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The Rules of Civil Procedure versus MFIPPA: What Governs Requests for Municipal Employees' Last Known Contact Information in Civil Actions in Ontario?
Arthur J. Rozumek
February 14, 2024

The Court recently addressed the contentious issue of whether a litigant, in the course of a civil action, can obtain disclosure of the last known contact information of a municipality's former employees who might reasonably be expected to have knowledge of the occurrences in issue in the action, where access to that information would otherwise be restricted by provincial privacy legislation.

When Is Travel Insurance "Excess" to Auto Insurance? ONSC Clarifies Applicability of s. 268(6) of the Insurance Act
Michael Kennedy
September 08, 2023

In its recent decision of Royal & Sun Alliance Insurance Company of Canada v. SNIC, the Ontario Superior Court of Justice (the "Court") considered the priority of a travel policy and auto policy to pay out of province medical expenses. Both insurers claimed they were excess to each other, with the travel insurer relying upon the Ontario Court of Appeal's ruling in RBC Travel Insurance Company v. Aviva Canada Ltd. ("RBC Travel"), which limited the application of section 268(6) of the Insurance Act (which legislates all other insurance policies to be "excess" insurance to auto policies). However, the auto insurer's counsel (Michael Kennedy with McCague Borlack LLP) successfully argued that RBC Travel should be distinguished, resulting in the auto policy being held to be excess due to section 268(6).

The Divisional Court rules that all employment insurance benefits are deductible under the SABS
James M. Brown
September 21, 2022

In the recent decision of Aviva Insurance Company of Canada v. SpenceJames Brown of McCague Borlack LLP, on behalf of the Appellant, argued successfully in front of the Divisional Court to have a License Appeal Tribunal (LAT) decision overturned. This LAT decision had found that EI sickness benefits (EI benefits) paid under the Employment Insurance Act (EIA) were not deductible from Income Replacement Benefits (IRB) under the Statutory Accident Benefits Schedule (SABS).

Winter Maintenance Contracts - Featured Case Study: Ruetz v Metro Canada
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
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.

So you want to amend a pleading? Not so fast! Featured - Case Study: McConnell v. Fraser
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...

Can LAT Award Punitive Damages? Featured Case Study
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.

LAT Reconsideration Request Due to Error of Law
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")”.

Priority dispute determined by financial dependency: Featured Case Study: TD Insurance and Intact Insurance
Eric W.D. Boate
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.

Long fight ends in judgement to Plaintiff includes interest plus costs: Featured Case Study: Infinity Construction Inc. v. Skyline Executive Acquisitions Inc. et al.
March 12, 2020

In Infinity Construction Inc. v. Skyline Executive Acquisitions Inc. et al., argued by Stephen Barbier of McCague Borlack LLP, judgement was granted for the full amount in favour of, MB client, Infinity.

The issues at trial pertained to the amount owed by Skyline to Infinity, the applicable interest rate, and the interest accrual date.

The Test for Misfeasance of Public Office: Case Comment: Capital Solar Power v OPA
Howard Borlack
November 12, 2019

In Capital Solar Power Corporation v The Ontario Power Authority, Howard Borlack of McCague Borlack LLP represented the Ontario Power Authority before Justice Toscano Reccamo of the Ontario Superior Court of Justice for a claim alleging the tort of misfeasance of public office.

My House Burned Down, Now I Can Buy Two - Featured Case Study: Groupone Insurance and Lloyd's - and - Wenhao (Melissa) Li and Darko Strukan
Howard Borlack
June 05, 2019

Acting for the Applicants, Howard Borlack, Partner at McCague Borlack LLP had a favourable decision from the Ontario Divisional Court when they recently quashed an award by an Umpire arising from an appraisal pursuant to a homeowners policy and the Insurance Act. The insured's house sustained a fire and was beyond repair. The insured and insurer could not agree on the Actual Cash Value which the insured was entitled to under its Policy. The appraisals on behalf of both the insured and the insurer were approximately the same based to a great extent on comparable houses in the area.

Capital Solar Power Corporation v. The Ontario Power Authority
Howard Borlack
February 25, 2019

Capital Solar Power Corporation v. The Ontario Power Authority, 2019 ONSC 1137 (S.C.J.) Successfully resisted a two-week trial in having a claim founded in public misfeasance dismissed as against our client in a $9M action.

Doyle v Zochem et al. 2016 ONSC 3188
Martin Smith
December 17, 2018

This case demonstrates an emerging trend of terminated employees to frame their wrongful dismissal suits similar to a personal injury case. This trial included a cornucopia of expert witnesses brought by the plaintiff – notably extending the length of the trial from three to six weeks – in an attempt to prove lasting psychological damage for the plaintiff as a result of the termination.

The lawyers at McCague Borlack LLP successfully argued that the test for the tort of intentional infliction of emotional distress had not been met by the plaintiff and that the plaintiff's claims were unsubstantiated. Particularly, it was held by the court that the employees involved did not intend to inflict emotional distress on Ms. Doyle. This successful argument, in addition to others given throughout trial, reduced a multi-million dollar claim to a fraction of the original pleaded amount.

Gustanar et al. v Minto et al. and Franick Rd. Service Inc, 2016 ONSC 2341
Martin Smith
December 17, 2018

In this case, the plaintiff sued the defendants for a slip and fall that purportedly occurred on a walkway owned by Minto on November 22, 2010. The plaintiff, Ms. Gustanar, alleged that when she left her apartment, she slipped on the ice and/or snow that accumulated on the parking lot. She claimed significant injuries as a result.

Prior to the slip and fall, Minto and Franick entered into a two-year snow removal contract, where Franick was required to provide snow removal services at the Minto owned property known as Elm Ridge Gardens. The contract included a defence and indemnity clause which provided that Franick “shall indemnify and save harmless Minto” all acts or omissions by the contractor.

Accordingly, Martin brought a motion on behalf of Minto to enforce the above-noted clause in order to require Franick to provide a full defence and indemnification to Minto.

Victoria Mendes et al. v. Blaisdale Montessori School
Martin Smith
December 17, 2018

In Mendes v Blaisdale Montessori School, the defendant, represented by Martin Smith, the managing partner of McCague Borlack's Ottawa office, successfully brought a summary judgment motion against the plaintiff, dismissing the claim in its entirety. The case was further dismissed on appeal.

This case concerns a four-year-old preschooler that was expelled from Blaisdale Montessori School for repeated misbehaviour. The mother of the child sued the school for breach of contract and breach of fiduciary duty.

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 lawyers 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.

Waive Goodbye to the Consumer Protection Act for those who are both Occupiers & Suppliers
Garett Harper and James Tomlinson
April 12, 2018

In the recent decisions in Schnarr v Blue Mountain and Woodhouse v Snow Valley, the Court of Appeal for Ontario held that the Occupiers' Liability Act ("OLA") prevails over the general provisions of the Consumer Protection Act ("CPA").

This decision, where MB's James Tomlinson and Garett Harper successfully represented the intervener Canadian Defence Lawyers, reaffirms the jurisprudence surrounding waivers in Ontario and confirms that waivers are still an effective means of managing risk for occupiers who also meet the definition of "supplier" under the CPA.

HPARB Rules on Kinesiologists and FAE Reports Featured Case: C.M. & P.M.
December 20, 2017

The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.

This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. Anthony Gatensby and Karen Bernofsky of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.

A Chiropractic Malpractice Case
Martin Smith
November 20, 2017

The Ontario Superior Court of Justice recently released the trial decision where Martin Smith successfully defended a chiropractic malpractice case where the plaintiff,  (Patient), sued the defendant chiropractor for negligence and battery for alleged improper chiropractic treatments.

Water Damage Raubvogel et al v. The City of Vaughan et al
Adam Grant
December 30, 2016

In the recent decision of Raubvogel et al v. The City of Vaughan et al (“Raubvogel”)the Ontario Superior Court outlines the distinction between a municipality's policy and operational decisions. Specifically, the City of Vaughan (“the City”) argued that it did not owe a duty of care to the plaintiffs on the basis that its decision not to replace the incident water main was an issue of policy. Accordingly, the City argued that the plaintiffs' claim was barred by section 450 of the Municipal Act (“the Act”). However, counsel for the plaintiffs, Adam Grant, a partner at McCague Borlack LLP, was successful in demonstrating that such a failure in these circumstances was an operational decision as there was “no apparent reason” for the failure to replace the water main.

LAT Reconsideration
Garett Harper
December 12, 2016

The Licence Appeal Tribunal (“LAT”) acted quickly and efficiently to correct an error that was contained in the decision of 16-000179 - Raho Mohamud v. Old Republic Insurance Company that was released by the tribunal earlier this month.  Go to the Case Study... or click for the decision below.

Aranas v Kolodziej, 2016 ONSC 7104
Michael Kennedy
November 25, 2016

Summary judgment motion involving a two vehicle collision at an intersection. See Featured Case Article.

No Nonsense LAT — MB at the forefront!
James M. Brown
September 23, 2016

McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.

In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.

Featured Case: Summary Judgment in Third Party Claims Alive & Viable on Claims for Contribution & Indemnity
August 18, 2016

In a recent motion for summary judgment, McCague Borlack LLP successfully argued for the dismissal of Third Party and Fourth Party actions against its clients as it was determined that there were no genuine issues requiring a trial. While the facts of the case were unique, clients can take heed in the fact that summary judgment is available in claims for contribution and indemnity when the proper facts present themselves.

Featured Case: Zuk v Atkinson Answer Undertakings in a Timely Fashion or Your Case May Be Dismissed!!
June 30, 2016

In a 2014 decision, Justice Lemon of the Ontario Superior Court of Justice upheld the decision of Wein J. to dismiss the plaintiff's action for failure to comply with undertakings and to pay costs.1 The issue before Lemon J. was whether or not the material placed before Wein J. regarding outstanding undertakings on the ex-parte motion was full, frank and fair... 

An Updated Case Comment: Jung v Cloverdale Mall Inc., et al - 2015 ONSC 2386
July 24, 2015

MB was successful in defending the various owners and operators of Cloverdale Mall, in the case of Jung v Cloverdale Mall Inc., et al. In the recent decision of Justice Harvison Young, the moving party's motion for leave to appeal the Order of Akhtar, J., was denied and further costs were awarded to MB's clients.

The learned judge indicated that there are two possible branches upon which leave may be granted, both of which involve a two-part test....

Brentnell and Wawanesa Mutual Insurance Co., FSCO A13-008004
Michael Kennedy
July 06, 2015

Arbitration regarding whether a claimant had a reasonable explanation for the delay in notifying his insurer of his intention to claim benefits, as well as whether the claimant is entitled to both pre-104 week and post-104 week income replacement benefits.

Simser v. Aviva Canada Inc., 2015 ONSC 2363 (Div. Ct.); (January 9, 2014), FSCO P13-00004 (Blackman); (January 16, 2013), FSCO A11-004610 (Lee)
James M. Brown
June 02, 2015

This case was the first reported decision to address the interpretation of “economic loss” for the requirement that expenses be “incurred” under the SABS-2010.  The claimant sought to adduce evidence that his spouse had lost income and his child had missed school in order to provide him with attendant care and housekeeping services. 

Henry v. Aviva Canada Inc. (May 29, 2014), FSCO P13-00016 (Blackman)
James M. Brown
June 02, 2015

This case was an appeal decision, which overturned the decision of the arbitrator to stay a proceeding seeking a designation of catastrophic impairment and various benefits due to a lack of capacity. 

Leduc v. Aviva Canada Inc. (June 25, 2014), FSCO A12-001105 (Ahlfeld)
James M. Brown
June 02, 2015

This case involved a preliminary issue hearing to determine whether the claimant was precluded from advancing a claim for income replacement benefits under the SABS-2010 because he had been driving with a suspended licence at the time of the accident. 

Navage v. Aviva Canada Inc. (May 6, 2014), FSCO A13-0000006 (Mutch)
James M. Brown
June 02, 2015

This case involved a preliminary issue hearing to determine whether the claimant could proceed to arbitration when she refused to attend for an assessment of her attendant care needs. 

Shaughnessy v. Aviva Canada Inc., 2011 ONSC 1566 (Div. Ct.); (October 2, 2009), FSCO P07-00036 (Evans); (November 6, 2007), FSCO A06-001546 (Wilson)
James M. Brown
June 02, 2015

This case involved a challenge by the insurer to the results of a CAT DAC under the SABS-1996. The claimant had undergone a multi-disciplinary CAT DAC assessment, which had concluded that she had sustained a catastrophic impairment as a result of the accident. 

Abrams v. Aviva Insurance Co. of Canada (June 26, 2009), FSCO P08-00027 (Blackman)
James M. Brown
June 02, 2015

This was an appeal of an award of death benefits, interest and a special award and includes a change of evidence by the insured.

Vieira v. Aviva Canada Inc. (March 9, 2012), FSCO A08-001537 (Ashby); (April 16, 2012), FSCO A08-001537 (Ashby); (December 2, 2011), FSCO A08-001537 (Ashby)
James M. Brown
June 02, 2015

This case involved claims for caregiver benefits, attendant care benefits, housekeeping benefits and the cost of assessments under the SABS-1996.  

Case Summary: Carneiro et al and Regional Municipality of Durham et al and Zurich Insurance Company Ltd., 2015 ONSC 2427
Van Krkachovski
May 19, 2015

This matter arose out of a tragic motor vehicle accident that occurred in the Region of Durham during a long winter storm. Durham contracted out the winter maintenance of its roads to Miller Maintenance Ltd. with the requirement that Miller obtain a Comprehensive General Liability (CGL) policy of insurance for public liability and property damage naming Durham as an additional insured. Pursuant to the contract however, the CGL only insured Durham “in respect of all operations performed by or on behalf of Miller” and did not include damages caused by the negligence of Durham or its employees.

The main issue in this motion was whether Zurich was contractually obligated to indemnify Durham for the claims alleged by the plaintiffs.

Featured Case: Jung v Cloverdale Mall., et. al.
Marla Kuperhause
May 01, 2015

The Ontario Superior Court of Justice recently released the decision Jung v Cloverdale Mall Inc. where Michael Blinick, partner at McCague Borlack, successfully opposed a summary judgment motion and was awarded costs in the amount of $17,000.


Ontario Court of Appeal Decision - Sanofi Pasteur Limited v. UPS SCS, Inc. 2015 ONCA 88
Hillel David
February 11, 2015

Hillel David, the senior appellate lawyer at McCague Borlack LLP, was one of several counsel responding to the appeal by the plaintiff in Sanofi Pasteur Limited v UPS SCS, Inc. 2015 ONCA 88. The major issues on the appeal were the effect of an insurance covenant in a contract made between the plaintiff and one of the defendants (UPS) in a significant claim involving damage to vaccines stored in a temperature-controlled environment, and whether the defendants other than UPS, including Hilly's client, were entitled to take the benefit of the insurance covenant.

The Court of Appeal held both that...

Implied Conditions in Rental Agreements: Szilvasy and Collett claims against Reliance Home Comfort
Hillel David
November 30, 2012

McCague Borlack LLP lawyers Mark Mason and Hillel David were Counsel in The Court of Appeal when the claims against Reliance Home Comfort for damages arising from leaking hot water tanks were heard on October 23rd 2012. Decisions were released on November 27th 2012. These claims are amongst the very few  that have travelled from Small Claims Court all the way to the Ontario Court of Appeal. 

Thayalan and Wawanesa Mutual Insurance, FSCO A10-003528
Michael Kennedy
June 13, 2012

Arbitration regarding whether a claimant was entitled to pre-104 week and post-104 week income replacement benefits, housekeeping expenses and medical benefits. Read full case summary or read Arbitrator Fadel's report.

Case Study: Rideau Acres Ltd. v. Lombard Canada Ltd.
Van Krkachovski
April 29, 2012

On April 13, 2012, Justice Sheffield of the Ontario Superior Court of Justice released his decision granting an order for summary judgment in our client’s favour. The issue before Justice Sheffield was whether the plaintiffs’ liability coverage was improperly removed by their insurance broker and our client, Lombard Canada Ltd., such that coverage should have responded and indemnified the plaintiffs for an underlying claim in negligence. See the full summary or read the court file.

McCague Borlack on winning side of two cases released by the Supreme Court of Canada this week
Howard Borlack
April 19, 2012

On April 18, 2012, the Supreme Court of Canada released its long-awaited “Jurisdiction Trilogy”, three decisions considering private international law as it relates to litigating claims with extra-jurisdictional elements. McCague Borlack LLP was involved in two of the three cases and is pleased to announce that the Supreme Court upheld the positions of its clients in both.

The Jurisdiction Trilogy provides clarification as to when a court may assume jurisdiction over claims, known as jurisdiction simpliciter, and further, when a court may decline jurisdiction on the grounds that another forum is clearly more appropriate. 

Collett v. Reliance Home Comfort | Szilvasy v. Reliance Home Comfort
Hillel David
December 07, 2011

On December 7, 2011, the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks. In each case the hot water tank, located in the homeowner's basement, developed a leak which resulted in damage to the home and contents.

The appeals raised a number of issues relating to implied warranties in lease agreements, the application of the Consumer Protection Act, the time period during which the implied warranties were operative, the time period during which the product was defective, the differences between sale and lease agreements, and the duty to warn. While most of those issues were not dealt with, the decision nevertheless is one of considerable importance, not just because there are literally hundreds (perhaps thousands) of similar claims that awaited the outcome, but more importantly because of the confirmation of the principle that implied warranties applicable to a leased product apply not only at the outset of the term of the lease but throughout that term.  Read the full case summary... | Read The Toronto Star article coverage... | Read Canadian Underwriters coverage... | Read the court decision...

Zurich Ins. / Chartis Ins. and Ison T.H. Auto Sales Inc.
Hillel David
October 18, 2011

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The decision on appeal affirmed the decision made by Strathy J. on an application made by insurers seeking carriage and control of an action that had been commenced by the insured, in which both the uninsured loss and subrogated claims were advanced. The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged. The insurer paid out the net sum (after credit for salvage recovery) of $1.1 million to the insured under the first party property loss coverage in the policy. The uninsured loss claim was in the amount of $700,000, representing alleged loss of profit and goodwill that was excluded under the policy.  Read the full case summary... | Read the court decision