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Fixed term employees no longer have a duty to mitigate their damages - Bowes v. Goss 2012 (ONCA)
August 15, 2012

It is well established that employees who are subject to indefinite term contracts are required to mitigate their damages by searching for alternate employment upon termination of their employment contract. However, in Bowes v. Goss (cite), a recent Ontario Court of Appeal decision, the court ruled that employees subject to a fixed term contract will not be subject to the same requirement, even where the employment contract between the parties is silent on the duty to mitigate...

Carriage and Control of Litigation in Subrogated Actions
August 14, 2012

The Ontario Court of Appeal's recent decision in Zurich Insurance Company Ltd. et al. v. Ison T.H. Auto Sales Inc. sets out important principles on the issue of who has the right of carriage and control of litigation in circumstances where there is a combined subrogated and uninsured claim.

Demers v. Monty, 2012 ONCA 384
July 03, 2012

The plaintiff, injured in a car accident, sued the at-fault motorist for damages including, inter alia, loss of income and loss of earning capacity. At the date of loss, the plaintiff was employed and she continued her pre-accident employment for several years after the accident, but ultimately ceased working “due to disability”. She applied for and received disability benefits through the Canada Pension Plan (CPP) and Hospitals of Ontario Pension Plan (HOOP).

A motion was brought to determine if the CPP and HOOP disability benefits would be deductible from any award for loss of income or loss of earning capacity and if the deduction should be gross or net of income tax.

FSCO Counsel Meeting May 25th: Current Issues
June 14, 2012

At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.

Some of the issues discussed during the meeting held on May 25, 2012, included: a discussion on the Parveen v. Aviva decision, Notifying FSCO when files settle, Consent failures, and Outsourcing mandatory mediations.

UPDATE: Downer v. Personal Insurance
by Michael Kennedy
May 10, 2012

Justice Murray of the Ontario Superior Court of Justice held on August 23, 2011 that an assault during an attempted car-jacking qualified as an accident pursuant to the Statutory Accident Benefits Schedule. A synopsis of this decision and its implications for the insurance industry was reported in the October 2011 edition of McCague Borlack's Transportation Newsletter.

The Personal Insurance Company appealed Justice Murray's ruling and, on May 9, 2012, the Ontario Court of Appeal overturned Justice Murray's decision, in part.

Recent Decision: Case Summary: Aweys and Intact Insurance
April 15, 2012

Arbitrator Richard Feldman released the decision in Aweys and Intact Insurance on March 19, 2012.

Four Insurance companies brought a motion for a stay of proceedings in 15 arbitration cases pending at the Financial Services Commission of Ontario (FSCO). The motions were heard together.
The cases all involved claims for statutory accident benefits submitted by or on behalf of insured persons from three rehabilitation facilities.
The Insurers take the position that the Facilities are related to each other and that many of the claims submitted were of dubious merit, that the Facilities engaged in conduct that was deliberately intended to unjustly enrich the Facilities, and in some instances, allegations of misrepresentation to the Insurers.

FSCO Counsel Meeting Summary: How to address the mediation backlog
April 09, 2012

At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.  At the meeting held on March 30, 2012, the main topic was How to address the mediation backlog.

While the volume of Applications for Mediation being filed and the limited number of FSCO mediators available to handle them are the primary source of the problem, this article will address three factors that are exacerbating the problem.

A Challenge to Anonymity for Donor Offspring
March 31, 2012

The British Columbia Adoption Act1 and Adoption Regulation2 provide adopted children with access to medical and social information about their biological parents. But the same legislation and its associated regulations fail to include children conceived through sperm or egg donors, keeping them from accessing this information.

In a groundbreaking ruling, the Court ruled that certain provisions within this legislation discriminate against donor offspring vis-à-vis adopted children, even though both groups have similar needs for information about biological parents...

Concussions and Injuries in Canadian and American Contact Sports: A Legal Perspective
by James Tomlinson
March 28, 2012

The prevalence of concussions and other head injuries suffered by athletes in contact sports, such as football, hockey and soccer, has garnered significant attention in Canada and the United States of America (USA). An athlete’s decision to return to play following an injury typically involves multiple parties, such as the coach, team, sports organization or school board, thus, exposing these parties to potential legal liability.

Therefore the question that emerges is which of these parties, or a combination thereof, bears the legal responsibility for the injuries suffered by these athletes?

Product Liability Claims in Sports: The Decision in More v. Bauer Nike Hockey Inc.
March 28, 2012

In Canada, all amateur hockey players playing organized hockey are required to wear a Canadian Standards Association (CSA) approved helmet. Indeed, while CSA approved helmets are required, any helmet lacking CSA approval is a prohibited product under the Hazardous Products Act and is not permitted to be sold in Canada. Given the popularity of ice hockey in Canada and the risk of serious injuries, such as concussions, while playing hockey, it is not surprising that manufacturers of ice hockey helmets are open to potential liability in negligence for the design and manufacture of their products.

Bad faith is not a claim governed by the insurance contract
by Michael Kennedy
March 25, 2012

The Ontario Court of Appeal released a decision on March 22, 2012, that deals with an insurer's alleged failure to settle a third party claim in a timely manner. The court decided that this claim for "bad faith" is not a breach of contract, but rather a breach of the independent duty to act in the utmost good faith.

Dundas v. Zurich Canada (2012 ONCA 181) involved a motor vehicle accident in which plaintiffs sued an at-fault motorist for an amount in excess of the insured's policy limits. Read why this case is important to the insurers...

Apportioning Liability in Single-Vehicle Accidents: The Clash between Contributory Negligence, the Driver’s Liability, and a Municipality’s Duty of Care
March 01, 2012

When single-vehicle accidents lead to a fatality, apportioning liability is often a daunting task for courts to undertake. In Morsi v. Fermar Paving Ltd., the Ontario Court of Appeal overturned a trial judge’s decision. This case is significant for the insurance industry as it reaffirms the duties owed by municipalites and outlines the test that courts take when apportioning liability in a single-vehicle accident.

Accessibility for Ontarians with Disabilities Act: How to Comply with the Customer Services Standard
February 29, 2012

The Accessibility for Ontarians with Disabilities Act (AODA) came into force in 2005 with the goal of making Ontario completely accessible for persons with disabilities by January 2025. The AODA mandates the creation of standard development committees in five general areas: Customer Service, Transportation, Employment, Information and Communication and Built Environment.

To date, only the Customer Service Standard has been enacted, with the Accessibility Standards for Customer Service Regulation (CSS) coming into force on January 1, 2008. The CSS sets out the requirements for ensuring that providers of goods and services in Ontario have policies in place that accommodate the needs of customers with disabilities.

Starting on January 1, 2012, almost all businesses operating in Ontario will be required to comply with the CSS. The CSS applies to: 

Recent Decisions: Mediations not occuring within '60 days' deemed to have failed
February 24, 2012

Two recent decisions, one of the Ontario Superior Court, the other an arbitral decision of the Financial Services Commission, have interpreted the “60 day” mediation provisions at section 19 of the Dispute Resolution Practice Code as mandatory. Where mediation does not occur within 60 days, the mediation is deemed to have failed, and the insured person may pursue arbitration or litigation. Read full article including the case summaries...

Case Study - Kusnierz v. Economical - Decision from the Court of Appeal
January 06, 2012

On December 23, 2011, the Ontario Court of Appeal released its decision in Kusnierz v. Economical, 2011 ONCA 823 dealing with the issue of whether a trier of fact is to combine physical and psychological impairment when determining whether a person is “catastrophically impaired” as it relates to "impairment of the whole person" under section 2(1.1)(f) of the Statutory Accident Benefits Schedule (SABS).   Read the full case summary... | Read the Court Decision...