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The Pendulum Swings towards Employer-Driven Mandatory Vaccination Policies
by Martin Smith
September 20, 2021

Many employers are beginning to implement mandatory vaccination policies in their workplaces. In doing so, they must balance the risks to their businesses and employees of a workplace outbreak of COVID-19 versus employees' human and contractual rights, along with privacy concerns.

You got hacked: Limits on liability - A Case Study of Owsianik v. Equifax Canada Co, and Intrusion of Seclusion
by Howard Borlack
July 15, 2021

In Owsianik v. Equifax Canada Co (Equifax), 2021 ONSC 4112, the Divisional Court was required to determine the scope of the court to intervene when Equifax's client stored data was hacked by an unknown third party. Specifically, the Court needed to determine whether the Court created tort known as intrusion upon seclusion would include the failure to protect people's private data against a third-party intrusion.

Enforceability of Waivers: An Update - Case Study: Arksey v. Sky Zone
by Alan S. Drimer
July 08, 2021

On June 28, 2021, the Ontario Superior Court of Justice led by Myers J., released a decision in Arksey v. Sky Zone Toronto, 2021 ONSC 4594.

Generally, this was a summary judgement based on the terms of a waiver and the release of liability by the plaintiff. Specifically, whether the plaintiff waived her right to sue arising from injury caused by the defendant's failure to supervise and follow its injury policies.

Punitive Damages v Employee Contributory Negligence Case Comment: Eynon v. Simplicity
by Howard Borlack
July 06, 2021

The decision of the Ontario Court of Appeal in Eynon v Simplicity Air is a significant decision on punitive damages in Canada. The Court upheld a $150,000 jury award of punitive damages in favour of an employee. This decision warns employers that if those left in charge of the workplace create a culture within the company where employees have little regard for the importance of safety practices in the workplace and engage in highly reprehensible misconduct, they can be held liable for significant punitive damages regardless of an employee's contributory negligence leading up to an accident.

All-Inclusive and Without Costs Rule 49 Offers
by Van Krkachovski
June 29, 2021

In 1985, Rule 49 of the Rules of Civil Procedure was introduced to encourage parties to make and accept reasonable offers to settle. This has had the effect of discouraging parties from delaying the judicial process and increasing costs unnecessarily. Rule 49 has had a considerable effect on litigants by virtue of the risk of a large costs award following trial.

To trigger the cost consequences under Rule 49, an offer must meet strict requirements:

Loss of Care, Guidance, and Companionship Damages: A New Benchmark? Case Study: Moore et al., v. 7595611 Canada Corp.
by Alan S. Drimer
June 28, 2021
On June 25, 2021, the Ontario Court of Appeal, led by Justice Fairburn in Moore et al., v. 7595611 Canada Corp., 2021 ONCA 459, upheld a $1,326,000 jury award arising from a harrowing set of circumstances in which a 23-year-old woman suffered severe burns, leading to her death.
The jury found that the appellants fell below the standard of care of a reasonable landlord and found them responsible for Alisha's death. The jury made the following damages awards...

Open Court Principle Prevails - Case Study: Sherman Estate v Donovan
by Howard Borlack and Winona Fitch
June 23, 2021

The decision of the Supreme Court of Canada in Sherman Estate v Donovan (2021 SCC 25) reinforces the open court principle as a constitutionally entrenched right of freedom of expression and thereby a justified limit on the right to privacy. The Trustees of the Sherman Estate lost their appeal to keep probate documents sealed as they did not meet the threshold of proving that court openness presented a serious risk to the public interest.

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