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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.

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.