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Attempted car-jacking qualifies as an accident pursuant to the Statutory Accident Benefits Schedule (SABS)
by Michael Kennedy
October 22, 2011

A plaintiff drove his vehicle into a gas station and was assaulted by multiple attackers while his engine remained running. The plaintiff was ultimately able to put his vehicle into gear and escape, but not before sustaining serious injuries. Worthy of note is that the plaintiff's insurer paid him $73,061.27 in accident benefits before taking the position that the plaintiff was not involved in an accident, consequently seeking repayment of all amounts paid. Is a car jacking considered an "accident"?


Reckless driver solely at fault for single-vehicle accident despite poor road construction
by Michael Kennedy
October 22, 2011

A driver was speeding along an under-construction roadway that transitioned from asphalt to loose gravel. The motorist's velocity greatly exceeded that of both temporary and permanent speed advisory signs. The driver ultimately lost control upon the gravel road and was tragically killed. The motorist's family sued the regional municipality and road maintenance company for allegedly failing in their duties to properly maintain the road. Who's at fault?


Repairing a vehicle is not an ordinary use to which vehicles are put
by Michael Kennedy
October 22, 2011

The claimant was hired to effect body work repairs to a truck that he normally operated. The claimant's last memory was standing on the hood of the truck. He was found the next morning in a pool of blood and awoke in the hospital a few days later. He had sustained serious fractures and a brain injury. Arbitrator Feldman inferred from the evidence that the claimant had fallen from the truck while attempting to effect repairs to the roof. Is this an accident as defined by the Schedule?


Change in circumstances permits multiple applications for determination of catastrophic impairment
September 26, 2011

In McLinden v. Payne (2011 ONCA 439), the Ontario Court of Appeal considered whether s. 40(4) of the Statutory Accident Benefits Schedule precludes a person from making more than one application for a determination that he or she suffered a catastrophic impairment.


Legal determination that an at-fault motorist is underinsured is required before a plaintiff's OPCF 44R coverage is triggered
September 26, 2011

In Maccaroni v. Kelly (2011 ONCA 441), the Ontario Court of Appeal set aside an order dismissing an insured's action against her insurer, ING, for damages claimed pursuant to an OPCF 44R underinsured motorist endorsement. In this particular case, both the tortfeasor's insurance policy and the appellant's OPCF 44R endorsement had coverage limits of $1,000,000.00.

In the original action arising from the motor vehicle accident at issue, Co-operators General Insurance Company added itself as a statutory third party pursuant to s. 285 of the Insurance Act, R.S.O. 1990 c. I.8. Co-operators took the position that its insured (the tortfeasor) was in breach of the statutory conditions of his policy and that, as a result, the insured's policy limits were reduced to $200,000.00 pursuant to s. 258(11) of the Insurance Act.


Clarifying pollution exclusions in commercial insurance policies
August 18, 2011

The Ontario Court of Appeal recently delivered a decision interpreting the pollution exclusion commonly found in commercial general liability (CGL) insurance policies. Such exclusions typically preclude coverage for the insured's liability for the release or escape of pollutants at or from the insured's premises.


Motor and Marine Carrier Cargo Claims
by Stephen Barbier
June 06, 2011

Shipment of goods from one place to another involves complex networks of players, from shippers to cargo carriers, load brokers to stevedores, consignors to freight intermediaries, and so on. Given the volume and value of goods being shipped daily across the country and the world, international and domestic laws have been developed in order to ensure that the interests of the various parties are protected in the event that the goods are damaged while in transit.


Product Liability: Jurisdictional Issues In Canada
May 31, 2011

The proliferation of international trade and commerce has led to increasingly complex product liability litigation with potential parties located across all parts of the globe. Simply stated, a person could be hurt in Ontario by a product designed in Germany, sold in Pennsylvania, and assembled in India with parts manufactured in Japan. With each party in the chain of commerce a potential defendant, there are important jurisdictional issues which arise in the product liability context.

In cases of multi-jurisdiction litigation, three issues frequently arise...


Identifying and Addressing the Limitations of Waivers and Permission Forms in a School Setting
April 14, 2011

It is common practice for schools to offer enhancements to the curriculum in the form of field trips and extra curricular activities. These trips and activities may have certain risks associated with them depending on the activity. Examples of activities with risks associated are football, rugby, ski trips and climbing.

Two options to manage the risks associated with these types of activities are waivers and permission forms.


Suspending the Ability to Litigate
April 14, 2011

Difficult and tenacious litigants are individuals who are exceedingly dedicated and vindictive in their litigation. They are individuals who often have multiple actions against the same or different individuals or corporate entities, frequent appeals, actions against employees of corporations, actions that are obviously not going to succeed, frequent interlocutory motions and failing to pay costs. These individuals in many cases, are unrepresented or if represented, they may frequently change counsel. This type of litigant will become a source of frustration and for opposing counsel and they will increase the cost of the litigation. It is important for counsel to have a strategy to dispose of this type of claim expeditiously.


The Superior Court Expands Who is Considered a Child of the Marriage Under the Divorce Act With Respect to Child Support
April 04, 2011

Whether an adult child who has completed a post-secondary degree and contemplating a second post-secondary degree will be considered a child of the marriage under the Divorce Act and eligible for child support is one of the most highly contested issues with respect to child support in family law.

This issue essentially dictates when a parent's obligation to pay child support ends. 


The Modified Duty of Care for Ski Resorts and Recreational Landowners: A Case Note on Schneider v. St. Clair
April 04, 2011

In drafting the Occupiers’ Liability Act (“the Act)”, the Ontario Legislature balanced its concern for the safety of people entering a premises with the competing interest that occupiers be encouraged to allow for recreational use of their property.

Because of these opposed considerations, Section 4(4) of the Act provides for a lower standard of care where occupiers allow individuals to make recreational use of their premises.


Ski Resort Liability
by James Tomlinson
March 02, 2011

The inherent risks of active sports such as skiing give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of ski resorts. Ski resorts have developed a number of important and evolving legal strategies to limit their exposure to such claims. These strategies have evolved with the changes in the law over time and continue to grow with it. 


Spectator Liability in Canada: An Overview
by Alan S. Drimer
March 02, 2011

A spectator that becomes injured during the course of a sporting event will generally commence an action against the occupier of the facility where the sporting event was held. Occasionally, the action will include the individual participant, team, league, or others that may be appropriate in the circumstances.

In determining whether an occupier has in fact discharged its duty, the courts take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information on what the industry standard is for safety precautions in a given sport.


Sports Camp/Clinic Liability
by Martin Smith
March 02, 2011

In the context of sports camps, the risk for insureds lies in claims made against them in negligence. Specifically, insureds are at risk of patrons at a day camp making allegations that they failed to fulfill the duty of care owed to them to keep them safe while engaging in a potentially dangerous activity offering horseback riding.