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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.

Supreme Court Reconsiders the Meaning of "Accident"
May 31, 2010

The Supreme Court of Canada recently released its decision in the case of Co-operators Life Insurance v. Gibbens, 2009 SCC 59, in which an insured sought coverage under a group accident insurance policy for having contracted a sexual disease after having engaged in unprotected sex with a number of women. 

Ottawa-Carleton Standard Condominium Corporation 687 v ING Novex (1)
by Hillel David
May 31, 2010

Three important, and in two of the three instances perhaps questionable, principles are considered in this recent decision of the Ontario Court of Appeal. The factual background of the case may be briefly stated as follows:  There was a fire protection system in the insured condominium complex.  As a result of a faulty design/installation an event occurred, resulting in flooding. Although only part of the equipment was damaged, the insured replaced, and made a claim under the policy for, all.  This was based on the position that the system as a whole was damaged and the unsupported allegation that it was a reasonable and responsible step to replace it in its entirety...

The Duty to Defend, Revisited
May 31, 2010

Many insurers for maintenance contractors have taken the position that so long as there is some allegation in the statement of claim that touches on some independent act of negligence on the part of the property owner, there is no duty to defend under this clause. However, last year in Riocan Real Estate v. Lombard, Madam Justice Hennessey concluded that so long as the “true crux” of the claim falls within the scope of the duty to defend...

Bill C-311: The Climate Change Accountability Act
May 31, 2010

On May 5, 2010, Bill C-311, the Climate Change Accountability Act (the “Act”) was passed by the House of Commons. The Act will require that the federal government set regulations to attain a reduction in greenhouse gas emissions to 25 percent below 1990 levels by 2020. The Act also sets a more aggressive long term target to bring greenhouse gas emissions to 80 percent below 1990 levels by 2050.

Whether Sexually Transmitted Diseases Contracted During Unprotected Sex Meet the Definition of Accident
April 30, 2010

When an individual sustains losses from personal injury from illness and then seeks to have their accident insurance policy cover these losses, decisions must be made as to whether these losses are covered by the policy and the specifically, if they fit within the definition of accident.  Throughout the jurisprudence, the definition of accident has been the subject of exceedingly complex litigation.