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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.


Surveillance: Activities and Problems
October 27, 2018

Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs or applicants that legitimately suffer from chronic pain and those who do not. The plaintiff's or applicant's credibility becomes a central issue in the litigation, and counsel often looks to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's or applicant's credibility and challenge the validity of his or her claim.


From Motorist to Manufacturer: Adjusting to AV Litigation
September 24, 2018

In the absence of any human input in the operation of vehicles (level 5),drivers are rendered passengers and any liability for causinOKg an accident inevitably shifts from the motorist to the manufacturer; from the person to the product.

In addressing what that might look like into the future and how an adjuster could handle litigation involving autonomous vehicles ...


Legislative Progress Towards Legalization: An Overview of the Recently Published Cannabis Regulations
by Howard Borlack
September 19, 2018

After a comprehensive regulatory consultation period with Canadians, municipal, provincial, and territorial governments, law enforcement officials, public health representatives, stakeholders, and Indigenous governments and representative organizations, among others, the federal government published the Cannabis Regulations to support the coming into force of the Cannabis Act (the “Act”) in the Canada Gazette on July 11, 2018.


Down the Path to the End Finality: A Case Study of Gillham v. Lake of Bays (Township)
by Jessica Grant
September 19, 2018

In July 2018, the Ontario Court of Appeal handed down its decision in Gillham v Lake of Bays (Township) (“Gillham”),1 wherein the Court of Appeal struggled with the issue of whether a claim made after the limitation period could be permitted. 


What Happens When You Tell Your Boss You Want to Retire... and then Change Your Mind?
September 14, 2018

In English v Manulife Corporation, 2018 ONSC 5135, the Ontario Superior Court of Justice considered the legal question of whether an employee who has resigned by way of a notice of retirement may later rescind her written notice of retirement.

If an employee has a change of heart and wishes to resile from retirement after formally providing notice, is an employer on the hook for wrongful dismissal if they chose to uphold the notice of resignation?


Lets talk about Sexts: Is my teenager in possession of child pornography?
September 14, 2018

The Ontario Court of Appeal has struck down the mandatory minimum sentence for possession of child pornography. The Appellant, Nathaniel John, in R v John, 2018 ONCA 702, successfully convinced three judges that imposition of a mandatory minimum sentence of six months imprisonment is grossly disproportionate to the conduct of a reasonably hypothetical offender, using, for example, a youth “sexting”.


Attendant Care Benefits: Family Members & Professional Health Care Designations
September 12, 2018

Careful analysis of relevant case law dealing with family members claiming attendant care benefits pursuant to s. 3(7)(e)(iii)(A) of the Statutory Accident Benefits Schedule [“Schedule”] indicates that there are numerous factors to consider when determining eligibility. This case law examines whether a professional health care provider that is also a family member of the claimant (i) worked in that capacity at some point prior to the subject accident or at the time the attendant care services were provided; OR (ii) if not, he or she actively sought employment in that capacity at the time of the accident or at the time the services were provided.1 In addition, this case law reviews this family   (Along with a handy table for easy reference)...


No Playing Around: An UPDATE on Tort Liability and School Yard Injuries
September 11, 2018

Our previous article covered a pushing incident on a Toronto Catholic District School Board (“TCDSB”) playground in March 2015. Following our previous article, the mother of the injured boy discontinued the lawsuit in question. The TCDSB later discontinued their crossclaim against the two students. While some school boards, students, and parents may be relieved to hear this news, a discontinued claim should not lead them to believe similar claims will simply disappear in the future.


Subrogating Claims in the Construction Context: They Do Exist
by Jessica Grant
September 08, 2018

Oftentimes, builder's risk policies contain waivers of subrogation, and contractors, more often than not, are listed as additional insureds. For this reason, subrogated claims are few and far between in the construction context. However, the recent case of Maio v. Mer Mechanical Inc., 2018 ONSC 4426 (“Maio”) suggests that subrogation may be possible.


Acting for both Insured and Insurer: What Counsel Need to Know
by Jessica Grant
September 08, 2018

You have been retained to act for the insurer and the driver as a result of a rear-end motor vehicle accident in which the driver has been rear-ended. There is likely no liability against your client and there are no mechanical issues with the vehicle. Unfortunately, and not surprisingly, you encounter a difficult insured who refuses to co-operate and fails to reply to your letters, phone calls, or requests (pleas), that they attend examination for discovery. What do you do?


Casino Niagara: Rolling the Dice on Constructive Dismissal
August 07, 2018

In Filice v Complex Services Inc., the Ontario Court of Appeal overturned a trial judge's decision by significantly lowering the reasonable notice period arising from the constructive dismissal of an employee and finding that punitive damages were not appropriate in the circumstances despite the trial judge awarding $100,000 in punitive damages.

The case has several implications for employees under investigation, both administratively and criminally, and should be considered by all employers and human resource departments country-wide.


Strategic Lawsuits Against Public Participation - A "Win" for Freedom of Expression Featured Case Study: Lascaris v B'nai Brith, 2018 ONSC 3068
July 12, 2018

In seeking an order to dismiss the plaintiff's action pursuant to s. 137.1(3) of the Courts of Justice Act, McCague Borlack LLP litigator successfully used the new Anti-Strategic Lawsuit Public Participation (Anti-SLAPP) legislation to have the case dismissed for their client B'nai Brith Canada.

In Lascaris v B'nai Brith, the plaintiff, a former securities class action lawyer and former Justice Critic of the Green Party of Canada, sued the defendant B'nai Brith Canada for libel after the organization published an article and a Tweet on political issues in the Middle East. The publications suggested that Lascaris used social media to advocate on behalf of terrorists.


World Cup of Violence: Are Soccer Clubs and Leagues Liable for "On Field" Fisticuffs?
July 11, 2018

To what extent can sports clubs, facilities and leagues be held responsible for the violent outbursts of a player during a game?

The Ontario Court of Appeal in Da Silva v. Gomes, 2018 ONCA 610 recently upheld the principle that supervising authorities are generally not legally responsible for "a sudden unexpected event in the midst of an acceptable, safe activity."


Justice Must Not Only Be Done, it Must be Seen - The LAT's Mandate to Ensure Both the Existence and the Appearance of Adjudicative Independence in their Decision-Making Processes
by Matthew Dugas
July 09, 2018

This decision, Mary Shuttleworth v. License Appeal Tribunal, 2018 ONSC 3790, concerns a claimant who brought a dispute over statutory accident benefits to the License Appeal Tribunal (“LAT”), arising from a motor vehicle collision. The LAT has statutory authority to hear all disputes related to benefits under the Statutory Accident Benefits Schedule (“SABS”).

The LAT Adjudicator decided that the claimant's injuries did not warrant a designation of catastrophic impairment as defined in the SABS. A designation of catastrophic impairment under the SABS increases limits of some benefits and is a prerequisite for other benefits.