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Arbitrations and Receiverships: Do they need to be legally distant? - Case Study: Petrowest Corporation v. Peace River Hydro Partner
by Howard Borlack and Anita Zamani
June 17, 2021

A receiver can sue on a contract yet disclaim the contract's arbitration clause, determined the BCCA in Petrowest Corporation v. Peace River Hydro Partners 2020 BCCA 339. The defendants applied for an order to stay an action brought against them by the receiver for Petrowest, pursuant to section 15 of the BC Arbitration Act (“the Act”). The defendants appealed the chambers judge's decision...


The perils of failing to close a purchase and sale agreement - Case Study: Joo v. Tran
by Howard Borlack
June 16, 2021

The decision of the Ontario Court of Appeal in Joo v Tran highlights the significant peril a purchaser of land can suffer when they fail to close based on an alleged failure by the seller to fulfill their obligations in the Agreement of Purchase and Sale (“APS”). The purchasers appealed the order to pay damages after they backed out of a land sale where the sellers failed to discharge all encumbrances on the land in accordance with the APS.


Unrealistic Coverage: Insurer tripped up by loose policy language - Case Study: Surespan Structures Ltd. v Lloyds Underwriters
by Hillel David and Howard Borlack
June 16, 2021

The recent decision in Surespan Structures Ltd. v Lloyds Underwriters showcases the critical importance of careful draftsmanship of policy wording, particularly in situations where the policy provides unusual or novel types of coverage, leaving little if any case law to guide the interpretation of the policy language.

The action arose from a large construction project having a total value of approximately $400 million. 


Misfeasance Claims against Crown Prosecutors - Case Study: Ontario (Attorney General) v. Clark, 2021 SCC 18
by Howard Borlack
May 18, 2021

The Supreme Court of Canada slammed the door shut on misfeasance claims against Crown prosecutors in one of their most recent rulings. In an 8-1 decision, the Court reinforced the immunity of Crown prosecutors in their prosecution of criminal matters due to their unique positions in the justice system that requires them to be free from fear of civil liability in the execution of their duties.


The Current State of the Law on Adverse Costs Insurance
by Van Krkachovski
May 07, 2021

This type of insurance has multiple names: adverse costs insurance, trial insurance, and after the event insurance. For the purposes of this paper, we will identify it as adverse costs insurance. This insurance policy protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial or even a motion.


Must an Insurer wait until Trial to Contest the Validity of the Policy? - Case Study: IT Haven v Certain Underwriters at Lloyd's
by Hillel David
April 06, 2021

A recent decision indirectly raises the interesting question: Can an insurer under a liability policy make an application, at an early stage of its conflict with the insured, for a declaration that the policy is void ab initio for material non-disclosure or misrepresentation? More particularly, can the insurer, facing a duty to defend application made by the insured, and especially when the insurer has no defence available under the policy per se, make that application in response to the insured's application? Or must the insurer find itself subject to an order that it has a duty to defend until a trial is held?


Litigation Loans and Adverse Cost Insurance - An Update - The Doctrines of Champerty and Maintenance
by Van Krkachovski
April 06, 2021

Following the publication of the article Litigation Loans and Adverse Cost Insurance in March 2021, the writers received a question regarding the interplay between the doctrines of champerty and maintenance and its effect on litigation loans.


Litigation Loans and Adverse Cost Insurance

This paper provides detailed information across all Canadian jurisdictions regarding:

  • Whether interest from litigation loans is recoverable by the plaintiff in Canadian actions, and
  • What the impact is of adverse insurance on litigation across Canada.

Being Proactive with Environmental Claims Case Study: Albert Bloom Limited v. London Transit Commission
by Howard Borlack
February 26, 2021

This matter involves the appeal of a third party's motion for summary judgement on the grounds of a claim being statute barred. The defendant, in this case, attempted to join the third party to the action several years after the claim began on the basis that they had no knowledge of their involvement until well after they replied to the plaintiff's claim. This case demonstrates, however, that what constitutes knowledge of a potential claim, and a party's obligation to further investigate potential claims when evidence is presented to them.


Winter Maintenance Contracts - Featured Case Study: Ruetz v Metro Canada
by Michael Kennedy
February 16, 2021

This case arose out of injuries sustained by an individual when ice allegedly fell from an above canopy onto her head as she was exiting a grocery store. The plaintiff sued the property owner (represented by Michael Kennedy at McCague Borlack LLP), who in turn sued its winter maintenance contractor for contribution and indemnity pursuant to a hold harmless clause in its contract.


Allegations are Subject to Higher Scrutiny When Made Against Personal Defendants - Featured Case Study: Matlock v. Ottawa-Carleton Standard Condominium Corporation
by Martin Smith
February 09, 2021

In Matlock v. Ottawa-Carleton Standard Condominium Corporation,1 McCague Borlack LLP's Martin Smith, on behalf of the Defendants, successfully opposed the Plaintiff's motion to amend his Statement of Claim to enhance his claim against the individual board member Defendants and add an additional board member as a party. In response, the Defendants also advanced a crossclaim striking the claims against the board member Defendants in their entirety.


Claim for Loss of Opportunity Damages - Case Study: Akelius Canada Inc. v. 2436196 Ontario Inc
by Howard Borlack
January 18, 2021

In Akelius Canada Inc. V. 2426196 Ontario Inc., J. Morgan ruled on the matter of whether a European based real estate investor who suffered a breach of contract by a seller in Toronto could be awarded damages based on a loss of opportunity to cash in on a local real estate boom.


Early Inquiries are Critical to Ensuring Inclusion of Defendants - Case Study: Amanda Ali v. City of Toronto
by Howard Borlack
January 18, 2021

In Ali v. City of Toronto, Master M.P. McGraw ruled on plaintiff's motion for leave to amend their statement of claim to add a party as a defendant to the action. Master McGraw denied this motion on the basis that the winter maintenance contractor the plaintiff wished to add was immediately discoverable and as such it was beyond the limitation period to add the party.


Disengaging Assets subject to a CCAA Proceeding - Case Study: Teliphone Corp. v. Ernst & Young Inc.
by Howard Borlack
January 18, 2021

This 2019 decision of the British Columbia Court of Appeal was the third in a trio of appeals regarding the topic of disengaging assets owned by insolvent entities subject to a Companies' Creditors Arrangement Act (“CCAA”) proceeding from assets owned by other affiliated entities that were not insolvent.


Statutory Thresholds and Deductibles in reference to Tort Damages in MVAs
by Van Krkachovski
January 14, 2021

The annual update to the statutory thresholds and deductibles for determining non-pecuniary tort damages arising from use or operation of vehicles has now been released. See Chart...