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So you want to amend a pleading? Not so fast! Featured - Case Study: McConnell v. Fraser
by Eric W.D. Boate
November 06, 2020

In McConnell v. Fraser, McCague Borlack LLP successfully opposed the Plaintiff's motion to amend his Statement of Claim to add a new cause of action outside the limitation period.

The issues before the Ontario Superior Court of Justice were as follows...

Protecting Contractors is Paramount - Case Study: Urbancorp Cumberland 2 GP Inc.
by Howard Borlack
November 06, 2020

In Ontario, the provincial legislation shows a commitment to protecting contractors and subcontractors by enabling them to collect outstanding balances owing for services and materials through the use of construction trusts, holdbacks and liens. This case confirms this commitment and is a helpful decision for provincial contractors.

Can LAT Award Punitive Damages? Featured Case Study
by Catherine A. Korte
October 19, 2020

On September 23, 2020, the License Appeal Tribunal (“LAT”) released a ruling that it does not have jurisdiction to award punitive damages.

The Applicant filed a motion to the LAT requesting that a claim for punitive damages be added as an issue in dispute on the basis of an alleged privacy breach.

Do Ontario Insurance Laws Have Extraterritorial Effect? Revisiting Unifund v ICBC in the 2020 case of Travellers v. CAA, 2020 ONCA 382
October 19, 2020

In the case of Unifund Assurance Co. v. Insurance Corp. of British Columbia, a family insured under an Ontario motor vehicle policy, issued by Unifund, was driving a rental car in British Columbia when they were struck by a tractor-trailer insured by ICBC under a British Columbia insurance policy. The insureds sued in British Columbia and were awarded $2.5 million. Unifund, in turn, brought suit against ICBC with reference to section 275 of Ontario’s Insurance Act and sought to recover the benefits it had paid out to the family under the SABS.

The case went to the Supreme Court of Canada which found... 

LAT Reconsideration Request Due to Error of Law
by Catherine A. Korte and Adam Ostermeier
October 15, 2020

In the recent reconsideration decision of 2020 ONLAT 19-006032/AABS, McCague Borlack LLP was successful in having the applicant’s request for reconsideration dismissed. Vice Chair Farlam considered the request for a reconsideration of her Decision released on May 14, 2020 ("Decision")  in “which the applicant was barred from proceeding with her application to determine her entitlement to non-earner benefits ("NEBs") because she failed to attend the respondent’s s. 44 independent examination ("IE")”.

New Financial Support for Workers Relying on Government Benefits during the COVID-19 Pandemic
by Martin Smith
October 14, 2020

Many Canadians felt panic over the last month as the expiry date for the Canada Emergency Response Benefit (“CERB”) loomed. As of October 3, 2020, Canadian workers who were relying on the CERB for financial support saw this benefit come to an end.

However, in response to this looming expiry date, the House of Commons sprung in to action on September 29, 2020 to unanimously pass Bill C-4: An Act relating to certain measures in response to COVID-19.

Bill C-4 was also quickly passed by the Senate, and it received Royal Assent on October 2, 2020.

Jury Questions: When to Ask for Reasons - Case Study: Cheung v. Samra 2020 ONSC 4904
by Michael Kennedy
September 28, 2020

In Ontario, there is a well-established practice of asking jurors to provide reasons for their verdicts. The jury is not absolutely required to provide this information. There is a presumption of integrity regarding general verdicts; simply because the jury did not explain its verdict is not a ground for appeal.

The exception to this presumption arises in professional negligence cases...

The Court exercises its "Fact Finding Powers" - Case Study: Carmichael v. GSK Inc.
by Howard Borlack
September 26, 2020

In Ontario, s.4 of the Limitations Act, 2002, (“Act”) establishes a two-year limitation period for a claimant to commence an action, which begins to run once the claim is discovered. However, there exists an exception for those claimants that are “incapable” to commence the proceeding.

In this case study, a man suffering from mental illness and psychotic delusions, killed his son and later commenced an action against the drug company...

In the Wake of Waksdale: A Recent Decision with Serious Consequences for Ontario Employers
by Martin Smith
September 18, 2020

When it comes to claims for wrongful dismissal, without cause termination provisions have received almost all of the attention in recent years.

However, in the wake of a recent landmark decision by the Court of Appeal for Ontario (“ONCA”), employers should now be turning their attention to the other portions of the termination provisions in their non-unionized employees’ contracts.

Striking jury notices during the COVID-19 Pandemic When is it more likely to happen?
by Alan S. Drimer
September 15, 2020

Access to well-functioning justice and court systems are fundamental to a just and fair Canadian society. However, the COVID-19 pandemic has created challenges that have impacted the Canadian justice system.

Recently, the Ontario Superior Court of Justice has struck civil juries in two personal injury actions...

Priority dispute determined by financial dependency: Featured Case Study: TD Insurance and Intact Insurance
by Howard Borlack
September 01, 2020

In TD Insurance and Intact Insurance, McCague Borlack LLP successfully argued that Intact Insurance, not TD insurance, had priority to pay statutory accident benefits to a claimant for personal injuries sustained in an October 30, 2017, motor vehicle accident.

The question before Arbitrator Bialkowski was whom a 17-year-old claimant was principally financially dependent on – the claimant's father (Intact) or the claimant's stepmother (TD). To complicate matters, the claimant was a passenger in the vehicle owned by her stepmother and had recently moved from her biological mother's home to reside with her father and stepmother at the time of the accident.

Ontario Courts updating online infrastructures to accommodate COVID-19 needs for safety
by Howard Borlack
August 11, 2020

Amid the ongoing COVID-19 pandemic, courts in Ontario have been working to modify existing online infrastructures and acquire new technologies in order to meet the needs of Ontarians and to maintain the safety of those who work in the courts. In doing so, the Ministry of the Attorney General ("MAG") has recently expanded the Justice Services Online platform and procured "CaseLines" for the use of the Ontario Superior Court of Justice.

Updates around Civil Matters in the Superior Court of Justice in the Central East Region
by Howard Borlack and Paul A. Jacoby
August 10, 2020

The following are some updates around civil matters in the Superior Court of Justice in the Central East Region. Please note they are all subject to change.

Corrosion Exclusion II - Resulting Physical Damage An exception to the exclusion in case: MDS Inc. v Factory Mutual Insurance
by Hillel David
July 03, 2020

In an earlier paper, the author commented on the interpretation and (non-) application of a corrosion exclusion in the decision in MDS Inc. v Factory Mutual Insurance Company. He turns now to a consideration of that exception to the exclusion.

Corrosion exclusion denied due to ambiguity: This author disagrees with the determination in case: MDS Inc. v Factory Mutual Insurance
by Hillel David
June 24, 2020

The interpretation of a corrosion exclusion was one of the major issues considered in the recent decision in MDS Inc. v Factory Mutual Insurance Company. For reasons outlined below, I believe the interpretation and determination regarding its applicability in the circumstances of the case were incorrect.