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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.


Product Recall in Canada 2011
February 28, 2011

The Canadian chapter from the text entitled Product Recall has been updated for 2011.  The text is a comparative analysis of product recall legislation in 26 jurisdictions worldwide. Product liability law in Canada is governed by the common law in all provinces and territories except Quebec which is a civil law jurisdiction. While there are some differences in the legislation and case law across the common law jurisdictions, the law is fairly similar. The answers provided in this chapter are based on product liability law in the common law jurisdictions of Canada although some references to Quebec civil law are also included. 


Court holds there is no duty to defend when policy limits are exhausted
by Michael Kennedy
February 28, 2011

In Dominion of Canada v. Kingsway,1 the Ontario Superior Court of Justice addressed an insurer’s duty to defend in cases where an insured’s policy limits have been exhausted. The facts were such that a defendant’s policy limits of $200,000.00 were offered and accepted at mediation on the condition that a plaintiff with Family Protection coverage through Dominion could pursue her underinsured claim against her own insurer. Dominion would then receive an assignment of the judgment and could pursue the defendant personally for contribution.


Court voids claims waiver on basis of power imbalance between adjuster and plaintiff
by Michael Kennedy
February 28, 2011

In Jones v. Jenkins,1 an ING adjuster negotiated a settlement with a self-represented plaintiff. The plaintiff was seriously injured in a motor vehicle accident, but had not commenced an action against ING's insured, who was allegedly at fault. ING's adjuster directly corresponded with the plaintiff, requesting settlement proposals and making counter-proposals until a final agreement of $19,411.00 was reached and a release was signed. The plaintiff subsequently retained counsel and a Statement of Claim was issued. The defendant and his insurers argued that the signed release barred the proceeding.


New Canadian Legislation Alert - CCPSA
January 04, 2011

On December 14, 2010, the Parliament of Canada passed the Canada Consumer Product Safety Act (CCPSA).  Royal Assent, the last step required in the creation of new law, was granted on December 15, 2010.  It is anticipated that an accelerated implementation plan will be developed by the Federal Government in order to facilitate the CCPSA coming into force in the next few months. 


Opening Statements Should Be Persuasive Not Insulting
December 31, 2010

When crafting an opening statement for trial, the opening statement is an opportunity to present your case and evidence to the jury and not an opportunity to attack the other party or make argument.

The purpose of this article is to discuss the decision in Spittal v. Thomas, [2006] O.J. no. 1617, where Justice Glass considered a motion for the judge to instruct a jury to correct improper remarks by plaintiff’s counsel in an opening address.


Plaintiffs Cannot Bargain Away Their Insurer's Rights and Still Hope to Recover from their Insurer
November 30, 2010

During multiparty motor vehicle accident litigation, plaintiff’s counsel often claims tactical advantage against one defendant by threatening to settle with other defendant.  If the plaintiff is not careful, this type of settlement can prove improvident and will frustrate the plaintiff’s efforts at further recovery.


Enough is Enough: When Will Plaintiff’s Case Be Dismissed For Delay
November 30, 2010

A Case Comment on the Court of Appeals’ Decision in Riggitano v. Standard Life Assurance Co.

In some circumstances, a plaintiff will initiate an action against a defendant and then fail to take the necessary steps to move this action towards a trial.


The Use of No-Fault Reports by a Tort Defendant
by James Tomlinson
September 22, 2010

The case of Beasley and Scott v. Barrand,1 decided by Moore J.of the Ontario Superior Court, appears at first blush to be a bar to the use at trial by a tort defendant of expert reports commissioned by a no-fault insurer. However, rather than barring the use of such reports by tort defendants, a careful review of this case reveals that it provides guidance on the proper practice to be followed by defence counsel when they seek to do so.


The Impact of the New Pleasure Craft Operating Card
June 30, 2010

A brief history lesson comparing drivers’ licenses and the PCO Card and some thoughts on the future.  


Journalist-Confidential Source Privilege May Exist In Canada
May 31, 2010

A journalist does not have the constitutional right to protect a confidential source. That is the ruling of the Supreme Court of Canada in R v National Post, released on May 7th.