Act to claims involving manufacturing defects. In particular, Muskoka Fuels, which involved the environmental contamination of land due to the failure of a diesel fuel tank, raises questions regarding the extent to which the cause of a defect must be proven in order for liability under the Sale of Goods Act to be established.

At trial, Justice Healey came to the following conclusions based on the evidence...

Gordyukova v. Certas Direct Insurance Company, 2012 ONCA 563
September 13, 2012

On August 30, 2012, the Ontario Court of Appeal released the long awaited decision of Gordyukova v. Certas Direct Insurance Company.

In 2001, the claimant, Gordyukova, was involved in a MVA. She sought statutory accident benefits from her insurer. After an unsuccessful FSCO mediation regarding her entitlement to medical benefits, she issued a Statement of Claim in 2002 seeking damages and a declaration that she was entitled to continued accident benefits.

At issue in the case is the interpretation of the limitation period set out in section 281.1(1) of the Insurance Act, which provides that an arbitration or court action must be commenced within two years.  Read full article...

UPDATE: Liability Waivers
by James Tomlinson
August 27, 2012

The British Columbia Court of Appeal recently released a decision on the case "Loychuk v Cougar Mountain Adventures" which has significant implications for the law regarding the enforceability of liability waivers. 

At the trial level, the plaintiffs sought damages for personal injuries sustained in a zip-lining accident. The tour involved strapping a person into a harness, which would then be sent down a line, reaching speeds of up to 100 km an hour over a distance, on some lines, greater than 1,500 feet. 

This article reviews many aspects of the case including the two elements that must be established before a contract can be set aside on the grounds of unconscionability; and a three stage analysis which must be applied in order to determine whether a signed release of liability is valid.