On September 17, 2018, Justice Coroza of the Ontario Superior Court of Justice released his decision in Bucknol v. 2280882 Ontario Inc1(“Bucknol”),a motion for summary judgement dealing with commercial host liability and outlining the pillars of claims of negligence. Interestingly, Justice Coroza originally heard the motion in January of 2018 and reserved his decision. In June of 2018, counsel for the defendant (moving party) brought to his Honour's attention the May 2018 Supreme Court of Canada decision of Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”) and further written submissions were requested of counsel.
By way of background in Bucknol, the plaintiff was struck by a beer bottle that had been thrown by an unknown assailant at Classic Lounge Nightclub...
In the recent decision of Caryk v Karlsson,1 the Ontario Superior Court of Justice refused to compel Erik Karlsson's wife to provide evidence relating to allegations that she was cyberbullied by the partner of one of her husband's former teammates. In doing so, Mullins J. provided an overview of the Norwich Order remedy, and found that the interests of justice would not be well served by granting such an Order. This decision is noteworthy because it confirms that the Norwich Order is an extraordinary form of relief that will only be granted in very limited circumstances. This holds true even in cases dealing with allegations of cyberbullying.
In Rockyview Enterprises v Starline Windows, et al, (1601-03526) Justice Romaine dismissed the Plaintiff's appeal of Master Farrington's decision to summarily dismiss the claims against the Defendants but refused to award double costs because the formal offer had not been re-served.
Starline supplied the windows for the Project. The general contractor hired Clean Team to clean the windows after construction. Clean Team subcontracted the work to Rockyview. Rockyview had difficulties cleaning the windows...
Attempting to introduce surveillance as evidence at trial is becoming increasingly more challenging. In order to use surveillance as substantive evidence at trial, the Court has made it abundantly clear that certain requirements must be met.
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.
The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.
In order for surveillance to be admissible as substantive evidence, the first hurdle it must satisfy is being accurate in truly representing the facts. The courts have been clear that a surveillance report must include...
If a picture is worth a thousand words, then a video is worth more than a million. This is why surveillance evidence in bodily injury actions is such a powerful and persuasive tool – a fact that has been recognized by judges, who are very careful when admitting surveillance into the record as substantive evidence.
Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs or applicants that legitimately suffer from chronic pain and those who do not. The plaintiff's or applicant's credibility becomes a central issue in the litigation, and counsel often looks to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's or applicant's credibility and challenge the validity of his or her claim.
In March of 2018, the Alberta Court of Appeal released its decision in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (Stefanyk). The claim was for injuries suffered by a customer at a Sobeys store in Calgary after she was startled by a dog tied up outside the store, causing her to fall. In their decision dismissing the Plaintiff's claim, the Court made several strong statements about the Court's power to grant summary dismissal.
In the absence of any human input in the operation of vehicles (level 5),1drivers are rendered passengers and any liability for causing 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 ...
After a comprehensive regulatory consultation period with Canadians, municipal, provincial, and territorial governments, law enforcement officials, public health representatives, stakeholders, and Indigenous governments and representative organizations, among others, the federal government published the Cannabis Regulations to support the coming into force of the Cannabis Act (the “Act”) in the Canada Gazette on July 11, 2018.
McCague Borlack LLP
In July 2018, the Ontario Court of Appeal handed down its decision in Gillham v Lake of Bays (Township) (“Gillham”),1 wherein the Court of Appeal struggled with the issue of whether a claim made after the limitation period could be permitted.
In English v Manulife Corporation, 2018 ONSC 5135, the Ontario Superior Court of Justice considered the legal question of whether an employee who has resigned by way of a notice of retirement may later rescind her written notice of retirement.
If an employee has a change of heart and wishes to resile from retirement after formally providing notice, is an employer on the hook for wrongful dismissal if they chose to uphold the notice of resignation?
The Ontario Court of Appeal has struck down the mandatory minimum sentence for possession of child pornography. The Appellant, Nathaniel John, in R v John, 2018 ONCA 702, successfully convinced three judges that imposition of a mandatory minimum sentence of six months imprisonment is grossly disproportionate to the conduct of a reasonably hypothetical offender, using, for example, a youth “sexting”.
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.
Careful analysis of relevant case law dealing with family members claiming attendant care benefits pursuant to s. 3(7)(e)(iii)(A) of the Statutory Accident Benefits Schedule [“Schedule”] indicates that there are numerous factors to consider when determining eligibility. This case law examines whether a professional health care provider that is also a family member of the claimant (i) worked in that capacity at some point prior to the subject accident or at the time the attendant care services were provided; OR (ii) if not, he or she actively sought employment in that capacity at the time of the accident or at the time the services were provided.1 In addition, this case law reviews this family (Along with a handy table for easy reference)...
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.
You have been retained to act for the insurer and the driver as a result of a rear-end motor vehicle accident in which the driver has been rear-ended. There is likely no liability against your client and there are no mechanical issues with the vehicle. Unfortunately, and not surprisingly, you encounter a difficult insured who refuses to co-operate and fails to reply to your letters, phone calls, or requests (pleas), that they attend examination for discovery. What do you do?
In Filice v Complex Services Inc., the Ontario Court of Appeal overturned a trial judge's decision by significantly lowering the reasonable notice period arising from the constructive dismissal of an employee and finding that punitive damages were not appropriate in the circumstances despite the trial judge awarding $100,000 in punitive damages.
The case has several implications for employees under investigation, both administratively and criminally, and should be considered by all employers and human resource departments country-wide.
In a recent decision, Mary Shuttleworth v Licence Appeal Tribunal, 2018 ONSC 3790, the Ontario Divisional Court confirmed that when a tribunal makes a decision, it must guard against creating a reasonable apprehension of a lack of independence of the decision makers.
In seeking an order to dismiss the plaintiff's action pursuant to s. 137.1(3) of the Courts of Justice Act, McCague Borlack LLP litigators David Elmalehand Aryeh Samuel successfully used the new Anti-Strategic Lawsuit Public Participation (Anti-SLAPP) legislation to have the case dismissed for their client B'nai Brith Canada.
In Lascaris v B'nai Brith, the plaintiff, a former securities class action lawyer and former Justice Critic of the Green Party of Canada, sued the defendant B'nai Brith Canada for libel after the organization published an article and a Tweet on political issues in the Middle East. The publications suggested that Lascaris used social media to advocate on behalf of terrorists.
To what extent can sports clubs, facilities and leagues be held responsible for the violent outbursts of a player during a game?
The Ontario Court of Appeal in Da Silva v. Gomes, 2018 ONCA 610 recently upheld the principle that supervising authorities are generally not legally responsible for "a sudden unexpected event in the midst of an acceptable, safe activity."
This decision, Mary Shuttleworth v. License Appeal Tribunal, 2018 ONSC 3790, concerns a claimant who brought a dispute over statutory accident benefits to the License Appeal Tribunal (“LAT”), arising from a motor vehicle collision. The LAT has statutory authority to hear all disputes related to benefits under the Statutory Accident Benefits Schedule (“SABS”).
The LAT Adjudicator decided that the claimant's injuries did not warrant a designation of catastrophic impairment as defined in the SABS. A designation of catastrophic impairment under the SABS increases limits of some benefits and is a prerequisite for other benefits.
To what extent must service technicians warn their customers of particular risks associated with the product they are servicing? After presiding over a seven-day trial on liability alone, Madame Justice S. Gomery grappled with this very question and provided a framework to help answer it in her recent decision in Maxrelco v Lumipro Inc., 2018 ONSC 3638.
This decision explains what factors would trigger the duty to warn and in what circumstances would they attract liability.
In Ontario (Children's Lawyer for Ontario) v Ontario (Information and Privacy Commissioner) 2018 ONCA 599, the Court of Appeal for Ontario considered the novel issue of whether a child-client's litigation records with the Children's Lawyer should be subject to a father's freedom of information access request. The Adjudicator at first instance determined that the records were “in custody or under the control” of the Attorney General (“MAG”) and ordered that MAG respond to the father's request. On judicial review at the Divisional Court, the court upheld the order of the Adjudicator. In a rare move, the Children's Lawyer appealed...
In a decision that will likely be replicated by other courts nationwide, Master MacAfee in Robichaud v McAulay, 2018 ONSC 3636, ordered production of an insurer's underwriting file along with the relevant insurance broker's file.
The underlying litigation involved a 2012 motor vehicle accident. The defendant, Kyriakos Constantinidis, was driving his mother's car and rear-ended the plaintiff. The insurer denied coverage to Kyriakos, claiming that he did not have consent to possess his mother's vehicle. The plaintiff pled that Kyriakos had consent, whereas the mother denied providing consent.
In a recent decision, the Federal Court of Appeal confirmed that common interest privilege (“CIP”) is a principle of Canadian law. This principle is unlike solicitor-client privilege, in that communication between counsel and a third party may be considered privileged if the shared information is to benefit both parties, especially with respect to the furtherance of a commercial transaction. The court overturned a Federal Court decision which held that that CIP is not a principle of Canadian law.
The Federal Government of Canada has yet to set a date for the legalization of recreational cannabis in Canada. Current forecasts estimate that it will be legalized in the summer of 2018, but this may be optimistic. Once recreational cannabis is legalized, its sale and distribution will be regulated by the provinces leading to different rules province to province, like the regulation of alcohol.
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.
With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information.
There are three guiding principles:
The United States Attorney's Office, Southern District of New York, has charged five individuals with defrauding businesses and insurance companies of more than $31.7 million in an elaborate slip and fall scheme dating back to 2013.
Peter Kalkanis, Bryan Duncan, Kerry Gordon, Robert Locust, and Ryan Rainford (“the accused”) are charged with conspiracy to commit mail and wire fraud, mail fraud, and wire fraud. Peter Kalkanis, the alleged “ringleader” of the scheme, is also charged with aggravated identity theft.These charges relate to how the fraud scheme was allegedly carried out...
In the recent decision of Mega International Commercial Bank (Canada) v. Yung (“Mega International”), the Ontario Court of Appeal provided an analysis of the contentious issue of whether the limitation period for a contribution and indemnity claim (under section 18 of the Limitations Act, 2002 (“the Act”)) is an absolute limitation period, or if it is subject to issues of discoverability.
On April 11, 2017, David Marshall, Special Advisor to the Minister of Finance, released his final 103-page report regarding Ontario's auto insurance system. The report was entitled: Fair Benefits Fairly Delivered (the “Report”).
The Report's introduction outlines the purpose of David Marshall's role as Special Advisor and the purpose of his appointment, by Order in Council, to review and make recommendations for improvements in the auto insurance system in Ontario. Marshall explains that Ontario is often criticized as having the most expensive auto insurance in Canada.
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:
Service contracts as between sophisticated parties often contain numerous indemnity and insurance provisions, subject to specific terms. Determining whether a duty to defend an additional insured under a Commercial General Liability Policy (“CGL Policy”) is triggered in a particular instance is, therefore, an intricate exercise. Many CGL Policies provide that one party, for example, a subcontractor or service provider, agrees to defend (and often indemnify) the owner of the property and add them as an “additional insured”.
The day-to-day life of a farm kid is exceedingly different from that of a “city" boy or girl. While some children are told to take out the trash, clear the table, and tidy up their bedrooms, children of farmers are expected to be up at the crack of dawn to engage in unpaid, arduous labour to support the viability of the farm and to prepare the next generation to take over. What happens when these children grow up and feel they should now be compensated for their "family chores"?
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.
Much ink has been spilled analyzing and assessing the macro impacts of the residential real estate market worldwide. Canada and its largest cities are no exception, particularly in Vancouver, Toronto and the surrounding areas. When the residential real estate market rises, many people, perhaps with the exception of first-time buyers, are joyful homeowners and investors. When the market turns and drops, it is not for the faint of heart.
In Gamoff v. Hu, 2018 ONSC 2172, Justice Edwards presided over the sad facts of how one family, desperate for their dream home, became embroiled in a bidding war and overextended their ability to finance the purchase price of that home. Regrettably, the tragic facts of this case are not uncommon.
In the recent decision TMJ Hygiene Service Corporation v Aces Capital Inc.,1Monahan J. rescinded a $95,000 contract for the sale of two seat licenses at the Air Canada Centre. Justice Monahan found that the vendor, Aces Capital Inc. (“Aces”), misrepresented the location of the tickets associated with the seat licenses to the purchaser, TMJ Hygiene Service Corporation (“TMJ”).
In the recent decisions in Schnarr v Blue Mountain and Woodhouse v Snow Valley, the Court of Appeal for Ontario held that the Occupiers' Liability Act ("OLA") prevails over the general provisions of the Consumer Protection Act ("CPA").
This decision, where MB's James Tomlinson and Garett Harper successfully represented the intervener Canadian Defence Lawyers, reaffirms the jurisprudence surrounding waivers in Ontario and confirms that waivers are still an effective means of managing risk for occupiers who also meet the definition of "supplier" under the CPA.
Anyone who has ever been to a board meeting (or a partners, shareholders, town hall, or any similar type of meeting) can attest to the tension that often arises. The law is clear that occupiers have a duty to maintain their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the Board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?
In an increasingly technological age, the production of cell phone records is becoming a common undertaking request in actions arising out of motor vehicle accidents. In Austin v. Smith,1 the Court recognized the importance of these records and ordered production of them, even where there was no evidence that the cell phone was in use at the time of the accident.Rather, the mere admission that the driver had a cell phone in his or her vehicle at the time of the accident was sufficient to warrant the production of the cell phone records.
Passionate political supporters often choose to convey their message in a manner that grasps observer's immediate attention, regardless of how it may be interpreted. This is the precise fashion in which Fredrick Bracken decided to transmit his electoral support for the current United States President, Donald Trump, while at Niagara Parks. In choosing Niagara Parks as his political forum, Mr. Bracken prompted, for the first time, the Court of Appeal's interpretation and constitutional analysis of section 2(9)(a) of Niagara Parks Act, Regulation 829...
The appeal decision in Ontario (Minister of Finance) v AXA Insurance1 is an important lesson for insurers who claim to have cancelled an insured's automobile policy, specifically when a priority dispute later arises.
In this case, the claimant was involved in a motor vehicle accident on December 29, 2011. He received accident benefits from the Motor Vehicle Accident Claims Fund (“the Fund”), which is administered by the Minister of Finance. The Fund disputed its priority to pay benefits and argued that the claimant had a valid automobile policy with Elite Insurance (“Elite”) on the date of loss.
The purpose of case management in the Ontario civil justice system is to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just conclusion. As part of this system, all the steps in a particular case might be heard by one particular judge. This mechanism often provides parties with “repeated, privileged access to a judge” to help streamline an action.
However, when case management is abused by parties and/or their counsel, the Court will not hesitate to remove the matter from case management and will likely also chastise the parties and their counsel in the process. Justice Frederick Myers did just that in a recent Endorsement which arose in the context of a heavily litigated trusts and estates matter.
The recent tragic accident in Arizona involving an autonomous vehicle and a pedestrian raises some important questions about liability. While not yet available to consumers, self-driving cars are being tested on streets throughout the United States and Canada in order to fine-tune and develop the emerging technology with the ultimate goal of reducing collisions involving motor vehicles.
The question this unfortunate accident raises is who is at fault? Is it the test driver behind the wheel? The manufacturers of sensors or radar? The developer of the software? The owner of the vehicle? Or was it purely contributory negligence on the part of the pedestrian?
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.
Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.
As a result of the special nature of local governments, including cities, towns, counties, regional municipalities, etc., they enjoy a special role in respect of litigation, and have a number of unique defences at their disposal which can often discourage or thwart subrogation efforts altogether. However, it is important to understand that such defences are not insurmountable, but only require special consideration in order to deal with.
More importantly, a detailed understanding of the available defences typically asserted by municipalities can actually make it more likely that actions can succeed as against them.
Recently, the Ontario Superior Court of Justice in Thomson v Portelance, 2018 ONSC 1278, reminded the Bar that a party to motor vehicle accident litigation in Ontario must schedule a mediation once requested.
In Thomson, Justice Firestone presided over a case conference requested by the plaintiff in a situation where the defendant refused to schedule mediation until after examinations for discovery were complete.
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:
In the midst of a crisis, the common law Doctrine of Emergency is a defendant's saving grace.
When faced with a sudden emergency that a driver is not responsible for creating, he or she cannot be held to a standard of conduct of a reasonable driver in ordinary circumstances – the unique and exigent circumstances must be taken into account when measuring the appropriate standard of care and whether or not there was a breach.
On February 23, 2018, in a split-decision, the Ontario Court of Appeal in Isaac Estate v Matuszynska1 upheld a lower court's decision granting summary judgment and dismissing the action, where the Doctrine of Emergency was found to apply in a drug transaction that went horribly wrong.
This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.
Limitation periods, sometimes referred to as proscription periods, refer to the time that a party has to commence an originating court process. They are governed by provincial statutes.
The main purposes of limitation periods are to provide certainty and finality, as well as to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9...
The concept of medical malpractice broadly refers to the tort of negligence being pursued against a regulated health practitioner for actions carried on in the scope of one's medical practice. A regulated health practitioner extends far beyond just physicians but includes those non-physicians such as nurses, radiologists, chiropractors, midwives, and a whole host of other practitioners.
Medical professionals owe a duty of care to their patients. In Canadian law, with respect to the administering of any treatment, a health practitioner will (generally) owe two duties of care to a patient.
A recent Court of Appeal decision1 has clarified two issues that are of relevance to insurers involved in priority disputes.
Both appeals involved individuals who were claiming accident benefits although they were listed as excluded drivers in their parents' policies.
The first issue relates to whether excluded drivers in a household may be entitled to accident benefit coverage from the insurers who issue the given policy.
The second issue relates to what is the appropriate standard of review for an insurance arbitrator's decision involving specialized expertise.
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.
Canadian citizens, and those not as fortunate to live in Canada, have the perception that 'uniform publicly funded' medical-related services are available nationwide in Canada and are 'free'... that is what it is to be Canadian. However, contrary to popular belief, there is no unified single professional regulatory, or single-payer national healthcare system in Canada. To the extent that there is healthcare that is publicly funded in Canada, it is funded on a provincial or territorial basis [here-in-after collectively 'provincial' or 'province'] and supplemented with federal funds that are 'conditionally' transferred to the province.
It was a cold and snowy January evening on Highway 401. A small cargo van was travelling eastbound on a delivery assignment to Ottawa, Ontario. This van was hauling a variety of heavy boxes, of various sizes and weights, which were haphazardly placed in the van. The company had installed a small plywood panel between the driver and the cargo area as an afterthought a couple of weeks previously.
Tragedy struck shortly after the driver finished a break at the Odessa OnRoute. Upon accelerating out of the exit ramp, the van encountered some ice and started to skid. Frantically trying to regain control, the driver hit the brakes hard, resulting in jarring which caused the cargo in the back to become dislodged. One box hit the driver, who then could not prevent the van from veering into the path of a sedan driven by a 63-year-old retiree. Both cars ended up in the ditch and, while it appeared that no one was severely hurt, damages to the vehicles resulted in total losses.
The retired sedan driver decided, prior to the expiration of the limitation period, to sue the driver of the van for negligence. There was, however, a nagging issue related to the storage of the cargo...
When is post-accident income considered “earned” and therefore deductible from an Income Replacement Benefit?
A January 10, 2018, decision of Adjudicator Robert Watt provides useful guidance on the issue.
The issue becomes contentious with claimants who continue to earn income after an accident at a changed or reduced capacity...
What kind of evidence is likely to cause an automobile tort claim to flop?
A threshold decision of Justice P. J. Monahan released December 13, 2017, provides useful guidance on the issue.
The circumstances will sound familiar to insurers and their counsel.
Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?
The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.
In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.
The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340 Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000.00 in advance of the trial scheduled for November 2018.
The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015 following her admission of liability.
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.
In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 (“HTA”). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.
The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.
This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. Anthony Gatensby and Karen Bernofsky of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.
On September 14, 2017, Justice Sanfilippo of the Ontario Superior Court of Justice granted summary judgment dismissing the plaintiff's occupiers' liability claim, stating that without objective evidence pointing to the cause of her slip and fall, the claim could not succeed.
The plaintiff, Mrs. Hamilton, a nine-year resident of an apartment building owned by the defendant, Toronto Community Housing Corporation (“TCHC”), alleged that on May 7, 2012, she slipped and fell in the 4th floor hallway leading to her apartment unit...
The Ontario Superior Court of Justice recently released the trial decision where Martin Smith, with the assistance of Desneiges Mitchell, successfully defended a chiropractic malpractice case where the plaintiff, (Patient), sued the defendant chiropractor for negligence and battery for alleged improper chiropractic treatments.
Recently in Middleton v Pankhurst,1 the Court of Appeal confirmed the parameters in which insurers may deny coverage on the basis that the insured was not a “person authorized by law” in accordance to Statutory 4 (1) Condition of O. Reg. 777/93:
Authority to drive
4 (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless
As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.
This article will review post-accident steps for insurers and drivers.
In Teva Canada Ltd. v. TD Canada Trust, the Supreme Court of Canada considered the defence to the tort of conversion under s. 20(5) of the Bills of Exchange Act. The judges split 5-4, ultimately upholding the recent jurisprudence on the test for non-existing or fictitious payees instead of returning to a purely objective approach, as suggested by the dissenting judges.
The dispute arose from the fraudulent actions of Teva's finance manager.
The Office of the Information and Privacy Commissioner of Ontario (“IPC”) recently considered whether and under what circumstances insurers could collect health card numbers from their insureds.
The issue arose when the Ministry of Health and Long-term Care informed the IPC that individuals’ health card numbers were compromised by criminal activity and were being used to file fraudulent claims...
Complaints about civil jury trials in motor vehicle cases are not novel or uncommon. It is the perception of some (most notably the plaintiff bar) that jury results are typically unfavourable to plaintiffs. Recently, the complaints have increased to the point where even the Judiciary is weighing in.
For example, in 2016 a Superior Court Judge commented in a threshold decision...
In his infamous article, “The Sharing Revolution – It's About More Than Just Getting Twice the Value For Half the Cost”, Paul Z. Pilzer, an American economist and self-proclaimed ‘social entrepreneur', discusses a phenomenon he refers to as “the sharing revolution”. He calls it the most significant change in the history of the Western world since the nineteenth century when the creation of affordable automobiles forever shaped our society. Mr. Pilzer argues that Uber is only a part of this Sharing Revolution in which everything – how we drive, what we eat, where we sleep – is becoming shared by more than one individual in order to halve the cost. It is this sharing revolution that, according to Mr. Pilzner, will surpass our conventional service providers, will allow for cheaper goods and services and ultimately revolutionize our society.
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.
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.
Ms. Wilson, an Australian actress and star of several Hollywood movies, sued the defendants for defamation based on eight separate publications published over a three-day period.
On September 13, 2017, Justice John Dixon of the Supreme Court of Victoria, Australia, awarded Ms. Rebel Wilson an unprecedented amount in damages for defamatory articles published by Bauer Media Pty Ltd. and Bauer Media Australia Pty Ltd...
The recent LAT decision in 16-000218 v. Aviva Insurance broadens the definition of the term “accident” as per SABS and potentially opens doors for accident benefits claims being brought forward that don't necessarily fit neatly into the classic category of what we are used to thinking about as an “accident”.
A seven-year old elementary school student suffering from cerebral palsy and quadriplegia was picked up by a school bus at her home. The driver was to take the applicant to school, but instead, with the applicant still in the vehicle, travelled to the driver's own house, got into a different vehicle, and left. The applicant remained in the school bus, alone and unattended, for approximately two hours...
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.
Recently, the public learned of a lawsuit against two children regarding a schoolyard incident in 2015. With school back in session, what does this current state of affairs mean for students, school boards – and even parents moving forward? Furthermore, what should insurers be thinking about as children fill the halls and playgrounds for another year?
In Saadati v. Moorhead, 2017 SCC 28, the Supreme Court of Canada recently lowered the standard of proof for a mental injury. In Saadati, the plaintiff was injured in five motor vehicle accidents. The second accident was the subject accident of the litigation. The plaintiff only suffered physical injuries from the first accident. He suffered mental injuries from the second, third, fourth, and fifth. After the fifth accident, the plaintiff was ruled incompetent. As a result, his friends and family were allowed to testify at trial for the second accident. There was a report from the psychiatrist that the plaintiff suffered a mental disorder after the third accident.
The Honourable Madame Justice Hollins recently issued her decision in Torrance v. Calgary Catholic School District No 1, 2017 ABQB 488. Brownlee's David Pick appeared on behalf of the Calgary Catholic School District (the “School District”), and successfully argued the application.
The claim of the Plaintiff, ET, was both struck out under Rule 3.68 and summarily dismissed under Rule 7.3(1). A summary of the decision follows.
The Alberta Rules of Court permit videotaping of an Independent Medical Examination. However, the question becomes: Who may watch that video? Rule 5.43(3) states the video must be provided to the other party. However, the Rule is silent on whether that party can provide the video to their expert for review, whether their lawyer can view the video, or whether their insurer, if involved, can view the video. These questions were addressed by the Court in Kohlendorfer v. Northcott, 2013 ABQB 145.
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.
The stage was set. The tug-of-war pitted 20 or so trailer renters against 20 or so cottage renters. Disaster ensued.
In Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, the Plaintiff, Timothy Bonello ("Bonello"), sought relief from an injury arising from a game of tug-of-war.
Bonello brought an action against several parties, including the Marina, Davies Junior and Joseph Davies Sr. (“Davies Senior”), the principal of the Marina. In Bonello's claim, he asserted that the Marina and Davies Senior were negligent and also liable pursuant to the Occupiers' Liability Act. In addition, Bonello claimed that the defendants were vicariously liable for the negligent actions of Davies Junior. The Marina and Davies Senior responded with a summary judgment motion to dismiss the action.
Case Study: HMTQ v Philip Morris International, Inc., 2017 BCCA 69
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.
All hosts know there are several elements that need to be properly planned when hosting a social function: the company, the food, the music and, of course, the refreshments. With the anticipated legalization of recreational marijuana in Canada, however, could a social host face exposure if marijuana is provided and something unexpected happens?
In the recent decision of Wilson v Alharayeri,1 the Supreme Court of Canada unanimously found that directors and officers of a corporation can be personally liable for corporate oppression pursuant to section 241 of the Canada Business Corporations Act (“CBCA”). In doing so, Cóté J., writing for the Court, clarified the test for when personal liability may be imposed on corporate directors for oppression.
Ultimately, this decision broadens the application of the oppression remedy and exposes corporate directors and officers to a greater risk of personal liability.
Airbnb, and other similar businesses offering “Short Term Rentals”, are not presently regulated in any significant way in the Toronto area, despite the fact that its main competitors - hotels, and bed and breakfasts (“B&Bs”) - are regulated. However, the City of Toronto is moving towards creating regulations for Airbnb, with recommendations released in June 2017.
A less publicized grey area is the home insurance implications of a homeowner using their residence for Airbnb listings. Short Term Rentals of a residence are inconsistent with most standard home insurance policies.
Non-pecuniary damages (also called general damages) are awarded to a plaintiff that sustained a non-monetary loss. These damages are not capable of exact quantification. Examples of such losses include, inter alia, pain and suffering.
Claims for general damages in automobile cases are subject to a statutory threshold test.1 If a person injured in a motor vehicle accident meets the threshold test, then a statutory deductible applies.
Insurance fraud is a tale as old as time. The earliest recorded incident occurred in Ancient Greece, around 300 BC. Hegestratos, a merchant, took out an insurance policy which required payment (with interest) upon his ship's safe arrival to its destination. Failing to repay the loan would result in repossession of the ship and its cargo. Hegestratos conspired to commit insurance fraud by sinking his empty ship and selling the cargo, thereby keeping the loan. For the record, he was unsuccessful, as he drowned trying to escape his crew who caught on to his plans.1
Since then, transportation methods have evolved, and so have opportunities for fraud.
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.
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.
Historically, separate and distinct causes of action developed within the law of torts. Suits had to be pleaded within an existing and recognized form of action in order to succeed. This pleading requirement was abolished by the Common Law Procedure Act 1852, the principles of which have been accepted into Canadian provincial law. It is now only necessary to plead facts that may, if proven, give rise to a cause of action in tort. It is not necessary to identify or name the specific nominate tort that constitutes the basis of the action.
In practice, we usually lay out which tort we will be leading facts to prove. In insurance subrogation, we usually work within the framework of negligence, but this doesn't mean that we are limited to it when it comes to executing our subrogated right of action. A review of some lesser known torts demonstrates the spectrum of torts available at common law which can be useful in advancing a subrogation claim.
The scope of an insurer's responsibility regarding the duty to defend and indemnify has increased. This increased responsibility can be observed with respect to an insurer's duties to an additional insured, an insurer's duties in a situation involving a conflict of interest, and an insurer's duties in a situation involving a breach of contract.
What is the duty to defend versus the duty to indemnify?
Commercial general liability (CGL) insurance policies are primarily used to provide financial protection to an insured party in the event that it issued by a third party. CGL policies result in the insurer assuming two obligations towards the insured:...
In bodily injury claims, there are typically two types of examination of the plaintiff that take place: (1) Examinations for Discovery, and (2) Independent Medical Examinations.
The following are issues that typically arise in scheduling examinations for discovery and independent medical assessments.
After the Event Insurance (“Trial Insurance”) is a type of insurance that protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial. Generally, unsuccessful parties bear the responsibility of paying a, sometimes significant, portion of the successful side's legal costs in addition to their own. The availability of Trial Insurance changes the landscape of personal injury litigation for everyone involved. While the concept of Trial Insurance is relatively new in Ontario, it is already rapidly evolving and becoming more prevalent. How it Works...
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.
At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act (“the Act”).
Defamation law, mostly conceived in an old-media world, historically balanced one person's right to freedom of speech with another's to not have his or her reputation unfairly attacked. The emergence of social media has made it more difficult to navigate the application of these long-standing principles. Unlike the traditional letter to the editor, comments on social media can be posted instantly, often in the heat of emotion, and many people who post comments do so under the mistaken belief that they will remain anonymous. Social media has the ability to create a false sense of intimacy, as users may mistakenly believe they are only speaking to a small, well-known group of individuals...
In an important decision released June 2, 2017, the Court of Appeal of Ontario considered the novel issue of whether a taxi company is liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part.
A unanimous Court of Appeal ruled that the taxi company was not vicariously liable, suggesting that not all employers are vicariously liable for the intentional acts of their employees, even when their clientele may find themselves in the most vulnerable of situations.
Amongst the most challenging personal injury cases to defend are those where a Plaintiff's accident-related injuries are solely psychological in nature. As there is no objective evidence for defence lawyers to look to when attempting to verify or challenge a Plaintiff's account of their injuries or impairments caused by an accident, Defendants have no choice but to rely on the expertise of experts when attempting to determine the severity of a Plaintiff's psychological and emotional injuries and impairments.
The Supreme Court of Canada has released a decision that makes this determination that much more challenging for defence lawyers by finding that expert evidence of a recognized psychiatric or psychological illness is not required for a plaintiff to recover damages for mental injuries.
In Humphreys v. Tebilcock, 2017 ABCA 116, the Court of Appeal allowed the applications dismissing the Plaintiffs' claims for long delay, reversing the chambers decision of the justice below.
As of May 1, 2017, the practice direction regarding the timing of mandatory mediations in Toronto has changed.
Mandatory mediations must now be completed prior to an action being set down for trial unless a judge or case management master orders otherwise. This is a significant change from the past practice direction that only required mandatory mediations to be scheduled before the action could be set down for trial. This change applies to all Toronto files that have not yet been set down for trial.
We anticipate that this change to the practice direction will lead to earlier mediations on Toronto matters. We are already starting to see the impact of this change, in terms of plaintiffs' counsel reaching out earlier than ever to schedule mediations, some even seeking to schedule same at the same time as scheduling discoveries.
It is hoped that the recent appeal decision in MVACF and Barnes will shed some light on this turbulent, but interesting, area of accident benefits.
The issue, in this case, was whether the amendment applied to the Applicant for services provided after its effective date.
Airlines have faced increased legal, public relations and operational challenges ever since Dr. David Dao’s forcible removal from his United Airlines flight on April 9, 2017. These challenges can lead to a perfect storm in which airlines may find themselves exposed to significant claims for damages.
This paper will briefly discuss the extent to which airlines may be exposed to liability for domestic and international travel.
* Addendum added May 23, 2017
A recent decision emerging from the Ontario Superior Court of Justice will likely have a significant impact on the viability of waivers in the defence of personal injury actions in Ontario.
Although the ruling in Schnarr v Blue Mountain Resorts is under appeal, the effect of the decision in Schnarr on the enforceability of waivers in Ontario is profound.
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...
Mediation is an increasingly common form of dispute resolution and one which provides many benefits to any party who would otherwise engage in litigation. However, there are several benefits and concerns which are unique to municipalities named as defendants in motor vehicle accident claims...
On Monday, March 28, 2017, the Ontario Court of Appeal released their decision, Lloyd v. Bush, 2017 ONCA 252. This case was an appeal by the County of Lennox and Addington (the "County") and the Corporation of the Town of Greater Napanee ("the Town") from a trial level decision that found the respective municipalities liable for damages arising out of a motor vehicle accident.
In Reichert et al v. Home Depot Canada Inc. et al, 2017 ABQB 184, the Plaintiff slipped and fell on some freshly fallen snow (between half-an-inch and one inch) in the parking lot of a Home Depot in Calgary, Alberta at 10:00 a.m. It had snowed earlier that morning. However, only trace amounts of snow had fallen during the prior two weeks. There was no snow on the ground the day before the slip and fall.
As the access to and use of marijuana becomes increasingly legitimate and common, it is reasonable to assume that the businesses that operate within this environment will experience significant legal "growing pains". Specifically, the operational risks that companies within the marijuana space face are significant given the limited involvement of regulators, and the attributes commonly associated with consumption. As a result, it is not surprising to see the start of what we believe to be a significant volume of litigation targeting many of the largest players in the industry...
In Canada, municipalities face liability as occupiers when plaintiffs are accidentally injured on their property. These accidents include slip and falls on icy sidewalks or motor vehicle collisions on poorly designed roads. However, it is difficult to imagine such liability being found when a plaintiff voluntarily assumes the risk of using a municipality's mountain bike training park despite being warned.
In Campbell v. Bruce (County), the Ontario Court of Appeal upheld the trial judge's decision that a bicyclist who injured himself using a mountain biking training park was not contributorily negligent. Rather, the County was found 100% liable.
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...
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 premises in an adjoining building, and to pay compensation. After some bargaining, the Tenant refused to move...
With the legalization of marijuana appearing more like a certainty than a possibility, legislators ought to be determining how best to address the increased societal risks associated with drug-impaired driving.
Currently, the Government has authorized a 12-part evaluation for drug impairment of motorists.
Earlier today, the Supreme Court of Canada released a decision in R v. Bingley that provided guidance to lower courts on how evidence of drug-impaired driving is to be admitted...
Several ground-breaking cases, especially in the US, several years ago made mould claims a prominent issue within the insurance industry. One reaction is that many policies now have exclusions specifically relating to mould. However, the application of this common policy exclusion is rarely clear-cut. In fact, an overview of some of the key decisions demonstrates the complexity when this exclusion is applied to actual claims.
The absence of a law on parental waivers is of particular concern for the countless number of businesses and organizations such as schools, recreational sport facilities, and children's summer camps (to name a few) that rely on these waivers in carrying out their regular activities. However, it appears that clarity may be forthcoming as indicated in a recent New Brunswick case, Dewitt v. Strang...
This first of its kind collision sparked concern in the technology industry. Debates ensued as to whether the safety feature created to eliminate (or at the very least, reduce) motor vehicle accidents was the cause of the accident, whether human error was to blame, or some combination of the two...
Recently in Alberta, there have been a number of cases where a municipality has been sued in a civil action concerning a development while there is an ongoing subdivision application being considered by the municipality.
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. *Reproduced by permission of Thomson Reuters Canada Limited.
As physicians become more at ease in prescribing marijuana for medical purposes, it is reasonable to forecast an increase in the number of employees in the workplace with a prescription for the drug. This raises challenges for employers that have a duty to accommodate their "disabled employees" and further conflicts with an employer's desire for a drug-free environment.
The last 20 years have seen radical advances in technology, the like humankind has never known. The revolutionary way in which data can now be stored, catalogued, and shared has arguably led to a significant “digitization” of individuals. Simply, more of our lives are being recorded than ever before, whether it be voluntary (Facebook, Instagram, Snapchat etc.) or involuntary (intelligence gathering, surveillance etc.).
In light of this digitization, there has been a growing pressure to carve out a space where neither corporations nor government can intrude on the individual, and when they do, to govern what can be made of that information. This is essentially the concept the law recognizes as “privacy”.
With the commencement of the annual winter ski season, the legal exposure to ski hill and resort operators arising from injuries suffered by skiers and resort guests alike consequently increases. One of the most common forms of protection from this increase in risk is through the use of waivers.
Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations.
Those who have watched or participated in a hockey game will know that rough play is an inherent risk of the sport. What constitutes an inherent risk in hockey if not an illegal check from behind? Are all illegal manoeuvres that violate the rules of the league tortious? What mental element must be present for liability to attach? How do these factors determine the availability of insurance coverage? Each of these questions will be addressed.
In recent months, tensions have risen between regulators and companies developing autonomous vehicles. Applying and waiting for the approval of permits may seem inordinate for developers eager to test out and improve their autonomous technology in a highly competitive and fast-paced field. Regulators, on the other hand, must balance the competing interests of private business as well as the safety and integrity of the roads for the public. The following are a few examples of this tension at play.
Directors and officers, acting as a manager of a condominium, have a number of obligations and responsibilities that they are required to carry out. Section 37 of the Condominium Act, 1998 sets out the standard of care which directors and officers are held to...
In the recent case of Meridian Credit Union Limited v Baig, the Court of Appeal considered the duties owed by various parties to be honest and to not mislead each other during the course of real estate transactions. The Court of Appeal emphasized the obligation purchasers owe to be clear about all of the facts relevant in a transaction. Moreover, the Court of Appeal affirmed that corporate directors can be held liable for fraudulent misrepresentations made during the sale of a property.
In the recent decision of Raubvogel et al v. The City of Vaughan et al (“Raubvogel”), the Ontario Superior Court outlines the distinction between a municipality's policy and operational decisions. Specifically, the City of Vaughan (“the City”) argued that it did not owe a duty of care to the plaintiffs on the basis that its decision not to replace the incident water main was an issue of policy. Accordingly, the City argued that the plaintiffs' claim was barred by section 450 of the Municipal Act (“the Act”). However, counsel for the plaintiffs, Adam Grant, a partner at McCague Borlack LLP, was successful in demonstrating that such a failure in these circumstances was an operational decision as there was “no apparent reason” for the failure to replace the water main.
With the release of the Marijuana Task Force Report that made recommendations associated with the potential framework for the Legalization and Regulation of Cannabis, the legalization of marijuana seems imminent. While the report made many recommendations, it left unanswered questions relating to how the justice system ought to deal with drivers impaired by marijuana ("drugged driving").
With the legalization of marijuana appearing to be more like an inevitability than a possibility, the options for consuming marijuana continue to expand. Individuals can now consume marijuana in a variety of different forms, including various edible products (baked goods, teas, oils and capsules, with more products being developed each month). As marijuana has the capacity to cause significant impairment, producers, distributors, and dispensers of both marijuana and marijuana-based edible products will likely be found to owe certain duties to consumers.
Several years ago, mould issues in residential or commercial buildings would only have been a major concern in exceptional circumstances. However, technology and detection techniques have resulted in a proliferation of mould based claims and associated legal issues. Allegations of health impacts caused by mould are common in so-called “sick building syndrome” litigation. Property damage claims relating to mould also increasingly include some personal injury allegations, perhaps based on nothing more than common respiratory symptoms or rashes.
The Licence Appeal Tribunal (“LAT”) acted quickly and efficiently to correct an error that was contained in the decision of 16-000179 - Raho Mohamud v. Old Republic Insurance Company that was released by the tribunal earlier this month. This matter, which proceeded by way of a written hearing, dealt with entitlement to pre-104 week IRBs.
One alternative measure of damages for real property, is based on the cost of repair reduced by the amount to which those repairs will better the property; a concept known as betterment. Betterment and the court's interpretation...
Professor Anton Oleynik of Memorial University in Newfoundland and Labrador was denied a research grant by the Social Sciences and Humanities Research Council of Canada (commonly known as “SSHRC”) in 2007. That denial set off a firestorm of legal proceedings throughout the country that has now spanned nearly a decade.
The decision of Justice Boswell in Oleynik v. The Office of the Privacy Commissioner of Canada, released on October 19, 2016, is the latest chapter in this chronicle..
In the recent decision of Aranas v. Kolodziej, Michael Kennedy of McCague Borlack was successful in securing a dismissal of the action as against its client on summary judgment. Despite the challenges routinely presented by these motions in the motor vehicle accident context, the defendants led sufficient evidence to establish that there was no genuine issue requiring trial.
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...
With the government's stated intention to legalize marijuana, and the current challenge with policing these new businesses, dispensaries and vapour lounges can now be found in many urban and suburban areas. While many of these cater to individuals with needs for medicinal marijuana and require prescriptions before dispensing, some dispensaries and vapour lounges are less scrupulous when selling marijuana or marijuana-based products to their customers.
Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.
We will focus on what needs to be included in the affidavit of documents for first party actions.
We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured...
Statutory conditions contained within the policy, relief from forfeiture, and limitation period issues, are examples of special considerations when dealing with first party claims...
In your drafting of a Statement of Claim, consider whether there is sufficient evidence to support a finding of bad faith against the insurer. If an insured can prove bad faith against an insurer on a first party claim, the court may award punitive damages against the insurer. However, in our experience, insurers react to a claim for bad faith in a different manner than to a claim for other damages, so you will ‘up the ante' if you plead bad faith...
The insurance contract is a contract of utmost good faith. This duty is reciprocal. This duty not only requires insurers to respond to and investigate claims in good faith, but also requires insureds to present their claims in good faith. This duty of utmost good faith is an implied term of the insurance contract and should be maintained throughout every step of the claim process.
The duty of good faith of the insurer towards the insured has two components...
Generally, an insurance policy will contain the following key information:...
An insurance policy is a contract between the insurer and the insured. A ‘first party' is the party who is insured under an insurance policy and is often referred to as the policyholder or the insured. If an insured makes a claim directly against his/her own insurance company (the ‘insurer') in reliance on an insurance policy, this is referred to as a ‘first party claim'.
Some common examples of a first party claim are...
The Court of Appeal has released a decision placing the onus on an insurer for determining whether a claimant is catastrophically impaired. Specifically, if an insurer withholds catastrophic benefits until it receives an OCF-19, then it could be faced with a massive interest award from the date the catastrophic impairment arose (not the date the OCF-19 was submitted or accepted by the insurer).
In this case, Economical appealed the order of the application judge that required it to pay the applicant interest...
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.
It is not news to anyone that resolving civil claims is a long and costly process. A great deal of time and money is regularly lost due to the back-logged court system and legal expenses associated with mandatory procedure that must be followed, all while the procedure and jurisdiction of the court are not needed to come to a resolution. It is often in the best interests of insurers to resolve subrogated claims that are defended by insurers without the involvement of the courts.
The Canadian Inter-Company Arbitration Agreement ("the agreement") is an initiative designed to streamline claims disputes as between insurance companies who are signatories to the agreement. All insurance companies who are signatories to the agreement are therefore bound to comply with the obligations set-out therein. The process encourages efficient and cost-effective resolution to these claims.
The Government of Ontario is striving to make the roads in this province a safer place. In one of its latest endeavors, Ontario has implemented a new regulation in an effort to promote safer driving during those slushy and icy winter months.
The new regulation pertains to offering Ontario drivers an incentive to get winter tires on their vehicles.
This paper includes case law that indicates not having winter tires could perhaps affect the outcome of a decision.
In Lloyd v. Imperial Parking Ltd, the Court held that "[a] fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity." The exact standard that the employer must adhere to depends on the particular work environment. If that standard is breached, the employee can make a claim for damages.
Discrimination is a "distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups, not imposed on others." Such burdens "withhold or limit access to opportunities, benefits, and advantages available to other members of society.
The notice period for terminating an employee may be dictated by contract, statute, or common law.
Just as Confucius guided us so many centuries ago, similarly, in order to understand the concept of causation in accident benefits context, we must look to the past...
Although tort law clearly limited the use of the "material contribution" test, the accident benefits jurisprudence continued to use it in many instances as the appropriate test for causation.
Local Decisions on Costs
The litigation stemmed from a motor vehicle accident that occurred on December 5, 2009. The plaintiff, Sara Corbett, was a homemaker with two young sons. Her motor vehicle was hit by an oncoming vehicle while she was stopped and preparing to turn into a driveway. The vehicle's air bags did not deploy. Ms. Corbett declined to go to the hospital when the ambulance arrived.
As a result of the accident, Ms. Corbett developed whiplash type symptoms, which evolved into chronic pain syndrome. During trial, Ms. Corbett's evidence was that her chronic pain led to the breakup of her marriage. The jury awarded the plaintiff and her family a total of...
This case involved an action for damages arising from a motor vehicle accident. The Jury divided liability in the proportion of 62/38 between the Plaintiffs and the Defendants. The Plaintiff, Barbara Carroll, was awarded ...
During the course of the trial, the Defendants were taken by surprise on several occasions.
Some subrogation opportunities are not obvious and will require investigation and creative thinking. This article will go over when an insurer can pursue subrogation, what claims are suitable for subrogation? Establishing liability, causation, and damages. And will provide early investigation steps.
This article will give a breakdown on the subject of employee termination / dismissal. Along with definitions on just cause, tests for just cause. Detailing dismissal without cause, mitigation, notice requirement, constructive dismissal, workplace harassment, with a discussion on toxic work environments.
In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”), the Supreme Court of Canada clarified the construction of ‘faulty workmanship' exclusions in all-risk policies and the level of deference an appeal court must give regarding a lower court's interpretation of a contract.
The decision in Ledcor may be praised for providing greater clarity to insurers and insureds, but may also be an unwelcome development to those who embraced the Supreme Court's 2014 decision in Sattva Capital Corp. v. Creston Moly Corp. (“Sattva”) as a bar to extensive litigation over contractual interpretation.
On April 30, 2016, an expert review of Ontario's Construction Lien Act was submitted to the Ministry of the Attorney General and the Ministry of Economic Development, Employment, and Infrastructure. This review, which was just released to the public, contains recommendations which will be considered in drafting legislation to be presented in Spring 2017. If the recommendations are implemented, even in part, it would form a sea of change in construction law and the most significant reform to this area of law in 33 years.
While the review recommends a reform to virtually every aspect of the Construction Lien Act, some of the most remarkable recommendations are as follows:
Spoliation occurs where a party has intentionally destroyed evidence relevant to current or contemplated litigation and a reasonable inference can be drawn that the evidence was destroyed in order to affect the litigation. All types of evidence can be subject to spoliation and spoliation can occur in various ways. For example,
Directors and officers, acting as a manager of a corporation, have a number of duties and responsibilities that they are required to carry out. These duties are largely set in place to protect the interests of shareholders and other individuals who are not shareholders but nevertheless have a stake in the corporation, such as creditors.1 While most of these duties were established at common law, the majority of Canadian jurisdictions have codified them.2 Often times, if these duties are not met, directors and officers will be personally liable. A finding of liability will often result in remuneration to the corporation.
The following paper will outline the main duties that directors and officers have. Further, the following article will examine the liability that will ensue for the breach of such duties.
Whether or not expressly mentioned in the employment contract, all employees (and employers) have the following fundamental obligations.
Employment Law articles handled in 6 parts: Terminology, Obligations, Termination, Notice, Torts, Human Rights. Part 1 - Terminology, for example Contract, indefinite vs. fixed vs. Independent. Contract OF Services vs. Contract FOR Services, etc.
As a means of attracting and retaining qualified directors and officers, corporations have chosen to shield their directors and officers from personal liability. The Supreme Court of Canada has recognized that protection from liability is necessary to promote entrepreneurialism.
Mitigation is a common law doctrine based on fairness and common sense. As a general rule, a plaintiff will not be able to recover losses that could have been reasonably avoided.
While a plaintiff bears the burden of proving the fact that he has suffered a loss and the quantum of that damage, the defendant bears the onus of proving, on a balance of probabilities, that...
Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.
In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.
Subjective injuries present a multifaceted problem for defense lawyers. To clarify, subjective injuries refer to instances where a plaintiff makes a claim for chronic pain or a mental illness that is difficult to objectively substantiate through scientific or medical evidence.
This then raises an important question: what is the difference between cases involving chronic pain where the plaintiff receives compensation for his or her injuries and those cases where no such awards are made? The answer appears to be related to the plaintiff’s credibility. Specifically, because of the lack of objective evidence that is available to support a claim for chronic pain, almost all of these cases boil down to the issue of credibility.
McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.
In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.
The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties...
In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.
Traditionally, inferences had to be taken from direct evidence of facts. Villaroman has changed this thought process; the Supreme Court of Canada ruled that it is now acceptable to pull inferences from circumstantial evidence.
PIPEDA requires the full and timely disclosure of personal information generated in the course of commercial activity. However, personal information does not need to be disclosed when the information is generated in the course of a “formal dispute resolution process”, such as an arbitration. For years now, all insurance companies incorporated in Canada have been required to establish procedures for dealing with complaints. The question then arises: does personal information generated in the course of the complaint become subject to PIPEDA?
The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of “moderate” drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.
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?
In a recent motion for summary judgment, McCague Borlack LLP successfully argued for the dismissal of Third Party and Fourth Party actions against its clients as it was determined that there were no genuine issues requiring a trial. While the facts of the case were unique, clients can take heed in the fact that summary judgment is available in claims for contribution and indemnity when the proper facts present themselves.
It is often said that a bill of lading is not a contract of carriage, but is merely “excellent evidence” of its terms. However, the courts are divided on how far beyond the bill of lading we can go, specifically in terms of declaring the value of a shipment. This unpredictability in the law can mean the difference of hundreds of thousands of dollars for a carrier who has lost or damaged cargo in its possession.
Whether an expense or service is “reasonable and necessary” is an important legal test in the context of the Statutory Accident Benefits Schedule (“the Schedule”). It is used to determine entitlement to the majority of benefits available under the Schedule.
The Court of Appeal released a new decision last week on dependency in a priority dispute between Intact and Allstate.
The Court of Appeal reviewed the circumstances of the relationship of the claimants, a woman (Paula) and her two children, who moved in with Paula’s boyfriend (Kyle) only seven weeks before the accident, in order to determine priority...
Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016. The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.
You will recall that the Ontario Court of Appeal in Keam v Caddey, 2010 ONCA 565 awarded the plaintiff $40,000 in additional costs after an insurer refused (twice) to participate in mediation prior to trial. Aviva Canada took the position that the plaintiff would not be able to meet threshold and therefore Aviva did not believe it was obligated to attend mediation as there was nothing to negotiate.
The Court of Appeal found that the Insurance Act imposes two obligations on the insurer. First, the insurer is obligated to participate in mediation when requested. Second, the insurer is obligated to attempt to settle the claim as expeditiously as possible.
In a 2014 decision, Justice Lemon of the Ontario Superior Court of Justice upheld the decision of Wein J. to dismiss the plaintiff's action for failure to comply with undertakings and to pay costs.1 The issue before Lemon J. was whether or not the material placed before Wein J. regarding outstanding undertakings on the ex-parte motion was full, frank and fair...
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.
On June 28, 2016, the Ontario Ministry of Transportation (the Ministry) made an announcement that has significant implications for both the trucking and insurance industry. As of July 1, 2017, individuals seeking to obtain their Class A license for commercial trucks will be required to successfully complete an entry-level training course before being permitted to take their Class A road test.
On June 6, 2016, the Superior Court of Justice released its decision inMarfo v. Ahmed.1 In this case, the defendants, having already obtained a defence physiatrist assessment, requested that the plaintiff undergo a defence orthopedic assessment to counter the orthopedic report served by the plaintiff. Master Muir rejected the request and dismissed the defendants' motion, with costs. Here's why...
There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. It has resulted in various high-profile suicides involving teens and has contributed to some of the most horrific events of recent years.
A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'.
Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for insurers.
Section 42(1) of the current Statutory Accident Benefits Schedule,requires an insured to apply for attendant care benefits by submission of a Form 1, the “Assessment of Attendant Care Needs”, completed by an occupational therapist or registered nurse. Typically the Form 1 is submitted and – subject to insurer's evaluation of the claim – reasonable and necessary attendant care benefits are paid out on an ongoing basis.
However, the Schedule does not address what occurs when the Form 1 determines the attendant care benefits which were already previously incurred by the insured for a period in the past. These are known as “retroactive” applications and are rising in popularity.
In Jensen v. Fit City Health Centre Inc., the plaintiff, who was a member of the defendant’s gym, was injured while using a shoulder press machine caused by the defendant allegedly allowing the machine to exist in a defective condition. At trial, the jury found that the defendant was not negligent and, therefore, not liable for the plaintiff’s loss. Following the completion of the trial, the Court was tasked with making a determination on the validity of a waiver entered into between the plaintiff and the defendant that was contained within the gym’s membership agreement and associated membership renewal documentation.
Is an insurer's right to request or conduct an Examination Under Oath limited to the 10 day time period described in Section 36(4) and Section 33 (1) of the SABS?
FSCO was required to revisit the issue in a preliminary decision of Choeun ats Allstate issued by Arbitrator Janette Mills on March 14, 2016...
While the law was clear that a first party insurer ‘discovers' its claim for loss transfer on the day after it makes a request for indemnification, it was unclear whether there are any limitation periods relating to when a first party insurer must deliver an indemnification request to be entitled to seek indemnification under the loss transfer provision of the Insurance Act. This gap in the legislation was clarified in November when the Court of Appeal released its decision in the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and found that the doctrine of laches is not available to second party insurers when defending a claim for loss transfer.
This paper is intended to serve as a brief update on two topics that we focused on in our previous papers: Uber and autonomous vehicles. Given the rapidly evolving nature of both of these topics, we thought it prudent to provide a brief update on latest developments along with their implications for the insurance industry.
In August of 2015, the Ontario government proposed significant amendments to the province's no-fault automobile benefits regime, effective June 1, 2016.1 These amendments, made primarily to two existing regulations, echo announcements made by the government in its 2015 Budget.
The most notable changes are to the following areas: (a) non-earner benefits; (b) non-catastrophic and catastrophic benefits limits; and perhaps most important, (c) the definition of what constitutes a catastrophic impairment.
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.
What constitutes a valid refusal of an accident benefit on the part of an insurer?
FSCO Arbitrator Anne Morris was required to revisit the issue in the hearing of Jody Falcon ats State Farm, with reasons released on February 16, 2016.
The Arbitrator's conclusion will be a surprise to many in the insurance industry as all three Explanations of Benefits ("OCF-9s") delivered by State Farm were considered to be invalid. As a consequence, no limitation period had been triggered, allowing the insured to pursue entitlement to an Income Replacement Benefit notwithstanding the passage of five and a half years since entitlement was disputed.
A decision released on March 1, 2016 by Justice Perell of the Superior Court serves as a useful reminder to insurers of the demanding notice requirements that apply to requests for repayment under Section 47 of the SABS.
The decision provides useful guidance to insurers about what to do in the face of a Plaintiff who resists a request for repayment.
In this age of fingerprint readers and PINs, I find it relieving to see that the old-fashioned signature can still hold sway. Indeed, the existence of a signature in accident benefits claims can make or break a file. In the recent case of Chaparina and State Farm1, Arbitrator Sapin, the procedural maven of the Financial Services Commission2, concluded that State Farm did not have to pay disputed medical benefits because treatment plans were not signed by both the claimant and the health practitioner who allegedly completed it. This ruling proves that accident benefits insurers must pay close attention to the details of treatment plans.
A newly released decision of the Superior Court has put time limits on the application of legislation that sought to “cap” the amount payable in respect of attendant care benefits.
Effective February 1, 2014 Ontario Regulation 347/13 provided that attendant care benefits provided by a family member were to be “capped” at the “amount of the economic loss sustained by that family member” as a result of providing the care.
The regulation was silent on the issue of whether it applied to claims arising from accidents occurring before February 1, 2014. This decision sheds some light.
As I stated in a previous post Jane Doe 464533 v. X, courts must always adapt the common law to meet the needs of the digital age. Justice Faieta's decision in Hardev Kumar v. Vinod Khurana, 2015 ONSC 7858 is an example of this trend. Unlike the case that I profiled previously, where the court recognized a new tort to compensate the victim of so-called “revenge porn”, the court in Kumar v. Khurana simply applied an age-old tort, defamation, with special sensitivity to the realities of internet communication.
In Merritt v. Tigercat Industries, 2016 ONSC 1214, the Honourable Justice D.J. Gordon ruled that an employer was not justified in terminating its employee for cause who had, among other things, been charged criminally with two counts of sexual assault against a minor. Justice Gordon granted the plaintiff employee summary judgment in the action and awarded him damages amounting to 10 months' pay in lieu of reasonable notice.
It's no joke—April Fools' (April 1, 2016) marks the day when accident benefit arbitration applications will begin to be received by the Licence Appeals Tribunal (“the LAT”) instead of by FSCO.
But fear not! The LAT's process, while new and unfamiliar, is in fact quite similar to that of the dispute resolution process at FSCO.
For an accident benefits insurer, the denial of a treatment plan used to be such a simple thing.
In an attempt to reduce the costs associated with insurer's examinations, the Ontario Legislature made insurer's examinations optional. In doing this, however, it introduced new procedural hurdles that insurers must overcome in order to properly deny treatment plans.
In the recently decided case of Gardiner v. MacDonald, 2016 ONSC 602, Madame Justice Roccamo presided over a trial arising from a brutal collision where a public transit bus T-boned an SUV at 1:54 a.m., on a cold, January morning, in Ottawa.
The public transit bus was travelling northbound on a well-travelled road in the "bus lane", and entered the intersection on a green light. The SUV was travelling westbound and entered the same intersection on a red light when it was struck by the bus, and propelled in a northerly direction until it came to a rest in the snowy and slushy street. The collision was so bad that the bus crossed a snow-covered median before coming to rest in a ditch.
Alcohol use by the driver of the SUV was a factor in the collision; no charges were laid against the bus driver as a result of the accident, but tragically, 3 of the occupants of the SUV, including the driver, were fatally injured. A fourth occupant sustained catastrophic injuries.
The only issue at trial was whether the bus driver (and by extension the municipality) was partially liable for the collision.
Are there ANY limits on an employer firing an employee during the initial probation period?
The Divisional Court recently weighed in on this evolving issue inNagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (Div. Ct.).
Nagribianko is a significant decision addressing the conflicting rights of employers and employees during probation periods.
The relentless expansion of the internet into all facets of our lives has created many opportunities for the advancement of the law. Cyberspace is the modern frontier for the law to tame. On any given day, the facets of the internet are built upon by the contributions of billions of people. As a result of its directly democratic nature, it contains examples of the full spectrum of human behaviour that runs from selfless altruism to selfish insecurities and hatred.
Justice Stinson's recent decision in Jane Doe 464533 v. X (the defendant's name is subject to a publication restriction) is a step in remedying the excesses of internet use.
This case summary is a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's “contemporaneous, reliable, objective records.”
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.
A recent dismissal by the Court of Appeal for Ontario reaffirms that plaintiffs are required to commence their actions for underinsured, uninsured or unidentified coverage in the jurisdiction in which the contract was made, and for tort actions to be made in a jurisdiction with a presumptive connecting factor.
The Court of Appeal for Ontario recently handed down its latest views regarding when an Ontario court can assume jurisdiction over a non-resident defendant.
The recent judgment of the Ontario Court of Appeal in Holland v. Hostopia.com Inc., 2015 ONCA 762, sheds light on the (in)ability of employers to alter employment contracts after an employee has already commenced employment.
This paper contains information regarding insurance provisions in the Condominium Act, 1998, along with terms and definitions.
The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:
The purpose of a full and final release is simple. It is an explicit acknowledgement by the settling Plaintiff that it has agreed to resolve its claims as against one or more Defendants, and as a result of that settlement, it is releasing those Defendants from the claims at issue. A full and final release acts as a complete defence in the event that a subsequent action is brought by the same party, for the same cause of action.
In order to determine whether or not subrogation is a viable option with respect to any loss, it is first necessary to consider the cause of the loss, followed closely by who is responsible for the loss.
In order to fully consider the viability of subrogation in any given action, it is important to determine any limitations on recovery which may be in place. In the context of carriage for reward, it is well understood that limitation of liability clauses are usually inserted into Bills of Lading or other agreements, and are often established by statute, or international convention.
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.
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.
This paper contains an update to three areas of transportation law with three recent cases from the Ontario Superior Court of Justice and the Ontario Court of Appeal across three diverse issues that can impact a wide array of parties.
The first case is Baroch v. Canada Cartage which dealt with a class action dispute relating to unpaid overtime. The second case is A&A Trading Ltd. v. Dil's Trucking Inc. which dealt with issues relating to bills of lading, undeclared values and contracts of carriage. The third case is Fernandes v. Araujo, which provides an update into the Ontario Court of Appeal's ongoing development of vicarious liability and motor vehicles in Ontario.
Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.
This paper will set out the common law defences available to a resort, its owners, and its insurers, when a patron is injured on their premises. Secondly, it will explore and discuss aspects of tavern liability and its application to resorts. Finally, this paper will provide several recommendations that resorts can enact to assist in limiting their exposure to liability.
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.
Uber's most recent venture is UberCargo, a new program that ventures into the logistics business. The service allows users to call a van to transport large items for moving or for delivery purposes. UberCargo has only launched in Hong Kong, and at present seems to be geared mainly to business users for their logistical needs.
Today the Court of Appeal has released a decision that has significant consequences for insurers of heavy commercial vehicles, or for the insurers of vehicles that collide with motorcycles or motorized snow vehicles.
Read up on the decision of the appeal of Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada and the findings...
Some employers do not see the value in executing employment contracts. However, without termination clauses which limit an employee's entitlements upon termination without cause, damages awarded can be significant. Long gone is the traditional common law "rule of thumb" of one month's notice per year of service. The notice period can be dramatically extended by the court when weighing various factors.
Given that employers have an implied contractual right to dismiss a probationary employee without notice and without giving reasons, many employers believe that they are immune from claims brought against them after terminating an employee within his or her probationary period. Unfortunately for employers, this is not the case. Despite the existence of probationary periods, there are many limitations facing employers who wish to fire their probationary employees. It is crucial that employers understand these limitations in order to prevent claims from being brought against them.
The Superior Court of Justice of Ontario recently released a decision that provided additional comments on the efficacy of waivers and the development of waiver defences in Ontario.
In Trimmeliti v. Blue Mountain Resorts Limited,1 decided by the Honourable Mr. Justice Dunphy, the plaintiff, a season pass holder, was night skiing with friends on the defendant’s premises when he collided with a fluorescent orange mesh ribbon that was used to close a run. As a result of this collision, the plaintiff suffered a fractured clavicle...
The Ontario Superior Court of Justice recently examined the effectiveness of a signed waiver as a full defence in the context of injuries sustained during recreational sports play in Levita v. Alan Crew et al.
In this case, the plaintiff, Robbie Levita, was a player on a recreational hockey team in a league operated by the defendant, True North Hockey Canada (“True North”). Of note, this was a “no-contact” recreation league, which means body checking was prohibited. During the course of a game, the plaintiff suffered a fractured tibia and fibula as a result of being checked from behind into the boards by the defendant.
The Ontario Court of Appeal has recently released a decision that will be widely applauded by the insurers of heavy commercial vehicles.
The Court of Appeal has clarified that only insurers of vehicles directly struck by heavy commercial vehicles will be entitled to indemnification through loss transfer while insurers of vehicles involved in a ‘chain reaction accident’ but not directly struck by the heavy commercial vehicle will have no recourse.
In a decision Uber is calling a "victory for common sense", the UK High Court ruled that Uber was not in contravention of existing London regulations with respect to taxicab meters.
Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury?
This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.
McCague Borlack LLP
Course of construction policies ("COC"), also known as builders' risk or all-risks policies, underwrite specific risk that arise during the construction process. A significant amount of judicial ink continues to be spilled in Canada (and abroad) about the common exclusion clauses within such policies pertaining to faulty or improper workmanship, design, or materials.
The purpose of this paper is to provide the state of the law as it currently exists and recommend ways in which large landowners can reduce their exposure for harm suffered by users of recreational trails. It will highlight the legal relationship that exists between occupiers and users of land pursuant to the Occupiers’ Liability Act “OLA”). This paper will first define the duties of landowners to individuals who are taking part in recreational activities on their premises. In doing so, this paper will analyze the impact of whether these individuals are invited upon the land or if they have simply trespassed onto the land to take part in recreational activities. Furthermore, this paper will discuss the corresponding standard of care that accompanies the relationship that is created between occupier and user.
This paper addresses two important questions that are integral to determining whether a negligence action arises from the use and operation of a motor vehicle. Firstly, this paper seeks to determine whether a particular vehicle involved in an accident actually constitutes a motor vehicle.
Secondly, this paper seeks to determine what constitutes the use and operation of a motor vehicle.
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...
To put cyberbullying into perspective, in 2010, 49.5% of students in 33 Toronto junior high and high schools reported that they were bullied online. Cyberbullying, thankfully, has not gone unnoticed. Regulators, parents, and the courts alike have grappled with the best way to address the phenomenon and find productive solutions. From properly defining and identifying the issue, current enforcement strategies, anti-bullying legislation, and even with respect to insurance and coverage issues, cyberbullying is proving to be one of the most pressing social issues particularly among young Canadians moving into the 21st century.
McCague Borlack LLP
The Court of Appeal released an important decision for all lawyers practicing in the field of civil litigation and personal injury, in particular.Iannarella v Corbett clarifies the onus of proof regarding liability in a rear-end collision and reinforces the ongoing disclosure obligations of surveillance throughout the litigation process.
Some municipalities now engage in the practice of adding tenants' unpaid hydro bills to an owner's property tax. Landlords are then forced to chase previous tenants to recover these losses. Where does the municipality get the authority to do this? How can landlords help protect themselves?
The Personal Information Protection and Electronic Data Act (PIPEDA) governs how private sector organizations collect, use and disclose personal information in the course of commercial business. For the purposes of PIPEDA, a landlord is an organization engaged in a commercial activity and is therefore required to comply with the Act. PIPEDA defines “Personal Information” as information about an identifiable individual, but does not include the name, title business address or telephone number of an employee of an organization
Landlords have long since struggled with the issue of "problem pets" in their residential units. Cleanliness, property damage and liability for injuries caused by tenants' pets are all common concerns. What does provincial legislation say about pets in residential complexes and what options are available to landlords?
Mary Carters and Pierrenger Agreements are types of agreements used in multi-defendant litigation. Both agreements involve settlement between the plaintiff, and some, but not all, of the defendants. In essence, they allow for actions to partially settle. While these agreements appear useful, the law concerning them (in particular, Mary Carters) is both complex and rapidly evolving. Read the full case study and details on both...
On February 18, 2015, Justices Sharpe, van Rensburg and Pardu of the Court of Appeal for Ontario released their long-awaited privacy law decision in Hopkins v. Kay. Despite the fact that the Personal Health Information Protection Act ("PHIPA") is a "lengthy and detailed statute" that comprehensively addresses "the collection, use, disclosure, retention and disposal of personal health information", the Court affirmed that plaintiffs are still entitled to raise the common law tort for breaches of privacy in circumstances involving health information.
January 31, 2015 saw the release of a class action certification involving the transportation industry. Continuing the trend of class actions seeking unpaid overtime, the Ontario Superior Court of Justice certified a $100 million class action lawsuit for unpaid overtime against the defendant, Canada Cartage.
The statement of claim alleges Canada Cartage only paid overtime if the 60 hour threshold was exceeded, regardless of the type of employee, and that this policy was contrary to the regulations.
The plaintiff in this case had suffered a catastrophic brain injury as a result of a motor vehicle accident. The parties disputed whether she had "incurred" expenses for attendant care services within the meaning of s.3(7)(e) and whether attendant care services can be provided indirectly by electronic means. This decision will assist first party insurers in determining whether Applicants are entitled to attendant care.
With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:
Today the Ontario Court of Appeal released its long-awaited decision in Moore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.
With the recent Supreme Court of Canada decision in Bhasin v. Hrynew, a fair amount of
commentary has been written about the emerging importance of good faith in contractual
relationships. One should not consider this decision to represent a sudden judicial
pronouncement concerning entirely novel duties owed amongst contractual parties; rather,
the doctrine of good faith has existed for some time for certain categories of contracting
parties and the courts have adopted a distinct method for uniquely assessing the duties
imposed. This article reviews the recent Supreme Court of Canada decision under the lens of
the pre-existing doctrine of bad faith as it exists between contracting parties in the insurance
Important case law has been released concerning when policies must respond in actions involving rented or leased vehicles. The question before Justice Firestone in Elias v. Koochek, 2014 ONSC 5003, was whether or not the policy of a renter would still rank in priority if the renter was a third party and not a defendant in the main action.
The Final Report of the Ontario Automobile Insurance Anti-Fraud Task Force was released. This task force was appointed to advise the government of Ontario on the extent of automobile insurance fraud and what to do about it. Its findings were as follows:
This article explores the interaction between chronic pain and the Minor Injury Guideline (“MIG”), which came into force in Ontario in 2010.
Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting.
Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.
There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.
This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.
This article explores the recent trend of general damages awards in chronic pain cases in Ontario. It breaks down the groundbreaking case of Degennaro, which remains the high watermark in these cases. It then looks to the recent case law to contextualize Degennaro andestablish a framework for understanding how courts arrive at these awards.
McCague Borlack LLP
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.
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.
Meagher & Geer - Harmonie Group Member
Every week ushers in a new data breach that makes national headlines. Results in data-breach litigation depend in part on the jurisdiction and applicable law. Plaintiff lawyers will continue to search for new and creative ways to assert claims arising out of data breaches, and insurers involved with such litigation should remain aware of any developments in the law.
Recent advances in technology have brought about a new age in which commercial enterprises have unprecedented access to the information of private individuals. The positive aspects of these advances are noteworthy; from one-click purchasing online, to targeted marketing and metric analysis, data collection has become an indispensable tool in 21st century commerce. However, enhanced efficiency and practicality come with their own set of costs, the most notable being the risk of data breach. Private entities entrusted with confidential information are becoming increasingly scrutinized, and one mishap with this valuable data can have devastating consequences, both for company and consumer.
The following paper will begin by summarizing the types of breaches and their effects. It will then consider legislative requirements for private organizations. Finally, the paper will provide a series of practical steps a company can take to mitigate losses a breach materialize.
A new risk has entered the marketplace. It is called cyber-risk, and it is responsible for the equivalent of millions of dollars in lost revenue, client loyalty, and goodwill. For the purposes of this paper, cyber risk relates to the mishandling of customer information (CI) throughout its acquisition, retention and destruction – what some business analysts refer to as the lifecycle of customer data. The privacy of CI has become paramount as companies continue to struggle with data management and the ensuing loss of consumer confidence.
As a corporate concept, risk is not new. Insurance companies are in the business of risk. It is what they do, and they manage it well. This paper discusses the management of cyber risk and, specifically, how to implement and execute an effective privacy management program (PMP).
Today, millions if not billions of users, private citizens, public and private bodies are using the net on a daily basis to exchange massive amount of data. The safety of the information stored is paramount and theft of such data can and did happen. Are insurers aware of the risks related to the storage of information by their insured and the exposure to thefts or unauthorized disclosure of such information?
In the present paper, we will attempt to review the risk, the exposure and tools available to insureds and insurers against cyber risks.
We believe that Farrell Estates Ltd. v Canadian Indemnity Co. and Zurich Insurance Co. v Ison T.H. Auto Sales Inc. were incorrectly decided.
At common law, an insurer’s right of subrogation did not arise until the insured had been fully indemnified for both insured and uninsured losses. One consequence was the subsidiary rule that the insurer had no right to control the action against the wrongdoer until that full indemnity had been achieved by the insured. That common law rule has, however, typically been altered by the terms of the insurance policy and by statute. Continued...
Why would a settling defendant who has paid the plaintiff money ever want to remain in a lawsuit and incur the costs of going to trial? The fact that there are not many good answers to this question is the reason why Mary Carter agreements are rarely used except in high-exposure cases.
For practical purposes, the only two characteristics of a modern Mary Carter agreement are as follows:
Summary judgment is a tool provided under the Rules of Civil Procedure (the “Rules”) that allow the court to, on a motion, make a judgment on an action without a full trial. It can be used to determine the entire action or to determine discrete issues within an action. The Rules, as they once were, specified that summary judgment was available where the court was satisfied that there was “no genuine issue for a trial”.
Rule 20 is the rule that governs summary judgment motions. The rule was added with the hopes that, in certain cases, it could serve to avoid expensive and lengthy litigation. It seemed that the bench was reluctant in exercising these broadened powers.
However, the Supreme Court of Canada, in its recent decision of Hryniak v. Mauldin , has fully endorsed the courts employing the full summary judgment rule...
In a recent Supreme Court of Canada (“SCC”) decision, Sable Offshore Energy Inc. v. Ameron International Corp. , the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.
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. 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.
Once a settlement amount is agreed upon, there is often much additional work to be completed prior to closing a file. Structuring a settlement, while typically largely the responsibility of the plaintiff or prospective plaintiff, can often cause significant delay in the final resolution of a file.
In order to maximize the amount received through settlement, plaintiffs who are recipients of benefits through the Ontario Disability Support Program (“ODSP”) will often try to create what is known as a Henson trust, in order to try to avoid negatively affecting their eligibility for benefits. This paper explains the origins and applicability of Henson trusts in personal injury settlements.
For far too long, the “get back on the field” or “get back on the ice” mentality has dominated youth sports. Unfortunately, in Canada and the United States, popular sports like hockey, soccer, and football expose young participants to the risk of serious injuries like concussions. Between 2010 and 2011 children accounted for 38% of all Ontario residents visiting emergency rooms for concussions,and hockey accounts for almost half of all traumatic brain injuries among Canadian youth who participate in team sports. Medical investigation has determined that concussions are especially harmful in young athletes and often go undiagnosed because younger athletes may not be able to accurately describe their symptoms. This leads to scenarios where children do not receive enough time to recover and where they are pressured to return to play or to return to the classroom before their brains have recovered from injury.
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.
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:
For those of you who self insure, let’s say the first million. For those of you who own fleets. For those insurers of cars and trucks. For everyone with an automobile policy of insurance. The following is a discussion of the stresses on the auto insurance product in Ontario.
“Fraud”, for the purposes of this paper, includes staged accidents, claims for accidents that have not occurred, falsified medical records, and false statements on applications or claims.
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
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.
Is an insurer precluded from pursuing a subrogated action if the insured settles its uninsured loss with the third party and signs a general release? This question was answered by the Ontario court in Busgos v. Khamis, a decision of which subrogating insurers should be aware.
In a recent Supreme Court of Canada decision, Sable Offshore Energy Inc. v. Ameron International Corp. the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.
Catherine Korte, McCague Borlack LLP'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.
Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.
McCague Borlack LLP - First published in the Insurance Business of Canada Magazine.
The Ontario courts may just have thrown out everything you thought you knew about time limits for all-risk claims. But don’t forget to read the fine print. Boyce v. Cooperators General Insurance is a case that would otherwise have slipped under the radar screen of most brokers and rightfully so.
McCague Borlack Insurance Coverage News Alert
In ACE INA Insurance v. Associated Electric, the Ontario Court of Appeal upheld an Ontario Superior Court of Justice decision which held that unless prescribed otherwise by statute, an excess insurer is only required to contribute to defence costs if it has a duty to defend or if such contribution is expressly stated in the policy.
The court looked at the doctrine of equitable contribution and its application to an excess policy which contained no duty to defend.
McCague Borlack Accident Benefits News Alert
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.
McCague Borlack Subrogation News Alert
When a landlord assumes a contractual obligation to obtain insurance on a property, the landlord may be barred from pursuing a subrogated claim against the tenant for loss or damage caused by the tenant. This is not a new legal principle. In a trilogy of cases from the 1970s, the Supreme Court of Canada held that a landlord, by agreeing to obtain such insurance, assumes the risk of loss or damage to that property even if the tenant was negligent.
Presented by McCague Borlack at the Medical Legal Society of Toronto
Due to the lack of significant institutional measures, it often falls to insurers and defence counsel to investigate instances of fraud on their own. While the bar is not overly familiar with confronting insurance fraud on a macro-level, defence lawyers can certainly identify trends and become experienced with insurance fraud through their work at the case level. This paper details cause for suspicion, response, and how to prove fraud.
First Presented at a McCague Borlack Accident Benefits Lunch and Learn
This case makes it abundantly clear that insurance companies must treat their insureds fairly. It is a recognized principle of law that many contracts of insurance will be considered peace of mind contracts. If a contract of insurance is considered to be a peace of mind contract, then a plaintiff has the right to sue for damages related to mental distress. If an insurer unfairly denies benefits, unduly lengthens the claim process or causes an insured distress unjustly, this may trigger a significant aggravated damage award. Further, numerous delays and unjustified denial of benefits, could also lead a court to conclude that an insurer has breached their duty of good faith and fair dealing with their insured. If a court finds this to be the case, punitive damages may be awarded on top of the damages for mental distress. Read details...
First Presented at a McCague Borlack Accident Benefits Lunch and Learn
A recent FSCO decision has found that a claimant is not precluded from claiming housekeeping, attendant care as well as medical and rehabilitation expenses beyond the $3,500 limit within the Minor Injury Guideline. In Lenworth Scarlett and Belair Insurance Company Inc. (FSCO A12-001079), Mr. Scarlett was a passenger in a vehicle involved in a motor vehicle accident and applied for statutory accident benefits. His disability certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine as well as headaches and acute stress reaction.... Arbitrator John Wilson notes...
First Presented at a McCague Borlack Accident Benefits Lunch and Learn
Strategies for handling Fraud in Accident Benefits in the area of treatment providers, staged accidents, and other identified red flags.
First Presented at a McCague Borlack Accident Benefits Lunch and Learn
Since 1995, and the enactment of Ontario Regulation 283/95—Disputes Between Insurers (the “Regulation”), insurers have been obliged to continue payment of Statutory Accident Benefits (SABs) to injured persons even where entitlement to these benefits is disputed. However, priority disputes also present insurers with an opportunity to shift payment of SABs, which may end up saving a savvy insurer a significant amount of money...
McCague Borlack LLP
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.
Insurance brokers must be cautious when dealing with corporations that opt their executive officers out of Ontario's workers' compensation scheme. A failure to appreciate the relationship between statutory and private coverage risks inadvertent exposure to significant liability.
Unfortunately for one insurance brokerage, this is exactly what happened in the recent Ontario Court of Appeal decision of Sam's Auto Wrecking Co Ltd (Wentworth Metal) v Lombard General Insurance Company of Canada. The unforeseen gap between workers' compensation coverage and general liability insurance coverage ended up costing Dalton Timmis Insurance Group ("Dalton Timmis") hundreds of thousands of dollars.
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.
Product liability claims by minor plaintiffs with respect to injuries sustained while using sports equipment are very prevalent. These claims can range from sports equipment malfunctioning to equipment failing to perform as expected.
This paper will first discuss to whom the manufacturer owes a duty of care, and what a plaintiff must establish to demonstrate that the defendant owed them a duty of care. The paper will then discuss to what standard of care the defendant will be held, and what evidence a plaintiff must lead to show that the defendant fell below the standard. This paper will discuss the difference between child and adult plaintiffs, and the standard of reasonableness the child plaintiff is held to. This paper will also discuss recent cases involving child plaintiffs and product liability and their trends and implications for manufacturers. Finally, the paper will detail available defences, as well as risk management strategies for manufacturers.
The general test for determining whether one person has acted negligently towards another in Canada is contained in the dual concepts of duty of care and standard of care – that is, the hurt party has to show that the party they think is responsible for their harm was under a legal obligation to protect them from or prevent that harm. The Supreme Court of Canada recently looked at the different categories of duty of care in its decision Childs v Desormeaux. The language the court used to describe duty of care is as follows: “A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.”1 Once that link has been established, the standard of care kicks in, dictating how much the individual is required to step in and prevent an injury from occurring.
Where does this leave adult supervisors when the children they are overseeing hurt themselves? This paper will focus on the liability different types of supervisors – teachers, coaches, referees, even parents – may face when supervising children, and how they can effectively protect themselves and the children they are caring for from liability and harm.
The emphasis on holistic learning has led to an increase in field trips and physical activities that are both further from students’ schools and are inherently more dangerous than traditional school activities. This has greatly increased the potential for student accidents and injuries. Many schools attempt to shield themselves from liability by forcing students, and students’ parents, to sign permission forms and/or waivers of liability. However, the content of these forms, and the difference in their purposes, has a tremendous impact on whether or not the Courts will accept these documents as a barrier to potential liability.
Exposure for occupiers’ liability is not a novel topic of discussion in the world of tort and insurance law. However, the application of occupiers’ liability to minor plaintiffs is an area of law that has been evolving in recent years. The most dynamic change has been that Courts are more readily finding that occupiers whose premises are geared towards children should expect minors who enter their property to be, to a certain extent, reckless and unpredictable by virtue of their youth and inexperience, and accordingly, ensure their premises are that much safer.
The Ontario Court of Appeal clarifies the appropriate limitation period when dealing with an all-risk insurance policy for business purposes. The decision raises important considerations for claim handling.
The rise of social media has dramatically changed the way in which information is acquired and used in the workplace. Social media includes forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. This includes Facebook, blogs, LinkedIn, and Twitter. These sites can be used to develop social and professional contacts, among other things.
While users of social media can adjust the privacy settings for their profiles on social media sites like Facebook so that only certain other users can access the content, this does not mean that the content is necessarily 'private'. In fact, the courts have noted that Facebook users enjoy a relatively low expectation of privacy when they post material on the site.
New Anti-Spam Legislation will likely come into force by the end of 2013. Canadian businesses should become familiar with this law and the impact it will have on the conduct of their employees, who act as agents of their organization.
The Supreme Court of Canada (“SCC”) recently considered the extent to which employees have a reasonable expectation of privacy over personal files kept on employer-issued laptops. What is a reasonable expectation of privacy and what are the implications for private employers?
On June 30, 2008, the Human Rights Code Amendment Act, 2006 came into full force in the Province of Ontario. The amended Human Rights Code (the “Code”) sought to address numerous shortcomings of the prior human rights enforcement system.
Over the course of the last five years, there have been some successes, particularly with respect to efficiency. For cases that proceed to a full hearing on the merits, it now takes, on average, 16.5 months from the initial application filing date to get to the first hearing date. Prior to the amendments, it took, on average 47.6 months to get to a Tribunal hearing. Also, in 2011-2012, for the first time, the Tribunal was able to close more cases than it opened. This trend has continued in early 2012-2013.
While the new Code strived to create a more efficient and effective forum in which to deal with discrimination complaints, it has created new challenges for respondents, the vast majority of which are employers, including the following...
In a recent Human Rights Tribunal decision, the Applicant, Timothy Pritchard, filed an Application under the Human Rights Code alleging discrimination with respect to employment on the basis of disability.
The Applicant was employed as Director of Professional Services with the Commissionaires. After the Applicant advised his employer that he would be having hip replacement surgery and would subsequently require 8 to 12 weeks off of work for recovery, approximately one month later and four days prior to his scheduled surgery, the Applicant was advised that his employment was terminated. The Applicant believed “the respondents did not want to pay him during his sick time and terminated his employment as a cost saving measure”...
On February 7, 2013, the Court of Appeal for Ontario released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75. This case involved the unfortunate death of a guest while swimming in an unattended indoor pool at Blue Mountain Resorts on Christmas Eve, 2007.
The primary issue on appeal was whether Blue Mountain was required to report the death to the Ministry of Labour on the basis that it was a "death or critical injury incurred by a person at a workplace".
When an accident occurs, the typical liability issues arise. Upon receipt of a claim, insurers are prompted to consider a number of important questions. Such questions include whether the accident was a result of the action or inaction of the driver; what if anything could have been done to avoid the accident or mitigate the consequences; what kinds of contributing factors may have been at play (such as the road or weather conditions), among other considerations.
When an accident involving a transport truck or marine vessel occurs, there are also often cargo and fuel considerations and more specifically, environmental considerations relating to fuel and cargo spills. It is this very issue that some insurers have been failing to turn their minds to; more specifically, the environmental liability aspects of accidents that result in fuel or oil spills, both from trucks and ships.
This paper endeavours to elucidate some of the relevant statutes to consider when such an accident occurs and shed light on the appropriate steps an insurer ought to take upon receiving such claims.
The purpose of this paper is to outline some coverage concerns that can arise in the manufacturing and distribution chain. These issues of coverage apply equally to those parties seeking to obtain cover from another or seeking to avoid a coverage obligation being imposed upon it. This general discussion of coverage issues applies within the context of vendors, distributors and manufacturers1facing a claim by a plaintiff, or many plaintiffs, arising from harm incurred through the use of a product.
The following discusses the notion of risk transfer in this distribution chain, the underlying rationale of vendors in seeking to transfer risk, and the possible considerations applicable to affixing liability along the distribution chain.
The Ontario Court of Appeal's recent decision in Zurich Insurance Company Ltd. et al. v. Ison T.H. Auto Sales Inc. sets out important principles on the issue of who has the right of carriage and control of litigation in circumstances where there is a combined subrogated and uninsured claim.
The decision turned on the issue of whether the contractual subrogation clause in the Zurich insurance policy altered the insured's common law right to carriage and control of the litigation. The Court confirmed that unless the subrogation clause expressly grants the insurer the right to control of the action, the insured retains control until they are fully indemnified.
Arbitrator Richard Feldman released the decision in Aweys and Intact Insurance on March 19, 2012.
Four Insurance companies brought a motion for a stay of proceedings in 15 arbitration cases pending at the Financial Services Commission of Ontario (FSCO). The motions were heard together.
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.
Many insurers for maintenance contractors have taken the position that so long as there is some allegation in the statement of claim that touches on some independent act of negligence on the part of the property owner, there is no duty to defend under this clause. However, last year in Riocan Real Estate v. Lombard, Madam Justice Hennessey concluded that so long as the “true crux” of the claim falls within the scope of the duty to defend...
A journalist does not have the constitutional right to protect a confidential source. That is the ruling of the Supreme Court of Canada in R v National Post, released on May 7th.
The Court is naturally reluctant to deprive a litigant of their right to bring an action to trial, and motions to dismiss a claim for delay are infrequently brought and even more infrequently granted. Gosia Bawolska celebrated a significant win for our client, an engineering company, when she persuaded the Court that the plaintiff’s delay in bringing the claim to trial had resulted in significant prejudice to our client’s ability to defend itself should the matter proceed to trial. The Court not only agreed with Ms. Bawolska’s submissions, it also awarded the cost of the entire action to our client.
The Court’s decision in our client’s favour confirmed that a defendant is presumed to have suffered prejudice due to the plaintiff’s delay, and that the burden then shifts to the plaintiff to rebut that presumption. If the plaintiff is not successful in rebutting that presumption, the Court may exercise its inherent jurisdiction to dismiss the claim as a fair trial is no longer possible.