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A Smoother Path to Resolution: Ontario’s Construction Adjudication Overhaul

Similar to many different areas of law, in Construction Law there is a mechanism for alternative dispute resolution, namely interim adjudication.

Worth Its Weight in Gold? Not When Liability Clauses Tip the Scales

Case Study Brink's, Incorporated v. Air Canada, 2025 FC 110 - Air Canada was hired by Brink's to transport 400Kg of gold, and was order to pay just $18K due to admin error...

Diminishing Returns - Divisional Court Confirms Motor Vehicle Accident Claims for Diminished Value are Statute Barred by Insurance Act

Diminished value claims for property damage to automobiles are statutorily barred by section 263 of the Insurance Act, R.S.O. 1990, c. I.8. At least that is what section 263 of the Insurance Act appeared to do. However, Ontario insurers have long been plagued by persistent claims, especially in the Small Claims Court. All of the actual reported decisions dismissed these claims, but the decisions tended to be fact-specific. Without any clear decisions by a higher Court, new claims would arise with some new variation of the diminished value argument.

Loss of Care, Guidance, and Companionship Damages: A New Benchmark? Case Study: Moore et al., v. 7595611 Canada Corp.

On June 25, 2021, the Ontario Court of Appeal, led by Justice Fairburn in Moore et al., v. 7595611 Canada Corp., 2021 ONCA 459, upheld a $1,326,000 jury award arising from a harrowing set of circumstances in which a 23-year-old woman suffered severe burns, leading to her death.

The jury found that the appellants fell below the standard of care of a reasonable landlord and found them responsible for Alisha's death. The jury made the following damages awards...

Claim for Loss of Opportunity Damages - Case Study: Akelius Canada Inc. v. 2436196 Ontario Inc

In Akelius Canada Inc. V. 2426196 Ontario Inc., J. Morgan ruled on the matter of whether a European based real estate investor who suffered a breach of contract by a seller in Toronto could be awarded damages based on a loss of opportunity to cash in on a local real estate boom.

The Doctrine of Discoverability and Accident Benefits Claims: Special Considerations following Tomec and Pafco

Ontario courts and tribunals have recently considered the application of the doctrine of discoverability in the context of accident benefit claims. These considerations have developed the common law in notable ways for insurers and insureds alike. Specifically, special considerations now arise in the context of Accident Benefits where limitation periods are concerned...

Do priority provisions in s. 268 of the Ontario Insurance Act apply to an out-of-province insurer for an accident that took place in Ontario? Case Study: Coseco v. Liberty, 2019 ONSC 4918

Where an MVA occurs in Ontario, and there is an out-of-province insurer policy covering the claimant, and that insurer has signed the Power of Attorney and Undertaking (PAU), the insurer is bound by s. 268 of the Insurance Act in its entirety.

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

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.

Watching the Watchers: Judicial Limitations on the use of surveillance evidence

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.

Subrogating Claims in the Construction Context: They Do Exist

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.

The Art of Due Diligence: Priority Disputes Among Insurers

The enactment of Ontario Regulation 283/95 – Disputes Between Insurers (the “Regulation”) has obliged insurers to continue payment of Statutory Accident Benefits (“SABS”) to injured person even where entitlement to these benefits is disputed. At the same time, the insurers ‘battle it out' behind the scenes over which has higher priority and should be paying for the claimed benefits.

A priority dispute arises when there are multiple motor vehicle liability policies which might respond to a SABS claim made by an individual involved in a motor vehicle accident.

Section 268(2) of the Ontario Insurance Act sets out the hierarchy of insurers obligated to pay SABS with respect to the occupant claimants, as follows:

Security Breach Reporting Requirements under the PIPEDA starting November 2018

On March 26, 2018, the Government of Canada passed an Order in Council fixing November 1, 2018, as the date on which section 10 of the Digital Privacy Act (“the DPA”) comes into force. This section creates a new division in the Personal Information Protection and Electronic Documents Act (“PIPEDA”) that will require private commercial enterprises to report certain breaches of security safeguards.

Cloudy with a Chance of Money: Overcoming Obstacles in Subrogated Claims

Subrogation is the process under which an insurer, which has paid a loss under an insurance policy, becomes entitled to the rights and remedies of its insured against the party responsible for the loss. Because an insurer pays on its policy for losses suffered by the insured to make that policyholder whole, subrogation can be an effective mechanism for an insurer to recover its losses from the responsible party, depending on how the claim has been handled. Subrogation cases are often won and lost as a result of the actions and steps taken within the first few days of the incident. As a result, active involvement in the process, alongside open communication with all involved parties, is crucial to maximizing recovery.

Legislature Passes Concussion Safety Legislation with Bill 193: Rowan's Law (Concussion Safety), 2018

On March 6, 2018, Bill 193: Rowan’s Law (Concussion Safety), 2018(“Rowan’s Law”) passed its third reading. The Bill will next go before the Lieutenant Governor to receive Royal Assent.

Rowan’s Law is named for Rowan Stringer, a 17-year-old rugby player who died after sustaining a traumatic brain injury in a rugby game. The Bill will come into force on the day it receives Royal Assent, although this day has not been announced (section 9(1)).

Overall, Rowan’s Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport.

A “sport organization” will be required to:

Four Million Dollar Price Tag to Fix an Actress's Reputational Damage

Ms. Wilson, an Australian actress and star of several Hollywood movies, sued the defendants for defamation based on eight separate publications published over a three-day period.

On September 13, 2017, Justice John Dixon of the Supreme Court of Victoria, Australia, awarded Ms. Rebel Wilson an unprecedented amount in damages for defamatory articles published by Bauer Media Pty Ltd. and Bauer Media Australia Pty Ltd...

Marijuana Legalization: Ontario Weighs In

To the disappointment of many and the surprise of few, the Ontario Government has decided to provide access to recreational cannabis through a government corporation similar to the LCBO. Ontario plans to open 40 stores across the province by July 2018 when cannabis becomes legal with another 110 by summer of 2020. It also will allow for the purchase of cannabis online through the governing body's website. While this may sound sufficient, it is worth highlighting that there are over 650 LCBO locations throughout the province.

Court of Appeal Declines Remedies against Person Harassing Mayor, Township

The Ontario Court of Appeal has recently upheld an application judge's decision to deny the mayor and Town of Rainy River relief from the harassment of a local resident in its recent decision, Rainy River (Town) v. Olsen.

In this case, a local resident of the Town Rainy River had an interest in horticulture and town beautification. He began writing to the mayor and council with ideas concerning a variety of issues such as agriculture, gardening, and general community beautification. Unsatisfied with the responses he received, his communications to the mayor and council allegedly grew increasingly abrasive and insulting. On one occasion, he attended the mayor's workplace and verbally harassed her.

Duties Of Care Owed By Public Bodies – A Different Perspective

First published in the Advocates Quarterly. An overview of the major principles relating to duties of care, with a focus on whether and when the duty is owed by a public body.

Buyers and Agents Beware: BC Court Rules That Representative Is Responsible for Tax Owed by Buyer

In Canada, resident sellers of a principal residence are usually eligible for an exemption from the capital gains tax that would otherwise be triggered by the sale of a principal residence. On the other hand, non-resident sellers must pay a capital gains tax of 25% on the profits from the sale of a residential property.

In Mao v Liu (2017 BCSC 226), the Court was asked to determine whether a notary public was negligent and therefore obligated to pay the capital gains tax triggered by the sale of a residential property...

Stipulated Remedy Clauses

The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The Tenant refused to vacate, despite offers for compensation from the Landlord. The Landlord issued a notice to vacate and the Tenant sought and obtained an injunction...

Injunctions to Restrain Breach of Contract - Stipulated Remedy Clauses - Old Habits Die Hard

The issues that were before the court in 1465152 Ontario Limited v Amexon Development Inc.1 are substantial and far-reaching, particularly for the commercial real estate leasing industry. The decision is an excellent vehicle for the discussion of important issues relating to injunctions in the context of contractual property rights, equitable extortionate conduct, abuse of process, permissible breaches of contract on the basis of economic efficiency, and the interpretation and enforceability of contractual limitation of remedies clauses, particularly in the context of a claim that can be made under a concurrent tort.

Overview - The Landlord in Amexon wished to demolish a large commercial building in which the Tenant occupied leased premises, and redevelop the property. The premises constituted approximately 3% of the rentable area of the building. All of the other tenants had left as a result of agreements made with the Landlord, which offered to relocate the Tenant into similar (and better) premises in an adjoining building owned by the Landlord and to pay compensation. After some bargaining, the Tenant refused to move. It was the Landlord’s position that the only reason for the Tenant’s refusal to relocate was its desire to extract as much money from the Landlord as possible. FULL VERSION PDF *Reproduced by permission of Thomson Reuters Canada Limited.

How serious must a serious impairment be? Case Study

How “serious” does a “serious impairment” have to be for a Plaintiff to pass the threshold under section 267.5 of the Insurance Act?

A recently released appeal decision of the Divisional Court provides useful guidance on the pitfalls awaiting Plaintiffs in their attempts to establish a threshold injury.

Employment Law: Terminology - Part 1 of 6

Employment Law articles handled in 6 parts: Terminology, Obligations, Termination, Notice, Torts, Human Rights. Part 1 - Terminology, for example Contract, indefinite vs. fixed vs. Independent. Contract OF Services vs. Contract FOR Services, etc.

Update on Issues relating to Autonomous Vehicles: Recent Fatality & the Anticipated Challenges arising from the Accident

News of the death of Joshua Brown, a Florida man who died following a motor vehicle accident that occurred while his Tesla Model S vehicle was in autopilot mode, has attracted international media attention as he is the first US fatality from a motor vehicle accident where the deceased was in a vehicle that was in self-driving mode. This development provides occasion for us to comment further on the status of autonomous vehicles and the law in Ontario.

Back to the Future Causation Alert: Clusters Trumps Medical Causation in Judicial Review of Technicians' Breast Cancer

Michael J. Fox is a well-known Canadian comedic actor probably best known for the "Back to the Future" movie trilogy and other successful small screen comedies. In medical circles, he is also known for having Parkinson's disease and as a spokesperson for Parkinson's disease research. But Michael's Parkinson's is a little different. He was a member of a British Columbia production crew in the 1970's. Several of that crew went on to develop Parkinsons at a young age. The statistical probability of a number of persons, or a cluster, in the one production crew developing Parkinson's was very small. Clusters "suggest" an environmental agent at work – whether it is scientifically provable or not.

The Benefits of Employment Liability Practices Coverage: Civil Case Studies

Employment practices liability (EPL) coverage protect employers from a variety of actions brought by employees, including wrongful dismissal, sexual harassment, accommodation, discrimination, negligence, unjust enrichment, breach of contract, and breach of duty of good faith actions. This paper will examine cases that demonstrate the potential consequences of failing to have an EPL policy in place.

The Benefits of Employment Liability Practices Coverage: Human Rights Tribunal Cases

Given that human rights judges can make any award apart from legal fees to remedy discrimination, the possibility of an employee bringing a claim before the Human Rights Tribunal is an important reason for employers to have employment practices liability (EPL) coverage. Some of the available remedies at the Human Rights Tribunal are mandatory reinstatement with back pay, general damages for discrimination, wage loss recovery, forced sensitivity courses, and human rights training. This paper will examine Human Rights Tribunal cases that emphasize the importance of EPL coverage.

Cyber and Privacy Risks: Class Action Exposures (PDF)

Class action litigation arising out of cyber and privacy risks is increasing in Canada. The cases involve a broad range of privacy and cyber risks including lost portable electronic storage devices, uploads to an unsecure website, improper disposal of computer equipment, unauthorized access and dissemination by rogue employees, cybercrime and business practices. More breaches, increased breach notifications, widespread media reports and growing concern about privacy rights have all likely contributed to the increase in class action proceedings. In addition, the recent recognition of a new tort for invasion of privacy by the Ontario Court of Appeal in 2012 has resulted in certification of privacy class actions based on the new tort. This paper will discuss examples of Canadian cyber and privacy cases which have been certified as class actions, cases that have settled, and cases that have been recently commenced as proposed class actions.

The Legal Implications of Concussions in North American Contact Sports

Sports have long been a part of everyday life for many people, both as spectators and participants. With modern advances in science the true inherent dangers of many of these sports are finally being examined, specifically with regard to concussions. Recent studies have revealed an alarming prevalence of concussions and other head injuries suffered by athletes in contact sports that are played all over the world, such as football, hockey, rugby and soccer. The results of these studies have brought much attention to the laws, rules, and regulations governing the conduct of athletes, coaches, trainers and other key personnel when a potential concussion has been experienced. Due to the possibility of serious and permanent injuries occurring on the field, diamond, rink or other, the potential for high value litigation is ever present.

Bill 171: The Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014 (PDF)

In the decision of Vijeyekumar and State Farm Mutual Automobile Insurance Company (1999) O.J. No. 2178 (C.A.), the deceased died of asphyxiation caused by carbon monoxide poisoning. He was found in his car, the engine was running and the hose had been attached to the exhaust pipe which ran to the front console inside the car beside the deceased. The deceased’s wife and daughter sued the deceased’s automobile insurer for death benefits under his automobile insurance policy. The Court of Appeal determined the applicable test was:

Muskoka Fuels v. Hassan Steel Fabricators Limited: Application of the Sale of Goods Act to Manufacturing Defects

The case of Muskoka Fuels v. Hassan Steel Fabricators Limited raises some interesting questions regarding the application of the Sale of Goods Act to claims involving manufacturing defects. In particular, Muskoka Fuels, which involved the environmental contamination of land due to the failure of a diesel fuel tank, raises questions regarding the extent to which the cause of a defect must be proven in order for liability under the Sale of Goods Act to be established.

At trial, Justice Healey came to the following conclusions based on the evidence...

Coverage Issues in the Manufacturing/Distribution Chain

The purpose of this paper is to outline some coverage concerns that can arise in the manufacturing and distribution chain. These issues of coverage apply equally to those parties seeking to obtain cover from another or seeking to avoid a coverage obligation being imposed upon it. This general discussion of coverage issues applies within the context of vendors, distributors and manufacturers¹facing a claim by a plaintiff, or many plaintiffs, arising from harm incurred through the use of a product.

The following discusses the notion of risk transfer in this distribution chain, the underlying rationale of vendors in seeking to transfer risk, and the possible considerations applicable to affixing liability along the distribution chain.

Fixed term employees no longer have a duty to mitigate their damages - Bowes v. Goss 2012 (ONCA)

It is well established that employees who are subject to indefinite term contracts are required to mitigate their damages by searching for alternate employment upon termination of their employment contract. However, in Bowes v. Goss (cite), a recent Ontario Court of Appeal decision, the court ruled that employees subject to a fixed term contract will not be subject to the same requirement, even where the employment contract between the parties is silent on the duty to mitigate...

Insurance Coverage for Injuries Caused by At-Fault Uninsured, Inadequately Insured and Unidentified Motorists

An at-fault party may have no insurance or may be inadequately insured. Further, where an unidentified motorist is at-fault (as in the case of a hit-and-run) there may be no practical means of securing compensation for an injury as the at-fault party and his insurer may never be identified.

The system in Ontario has two mechanisms for dealing with such scenarios: 1. Uninsured / Unidentified Motorist coverage under s. 265 of the Insurance Act

Repairing a vehicle is not an ordinary use to which vehicles are put

The claimant was hired to effect body work repairs to a truck that he normally operated. The claimant's last memory was standing on the hood of the truck. He was found the next morning in a pool of blood and awoke in the hospital a few days later. He had sustained serious fractures and a brain injury. Arbitrator Feldman inferred from the evidence that the claimant had fallen from the truck while attempting to effect repairs to the roof. Is this an accident as defined by the Schedule?

Ontario Court of Appeal confirms that home buyers are not barred by the provisions of the Ontario New Home Warranties Plan Act from pursuing remedies in the courts

Until recently, there have been conflicting decisions as to whether the Ontario New Home Warranties Plan Act (the “Act”) constitutes an exclusive statutory scheme for dealing with claims by new home buyers against builders. The Court of Appeal has recently confirmed that home buyers can pursue remedies against builders in the courts.

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