Firm Cases

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 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.

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.

In Matlock v. Ottawa-Carleton Standard Condominium Corporation, 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.

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...

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")”.

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.

In Infinity Construction Inc. v. Skyline Executive Acquisitions Inc. et al., argued by McCague Borlack LLP, judgment 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.

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.

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, 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.

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.

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.

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.

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.

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.

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.

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.

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.

MB 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.

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 that summary judgment is available in claims for contribution and indemnity when the proper facts present themselves.

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. 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... 

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....

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.

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

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

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. 

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. 

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. 

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. 

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. 

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.

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

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...

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. 

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.