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Limitation Periods in Canada
September 30, 2009

Limitation periods vary across Canada, but generally range from 1 to 2 years for most causes of actions. The recent trend in Canadian courts has been to strictly enforce limitation periods, making it important for subrogation professionals handling claims in Canada to be mindful of the applicable limitation period and act timely and efficiently to ensure that the opportunity for recovery on potential claims is not lost.

Serial and Independent Concurrent Causes in Insurance Law
by Hillel David
August 31, 2009

Until the decision in C.C.R. Fishing Ltd. v Tomenson Inc., the element of causation in insurance law, particularly in the context of insuring provisions, revolved largely around the concept of proximate cause, meaning the effective and dominant cause of the loss.  Since that decision, the focus has shifted to a consideration of the impact of concurrent causes, both in regard to insuring agreements and exclusion clauses.

An area that has not, however, received the attention it merits is the distinction between serial and independent concurrent causes.

SCC Narrows 'Faulty Design' Exclusion
January 15, 2009

A long-standing insurance dispute over the failure of a massive tunnel boring machine (“TBM”) ended in late November 2008 with a ruling by the Supreme Court of Canada awarding nearly $40 million to the insured. The decision addresses the “faulty or improper design” exclusion common to most “all-risks” property policies.

Driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim
December 31, 2008

The recent Court of Appeal decision in Miller v. Carluccio (2008), 91 O.R. (3d) 638 (C.A.) makes it clear that driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim. Although the case was decided on the issue of coverage, it has important implications for subrogation.

Ontario Court of Appeal confirms that home buyers are not barred by the provisions of the Ontario New Home Warranties Plan Act from pursuing remedies in the courts
December 31, 2008

Until recently, there have been conflicting decisions as to whether the Ontario New Home Warranties Plan Act (the “Act”) constitutes an exclusive statutory scheme for dealing with claims by new home buyers against builders. The Court of Appeal has recently confirmed that home buyers can pursue remedies against builders in the courts.

On Your Bike
by Van Krkachovski
November 30, 2008

A municipality's obligations are the same for bicyclists as they are for pedestrians. It is obligated to keep the road and sidewalks in a reasonable state of repair and that responsibility covers not just problems that can be readily spotted but those hazards that may not be so obvious as well.

Lights and Siren
by Van Krkachovski
August 31, 2008

Whether it is a police officer responding to a call, an ambulance rushing to help a critically ill patient, or a fire truck speeding to a fire, intersections crashes are the most common and almost always the most serious collisions involving emergency vehicles.

Cracks in the Defence, Sidewalk Maintenance and Municipal Liability
by Van Krkachovski
May 31, 2008

A thumb is about an inch wide which makes a handy rule when it comes to sidewalk deflections. As a rule of thumb, if a sidewalk has a crack or deflection of more than a thumb width, a municipality may well be liable for any injuries resulting from a trip or fall.

Escalating Damages in Canada
by Van Krkachovski
February 29, 2008

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus on this paper is on the changes that have occurred with respect to: Future Care Costs, guardianship and management fees, and risk premiums.

Treading on Thin Ice, Keeping Sidewalks Safe
by Van Krkachovski
January 31, 2008

Municipalities are responsible for keeping sidewalks clear of snow and ice and that means they may also be liable for any personal injury damages resulting from a slip and fall. But getting a handle on just what keeping sidewalks in a "reasonable state of repair" means can be as slippery as the footing underneath.

E-Discovery: Overview and Latest Developments in Ontario and Canada
by Howard Borlack
August 31, 2007

In today's ever increasing technological society, more so then ever companies and individuals are relying on electronic means to communicate, exchange and store documents and infomation. Whether it is via email or word processing, companies and individuals are moving away from hard copies and are depending increasingly on electronically stored information (ESI). More importantly and sometimes unbeknownst to the companies, individuals or their counsel, information and documentation are being stored indefinitely well beyond the previous retention of paper stored documents. ESI has created new challenges for the discovery process and implications for litigants.

Tort Liability of a Manufacturer for Defective Components
by Hillel David
July 31, 2007

Few manufacturers produce every part of their product. Almost all incorporate one or more components purchased from independent suppliers.  Many "manufacturers" are, in truth, little more than assemblers of components that they themselves to not make. This raises the following issue: where there is no contractual relationship with the claimant and no actual or constructive knowledge of any defect on the part of the manufacturer, should the manufacturer be liable for injury arising from a defective component purchased fro a reputable supplier?

Cross Border Issues: The Current Automobile Insurance Legislations in Ontario
by Van Krkachovski
March 27, 2006

The automobile insurance legislation in Ontario has undergone numerous amendments over the past 15 years which began with the introduction of a partial no-fault system in 1990 that replaced a pure tort system. As a result, a person injured in a motor vehicle accident as two types of claims...

Proving Causation Where the But for Test is Unworkable

On a practical level, causation simply means that the current condition or circumstances would be different had an act or omission not occurred. The alteration in circumstances can be positive, negative, or just a maintenance of the status quo.  The critical matter is that the situation would not be what it is had there been no act or omission; otherwise, the act or omission cannot be said to have had any effect on the current situation.  The “but for” test is merely another way of expressing this concept of change or difference in the current situation that would not otherwise have been present. 

Social Host Liability - A Fresh Approach
by Hillel David
July 31, 2005

Since the landmark decision in Menow v Honsberger, the potential liability of taverns and other commercial hosts for alcohol-related injuries has been well established.  In the 30-plus years since that decision, however, social hosts have received a free pass in cases where their involvement in the intoxication which led to the injury has been real and significant.  The purpose of this article is to suggest a new approach to the consideration of the liability of social hosts, one that promotes the policy considerations essential to this type of claim and, at the same time, accords with basic principles of law.