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Martin Smith

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EXPERTISE

Civil Fraud Recovery

Fraud is an unfortunate reality in modern business, particularly for companies in the banking, financial, and insurance industries. Lawyers of our Civil Fraud Recovery Group have experience with these industries. They are intimately familiar with the complicated legal regime that regulates fraud prosecutions and civil actions to recover assets or money lost through deceit. Our lawyers have been successful in recovering millions of...

Commercial & Business Litigation

Litigation is the last thing you want to think about when running a business. For a law firm of trial lawyers with experience at every level of Court, that’s not something we like to hear. Or to admit.  When you need to protect your business by taking legal action or defending a claim, you need a law firm with a demonstrated mastery of the law. One with centuries of collective experience. One with a proven track record of winning...

Defamation & Reputation Management

Our Defamation and Reputation Management Group is comprised of Toronto lawyers whose practices focus on the litigation fields in which defamation actions typically arise. These practice areas include corporate/banking law, municipal law, employment law, and investigation and privacy law. Allegations of libel and slander can also arise during disputes between members of professional associations or as a result of media releases. Because...

Municipal Liability

The legal complexities faced by today’s municipalities are myriad. Our law firm’s Municipal Liability Group has extensive experience with the broad range of legal exposures faced by municipal bodies in the administration of their duties. We are also well-versed in the corresponding insurance concerns. Our objective is to provide cost-effective, results-oriented service to insureds and insurers. We draw on our years of experience...

Landlord and Tenant

Landlord and Tenant disputes, particularly those related to commercial tenancies, can be a complex field that requires a law firm to not only have a thorough understanding of the law but also be sensitive to the need for a landlord and tenant to maintain a business relationship. Our lawyers attempt to resolve landlord and tenant disputes through negotiation and alternative dispute resolution first. When alternative dispute resolution fails,...

ARTICLES

A ai legal original A Cautionary Tale – The Use of Artificial Intelligence in the Legal Profession: Past, Present and Future

Artificial intelligence, or “AI,” is already incorporated into several aspects of the legal field, including tasks such as translation, grammar checking, speech recognition, and legal research.

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A blueprint banner original 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.

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A gold original 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...

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A car crash original 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. 
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A bankruptcy original Are you a creditor and do you have standing? Maybe not. Case Study: YG Limited Partnership and YSL Residences Inc.

Justice Osborne of the Ontario Superior Court (Commercial List) recently released his reasons in YG Limited Partnership and YSL Residences Inc., 2022 ONSC 6548, and the implications for future bankruptcy and insolvency proceedings are notable.

The brief facts of the motion were as follows.

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Publications original Causation And Standard Of Proof For A Hypothetical Pre-Trial Loss

First Published in Advocates Quarterly. This paper addresses whether the same principles regarding the “real and substantial possibility” standard of proof apply to a hypothetical past loss claim as they do to a hypothetical future loss claim, and the interplay between the two standards of proof applicable to hypothetical claims: balance of probabilities for the “but for” causation test, and “real and substantial possibility” for damages.

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Publications original 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...
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Publications original 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.

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Publications original 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...

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Publications original 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.

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Publications original 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.

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Publications original 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.

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Publications original From Motorist to Manufacturer: Adjusting to AV Litigation

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 ...

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Publications original No Playing Around: An UPDATE on Tort Liability and School Yard Injuries

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.

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Publications original 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.

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Publications original Autonomous Vehicles and the Future of Litigation

Autonomous vehicles use artificial intelligence and sense their environment using sensors and GPS coordinates to drive themselves without human input. However, this is a very broad term that encompasses everything from cars assisting with keeping themselves in their lane to cars that require no human input.

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Publications original 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:

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Publications original 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.

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Publications original 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.

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Publications original 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:

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Publications original Emerging Trends in Personal Injury Damage Awards

In recent years, there have been a number of developments in the law which have resulted in escalating damage awards, particularly in catastrophic injury cases. The paper will outline some of these developments relating to:

I. Future Care Costs;
II. Guardianship and Management Fees; and
III. Risk Premiums.

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Publications original The Personal Injury Bar's Worst Fear: Not Enough Evidence to Put Question to a Jury

Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.

This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward. 

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Publications original The Future of Litigation and Autonomous Vehicles

Autonomous vehicles are defined as self-driving vehicles capable of sensing their environment using artificial intelligence, sensors and GPS coordinates to drive themselves without human input.1 However, not all cars with autonomous features necessarily operate on the same level of automation. The Society of Automotive Engineers (SAE) International issued a standard classification for defining the various levels of automation in a car. They have identified 6 levels in total, from 0-5...

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Publications original Liability Exposure for Uber Drivers after a Fare is Dropped Off

Over the years, Canadian courts have spent considerable time answering the question: “whether an insured's negligence while using or operating a motor vehicle has ‘caused' – in its recognized legal sense – the injuries sustained by the victim.”1 Now that Uber has revolutionized the way we transport passengers to their chosen destinations, this will inevitably add to the number of vehicle-for-hire on the road. Given this increase, we can expect an escalation of lawsuits involving the liability for vehicles-for-hire. Some of these lawsuits will involve Uber driver's liability. When these circumstances arise, the Courts will have to decide what principles to apply. The cases discussed will provide some guidance as to how the courts may deal with these issues in the future.

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Publications original 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.

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Publications original Auditor Held Liable in Negligence for Non-Clients' Losses - Case Comment: Lavender v. Miller Bernstein

The recent Ontario Superior Court decision, Lavender v Miller Bernstein,1serves as a reminder – and a warning – that the Canadian jurisprudence is beginning to recognize a cause of action in negligence emerging from a negligent misrepresentation where the representor owes a duty of care to the representee. In this case, an auditor was found liable for the substantial financial loss of a securities dealer's clients, though it was the security dealer who fraudulently misrepresented information to its clients.

The fact that the plaintiffs were non-clients of the defendant and may have not even been aware of the defendant's role at the time of the loss is irrelevant, broadening the scope of liability for future negligence claims alike.

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Publications original 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.

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Publications original A summary of threshold decisions from 2016 and 2017: Which got through and which got bounced

Trial judges in motor vehicle accident cases are like bouncers — plaintiffs show up to their courtrooms asking to be let over the threshold. While their cases may not be perfect, a judge will be more inclined to let their cases through if the plaintiffs are likable and if the judge is reasonably satisfied their decision will not cause him or her problems after-the-fact (namely an appeal or an unfair result).

While certainly the main issue upon a threshold decision is whether or not a plaintiff meets the test (namely whether his or her employment, education or activities of daily living are impaired to the requisite degree for the foreseeable future), a plaintiff's credibility and presentation is important to keep in mind when reading a threshold decision.

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Publications original Subrogation: Recommendations for Early Investigation

At the outset of a loss, it is most critical to begin preserving evidence and investigating the cause of the loss. This is beneficial both to preserve future subrogation potential, but also to determine whether there may be any issues that may affect coverage under the policy.

As soon as access is provided to a scene, the first person to enter, along with the adjuster, should be a forensic engineer. For fire losses, it is well understood that a review of the scene, prior to the commencement of repair efforts, is critical to determining the origin and cause of the fire. However, it is common for this approach to be ignored with other types of losses.

For example, in the cause of a failure of plumbing components, there is a tendency for a contractor to remove the part that they consider to be the point of failure, to be provided to an engineer at a later time. This can potentially destroy evidence of the condition of the scene, and also creates issues with the chain of custody.

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Publications original The Effect of "After The Event" Insurance on the Litigation Process

Imagine trading peace of mind for a chance to give someone a piece of your mind. Welcome to “After The Event" (ATE) insurance policies – the instigators of the insurance policy world. In general, Legal Expense Insurance (LEI) products exist to provide coverage for various legal costs and disbursements during the litigation process. These products include “Before The Event" insurance, which provides coverage for a future incident, and “After The Event" insurance, which is obtained specifically to litigate an incident after it has already occurred.

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Publications original 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.

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Publications original 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...

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Publications original 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...

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Publications original 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.

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Publications original Self-Driving Cars: Taking the Wheel out of your Hands

Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover's Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru's EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla's vehicles are equipped with a system, aptly named "autopilot", that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it's probably already in your own driveway to some degree...

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Publications original 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.

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Publications original Lockdown at the Harbour: Arresting Multiple Ships? To safeguard eventual judgment

A vessel strikes a marine terminal trestle while in port in Vancouver, causing damage in excess of $60 million dollars. The vessel's worth pales in comparison to the damages caused, though there are a number of sister ships also docked at the port. The terminal owner is rightfully concerned that the vessels will simply leave Canadian waters, sailing out of the jurisdiction and taking the opportunity for any realistic recovery along with them. How can the terminal owners guarantee a future judgment will be satisfied when no one ship can satisfy the damages?

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Publications original 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.

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Publications original 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.

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Publications original Lights, camera, financial transaction: Auditor liability after the Livent decision

Updated June 2016 - The Ontario Court of Appeal's decision in Livent is complex in detail but simple in outcome. Auditors carry more responsibility when auditing publicly-traded corporations because the potential fallout from their negligence is greater.

The key legal and policy points arising from Livent appeal form the basis of this short case comment. While we largely agree with the court's decision, we also offer some constructive commentary in anticipation of a potential appeal to the Supreme Court of Canada.

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Publications original Severe Head Injury Claims

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario's history.

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Publications original Utilizing New Medical Technology in Today's Litigation

Although the courts are sceptical of “dubious science”, the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

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Publications original Third-Party Litigation Funding in Canada

The class action lawsuit is a unique legal procedure. Like any other court proceeding, class actions are a risk-reward proposition. The potential for settlement or damages must be weighed against the expense of litigation and, in some jurisdictions, the risk of an adverse cost award. As such, deep pockets and a high tolerance for risk are often critical to pursue a good case on the merits. 

In this article, we discuss the treatment of third party funding agreements (TPA) by Canadian courts. After a review of the relevant legal principles, we outline the hallmarks of a properly drafted TPA as defined by the courts and discuss undefined areas for future consideration. Virtually all of the substantive case law on third-party funding agreements in the class action context stem from Ontario courts. We therefore focus on these decisions...

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Publications original 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.

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Publications original 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.

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Publications original Real and Substantial Connections and Beyond: Responding to Foreign Lawsuits and Challenging Jurisdiction

With the increased frequency of travel outside province and country, comes a corresponding increase in activity-related injuries. These can result in lawsuits for injuries sustained abroad. Managing where lawsuits may be commenced becomes a source of concern for those involved in the travel industry, such as resort and tour operators and their insurers. Ontario hotel and resort operators may therefore unknowingly find themselves being named as defendants in actions commenced outside of Ontario. This will cover, how it happens, how to challenge it, and managing location in the future.

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Publications original Future Care Costs: Preparation and Mitigation

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus of this paper is on the changes that have occurred with respect to I. Future Care Costs, II. Guardianship and Management Fees; and III. Risk Premiums.

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Publications original 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.

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Publications original 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.

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Publications original Paying for the Future: An Analysis of Large Awards for Future Care Costs

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan15 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

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Publications original 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:

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Publications original Ontario Automobile Insurance Dispute Resolution System Review - Final PDF Report

Catherine Korte, MB's Chair of Accident Benefits, has been making submissions on behalf of the Ontario Bar Association, Toronto Medico-Legal Society and various Insurers to Justice Cunningham regarding proposed changes to the Automobile Dispute Resolution Process in Ontario. Justice Cunningham’s final report has now been released.

Attached is the Ontario Automobile Insurance Dispute Resolution System final review of the Honourable Justice Cunningham.  His final recommendations include:

  • A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
  • Arbitrators should be appointed by order of council on the recommendation of the responsible minister.
  • Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
  • The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
  • The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
  • Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.

Click below to access the report.

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Publications original Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett

FSCO released the appeal decision in Belair Insurance Co. Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants.

Read why this appeal decision is nevertheless favourable to insurers.

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Publications original The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.

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Publications original Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors

Unintentional injuries are the leading cause of death among Canadian minors. Between 1990 and 2007, over 1.6 million children and youth received emergency room treatment for unintentional injuries at hospitals across Canada. Sports and other recreational activities are common precipitating events of serious injury among minors. The ramifications of these injuries to a child can be profound, particularly in cases involving even “mild” trauma to the brain. In the context of litigation, the costs associated with the loss of future earnings and future care can be significant, with damages in some cases being assessed in the millions.

While the spectre of eight figure exposure may seem daunting enough, several factors conspire to make cases involving injuries to minors particularly difficult to navigate from the defence perspective. With this in mind, the following paper will address common legal and strategic elements to be considered when attempting to settle cases involving injuries to minors.

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Publications original 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...

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Publications original 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

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Publications original Effective Claims Management: The role of the crisis communication strategy

Crisis communication is a strategic component of an organization's overall operational response to a crisis. The significance of the communication plan, in the over all crisis management model, is many times under estimated. During a crisis, effective messaging to shareholders, stakeholders and the public, can be determinative as to how an organization's reputation, ie. it's brand and image, will be maintained. In addition, any crisis represents the potential for findings of liability down the road. As such, it is crucial to ensure that the messages of today never become the evidence of tomorrow, which will be used against the insured at a trial in the future.

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Publications original 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?

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Publications original 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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Publications original Escalating Damages in Canada (PDF)

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus on this paper is on the changes that have occurred with respect to: Future Care Costs, guardianship and management fees, and risk premiums.

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NEWS

Publications original June 11th Webinar - Future Care Costs

Did you get your invitation? Speak to your lawyer to attend this informative webinar.

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Publications original Howard Borlack is speaking at Calu Conference

The presentation by Howard Borlack will focus on Understanding Insurance Litigation – How it Works and How to Bullet Proof Your Practice. Register

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Publications original Say Hello to Jack Powles our newest Associate!

MB welcomes our newest associate, Jack Powles, to the Toronto office! His full bio is now available on the website.

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Xmas 2025 thumb original It's beginning to feel a lot like...

We wish everyone a Happy Kwanzaa, Merry Christmas, and/or Happy Hanukkah to you and yours! The firm will be closed on Dec 25, 26, and Jan 1.

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Publications original New Student Blog: The Adjustment from Student to Articling Student

I’ve worked hard to organize my new routine in a way that fits my lifestyle.

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Bye students original Farewell to the 2025 Summer Students

But it's not goodbye... because they are all invited back in 2026 to article!

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Publications original Ontario’s Construction Adjudication Overhaul

New Construction Law Update - Bill 126 (the “Bill”) made several changes to the Act, among which was an expansion of what can be adjudicated.

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A gold thumb original Worth Its Weight in Gold? - Transportation Law Case Study

Brink's, Incorporated v. Air Canada, 2025 FC 110 - The case where Brink’s, a company whose whole raison d’etre is the transport and protection of money, missed the mark on properly documenting the value of its cargo.

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Publications original A Student Blog - What's happened so far: the first few weeks... I was immediately immersed in interesting files and provided meaningful and essential work to move a file forward. View More

OTHERS

Articling & Summer Students

WHY YOU SHOULD CONSIDER OUR FIRM We are currently not accepting student applications. Visit our Student page for When to Apply We believe that students represent the future of our firm; the best way to develop strength is to build from within. To that end, we expend considerable effort in recruiting promising summer and articling students. Our aim is to hire the most talented people with the right balance of advocacy, legal, and...

Privacy Policy

MB recognizes the importance of protecting the personal information that has been entrusted to us. This policy outlines the framework of MB’s policies and procedures regarding its collection, use, retention, and disclosure of personal information in respect of its clients and others. This policy supplements, where applicable, our professional obligations of confidentiality and lawyer-client privilege. MB has updated this policy in...

Legal Notice

Terms and Conditions of Use Your access to, and use of, any material on the McCague Borlack LLP website constitutes your acceptance of, and is conditional upon your acceptance of and compliance with, the following provisions. These terms and conditions may change from time to time, and it is your responsibility to check for such updates.   Disclaimer The content on this website is provided for general information...

Legal Assistant Positions

HERE WE GROW AGAIN! Updated April 18, 2023 Hiring Legal Assistants for the Ottawa office Required 3 to 5 years of litigation experience in both AB and Tort.  Responsibilities include: Open and Close files, Draft correspondence and other legal documents as required, Keep an up-to-date e-filing system, Schedule discoveries, mediations, and other important events, Manage calendar appointments, Maintain...

Our Toronto Location

Call Us: Telephone: 416.860.0001 Facsimile: 416.860.0003 Toll Free: 1.888.960.0010 Directions: Located on the northeast corner of King Street West and York Street in the heart of Toronto’s downtown business community Ample parking below our building with entrances off both York Street and Adelaide Street By subway, disembark at the St. Andrew station and walk east one block By streetcar, take the 504 King car View...

Our Ottawa Location

Call Us: Telephone: 613.569.2855 Facsimile: 613.569.3882 Toll-Free: 1.855.569.2855 Directions: Located on the northwest corner of Bank and Albert Streets in the heart of Ottawa’s downtown business community View Google Map Business Highlights: You will find us in the heart of Ottawa’s business district in the downtown area. Our office is just a short walk from the: Supreme Court of Canada Parliament...

Ottawa Summer Student Position

2ND YEAR OTTAWA POSITION AVAILABLE We will be participating in the 2013 Ottawa Summer Student Recruitment Process. Students interested in a 2nd year summer position at our Ottawa office should submit an electronic version of their application (including a cover letter, a resume, a list of intended third year courses, and copies of undergraduate and law school transcripts) in one PDF document to Cindy Davies, Firm...

Our Kitchener Location

Call Us: Telephone: 519.340.0500 Facsimile: 519.571.8697 Toll-Free: 1.888.960.0010 Directions: Located on Frederick Street just North of King Street East, and East of Queen Street North, View Google Map Business Highlights: You will find us in the core of Kitchener's commercial district, serving all of the Western Ontario regions including the cities of Kitchener/Waterloo, Guelph, Hamilton and London, with...

On a Personal Note...

NEWS LAST UPDATED JANUARY 2020 MB held their Staff Christmas Party at the Escape Manor - everyone was divided into teams and they participated in different escape rooms and then did axe throwing. Super fun time!  See photos.                   Sandy Mark Lee's beautiful therapy dog, Cheyenne, is now with the Pearson Airport Welcome Team Dog Division...

Confirmed Received

  Thank you for registering online.  Please include the email address vwclassaction@mccagueborlack.com  to your safe sender list.       As well, you would have receive an automatic email sent to the address you've specified to confirm registration by clicking the link within the confirmation email. If you don't see it, check your spam filter or contact the email address...

Our Barrie Location

Call Us: Telephone: 705.481.0240 Facsimile: 705.481.2062 Toll-Free: 1.888.960.0010 Located on the South-side of Collier St between Owen and Mulcaster Streets in the heart of Barrie’s downtown business community. View Google Map Business Highlights: Our office is just a short walk from the: Barrie Courthouse Barrie City Hall Barrie Farmers Market Memorial Square Barrie North Shore Trail Read...

Lawyer Positions

LITIGATION LAWYERS - Updated March 2026 We are currently not hiring. We are a law firm located in the heart of Toronto, Ottawa, Kitchener, London, and Barrie's downtown business communities, dedicated to all types of litigation and advocacy. While we have a strong focus on insurance litigation, our firm's expertise covers over 40 other practice areas. Our firm's clients include corporate and commercial entities,...

Hostess / Office Support

NOT CURRENT - EXCITED TO ASSIST IN ALL ADMIN DEPARTMENTS? We are looking for a motivated individual to join our Office Services team as a full-time employee. The successful candidate will be a “jack of all trades” professional and willing to lend a hand in any of our admin departments. You will assist with office support type tasks such as hostess – boardroom set up and clean up, reception relief, and copy & print...

Marketing / Social Media Coordinator / Administration

THIS POSITION IS CLOSED. McCague Borlack LLP is a diverse, mid-sized, leading litigation law firm in Canada offering services to businesses and individuals in a broad range of practice areas. We are currently seeking an individual to support and service our marketing and communications team, overseeing projects with our lawyers, clients, and business professionals. The candidate should have 5 plus years of experience. The core...

IT Support

THIS IS NOW CLOSED - APRIL 2026 McCague Borlack LLP is a diverse, mid-sized, leading litigation law firm in Canada offering services to businesses and individuals in a broad range of practice areas. We are currently seeking a person to assist with technical support. The candidate should have at least 2-3 years of experience. The core responsibilities will be to provide day-to-day support, showing confidence in handling various technical...

Martin Smith

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Ottawa

613.566.5970

msmith@mccagueborlack.com

Martin Smith

Peter F. Yaniszewski

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Toronto

416.860.0037

pfyaniszewski@mccagueborlack.com

Peter F. Yaniszewski

Michael Kennedy

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Kitchener

519.340.0492

mkennedy@mccagueborlack.com

Michael Kennedy

Jennifer E. Kelly

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Toronto

416.864.6584

jkelly@mccagueborlack.com

Jennifer E. Kelly

Alan S. Drimer

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Barrie

705.481.0235

adrimer@mccagueborlack.com

Alan S. Drimer

Nawaz Tahir

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Ottawa

226.781.2128

ntahir@mccagueborlack.com

Nawaz Tahir

Dennis Molnar

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Ottawa

613.566.5992

dmolnar@mccagueborlack.com

Dennis Molnar

Nancy Sadek

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Ottawa

613.566.5986

nsadek@mccagueborlack.com

Nancy Sadek

Sandra White

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Ottawa

613.566.5982

swhite@mccagueborlack.com

Sandra White

Angela Boak

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Kitchener

519.340.0496

aboak@mccagueborlack.com

Angela Boak

Courtney Kind

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Kitchener

519.340.0498

ckind@mccagueborlack.com

Courtney Kind

Kelly Sneep

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Toronto

416.860.2530

ksneep@mccagueborlack.com

Kelly Sneep

Angela Ribarich

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Toronto

416.861.2059

aribarich@mccagueborlack.com

Angela Ribarich

Jason Meloche

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Kitchener

226.781.2129

jmeloche@mccagueborlack.com

Jason Meloche

Catherine A. Korte

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Toronto

416.862.8632

ckorte@mccagueborlack.com

Catherine A. Korte

Joseph Catton

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Toronto

416.860.5243

jcatton@mccagueborlack.com

Joseph Catton

Tiara Beaton

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Toronto

416.860.8363

tbeaton@mccagueborlack.com

Tiara Beaton

Lauren Maynes

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Ottawa

613.566.5991

lmaynes@mccagueborlack.com

Lauren Maynes

Kathleen Bolger

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Ottawa

613.566.5972

kbolger@mccagueborlack.com

Kathleen Bolger

Celina Stoan

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Ottawa

613.566.5980

cstoan@mccagueborlack.com

Celina Stoan

Asta Stalker

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Ottawa

613.566.5994

astalker@mccagueborlack.com

Asta Stalker

Kylie Graham

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Ottawa

613.566.5985

kgraham@mccagueborlack.com

Kylie Graham

Kayen Francisco

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Toronto

416.860.0038

kfrancisco@mccagueborlack.com

Kayen Francisco

Yeru Tan

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Toronto

416.860.8363

ytan@mccagueborlack.com

Yeru Tan

Samantha Campione

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Toronto

416.860.5243

scampione@mccagueborlack.com

Samantha Campione

Claudia Parsons

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Toronto

416.860.1302

cparsons@mccagueborlack.com

Claudia Parsons

Muskan Fatima

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Toronto

416.862.8637

mfatima@mccagueborlack.com

Muskan Fatima

Ryyan Elgalal

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Toronto

416.869.6079

relgalal@mccagueborlack.com

Ryyan Elgalal

Darwish A. Chahbar

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London

226.781.2134

dchahbar@mccagueborlack.com

Darwish A. Chahbar

Javier A Cedano

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Toronto

416.860.8382

jcedano@mccagueborlack.com

Javier A Cedano

Civil Fraud Recovery

Fraud is an unfortunate reality in modern business, particularly for companies in the banking, financial, and insurance industries. Lawyers of our Civil Fraud Recovery Group have experience with these industries. They are intimately familiar with the complicated legal regime that regulates fraud prosecutions and civil actions to recover assets or money lost through deceit. Our lawyers have been successful in recovering millions of...

Commercial & Business Litigation

Litigation is the last thing you want to think about when running a business. For a law firm of trial lawyers with experience at every level of Court, that’s not something we like to hear. Or to admit.  When you need to protect your business by taking legal action or defending a claim, you need a law firm with a demonstrated mastery of the law. One with centuries of collective experience. One with a proven track record of winning...

Defamation & Reputation Management

Our Defamation and Reputation Management Group is comprised of Toronto lawyers whose practices focus on the litigation fields in which defamation actions typically arise. These practice areas include corporate/banking law, municipal law, employment law, and investigation and privacy law. Allegations of libel and slander can also arise during disputes between members of professional associations or as a result of media releases. Because...

Municipal Liability

The legal complexities faced by today’s municipalities are myriad. Our law firm’s Municipal Liability Group has extensive experience with the broad range of legal exposures faced by municipal bodies in the administration of their duties. We are also well-versed in the corresponding insurance concerns. Our objective is to provide cost-effective, results-oriented service to insureds and insurers. We draw on our years of experience...

Landlord and Tenant

Landlord and Tenant disputes, particularly those related to commercial tenancies, can be a complex field that requires a law firm to not only have a thorough understanding of the law but also be sensitive to the need for a landlord and tenant to maintain a business relationship. Our lawyers attempt to resolve landlord and tenant disputes through negotiation and alternative dispute resolution first. When alternative dispute resolution fails,...

A ai legal original A Cautionary Tale – The Use of Artificial Intelligence in the Legal Profession: Past, Present and Future

Artificial intelligence, or “AI,” is already incorporated into several aspects of the legal field, including tasks such as translation, grammar checking, speech recognition, and legal research.

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A blueprint banner original 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.

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A gold original 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...

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A car crash original 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. 
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A bankruptcy original Are you a creditor and do you have standing? Maybe not. Case Study: YG Limited Partnership and YSL Residences Inc.

Justice Osborne of the Ontario Superior Court (Commercial List) recently released his reasons in YG Limited Partnership and YSL Residences Inc., 2022 ONSC 6548, and the implications for future bankruptcy and insolvency proceedings are notable.

The brief facts of the motion were as follows.

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Publications original Causation And Standard Of Proof For A Hypothetical Pre-Trial Loss

First Published in Advocates Quarterly. This paper addresses whether the same principles regarding the “real and substantial possibility” standard of proof apply to a hypothetical past loss claim as they do to a hypothetical future loss claim, and the interplay between the two standards of proof applicable to hypothetical claims: balance of probabilities for the “but for” causation test, and “real and substantial possibility” for damages.

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Publications original 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...
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Publications original 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.

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Publications original 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...

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Publications original 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.

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Publications original 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.

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Publications original 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.

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Publications original From Motorist to Manufacturer: Adjusting to AV Litigation

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 ...

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Publications original No Playing Around: An UPDATE on Tort Liability and School Yard Injuries

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.

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Publications original 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.

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Publications original Autonomous Vehicles and the Future of Litigation

Autonomous vehicles use artificial intelligence and sense their environment using sensors and GPS coordinates to drive themselves without human input. However, this is a very broad term that encompasses everything from cars assisting with keeping themselves in their lane to cars that require no human input.

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Publications original 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:

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Publications original 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.

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Publications original 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.

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Publications original 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:

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Publications original Emerging Trends in Personal Injury Damage Awards

In recent years, there have been a number of developments in the law which have resulted in escalating damage awards, particularly in catastrophic injury cases. The paper will outline some of these developments relating to:

I. Future Care Costs;
II. Guardianship and Management Fees; and
III. Risk Premiums.

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Publications original The Personal Injury Bar's Worst Fear: Not Enough Evidence to Put Question to a Jury

Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.

This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward. 

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Publications original The Future of Litigation and Autonomous Vehicles

Autonomous vehicles are defined as self-driving vehicles capable of sensing their environment using artificial intelligence, sensors and GPS coordinates to drive themselves without human input.1 However, not all cars with autonomous features necessarily operate on the same level of automation. The Society of Automotive Engineers (SAE) International issued a standard classification for defining the various levels of automation in a car. They have identified 6 levels in total, from 0-5...

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Publications original Liability Exposure for Uber Drivers after a Fare is Dropped Off

Over the years, Canadian courts have spent considerable time answering the question: “whether an insured's negligence while using or operating a motor vehicle has ‘caused' – in its recognized legal sense – the injuries sustained by the victim.”1 Now that Uber has revolutionized the way we transport passengers to their chosen destinations, this will inevitably add to the number of vehicle-for-hire on the road. Given this increase, we can expect an escalation of lawsuits involving the liability for vehicles-for-hire. Some of these lawsuits will involve Uber driver's liability. When these circumstances arise, the Courts will have to decide what principles to apply. The cases discussed will provide some guidance as to how the courts may deal with these issues in the future.

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Publications original 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.

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Publications original Auditor Held Liable in Negligence for Non-Clients' Losses - Case Comment: Lavender v. Miller Bernstein

The recent Ontario Superior Court decision, Lavender v Miller Bernstein,1serves as a reminder – and a warning – that the Canadian jurisprudence is beginning to recognize a cause of action in negligence emerging from a negligent misrepresentation where the representor owes a duty of care to the representee. In this case, an auditor was found liable for the substantial financial loss of a securities dealer's clients, though it was the security dealer who fraudulently misrepresented information to its clients.

The fact that the plaintiffs were non-clients of the defendant and may have not even been aware of the defendant's role at the time of the loss is irrelevant, broadening the scope of liability for future negligence claims alike.

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Publications original 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.

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Publications original A summary of threshold decisions from 2016 and 2017: Which got through and which got bounced

Trial judges in motor vehicle accident cases are like bouncers — plaintiffs show up to their courtrooms asking to be let over the threshold. While their cases may not be perfect, a judge will be more inclined to let their cases through if the plaintiffs are likable and if the judge is reasonably satisfied their decision will not cause him or her problems after-the-fact (namely an appeal or an unfair result).

While certainly the main issue upon a threshold decision is whether or not a plaintiff meets the test (namely whether his or her employment, education or activities of daily living are impaired to the requisite degree for the foreseeable future), a plaintiff's credibility and presentation is important to keep in mind when reading a threshold decision.

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Publications original Subrogation: Recommendations for Early Investigation

At the outset of a loss, it is most critical to begin preserving evidence and investigating the cause of the loss. This is beneficial both to preserve future subrogation potential, but also to determine whether there may be any issues that may affect coverage under the policy.

As soon as access is provided to a scene, the first person to enter, along with the adjuster, should be a forensic engineer. For fire losses, it is well understood that a review of the scene, prior to the commencement of repair efforts, is critical to determining the origin and cause of the fire. However, it is common for this approach to be ignored with other types of losses.

For example, in the cause of a failure of plumbing components, there is a tendency for a contractor to remove the part that they consider to be the point of failure, to be provided to an engineer at a later time. This can potentially destroy evidence of the condition of the scene, and also creates issues with the chain of custody.

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Publications original The Effect of "After The Event" Insurance on the Litigation Process

Imagine trading peace of mind for a chance to give someone a piece of your mind. Welcome to “After The Event" (ATE) insurance policies – the instigators of the insurance policy world. In general, Legal Expense Insurance (LEI) products exist to provide coverage for various legal costs and disbursements during the litigation process. These products include “Before The Event" insurance, which provides coverage for a future incident, and “After The Event" insurance, which is obtained specifically to litigate an incident after it has already occurred.

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Publications original 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.

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Publications original 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...

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Publications original 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...

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Publications original 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.

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Publications original Self-Driving Cars: Taking the Wheel out of your Hands

Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover's Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru's EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla's vehicles are equipped with a system, aptly named "autopilot", that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it's probably already in your own driveway to some degree...

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Publications original 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.

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Publications original Lockdown at the Harbour: Arresting Multiple Ships? To safeguard eventual judgment

A vessel strikes a marine terminal trestle while in port in Vancouver, causing damage in excess of $60 million dollars. The vessel's worth pales in comparison to the damages caused, though there are a number of sister ships also docked at the port. The terminal owner is rightfully concerned that the vessels will simply leave Canadian waters, sailing out of the jurisdiction and taking the opportunity for any realistic recovery along with them. How can the terminal owners guarantee a future judgment will be satisfied when no one ship can satisfy the damages?

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Publications original 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.

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Publications original 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.

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Publications original Lights, camera, financial transaction: Auditor liability after the Livent decision

Updated June 2016 - The Ontario Court of Appeal's decision in Livent is complex in detail but simple in outcome. Auditors carry more responsibility when auditing publicly-traded corporations because the potential fallout from their negligence is greater.

The key legal and policy points arising from Livent appeal form the basis of this short case comment. While we largely agree with the court's decision, we also offer some constructive commentary in anticipation of a potential appeal to the Supreme Court of Canada.

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Publications original Severe Head Injury Claims

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario's history.

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Publications original Utilizing New Medical Technology in Today's Litigation

Although the courts are sceptical of “dubious science”, the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

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Publications original Third-Party Litigation Funding in Canada

The class action lawsuit is a unique legal procedure. Like any other court proceeding, class actions are a risk-reward proposition. The potential for settlement or damages must be weighed against the expense of litigation and, in some jurisdictions, the risk of an adverse cost award. As such, deep pockets and a high tolerance for risk are often critical to pursue a good case on the merits. 

In this article, we discuss the treatment of third party funding agreements (TPA) by Canadian courts. After a review of the relevant legal principles, we outline the hallmarks of a properly drafted TPA as defined by the courts and discuss undefined areas for future consideration. Virtually all of the substantive case law on third-party funding agreements in the class action context stem from Ontario courts. We therefore focus on these decisions...

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Publications original 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.

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Publications original 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.

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Publications original Real and Substantial Connections and Beyond: Responding to Foreign Lawsuits and Challenging Jurisdiction

With the increased frequency of travel outside province and country, comes a corresponding increase in activity-related injuries. These can result in lawsuits for injuries sustained abroad. Managing where lawsuits may be commenced becomes a source of concern for those involved in the travel industry, such as resort and tour operators and their insurers. Ontario hotel and resort operators may therefore unknowingly find themselves being named as defendants in actions commenced outside of Ontario. This will cover, how it happens, how to challenge it, and managing location in the future.

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Publications original Future Care Costs: Preparation and Mitigation

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus of this paper is on the changes that have occurred with respect to I. Future Care Costs, II. Guardianship and Management Fees; and III. Risk Premiums.

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Publications original 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.

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Publications original 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.

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Publications original Paying for the Future: An Analysis of Large Awards for Future Care Costs

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan15 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.

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Publications original 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:

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Publications original Ontario Automobile Insurance Dispute Resolution System Review - Final PDF Report

Catherine Korte, MB's Chair of Accident Benefits, has been making submissions on behalf of the Ontario Bar Association, Toronto Medico-Legal Society and various Insurers to Justice Cunningham regarding proposed changes to the Automobile Dispute Resolution Process in Ontario. Justice Cunningham’s final report has now been released.

Attached is the Ontario Automobile Insurance Dispute Resolution System final review of the Honourable Justice Cunningham.  His final recommendations include:

  • A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
  • Arbitrators should be appointed by order of council on the recommendation of the responsible minister.
  • Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
  • The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
  • The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
  • Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.

Click below to access the report.

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Publications original Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett

FSCO released the appeal decision in Belair Insurance Co. Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants.

Read why this appeal decision is nevertheless favourable to insurers.

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Publications original The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.

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Publications original Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors

Unintentional injuries are the leading cause of death among Canadian minors. Between 1990 and 2007, over 1.6 million children and youth received emergency room treatment for unintentional injuries at hospitals across Canada. Sports and other recreational activities are common precipitating events of serious injury among minors. The ramifications of these injuries to a child can be profound, particularly in cases involving even “mild” trauma to the brain. In the context of litigation, the costs associated with the loss of future earnings and future care can be significant, with damages in some cases being assessed in the millions.

While the spectre of eight figure exposure may seem daunting enough, several factors conspire to make cases involving injuries to minors particularly difficult to navigate from the defence perspective. With this in mind, the following paper will address common legal and strategic elements to be considered when attempting to settle cases involving injuries to minors.

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Publications original 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...

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Publications original 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

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Publications original Effective Claims Management: The role of the crisis communication strategy

Crisis communication is a strategic component of an organization's overall operational response to a crisis. The significance of the communication plan, in the over all crisis management model, is many times under estimated. During a crisis, effective messaging to shareholders, stakeholders and the public, can be determinative as to how an organization's reputation, ie. it's brand and image, will be maintained. In addition, any crisis represents the potential for findings of liability down the road. As such, it is crucial to ensure that the messages of today never become the evidence of tomorrow, which will be used against the insured at a trial in the future.

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Publications original 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?

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Publications original 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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Publications original Escalating Damages in Canada (PDF)

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus on this paper is on the changes that have occurred with respect to: Future Care Costs, guardianship and management fees, and risk premiums.

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Publications original June 11th Webinar - Future Care Costs

Did you get your invitation? Speak to your lawyer to attend this informative webinar.

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Publications original Howard Borlack is speaking at Calu Conference

The presentation by Howard Borlack will focus on Understanding Insurance Litigation – How it Works and How to Bullet Proof Your Practice. Register

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Publications original Say Hello to Jack Powles our newest Associate!

MB welcomes our newest associate, Jack Powles, to the Toronto office! His full bio is now available on the website.

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Xmas 2025 thumb original It's beginning to feel a lot like...

We wish everyone a Happy Kwanzaa, Merry Christmas, and/or Happy Hanukkah to you and yours! The firm will be closed on Dec 25, 26, and Jan 1.

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Publications original New Student Blog: The Adjustment from Student to Articling Student

I’ve worked hard to organize my new routine in a way that fits my lifestyle.

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Bye students original Farewell to the 2025 Summer Students

But it's not goodbye... because they are all invited back in 2026 to article!

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Publications original Ontario’s Construction Adjudication Overhaul

New Construction Law Update - Bill 126 (the “Bill”) made several changes to the Act, among which was an expansion of what can be adjudicated.

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A gold thumb original Worth Its Weight in Gold? - Transportation Law Case Study

Brink's, Incorporated v. Air Canada, 2025 FC 110 - The case where Brink’s, a company whose whole raison d’etre is the transport and protection of money, missed the mark on properly documenting the value of its cargo.

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Publications original A Student Blog - What's happened so far: the first few weeks... I was immediately immersed in interesting files and provided meaningful and essential work to move a file forward. View More

Articling & Summer Students

WHY YOU SHOULD CONSIDER OUR FIRM We are currently not accepting student applications. Visit our Student page for When to Apply We believe that students represent the future of our firm; the best way to develop strength is to build from within. To that end, we expend considerable effort in recruiting promising summer and articling students. Our aim is to hire the most talented people with the right balance of advocacy, legal, and...

Privacy Policy

MB recognizes the importance of protecting the personal information that has been entrusted to us. This policy outlines the framework of MB’s policies and procedures regarding its collection, use, retention, and disclosure of personal information in respect of its clients and others. This policy supplements, where applicable, our professional obligations of confidentiality and lawyer-client privilege. MB has updated this policy in...

Legal Notice

Terms and Conditions of Use Your access to, and use of, any material on the McCague Borlack LLP website constitutes your acceptance of, and is conditional upon your acceptance of and compliance with, the following provisions. These terms and conditions may change from time to time, and it is your responsibility to check for such updates.   Disclaimer The content on this website is provided for general information...

Legal Assistant Positions

HERE WE GROW AGAIN! Updated April 18, 2023 Hiring Legal Assistants for the Ottawa office Required 3 to 5 years of litigation experience in both AB and Tort.  Responsibilities include: Open and Close files, Draft correspondence and other legal documents as required, Keep an up-to-date e-filing system, Schedule discoveries, mediations, and other important events, Manage calendar appointments, Maintain...

Our Toronto Location

Call Us: Telephone: 416.860.0001 Facsimile: 416.860.0003 Toll Free: 1.888.960.0010 Directions: Located on the northeast corner of King Street West and York Street in the heart of Toronto’s downtown business community Ample parking below our building with entrances off both York Street and Adelaide Street By subway, disembark at the St. Andrew station and walk east one block By streetcar, take the 504 King car View...

Our Ottawa Location

Call Us: Telephone: 613.569.2855 Facsimile: 613.569.3882 Toll-Free: 1.855.569.2855 Directions: Located on the northwest corner of Bank and Albert Streets in the heart of Ottawa’s downtown business community View Google Map Business Highlights: You will find us in the heart of Ottawa’s business district in the downtown area. Our office is just a short walk from the: Supreme Court of Canada Parliament...

Ottawa Summer Student Position

2ND YEAR OTTAWA POSITION AVAILABLE We will be participating in the 2013 Ottawa Summer Student Recruitment Process. Students interested in a 2nd year summer position at our Ottawa office should submit an electronic version of their application (including a cover letter, a resume, a list of intended third year courses, and copies of undergraduate and law school transcripts) in one PDF document to Cindy Davies, Firm...

Our Kitchener Location

Call Us: Telephone: 519.340.0500 Facsimile: 519.571.8697 Toll-Free: 1.888.960.0010 Directions: Located on Frederick Street just North of King Street East, and East of Queen Street North, View Google Map Business Highlights: You will find us in the core of Kitchener's commercial district, serving all of the Western Ontario regions including the cities of Kitchener/Waterloo, Guelph, Hamilton and London, with...

On a Personal Note...

NEWS LAST UPDATED JANUARY 2020 MB held their Staff Christmas Party at the Escape Manor - everyone was divided into teams and they participated in different escape rooms and then did axe throwing. Super fun time!  See photos.                   Sandy Mark Lee's beautiful therapy dog, Cheyenne, is now with the Pearson Airport Welcome Team Dog Division...

Confirmed Received

  Thank you for registering online.  Please include the email address vwclassaction@mccagueborlack.com  to your safe sender list.       As well, you would have receive an automatic email sent to the address you've specified to confirm registration by clicking the link within the confirmation email. If you don't see it, check your spam filter or contact the email address...

Our Barrie Location

Call Us: Telephone: 705.481.0240 Facsimile: 705.481.2062 Toll-Free: 1.888.960.0010 Located on the South-side of Collier St between Owen and Mulcaster Streets in the heart of Barrie’s downtown business community. View Google Map Business Highlights: Our office is just a short walk from the: Barrie Courthouse Barrie City Hall Barrie Farmers Market Memorial Square Barrie North Shore Trail Read...

Lawyer Positions

LITIGATION LAWYERS - Updated March 2026 We are currently not hiring. We are a law firm located in the heart of Toronto, Ottawa, Kitchener, London, and Barrie's downtown business communities, dedicated to all types of litigation and advocacy. While we have a strong focus on insurance litigation, our firm's expertise covers over 40 other practice areas. Our firm's clients include corporate and commercial entities,...

Hostess / Office Support

NOT CURRENT - EXCITED TO ASSIST IN ALL ADMIN DEPARTMENTS? We are looking for a motivated individual to join our Office Services team as a full-time employee. The successful candidate will be a “jack of all trades” professional and willing to lend a hand in any of our admin departments. You will assist with office support type tasks such as hostess – boardroom set up and clean up, reception relief, and copy & print...

Marketing / Social Media Coordinator / Administration

THIS POSITION IS CLOSED. McCague Borlack LLP is a diverse, mid-sized, leading litigation law firm in Canada offering services to businesses and individuals in a broad range of practice areas. We are currently seeking an individual to support and service our marketing and communications team, overseeing projects with our lawyers, clients, and business professionals. The candidate should have 5 plus years of experience. The core...

IT Support

THIS IS NOW CLOSED - APRIL 2026 McCague Borlack LLP is a diverse, mid-sized, leading litigation law firm in Canada offering services to businesses and individuals in a broad range of practice areas. We are currently seeking a person to assist with technical support. The candidate should have at least 2-3 years of experience. The core responsibilities will be to provide day-to-day support, showing confidence in handling various technical...

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