Articles & Publications

Search Articles & Publications

Court of Appeal Clarifies Approach to Overlapping Insurance Coverage: Case Study: TD v. Intact
January 17, 2019

In TD General Insurance Company v. Intact Insurance Company, the Ontario Court of Appeal provided clarity on the issue of overlapping insurance coverage.

The case involved a boating accident. The owner of the boat held a TD homeowner's policy that covered the driver, who was driving the boat with the owner's permission. The driver was also covered by his own homeowner's policy, issued by Intact. Both insurance policies contained identical “other insurance” clauses, stipulating that the policy would be considered excess if there was other insurance that applied to a claim.


Uber Class Action Gets Green Light, Proceeds to Certification
January 04, 2019

The past decade has given rise to the ‘sharing economy', which has since become ubiquitous and has raised an assortment of legal issues for stakeholders and policymakers as a result.

In Heller v Uber Technologies Inc. the Ontario Court of Appeal reversed a decision to uphold an arbitration (and effectively, forum selection and choice of law) clause in an Uber services agreement, finding it both unenforceable and unconscionable.


Rebutting the Breathalyzer Presumptions Moving Beyond the Theoretical, Towards Concrete Evidence
January 03, 2019

In R. v. Cyr-Langlois, the Supreme Court of Canada offered clarification on the type of evidence that is required to rebut the presumptions of accuracy and identity applicable to breathalyzer test results under section 258(1)(c) of the Criminal Code (“Code”). In doing so, Wagner C.J., writing for the majority, confirmed that the evidence must amount to more than conjecture or speculation. This case is significant for defence lawyers, as it demonstrates that an accused will likely need to adduce concrete factual evidence in order to rebut the breathalyzer presumptions.


Tick Tock, Watch Your Clock: Estate Trustees are not Litigation Guardians under s.7 of the Limitations Act
December 20, 2018

In Lee v Ponte, 2018 ONCA 1021, the Ontario Court of Appeal considered whether S.7 of the Limitations Act, wherein the basic limitation period of two years does not run during the time in which the person with the claim is incapable and is not represented by a litigation guardian, applies to extend the time within which an estate trustee can bring a claim that the deceased person had before death.


It's Not Complicated (Anymore): Court of Appeal Explains the Relationship between SABS and Tort Damage Awards
December 13, 2018

Two recent Ontario Court of Appeal decisions have provided clarity on the uncertain relationship between tort damage awards and Statutory Accident Benefits (SABs) under s 267.8 of the Insurance Act.

While heard together, these cases address different aspects of the tort damage award/SABs relationship. Cadieux v Cloutier addressed the deductibility of SABs paid before trial, whereas Carroll v McEwan addressed the deductibility and assignment of SABs to be paid after trial.


Bucking the Legal Lacuna: The Humboldt Bronco's Record Setting GoFundMe Campaign and Saskatchewan's Informal Public Appeals Act
December 07, 2018

Appeals to the public for donations are a feature of everyday life. Appeals that occur on a regular basis are usually conducted by registered charities and other organizations having the benefit of experienced fundraisers and professional advice. However, after a disaster, spontaneous appeals frequently occur as well. Although the organizer of a spontaneous appeal may not be aware of it, their public appeal is at the centre of a complex web of trust and charity law, much of which is obscure and inaccessible. For example, what happens when an informal fundraising campaign raises more money than needed for its stated purpose? What happens to the remainder? Who does it belong to? Does it have to be returned? In the era of social media and crowdfunding platforms like GoFundMe, Kickstarter, and Indigogo, these complicated issues are likely to become exacerbated.


A Battle of Offers: Case Study: Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. ("Hashemi-Sabet")
by Jessica Grant
November 27, 2018

In the recent Ontario Court of Appeal decision Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. (“Hashemi-Sabet”),1the court addressed the principles of offer and acceptance in the context of multiple Rule 49 offers, and the enforcement of a Rule 49 offer to settle. As Justice Pepall noted, “Rule 49.09 of the Rules of Civil Procedure provides that a party may bring a motion for judgment in the terms of an accepted offer and the judge may grant judgment accordingly or continue the proceeding as if there had been no accepted offer to settle.” In this case, the appellants argued that the motion judge erred in giving judgment to a Rule 49 offer which they argued had been revoked before it had been accepted. The respondents argued that the offer had not been properly revoked.


A Cautionary Tale for Employers A Case Study - Hampton Securities Ltd. v. Dean
November 16, 2018

In the recent decision, Hampton Securities Limited v. Dean, the Ontario Court of Appeal affirmed the detailed trial decision of Justice Koehnen with respect to an employment-related action involving a proprietary trader. The decision serves as a cautionary tale for employers when disclosing the reason(s) for the termination of an employee.

Christina Dean began working with Hampton Securities Limited (“Hampton”) as a propriety trader of securities on March 6, 2008. Her employment ended 13 months later on April 3, 2009. Hampton took the position that Ms. Dean had been terminated for cause for failing to follow trading policies and engaging in unauthorized trading, while Ms. Dean took the position that she had been constructively dismissed.


The Foreseeability of a Flying Bottle: A Case Study of Bucknol v. 2280882 Ontario Inc.
by Jessica Grant
October 28, 2018

On September 17, 2018, Justice Coroza of the Ontario Superior Court of Justice released his decision in Bucknol v. 2280882 Ontario Inc1(“Bucknol”),a motion for summary judgement dealing with commercial host liability and outlining the pillars of claims of negligence. Interestingly, Justice Coroza originally heard the motion in January of 2018 and reserved his decision. In June of 2018, counsel for the defendant (moving party) brought to his Honour's attention the May 2018 Supreme Court of Canada decision of Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”) and further written submissions were requested of counsel.

By way of background in Bucknol, the plaintiff was struck by a beer bottle that had been thrown by an unknown assailant at Classic Lounge Nightclub...


The Real NHL Hockey Wives: Cyberbullying, Norwich Orders, and Locker Room Soap Operas
October 28, 2018

In the recent decision of Caryk v Karlsson,1 the Ontario Superior Court of Justice refused to compel Erik Karlsson's wife to provide evidence relating to allegations that she was cyberbullied by the partner of one of her husband's former teammates. In doing so, Mullins J. provided an overview of the Norwich Order remedy, and found that the interests of justice would not be well served by granting such an Order. This decision is noteworthy because it confirms that the Norwich Order is an extraordinary form of relief that will only be granted in very limited circumstances. This holds true even in cases dealing with allegations of cyberbullying.


You're on Candid Camera! Legal requirements for having surveillance admitted into evidence at trial
by Alan S. Drimer
October 27, 2018

Attempting to introduce surveillance as evidence at trial is becoming increasingly more challenging. In order to use surveillance as substantive evidence at trial, the Court has made it abundantly clear that certain requirements must be met.


Watching the Watchers: Judicial Limitations on the use of surveillance evidence
October 27, 2018

Surveillance evidence is among the most powerful tools available to a defence lawyer and their client. Correctly deployed, surveillance can be a fatal blow to a plaintiff's claim. Triers of fact, jurors particularly, cannot help but be impacted by surveillance evidence. Numerous studies show that visual memory retention far exceeds audio recall. Due to the power of surveillance evidence relative to cost, many insurers have at least some experience in obtaining this form of evidence. Since the Ontario Court of Appeal handed down its decision in Iannarella v Corbett, the tactical landscape for surveillance has changed and the use of surveillance evidence has been under court scrutiny.


Recent Decisions regarding the Admissibility of Surveillance in Accident Benefits and Tort Claims
by Catherine A. Korte
October 27, 2018

The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.


Accuracy of Surveillance ReportsAccuracy of Surveillance Reports
October 27, 2018

In order for surveillance to be admissible as substantive evidence, the first hurdle it must satisfy is being accurate in truly representing the facts. The courts have been clear that a surveillance report must include...


Reliable Footage: The Importance of Unedited Video and Investigator Testimony at Trial
by Michael Kennedy
October 27, 2018

If a picture is worth a thousand words, then a video is worth more than a million. This is why surveillance evidence in bodily injury actions is such a powerful and persuasive tool – a fact that has been recognized by judges, who are very careful when admitting surveillance into the record as substantive evidence.