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SPECT Scan Evidence: A Diagnostic Aid or a Novel Science? Case Comment: Kolapully v. Myles
June 06, 2024

McCague Borlack LLP

The recent Court of Appeal decision in Kolapully v. Myles is significant for two key reasons. First, it addresses the admissibility of Single Photon Emission Computed Tomography ("SPECT") scan evidence, particularly in the context of novel and contested science. Second, it examines the deductibility of non-earner benefits from an award of loss of income under s. 267.8 of the Insurance Act.

Data Breach: A Cautionary Tale of What Legal Privilege Can be Asserted Over in a Cybersecurity Investigation Case Comment: LifeLabs LP v. Information and Privacy Commr (Ontario)
May 22, 2024

McCague Borlack LLP

On April 30, 2024, the Divisional Court of the Ontario Superior Court of Justice (the "Court") released its decision in LifeLabs LP v. Information and Privacy Commr. (Ontario),1 where the Court dismissed LifeLabs LP's ("LifeLabs") application for judicial review. The Court held that the Privacy Commissioners of Ontario and British Columbia did breach LifeLabs' right to procedural fairness, and that they did not err in their application of the law on solicitor-client privilege and litigation privilege.

An Employer's Right to Dismiss an Employee is not Absolute
May 16, 2024

McCague Borlack LLP

In Dufault v The Corporation of the Township of Ignance, 2024, ONSC 1029, the court found that the plaintiff was wrongfully dismissed from her employment because a provision contained in her employment agreement allowed her employer to terminate her employment "at its sole discretion" and "at any time", in violation of the provisions of the Employment Standards Act.

Tick Tock, Tick Tock... The New Timing Rules for Expert Reports
April 25, 2024

McCague Borlack LLP

Recent amendments to the Rules of Civil Procedure1 impose stricter limits when it comes to the admissibility of such evidence where there is a delay in serving the expert reports.

Fundamentally Different: Supreme Court of Canada on Statutory Rights of Appeal and Judicial Review
April 09, 2024

McCague Borlack LLP

In discussing limited rights of appeal pertaining to questions of law, The Supreme Court of Canada ("SCC") in Yatar v. TD Insurance Meloche Monnex unanimously held that both the Divisional Court and Court of Appeal for Ontario erred when they respectively concluded that only in "exceptional circumstances" and "rare cases" would judicial review be available for questions of fact or mixed fact and law.

Proposed Changes to Ontario Accident Benefits, and Potential Impacts on Tort Claims
April 03, 2024

McCague Borlack LLP

The 2024 Ontario Provincial Budget, titled "Building a Better Ontario" was recently released, and it proposes several changes to the automobile insurance regime, which could have profound impacts if adopted.

The first and most immediate impact would be the change of mandatory and optional benefits under an automobile insurance policy.

Navigating Negligence: BC Court of Appeal Upholds Delfs v. Stricker
March 27, 2024

Brownlee LLP

This appeal challenges the dismissal of a negligence claim stemming from a tragic accident involving the plaintiff, Tanner Delfs, who sustained severe injuries while riding as a passenger on an all-terrain vehicle known as an RZR. The RZR was owned by Fred and Kim Stricker and was driven by their 15-year-old son Josh.

A Tale of Two Tests: BC’s version of Alberta’s Degree of Control Test for Vehicle Owner’s Liability - Mangat v. Lau
March 21, 2024

Brownlee LLP

The case involved a motor vehicle accident in which the plaintiff’s vehicle was hit by the defendant driver, an employee of Xerox Canada Ltd at the time of the accident. The Workers Compensation Appeal Tribunal determined that both the plaintiff and the defendant were “workers” under the Workers Compensation Act, RSBC 2019, c 1. 

Multiple Policies, Class Actions with Continuous Losses- Oh My! Case Comment: Loblaw Companies v Royal & Sun Alliance Insurance Co.
March 08, 2024

McCague Borlack LLP

As stated at the outset of this decision, "The allocation of defence costs amongst serial insurers who owe their insured a duty to defend raises complex issues in the context of consecutive coverage periods and multiple class action claims that span lengthy time frames." Even more graphic was the following remark: "The challenge presented by these appeals is what to do with the cost of defending claims that involve allegations of continuous or progressive injury that span many years (long-tail claims) where there are insurance policies with different insurers, different provisions involving deductibles and SIRs, and consecutive rather than concurrent coverage periods and therefore different risks. The American Professor Leo P. Martinez aptly described this as 'among the thorniest problems in insurance law'".

In this case, there were multiple class actions relating to the sale of opioids, with claims amounting to billions of dollars and involving a time span of more than 20 years.

Test Drive Crashes: Who is Liable? Case citation: Harris v. Victoria Chrysler Dodge Jeep Ram Ltd., 2023 BCCA 478
March 07, 2024

Brownlee LLP

The recently released decision of the Court of Appeal in Harris Victoria Chrysler Dodge Jeep Ram Ltd. v. Ward, 2023 BCCA 478, sheds light on the complexities surrounding vehicle ownership and liability. One of the pivotal issues was the ownership of the vehicle and the related consent, express or implied, at the time of the accident. The dealership argued that it had entered into a binding contract of sale such that it was no longer the owner. 

Pipeline Predicaments: A Showdown of Environmental Liability in Alberta's Court of Appeal
February 22, 2024

Brownlee LLP

When the polluter pays for the clean-up costs of a pipeline leak, can they then turn around and seek to recover these costs from the parties responsible for installing the pipeline decades before? That was the issue facing the Alberta Court of Appeal in Paramount Resources Ltd v Grey Owl Engineering Ltd, 2024 ABCA 60.  For only the second time, the Court of Appeal considered s. 218 of the Environmental Protection and Enhancement Act and whether limitation periods should be extended in the context of environmental pollution claims. 

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

McCague Borlack LLP

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

Beware of the Standard of Care in Recreational Sports - Case Comment: Cox v. Miller
February 13, 2024

McCague Borlack LLP

In Cox v. Miller (Cox), the British Columbia Court of Appeal (the "BCCA") upheld the trial judge's decision by affirming that irrespective of an individual's intent and permissible rules of a game, injuries as a result of reckless and dangerous acts during recreational sports are risks not undertaken by players and are thereby able to constitute liability in negligence.

Discovering Limitations: BCCA Offers Clarity on when the Clock Starts Running
January 25, 2024

Brownlee LLP

The interpretation of provisions in the Limitation Act, S.B.C. 2012, c. 13, establishing the statutory limitation period for claims for contribution or indemnity, can be straightforward – until it is not.

The BC Court of Appeal dealt with one such situation when Neale Engineering Ltd. was sued by Ross Land Mushroom Farm Ltd. and others, for damages arising from a fire that occurred on May 15, 2016, at a mushroom farm in Langley, British Columbia. Ross Land denied liability and filed a third-party notice against Neale Engineering seeking contribution and indemnity on May 15, 2018. Neale Engineering opposed the third-party notice on the basis that it was statute-barred because it was filed two years after discovery of the contribution claim. The chamber's judge granted leave to Ross Land to file the third-party notice. 

In Pursuit of Fairness: Revised Test for Dismissal of Proceedings for Want of Prosecution by the BC Court of Appeal
January 24, 2024

Brownlee LLP

Rule 22-7(7) of the Supreme Court Civil Rules permit parties to apply for dismissal of a proceeding for want of prosecution. A five-member panel of the BCCA has revised the test for want of prosecution. Prejudice, which used to be a threshold issue, is now one of a number of factors to be considered in the context of the larger test of whether the continuation of the action is in the interests of justice. 

Battle for Redevelopment: Restrictive Covenants vs. Municipal Planning Policies
January 18, 2024

Brownlee LLP

Before municipalities adopted statutory plans and land use bylaws, restrictive covenants were relied on mainly by developers and landowners to inform and control land development. Such private contracts are most commonly found registered on title to inner-city parcels first developed in the 1950s. As urban living evolves and regeneration strategies encourage the conversion of primarily single-family living to multi-use structures, a friction is brewing. 

Big Bucks for Bad Faith Benefits
January 16, 2024

Brownlee LLP

Ms. Baker suffered a stroke in October 2013. She held a policy of insurance with Blue Cross via her employer, entitling her to short-term and long-term disability benefits.

There were three levels of disability benefits: short-term (30 weeks); two years of long-term “own occupation” benefits (Covered Employee is unable to perform the regular duties of his own occupation), and thereafter “any occupation” benefits, where the illness/injury “wholly prevents the Covered Employee from performing the regular duties of any occupation for which he: Would earn 60% or more of his Pre-disability Earnings and is reasonably qualified, or may so become, by training, education or experience.”

Cost Inflation in Alberta Litigation: The Grimes Multiplier
January 08, 2024

Brownlee LLP

In the Alberta Court of King’s Bench decision in Grimes v Governors of the University of Lethbridge, 2023 ABKB 432, Justice Graesser looks at the trend towards increasing party costs to be based on a percentage of the winning party’s actual fees and the decision in McAllister v Calgary (City), 2021 ABCA 25. Justice Graesser’s decision suggests that those claiming that the Bench is moving away from Schedule C are prematurely and incorrectly coming to that conclusion. He also creates a 1.25 cost multiplier that could greatly impact cost awards in the future.

Can’t get no relief: Court finds no coverage for late reported broker negligence claim
December 19, 2023

Brownlee LLP

When an occurrence policy expires, the premiums stop but the coverage continues.  A claims-made policy covers claims that occur, are made against you and which are reported during the policy period.  The incident must take place after you purchase coverage.

The Ontario Superior Court in Kestenberg Siegal Lipkus v Royal & Sun Alliance Ins. Co. (“Kestenberg”) addressed a coverage dispute where an insured failed to properly inform their insurer of a claim due to their broker’s negligence.  Because the insured had a “claims made and reported” policy, the case highlights how strictly the Courts construe such policies.

Back-Dating a ‘Filed’ Statement of Claim: A Cautionary Tale for Limitation Periods
December 15, 2023

Brownlee LLP

The Plaintiff submitted their Statement of Claim four days before the two-year limitation date, which was not ‘filed’ until five days later. At the time of filing, there were two systems for the electronic filing of documents: (1) the Email Filing System, and (2) the FDS Filing System. In the Email Filing System, a party attaches the Statement of Claim to an email which is sent to a designated courthouse email address. Documents were then ‘filed’ according to the date they were emailed, and not on the date they were processed. 

Can auto insurers require an insured to undergo medical examinations?
December 12, 2023

McCague Borlack LLP

The Ontario Superior Court of Justice Divisional Court reviewed a decision of the Licence Appeal Tribunal (the "LAT") and addresses whether auto insurers can require an insured to undergo medical examinations to determine eligibility for prescription medication claims.

Psychotherapist Costs reviewed in a SAB case
December 12, 2023

McCague Borlack LLP

The applicant, Johnson, was involved in an automobile accident in 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule (the "Schedule"). The respondent, Aviva Insurance Company of Canada (the "Insurer"), denied psychotherapy benefits. Johnson (the "Applicant") applied to the Licence Appeal Tribunal (LAT) for the resolution of the dispute.

Of the issues adjudicated in this decision, the LAT explored the appropriate rate payable to psychotherapists in the context of statutory accident benefits. 

No Secret Settlements: Failure to Disclose Results in Stay of Action
November 23, 2023

Brownlee LLP

In Skymark Finance Corporation v. Ontario, 2023 ONCA 234, the Ontario Court of Appeal reiterated an important lesson to plaintiffs involved in multi-party litigation: disclose your settlements or face a stay of proceedings.

The appellant, Skymark Finance Corporation, entered into Minutes of Settlement with Lorraine Smith, a central defendant in two related actions brought by Skymark. As part of the settlement, Ms. Smith agreed to assist Skymark in its case against the other defendants by providing an affidavit and agreeing to give evidence consistent with her affidavit during the discovery process. In effect, by virtue of the settlement, Ms. Smith went from a party adverse in interest to Skymark to an ally.

Navigating Past Injuries in Present Personal Injury Claims: Insights from Fedotkin v. Odobzinski.
November 11, 2023

Brownlee Law

A recent decision by the Court of King’s Bench reaffirms the principles of relevancy and privilege for prior medicolegal reports for actions that have resolved. In the case of Fedotkin v. Odobzinski, 2023 AKKB 632, the Plaintiff resisted the disclosure of her previous medicolegal reports on the grounds that her prior injuries had been fully resolved, rendering them irrelevant. Additionally, the Plaintiff asserted solicitor-client privilege and litigation privilege, seeking protection for the contents of these reports.

The Road to Clarity for Municipal Immunity under the MGA: Pyke v. Calgary (City)
November 08, 2023

Brownlee LLP

The long-awaited appeal decision of Pyke v. Calgary (City), 2023 ABCA 304, was issued last month, helping to clarify the defences that municipalities in Alberta can avail themselves of when faced with a claim for damages. At the Alberta Court of King’s Bench, the Honourable Justice Colin C.J. Feasby found the City of Calgary partially liable for a fatal motor vehicle collision which occurred in 2014, deciding the City was not immune under sections 530, 532, or 533 of the Municipal Government Act. While the Court of Appeal disagreed with some of Justice Feasby’s reasoning, they ultimately dismissed the City’s appeal. 

Key Insights for Insurance Adjusters: Lessons from a Property Damage Coverage Dispute
October 10, 2023

Brownlee LLP

Insurance adjusters play a crucial role in evaluating and settling claims, and staying informed about recent court decisions can greatly enhance their effectiveness. In a recent case involving property damage coverage, the BC Court's decision provides valuable insights for insurance adjusters on the importance of policy language, the distinction between direct and indirect causes of damage, and the role of exclusion clauses.

Blinded by the Light: Police Found Not Liable for Roadside Collision
October 10, 2023

Brownlee LLP

Can police officers providing roadside assistance be found partially liable for a collision due to the positioning of their vehicle and the blinding effect of their emergency lights on oncoming traffic?

Recently, in Denhoed v Griffiths, 2023 ABKB 557, the Alberta Court of King’s Bench examined these circumstances and set out the standard of care required of police officers when responding to roadway emergencies. Here, the Court found the Lethbridge Police acted reasonably and did not contribute to a third-party vehicle striking the rear of their cruiser while assisting the plaintiff during a roadside emergency.

Sick of COVID Business Claims? What Insurers need to know
October 10, 2023

Brownlee LLP

The Ontario Supreme Court recently examined the ability to recover for lost revenue associated with the COVID-19 pandemic through standard form business interruption insurance policies. These policies insure all risks of physical loss or damage to property except as otherwise provided. Losses insured include loss of earnings or profits where an interruption to business results from physical loss or damage to property.

This class action matter arose from a number of businesses that purchased business interruption policies from a variety of Canadian insurers. Policyholders attempted to claim under these policies for loss of revenue due to the pandemic, these claims had been denied.

Deny With Care: Insurers need solid evidence in order to prove there has been a “material change in risk"
September 18, 2023

Brownlee LLP

A new court decision is required reading for insurers determining whether any “material change in risk” has occurred in their policies.

The Plaintiff insureds, Mr. and Mrs. Smith (the “Smiths”), owned a commercial building in Estevan, Saskatchewan, insured with Wynward Insurance Group (“Wynward”).  The insureds had leased their premises to an entity, which in turn subleased a portion of the building to a motorcycle club.  This occurred in 2012, and there was no formal sublease agreement.

Restraint of Trade Following Changes to the Competition Act
September 18, 2023

McDougall Gauley LLP

Changes to the Competition Act

As a result of amendments made to the Competition Act, RSC 1985, c C-34 (the “Act”) that came into force on June 23, 2023, agreements between employers that seek to manipulate wages and restrict job mobility of employees may now be criminally prosecuted pursuant to s. 45(1.1) of the Act, which reads as follows...

Reducing Costs and Barriers to Legal Services: The Alternate Witnessing of Documents Amendment Act
September 11, 2023

Benson Buffett

In May 2020, the Temporary Alternate Witnessing of Documents Act was passed in NL to ease ongoing complications caused by the COVID-19 pandemic and the public health emergency order facing lawyers and their clients by temporarily allowing lawyers to witness and authenticate documents remotely via video. However, when the public health emergency order was lifted in March 2022, the Act was repealed, and remote authentication was no longer permitted.

On May 25, 2023, Bill 23Alternate Witnessing of Documents Amendment Act, received Royal Assent, making the ability to remotely witness the execution of documents using audio-visual technology a permanent adoption, pending the proclamation of the Bill by the Lieutenant-Governor in Council. Once it receives Royal Proclamation, this legislation will help reduce legal costs and other barriers to legal services anywhere in the province on a permanent basis.

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

McCague Borlack LLP

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

An Overview of Recent and Upcoming Changes to the Canada Labour Code
September 06, 2023

McDougall Gauley LLP

As part of the federal government’s initiative to modernize the Canada Labour Code, RSC 1985, c L-2 (the “Code”) and associated regulations, a series of anticipated amendments have come into force in recent months, with further amendments on the horizon. These changes may have significant impacts for federally-regulated employers. The Labour and Employment lawyers at McDougall Gauley summarize the highlights of these updates.

Facilitating Affordable Housing Projects in Your Community - Municipal Tools, Strategies and Options to Consider
September 05, 2023

Brownlee LLP

Most municipalities in Alberta have identified affordable housing as a top priority within their strategic plans.  Renewed commitments from all levels of government to fund affordable housing projects, together with the myriad of strategic tools available to municipalities, means that innovative and tailored programs can be developed to facilitate and promote affordable housing projects for our communities.

Navigating Time and Terrain: Limitation Defence Succeeds Because Plaintiff Knew of Hazard Before Injury Occurred
August 31, 2023

Brownlee LLP

Recent developments in Alberta suggest the limitation period can begin before the injury has occurred. The Plaintiff brought an action against Homes by Avi, the Defendant, for personal injuries resulting from a slip and fall on her own property on December 6, 2018. The lawsuit alleges bad design and grading. However, despite the Plaintiff’s claims of negligence and breach of duty, the Court ultimately dismissed the Plaintiff’s action as the circumstances (bad design and grading) leading to the incident had existed for six years, well beyond the two-year limitation period to bring an action.

When Employers have a Duty to Inquire and what it entails
August 23, 2023

McDougall Gauley LLP

What is the Duty to Inquire?

As a starting point, it is well-established that employees have obligations to inform their employer of their need for accommodation and to disclose sufficient information for the employer to fulfill its duty to accommodate. It is not always the case, however, that employees are forthcoming with accommodation requests or related information.

Now or Never - Limitations on Late Expert Reports
August 16, 2023

McCague Borlack LLP

This action concerned a snowmobile accident that took place in 2014. The plaintiff served several expert opinion reports regarding the nature and extent of his injuries. The defendant did not serve any responding expert opinion reports. The matter was set down for trial twice, in 2019 and in September 2023.

In February 2023, the defendant requested the plaintiff's consent to extend the deadline for delivery of a defence medical examination...

Navigating Costs Effectively: A Reminder that Proportionality is Primary in a Costs Award
August 15, 2023

Brownlee LLP

In Couch v Olatiregun, 2023 ABKB 104, the Plaintiff was awarded $4,722.00 in damages for a WAD I injury he suffered in an April 2017 motor vehicle accident. Despite alleging he suffered from chronic pain, the court concluded the Plaintiff was not suffering from chronic pain, he did not suffer a serious impairment, and he had pre-existing medical conditions relevant to his post-accident complaints.

Unraveling the Aftermath of a Property Loss Claim - Eaglestone v. Intact Insurance, 2022 BCSC 2007
August 03, 2023


In the aftermath of a fire, the claims process can be confusing and difficult to understand. Most policies contain few, if any, provisions explaining exactly how the claims process works. In Eaglestone, the Court highlights the importance of effectively handling the claims process following a fire loss claim. This case provides a cautious reminder for insurers and insured to understand the obligations required of each in the claims process and provides a further reminder to insurers of prompt action after a loss is reported to comply with their duty of good faith and fairness.

Punitive Damages for Denial of Coverage? Truong et al v Jeweler’s Mutual Insurance
July 27, 2023

Brownlee LLP

In Truong et al v Jeweler’s Mutual Insurance Company, 2023 ONSC 4006, the Court held the insurer’s unreasonable interpretation of a policy warranted punitive damages. However, punitive damages are not awarded only for incorrectly denying coverage. A punitive damages award depends on the overall conduct of the insurer when denying coverage.

Triable Issues & Legal Clocks: Park Place Condo Roof Dispute Examined
July 26, 2023

Brownlee LLP

An ongoing dispute over a leaky roof between a condominium board and the developer responsible for the condominium’s construction sheds light on the challenges faced by litigators when determining the commencement of a limitations period. In Condominium Corporation No 062 1161 v Park Place Communities Ltd, 2023 ABKB 373 (“Park Place”), Justice Mah of the Alberta Court of King’s Bench struggled with the subjective language “know or ought to know” in s.3(1) of the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”) to determine when the clock starts running in a limitation period. The ruling ultimately affirmed...

Just When I Thought I Was Out… | Parks v McAvoy
July 13, 2023

Brownlee LLP

In Parks v McAvoy, 2023 ABCA 211, the Alberta Court of Appeal overturned the lower court’s decision to summarily dismiss personal claims in negligence against the director of the defendant company related to the construction of a residential house.

In 2010, the Plaintiff hired the defendant company, Woodparke Homes, to construct a residential house. The defendant, Steve McAvoy, was the majority shareholder and sole director of Woodparke.

The Supreme Court’s unanimous decision clarifies that credit can be given for pre-conviction driving prohibitions
July 11, 2023

McDougall Gauley LLP

The Supreme Court of Canada in R v Basque recently confirmed that the Criminal Code’s mandatory driving prohibitions are a punishment rather than a sentence. In confirming the distinction between a sentence and a punishment, the Court held that credit may be given for pre-sentence driving prohibitions when a lower court imposes the mandatory driving prohibitions under the Criminal Code.

Can you get a DUI on an E-Scooter? Yes.
July 10, 2023

McDougall Gauley LLP

With the role out of rental E-Scooters in Regina last week, we have been asked this question multiple times. As the title indicates, the answer is yes. Not only can you be charged criminally with impaired driving and/or driving at .08 or over, you can also be fined under The Traffic Safety Act for a number of traffic offences which have recently...

Use of Social Media Evidence at Trial
July 06, 2023

Brownlee LLP

Social media evidence can be instrumental in challenging the credibility of personal injury plaintiffs. Where a party claims to be injured, disabled, or suffering emotional trauma from their involvement in an accident, a plaintiff may be discredited through photos, videos, messages, and usage patterns on social media platforms. In Sports Liability cases, social media from before the accident may be useful for expert analysis where inadequate training, coaching, equipment maintenance or other such allegations are made. 

Easements and Utility Rights of Way
June 29, 2023

Brownlee LLP

What a paradox it would be to have the responsibility to do a repair to some municipal infrastructure and to be refused access to the property within which the infrastructure is located. Unfortunately, this situation happens more often than it should. However, through proper planning and preparation, a municipality can avoid this result.

BC Court puts a pin in the analysis for an Insurer’s Duty to Defend
June 28, 2023

Brownlee LLP

Embedded within insurance contracts, and a key aspect of insurance coverage is the duty to defend. A pivotal obligation that mandates insurers to provide legal representation and financial support when claims are brought against the insured.

In Surrey (City) v. Co-operators General Insurance Company 2023 BCSC 955, the Court confirmed this duty is triggered not by the certainty of coverage, but by the mere possibility that the claim falls within the policy's purview.

The Ticking Deadline: A Case Study on the Application of Rule 4.33
June 22, 2023

Brownlee LLP

In Mulholland v Rensonnet, 2023 ABCA 175, the Alberta Court of Appeal clarified three instances in which Rule 4.33 of the Alberta Rules of Court does not apply. The Court was also presented with an opportunity to assess a situation of alleged obstructive litigation tactics. All parties were unrepresented.

Schizophrenia, Knives, and Insurance: A Complex Coverage Scenario
June 14, 2023

Brownlee LLP

Brett Butterfield suffered a psychotic episode while at a firearms store that ended with him stabbing the owner in the neck with a large knife. He was charged with aggravated assault but was found not criminally responsible due to his schizophrenia.

The owner sued Mr Butterfield for negligence, arguing it was reasonably foreseeable that he might have a psychotic episode before or after he acquired his firearms license and hurt someone.

Mr Butterfield held a Condominium Unit Owners Policy with Intact Insurance Company at the time of the attack that included third-party liability coverage up to $2MM. So upon receiving the lawsuit, he asked them to defend and indemnify him.

Alberta Court Dismisses Constructive Taking Lawsuit - Municipal Law Alert
June 05, 2023

Brownlee LLP

On May 31, 2023, Application Judge Mason issued her reasons for decision, summarily dismissing a $19.4 million claim for constructive taking against Alberta Transportation and the City of Chestermere.

This particular case holds significant importance as it is the first in Alberta to address the concept of de facto expropriation since the Supreme Court of Canada's landmark ruling in Annapolis. The decision in Annapolis clarified the doctrine of "constructive taking" as articulated in CPR v City of Vancouver.

Interpreting limitation periods in Saskatchewan - What the recent Court of Appeal decision in MFI Ag Reveals
May 29, 2023

McDougall Gauley LLP

The recent decision of the Saskatchewan Court of Appeal in MFI Ag Services Ltd. v. Farm Credit Canada, 2023 SKCA 30 [MFI Ag] interpreted s. 22 of The Saskatchewan Farm Security Act (the “SFSA”) in relation to its suspension of applicable limitation periods.

BC Court of Appeal Reins in Excessive Loss of Future Earning Capacity Award
May 24, 2023

Brownlee Law

In Deegan v. L’Heureux, 2023 BCCA 159, the BC Court of Appeal stepped in and replaced the trial judge’s significant award of $250,000 for loss of future earning capacity for the lesser amount of $70,000. This is uncommon given the standard of review for damages awards are highly deferential.

The Role of the Saskatchewan Human Rights Commission Advancing a Complaint Before the Court of King’s Bench
May 18, 2023

McDougall Gauley LLP

A recent decision from the Saskatchewan Court of King’s Bench provides important clarification on the role of the Saskatchewan Human Rights Commission when advancing a human rights complaint for a hearing before the Court. The decision, Saskatchewan (Human Rights Commission) v Crowe , 2023 SKKB 71 [ Crowe ], involves a human rights complaint...

Headrush: Court Blames City and Diver for Headfirst Dive
April 26, 2023

Brownlee LLP

When we go camping or spend time at a lake, we usually assume the area is safe for swimming and diving. However, accidents can and do happen, and they can have devastating consequences. This was the case in Revelstoke (City) v. Gelowitz, 2023 BCCA 139, where Aaron Gelowitz, suffered catastrophic injuries after diving into Williamson Lake near Revelstoke, BC, in 2015.

The Court Provides Clarity on the CPN7 Apparent Vexatious Application or Proceeding (AVAP) Procedure
April 18, 2023

Brownlee LLP

In De’Medici v Wawanesa Mutual Insurance Company, 2023 ABKB 210, the court took the opportunity to provide clarity on the Civil Practice Note 7 (“CPN7”) procedure for dealing with apparently vexatious applications or proceedings given the increased use of the procedure often with lengthy materials being submitted.  The court has made it clear that litigants must exercise caution when referring matters under CPN7 and discouraged its use except in the clearest of cases.

Changes to Legislation: The Non-Profit Corporations Act, 2022
April 11, 2023

McDougall Gauley LLP

On March 12, 2023, The Non-Profit Corporations Act, 2022 (the "New Act") came into force in Saskatchewan. The New Act replaces The Non-Profit Corporations Act, 1995 , SS 1995, c N-4 (the "Old Act"). The New Act has been enacted in response to the many legal and cultural changes that have taken place in Saskatchewan and other jurisdictions and...

New Business Corporations Act Enacted March 12, 2023
April 10, 2023

McDougall Gauley LLP

On March 12, 2023, the Saskatchewan Government enacted new legislation governing business corporations in Saskatchewan, The Business Corporations Act, 2021, SS 2021, c 6 (the "New Act"). The New Act replaces The Business Corporations Act, RSS 1978 c B-10 (the "Old Act"), which came into force in 1979.

Navigating the Murky Waters of Cyber-Attack Privilege
April 04, 2023

Brownlee Law

The LifeLabs LP v. Information and Privacy Commissioner of Ontario case continues to be a significant topic of interest for lawyers and insurance professionals in Canada, particularly those in the cyber insurance community. This decision has the potential to drastically limit the ability of victims of cyber-attacks to maintain privilege over documents produced in response to a breach. Recently, the Ontario Superior Court of Justice declined to order the Ontario Privacy Commissioner to disclose the materials on which they relied when ordering LifeLabs to relinquish certain records developed through counsel in response to a cyber-attack, despite LifeLabs' efforts to preserve privilege.The LifeLabs LP v. Information and Privacy Commissioner of Ontario case continues to be a significant topic of interest for lawyers and insurance professionals in Canada, particularly those in the cyber insurance community. This decision has the potential to drastically limit the ability of victims of cyber-attacks to maintain privilege over documents produced in response to a breach. Recently, the Ontario Superior Court of Justice declined to order the Ontario Privacy Commissioner to disclose the materials on which they relied when ordering LifeLabs to relinquish certain records developed through counsel in response to a cyber-attack, despite LifeLabs' efforts to preserve privilege.

Court of King’s Bench Confirms Stigma Damages and Strict Interpretation of MGA Defences
March 21, 2023

Brownlee LLP

In Legare v Acme (Village), 2022 ABPC 54, the Provincial Court of Alberta determined the Village of Acme was liable to the Plaintiff resident homeowners for a sewage block that caused extensive damage to their house. Most of their damages were covered by insurance but they were awarded stigma damages. Stigma damages compensate a property owner for the diminution in value of property caused by negative perceptions despite the property being remedied to a high standard.

How Low Can You Go: Court awards less than minor injury cap to plaintiff in uncontested damages trial
March 14, 2023

Brownlee LLP

The case involved a motor vehicle accident in which the plaintiff claimed damages for personal injuries. On April 13, 2017, the plaintiff was driving his vehicle in a northerly direction on 19th Street N.E. in Calgary, Alberta, when he stopped at the intersection with Airport Trail N.E. after the light turned amber and was rear-ended by the defendant’s vehicle. The defendant denied liability for the accident, alleging the plaintiff made a sudden stop because the light turned amber without any oncoming vehicles. The court found the defendant – who was self-represented and did not attend trial - liable for the accident.

"Durability” Stands the Test of Time in Future Income Loss Claim
March 09, 2023

Brownlee LLP

The Appellant/Defendants appealed a damage award for a motor vehicle accident, specifically for loss of future income capacity.  The Defendants alleged the Trial Judge erred by finding a future income loss based on a possibility that the ongoing pain suffered by the Plaintiff may prevent him from retiring as planned at 65.

Beyond Four Walls: BC Court of Appeal Determines Scope of Coverage for Property Damage Occurring 'Within Your Dwelling'
March 08, 2023

Brownlee LLP

The homeowners emerged victorious in the recent Court of Appeal decision interpreting coverage for property damage that occurred “within the dwelling”.

In December 2019, water backed up and escaped from a drain located in an area of the appellant homeowners' (the “Gills”) property. The drain was located on a sun deck, and water overflowed from the sun deck to the interior of the Gills’ home, causing damage.

Limitation periods and The Saskatchewan Farm Security Act – What you need to know
February 15, 2023

McDougall Gauley LLP

The recent decision of the Saskatchewan Court of Appeal in MFI Ag Services Ltd. v. Kramer Ltd., 2023 SKCA 10 [Kramer] establishes that the limitation periods set out in The Limitations Act (Saskatchewan) (the “LTA”) are not applicable to proceedings for equipment seizure under Part IV of The Saskatchewan Farm Security Act (the “SFSA”). Kramer further clarifies the discretionary powers permitted to be exercised by a Chambers judge in granting orders at a hearing held pursuant to s. 53(1) of the SFSA are limited and meant only to be exercised as they relate to setting a payment structure based on a farmer’s inability to pay.

Diminishing Returns - Divisional Court Confirms Motor Vehicle Accident Claims for Diminished Value are Statute Barred by Insurance Act
February 10, 2023
Diminished value claims for property damage to automobiles are statutorily barred by section 263 of the Insurance Act, R.S.O. 1990, c. I.8. 
At least that is what section 263 of the Insurance Act appeared to do. However, Ontario insurers have long been plagued by persistent claims, especially in the Small Claims Court. All of the actual reported decisions dismissed these claims, but the decisions tended to be fact-specific. Without any clear decisions by a higher Court, new claims would arise with some new variation of the diminished value argument. 

The Impact of Ministerial Order 27/2020: A Look at Rainard v Tan
February 06, 2023

Brownlee LLP

Many statutes in Alberta outline time frames within which certain things must be done, usually to ensure legal disputes are resolved in a timely manner and evidence is not lost or destroyed. Those time frames are commonly known as “limitation periods,” and it can be hard to meet them at the best of times.

An Important Decision for Property and Casualty Insurers: Abbas v Esurance
February 06, 2023

Brownlee LLP was recently successful in defending a case on behalf of Esurance Insurance Company of Canada that the Alberta Court of Appeal has described as an “important” decision for the insurance industry.

The case involved Ali Abbas, an insured of Esurance who suffered life-altering injuries in a car accident with an uninsured driver. He had had an Alberta Standard Automobile Policy that included an SEF 44 Endorsement for damages caused by an underinsured driver. The insured submitted a claim for coverage for Section B benefits under his policy and for coverage under the Endorsement.

A Series of Unfortunate Events: Proving Fraud in the Insurance Context
January 27, 2023

Brownlee LLP

Over a three-month span, three vehicle collisions occurred in Surrey, British Columbia.  Each was a rear-end accident, and there were no independent witnesses to any of them.  The Insurance Corporation of British Columbia (“ICBC”) paid for vehicle damage and personal injury damages to the vehicles’ occupants.  Over several years, ICBC paid out over $83,000 plus additional legal costs related to the claims.  But there were connections between the people involved in the car crashes, including their passengers.  These connections begged explanation, and ICBC subsequently sued Inderjit Singh and others for civil fraud, conspiracy, and fraudulent misrepresentation, claiming they were staged accidents.

A Knockout for Insurers – BCSC Confirms Exclusion for Failure to Prevent Assault
January 26, 2023

Brownlee LLP

In Reeves v Co-Operators General Insurance Company, 2022 BCSC 2258, the court considered whether the defendant insurer owed a duty to defend the parents of a young man charged with assaulting a classmate. At issue was the interpretation of an insurance policy clause excluding coverage for the "failure of any insured to take steps to prevent" an assault. This was the first time a British Columbia court had interpreted such an exclusion.

Compensation expectations for long-term employees terminated - Case Study: Williams v. Air Canada
January 17, 2023

McCague Borlack LLP

Employers must be wary of what compensation long-term employees are entitled to in lieu of notice when laid off during times of economic uncertainty. The entitled compensation will likely not be the statutory minimum in applicable provincial and federal employment legislation. In Williams v. Air Canada, 2022 ONSC 6616, the Ontario Superior Court granted summary judgment in favour of an Air Canada employee who was dismissed without cause, awarding $132,772.33 in lieu of a 24-month notice period.

Failure to Prove a Hazard Results in Summary Dismissal Biegel v Trotter and Morton Limited
January 11, 2023

Brownlee LLP

If a plaintiff can't say how they were injured, what caused their injury, if they were injured by a specific hazard, and if they can't say the hazard was caused by the defendants, then the analysis stops there. The courts will say the plaintiff has not met their burden, there is no need to examine the defendants' records, and the case will be dismissed.

Saskatchewan Court of Appeal outlines new test for redacting producible documents
January 09, 2023

McDougall Gauley LLP

When parties enter into the litigation process, one of the steps that must be undertaken is document exchange, or disclosure, commonly referred to as discovery. The discovery process requires each party disclose to the other all documents that they have in their possession that are relevant or related to the proceedings by listing them documents in an Affidavit of Documents. Each party is then required to produce to the opposing side all relevant documents listed in the Affidavit of Documents, except those that may be lawfully withheld. This process is governed by Part 5 of the King’s Bench Rules [the Rules] and outlines what is required of each party when disclosing documentary evidence.

Statutory Deductibles & Monetary Thresholds - Increased for MVA Claims
January 04, 2023

McCague Borlack LLP

On January 1, 2023, the statutory deductibles and corresponding monetary thresholds in motor vehicle accident claims increased significantly by 6.9% due to inflation.

Supreme Court of Canada Relaxes the Test for “Constructive” Takings
December 16, 2022

McDougall Gauley LLP

In that case, a private property owner (Annapolis Group Inc. (“Annapolis”)) owned 1,000 acres of undeveloped land in the Halifax Regional Municipality (the “Municipality”). Annapolis’ ambitions to develop its land were frustrated by the Municipality’s bylaws and community plan, which combined to prohibit any development on Annapolis’ land for at least 25 years. Annapolis sued the Municipality for $120 million, claiming that the Municipality’s bylaws and community plan amounted to a “constructive taking” of Annapolis’ property. A majority of the Supreme Court allowed Annapolis’ appeal, and directed that Annapolis’ claim proceed.

Which doctor's opinion counts on threshold issues? Case Study: Sanson v Paterson v Sanson v Security National Insurance
December 13, 2022

McCague Borlack LLP

What types of physicians can opine on threshold issues? In the Ontario Superior Court decision, Sanson v Paterson v Sanson v Security National Insurance, Justice W.D Black answers the type of physicians that qualify under section 4.3(3) of O. Reg 461/96.

Are you a creditor and do you have standing? Maybe not. Case Study: YG Limited Partnership and YSL Residences Inc.
December 02, 2022

McCague Borlack LLP

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

The brief facts of the motion were as follows.

You got hacked: Limits on Liability - AN UPDATE: Case Study of Owsianik v. Equifax Canada Co, and Intrusion of Seclusion
November 30, 2022

McCague Borlack LLP

This is an update further to the first publication in July 2021 of the same name.

The Ontario Court of Appeal recently held that the tort of intrusion upon seclusion cannot be used to recover damages from a "database defendant" if the information being stored is accessed by independent third-party hackers. A database defendant is one who, "for commercial purposes, collected and stored the personal information of others."

Personal Circumstances Given Weight in a Plaintiff’s Failure to Mitigate: Trafford v Byron, 2022 BCSC 1896
November 22, 2022

Brownlee LLP

This recent decision from the British Columbia Supreme Court commented on a plaintiff’s responsibility to mitigate their damages when they have limited means to do so.  Madam Justice Wilkinson declined to reduce the damages award for failure to mitigate in light of the plaintiff’s circumstances.  Within the broader context of the plaintiff’s limited means, they could not have been legally obliged to pursue any more treatment than they had.

Insurers Unable to Enforce Litigation Timelines when Common Courtesies Extended: Jelonek v Monterrosa-Renaud
November 22, 2022

Brownlee LLP

It is not unusual for plaintiff’s counsel to file a Statement of Claim (usually to preserve their limitation period) and then provide a courtesy copy to the defendant’s insurer without actually serving the Statement of Claim on the defendant. Plaintiffs in Alberta have one year to serve their Statement of Claim after filing it.

Waiting for the Umpire to Make the Call Under BC’s Insurance Act
September 21, 2022

Brownlee LLP

Whether in baseball or a court of law, all eyes turn to the officials as they make their decision.  As the expression goes: the waiting is the hardest part.  A new Court decision has denied a claimant’s attempt to terminate her dispute resolution hearings with multiple insurers in a three-year dispute over the value of water damage in her strata unit.  While the Court denied her attempt, insurers should consider whether the dispute resolution process is proceeding in a timely and cost effective way.

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

McCague Borlack LLP

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

An Implied Waiver is Not Enough
September 09, 2022

Brownlee LLP

Privilege is a legal doctrine under which certain communications, made within the context of certain relationships, will be sheltered from disclosure to any other persons. In the legal context, written and verbal communications that may be used to prove or disprove a material fact at issue in litigation must be produced for the opposition’s inspection with the exception of privileged communications. 

Are Building Developers Liable? Maybe… Condo Corp v JV Somerset Development Inc, 2022 ABCA 193
September 01, 2022

Brownlee LLP

A condominium building’s balconies were discovered to have been deficiently designed and constructed after water infiltration and wood rot occurred to the building. The condo corporation commenced litigation against various parties involved in the construction including the developer of the building.

Recent Trends in Civil Litigation as a Result of COVID-19
August 31, 2022

McCague Borlack LLP

In March 2020, the world came to a near standstill because of the COVID-19 pandemic. Like many other industries, civil courts and litigators had to adapt to the forced shift online because even a global pandemic is no excuse for delaying the administration of justice. The digital world is the new world; however, effective August 2, 2022, Chief Justice Morawetz released a Notice to the Profession advising of new Guidelines applicable to proceedings in the Superior Court of Justice. Ultimately, a hybrid model is being endorsed through the establishment of presumptive modes of both in-person and virtual attendances to ensure all participants can fully and equally participate.

The Mechanics of The Duty to Defend, The Duty to Indemnify, And Additional Insureds
August 31, 2022

McCague Borlack LLP

This paper was originally presented at a client seminar and has been updated with new case references from an article of the same title.

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. The first obligation is referred to as the "duty to defend". 

Nuances Between Judge-Alone and Jury Trials
August 31, 2022

McCague Borlack LLP

During the COVID-19 pandemic, the courts were unable to hold jury trials for many civil claims, particularly MVA and tort cases. This ended in May 2022, and jury trials for civil cases have since resumed. During this time, many decisions proceeded before only a judge. This paper will outline the major differences between judge-alone and jury trials.

Tips for Pursuing a Claim Under the Provisions of the Sale of Goods Act
August 31, 2022

McCague Borlack LLP

In the context of subrogated claims, the Ontario Sale of Goods Act (“SOGA”) gives rise to a potential cause of action that must be considered in order to ensure that all potential defendants are named in the claim. As claims handlers and counsel, it is important to determine whether a party to a sales contract upheld its obligations, namely that the goods sold were fit for the intended purpose and were of merchantable quality.

Strategies for Proactively Advancing a Subrogated Claim
August 31, 2022

McCague Borlack LLP

Subrogated claims require a distinct approach from defense cases; not only is the onus on the plaintiff to move the case forward, but it is also in their direct financial interest to do so. The faster a case can move along, the faster it can be settled or otherwise resolved. However, pushing a matter relentlessly through the typical litigation steps can miss important opportunities to potentially resolve a claim. Because of this, managing subrogation matters involves a tempered balance of aggressive pursuit of recovery and cooperation with counsel to make it easier for the defendants to settle.

Rule 3.45 is not a Limitation Period
August 30, 2022

Brownlee LLP

In Kapeluck v Two Girls And A Hammer Inc., 2022 ABQB 467, the Applicant ICF Plus Inc. (“ICF”) successfully appealed a Master’s decision denying ICF’s application to file a third-party claim against the Respondent, Rapid Concrete Ltd (“Rapid”) after the six month period imposed by Rule 3.45 of the Alberta Rules of Court had expired. ICF was able to demonstrate that the third-party claim was not statute-barred by Rule 3.45 or section 3(1.1) of the Limitations Act and that there was an air of reality to the claim.

B.C. Court Finds no Liability for Company Hired to Clear Municipal Sidewalks
August 22, 2022

Brownlee LLP

A recent decision by the Supreme Court of British Columbia has found that a pedestrian who slips and falls on a municipal sidewalk cannot sue a contractor retained by a property owner to clear the sidewalk of ice and snow. While most municipalities in Canada have bylaws requiring property owners to remove snow from adjacent municipal sidewalks, courts in both Alberta (in Koch v. Slave Lake Jewellers Ltd., 2001 ABQB 445 and Kluane v. Chasse, 2001 ABQB 244) and British Columbia (in Der v. Zhao, 2021 BCCA 82) have ruled that for both commercial and residential property owners, municipal bylaws do not translate in to a duty of care at common law or under the relevant Occupiers’ Liability legislation. 

Get with the Times: Alberta Court of Appeal Greenlights Videoconferencing
August 16, 2022

Brownlee LLP

In the recent case of Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239, the Alberta Court of Appeal held questioning did not have to occur in person and instead, could occur via videoconferencing.

In May 2020, amidst the Covid-19 pandemic, the respondents sought to conduct questioning by way of videoconference. In November 2020, the master granted an order directing the appellant and respondent to schedule questioning by videoconferencing. He further held that questioning should not be postponed indefinitely until the pandemic subsides.

Ontario Court of Appeal Upholds Decision to Deny Coverage for Tort of Intrusion upon Seclusion Claims - Case Comment: Demme v. HIROC
July 28, 2022

McCague Borlack LLP

This past month, the Ontario Court of Appeal released its decision of Demme v. Healthcare Insurance Reciprocal of Canada (HIROC) 2022 ONCA 503, which considered a commercial liability insurer's duty to defend in actions based on the tort of intrusion upon seclusion. Justice Brown ultimately found that the insurer had a right to deny coverage to an employee of the insured under its policy.

Determination of Notice Periods for Rehired Employees Post CCAA Proceedings: Case Comment: Antchipalovskaia v. Guestlogix
July 12, 2022

McCague Borlack LLP

In Antchipalovskaia v. Guestlogix Inc.,1 released on June 9, 2022, the Ontario Court of Appeal held that in cases where an employee is terminated and subsequently rehired at the time of proceedings under the Companies' Creditors Arrangement Act ("CCAA"), the employee's prior period of employment is relevant in determining what notice period the employee is entitled to.

SEF 44 Provision is Still Favorable to Insureds
July 05, 2022

Brownlee LLP

Courts have repeatedly ruled against insurers who have argued insureds brought their SEF 44 claims after the limitation period had expired. In ruling against insurers, courts have held...

Judge vs. Jury: Considerations for Medical Malpractice Cases
June 29, 2022

McCague Borlack LLP

There has been a shift in attitudes towards juries in medical malpractice cases over time. In 1998, the America Medical Association, a professional association and lobbying group for physicians and medical students, explained their position as follows...

Breaking The Blunt Arrow: Bill 27's Ban on Non-Compete Agreements
June 24, 2022
  1. What was the legal landscape prior to the amendments to the Employment Standards Act, 2000?
  2. What are the new amendments to the ESA?
  3. What are the exceptions?
  4. What if clients are still using precedents with non-competition clauses for contracts entered into after October 25, 2021?
  5. Are there any creative solutions for employers who want to restrict competition?

Double duty: 'Direct and visible supervision' of third parties is required under BC’s Occupiers Liability Act
June 22, 2022

Brownlee LLP

An occupier has a positive duty to make its premises reasonably safe for visitors by taking reasonable care to protect such visitors from foreseeable harm. But what duty does an occupier owe to protect visitors from harm arising from the acts of third parties? Vigilance by the occupier is required to prevent such harm, which has been recently detailed by a British Columbia trial court in the Langston-Bergman v. Orchard, 2022 BCSC 762 decision. In that case, the Court held the occupier liable under BC’s Occupiers Liability Act for the conduct of a third party.

No One is Perfect: Standard of Care Required of an Occupier is Reasonableness not Perfection
June 17, 2022

Brownlee LLP

In the recent Alberta Court of Queen’s Bench decision of Westerveld v Cineplex Entertainment Corp, 2022 CarswellAlta 920, Master Mattis provided a thorough review of the case law’s interpretation of the standard of care required of occupiers under the Occupiers’ Liability Act (OLA).

According to the 2004 Alberta Court of Appeal decision in Anderson v Canada Safeway Limited, it is a question of fact whether an occupier was negligent or failed in its duty to keep its premises reasonably safe from foreseeable risks.

Reasonable Safety is Sufficient to Absolve an Occupier of Liability Under the OLA
June 13, 2022

Brownlee LLP

In the recent Alberta Court of Queen’s Bench decision of Westerveld v Cineplex Entertainment Corp, 2022 CarswellAlta 920, Master Mattis described the obligations imposed on an occupier under the Occupiers’ Liability Act (OLA).

In this case, the plaintiff sustained a knee injury after she tripped and fell over a raised footrest of a recliner seat while exiting a Cineplex movie theatre.

A Time Limit Cannot Be Imposed on the Consent to Operate a Vehicle
June 07, 2022

Brownlee LLP

In the recent Court of Appeal decision of Mansour v Rampersad, 2022 ABCA 173, the Court overturned a decision which ruled that a vehicle owner could terminate consent given to another driver in advance and at a specific point in time. 

Constructive Dismissal during the COVID-19 Public Health Emergency
May 31, 2022

McDougall Gauley LLP

There have been two recent cases in Ontario which may significantly change the law of constructive dismissal in Canada. Both involve the interactions of employment standards legislation and the common law.

Collateral Attacks Fail Against Municipalities
May 19, 2022

Brownlee LLP

In Ekman v Brooks (City), the Alberta Court of Queen’s Bench reinforced that it will not tolerate litigation by instalments (or  “collateral attacks”) and will respect previous decisions made by courts and subdivision development and appeal boards when it comes to litigation that repeats previously adjudicated allegations.

Alberta Court Refuses to Grant Indefinite Limitation Period for Environmental Liabilities
May 18, 2022

Brownlee LLP

The recent Paramount Resources Ltd v Grey Owl Engineering Ltd, 2022 ABQB 333 decision released by Justice Kachur has provided much-needed clarification on the competing objectives of the Limitations Act RSA 2000, c L-12 and the Environmental Protection and Enhancement Act, RSA 2000, c E-12. The decision, argued in part by Brownlee LLP, will be of particular interest not only to those practicing in environmental and resource extraction law, but civil litigators contemplating the applicability of the 10-year ultimate limitation period of s. 3(1)(b) of the Limitations Act should also welcome its findings. 

Damaged Curbs Do Not Attract Automatic Liability
May 10, 2022

Brownlee LLP

By utilizing key sections within the Municipal Government Act (MGA), the Municipality of Crowsnest Pass successfully demonstrated that it was not liable for damage caused to private property when water flowed over a sunken roadside curb during heavy rainfall in June 2017. 

Sunken Sprinkler Head Can’t Trip Up Municipal Government Act Protections
May 04, 2022

Brownlee LLP

In 2019 and 2020, our municipal litigation team successfully defended the City of Lethbridge against an Occupiers’ Liability Act claim – and a subsequent appeal – by relying on provisions within the Municipal Government Act (MGA).

BC Court Decides CERB Payments Should Count Against Damages for Wrongful Dismissal
May 03, 2022

McCague Borlak LLP

Recently in Reotech Construction Ltd. v. Snider, 2022 BCSC 317 the BC Supreme Court determined that CERB payments should be deducted from an ex-employee's damage award for wrongful dismissal.

On appeal to the British Columbia Supreme Court, the court relied on two judicial precedents to determine the trial judge had erred...

Minimum Maintenance Standards and Municipal Sidewalks - Case Study: Cromarty v. Waterloo (City)
April 28, 2022

McCague Borlack LLP

In the recent decision of Cromarty v. Waterloo (City), Justice D.A. Broad of the Ontario Superior Court of Justice dealt with the applicability of the Minimum Maintenance Standards2 as a defence to municipal liability in the case of a pedestrian trip and fall on a municipally-owned sidewalk.

Passing the Buck: Payment of Productions in Personal Injury Litigation Case Comment: Endale v. Parker
April 25, 2022

McCague Borlack LLP

In the recently released Endale v. Parker, the Superior Court of Justice has clarified which party ought to pay for obtaining documents, whether by undertaking or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.

In PetroFrontier, Alberta Court of Appeal Advises on Protecting Solicitor-client Privilege When Pleading
April 21, 2022

Brownlee Law

PetroFrontier Corp v Macquarie Capital Markets Canada Ltd, 2022 ABCA 136 arose from a bought-deal securities offering gone wrong. The defendant terminated an underwriting agreement with the plaintiffs when the plaintiffs failed to file a final prospectus on time. The plaintiffs sued the defendant, alleging that the defendant and its legal counsel, Torys LLP, agreed to extend the prospectus-filing deadline. The claim also alleged that Torys had actual and ostensible authority to bind the defendant. The Statement of Defence stated that Torys neither agreed to an extension, nor held authority to do so.

Not-for-profits ~ BEWARE: Federal privacy laws can apply to not-for-profit corporations
April 18, 2022

McCague Borlack LLP

The Personal Information Protection and Electronic Documents Act (PIPEDA) can apply to not-for-profits. PIPEDA applies to organizations that collect, use or disclose personal information in the course of commercial activities. While commercial activities may seem to be a blanket statement indicating that PIPEDA applies only to for-profit corporations, the relevant authorities suggest otherwise.

ALERT: Federal Government’s Continued Commitment to Establishing a Canada Water Agency
April 14, 2022

Brownlee LLP

On April 7, 2022, the Federal Liberal Government released its 2022 Budget entitled “A Plan to Grow Our Economy and Make Life More Affordable.”  While there is a focus on perennial problems such as affordable housing, growing the economy, and job creation, there is also a focus on water. It reads, in part:

Protecting Our Freshwater...

New Pyke Decision May Create Uncertainty for Municipal Statutory Defences
April 14, 2022

Brownlee LLP

Certain sections of the Municipal Government Act [1] place legal duties on municipalities, while other sections provide them with broad defences. These sections occasionally conflict, but previous judicial decisions have tended to favour applying statutory defences broadly to immunize municipalities from liability.

However, the recent Alberta Court of Queen’s Bench decision in Pyke [3]  has taken a different course and narrowed the application of these statutory defences, especially section 530 of the Municipal Government Act

Recliner Seats Are a Comfort Not a Hidden Hazard: Trip and Fall Case in Theatre Summarily Dismissed
April 07, 2022

Brownlee LLP

In Westerveld v Cineplex, Brownlee LLP’s lawyers were successful in having the Plaintiffs’ trip and fall claim summarily dismissed for lack of merit. In Westerveld, the Plaintiff alleged personal injuries as a result of tripping and falling over a recliner seat inside a theatre at the Crowfoot Cineplex. 

'Unparalleled Production' and Lessons for U.S. Litigants Seeking to Compel Discovery of Third-Parties in Ontario - Case Study: Activa TV Inc. v Matvil Corp
April 01, 2022

McCague Borlack LLP

In Actava TV Inc. v. Matvil Corp, released on February 19, 2021, the Ontario Court of Appeal clarified the law on letters of request for third-party production.

The crux of the dispute in this case centred around a 'letter of request'. A letter of request, sometimes called a letter rogatory, "is the medium whereby one country, [...] seeks foreign judicial assistance that allows for the taking of evidence for use in legal proceedings[.]" In this case, the U.S. District Court, Southern District of New York, issued a letter to the Ontario Superior Court of Justice. At its core, the letter is merely a request, and as such, must be endorsed or made enforceable by the recipient jurisdiction.

Defendants are not liable for ‘freak accident’ — Delfs v Stricker, 2022 BCSC 373
April 01, 2022

Brownlee LLP

“The mere fact the accident happened does not mean it happened negligently” — sometimes, accidents just happen.

In 2009, the Plaintiff — then aged 9 — was riding as a passenger in a Polaris RZR UTV (a side-by-side off-roading vehicle) on mountain trails near Radium, B.C. The Plaintiff’s 15-year-old cousin was driving the RZR. At the time, he had an Alberta learner’s licence and had been driving ATVs, dirt bikes, and UTVs for a number of years under his dad’s supervision. 

Financial Planner and Advisor Titles: A New Framework is Announced
April 01, 2022

McCague Borlack LLP

Ontario's Finance Ministry has officially approved a new set of rules governing employees in the financial services industry who use the titles "financial planner" or "financial adviser". The implementation of these standards, which have been absent in the past, will offer security to investors from conducting business with individuals who are unqualified or under-qualified.

Dispensing with dispensaries: Pot shops on every corner
March 30, 2022

McCague Borlack LLP

You're walking to grab a bite to eat from your favourite sushi place down the street. It's a warm, clear night and you pass the local businesses which give your neighbourhood its sense of character. An organic coffee shop. A marijuana dispensary. A vintage bookstore. Another dispensary. Maybe the grocer has those strawberries you like. Yeah, that sounds good. Yet another dispensary. A fourth dispensary. A fifth dispensary – this one with a clever name. Were there always this many?

The Difficulties of Relying on the Minimum Maintenance Standards - Case Study: Lloyd v Bush
March 24, 2022

McCague Borlack LLP

In 2020, the Ontario Superior Court of Justice released its decision following the third trial in Lloyd v Bush. The case arose out of a motor vehicle accident that occurred in 2001.

As a result of the accident, Ms. Lloyd sustained serious injuries. She sued not only the operator and owner of the propane tanker but also named the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee as defendants to her claim. At issue in the third trial was the question of liability: how much liability, if any, should be attributed to the municipal defendants for the poor road conditions? And would the municipalities' efforts to meet the minimum maintenance standards absolve them of liability?

(PLUS Download MB's complimentary Minimum Maintenance Standards Chart!)

Slip and Fall: When the Plaintiff is to Blame
March 15, 2022

Brownlee LLP

By arguing a plaintiff was contributorily negligent, a business can show the plaintiff failed to take reasonable care to avoid the situation that led to the slip and fall. This can be based on the plaintiff wearing improper footwear, failing to pay attention, or otherwise being distracted. 

Good Faith, or Preying on Bad Faith? Considerations for Discretionary Clauses
March 10, 2022

Brownlee LLP

Review of: Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District 2014 SCC 71.

One might imagine the more established a legal principle is, the more likely the rules of application are understood. Yet, the opposite is true of good faith. Even more confusing is how a general organizing principle, such as good faith, affects discretionary clauses in contracts. 

You Oughta Know: Recent Court of Appeal Case Reinforces Limitation Period Trigger
March 01, 2022

Brownlee LLP

In Lafferty v Co-operators General Insurance Co, 2021 ABCA 359, the Alberta Court of Appeal confirmed that it’s not what a plaintiff knows, but what a plaintiff should know that starts the clock running on his or her claim.

Striking a Jury Notice – Not so fast!
February 11, 2022

McCague Borlack LLP

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII), the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

No Escape from a Policy Breach Even Years Later Case Study: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance
February 07, 2022

McCague Borlack LLP

On November 18, 2021, the Supreme Court of Canada rendered its decision on whereby an insurer may be allowed to deny coverage based on a policy breach discovered several years down the road.

Think Your Lawsuit is Worth Billions? Think Again
February 04, 2022

Brownlee LLP

In Sun v Allwest Insurance Services Ltd.,(1)  the Court dealt with and ultimately dismissed the unmeritorious action commenced by litigants deemed to be vexatious under Alberta’s Civil Practice Note 7 (CPN7). 

Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05
February 03, 2022

McCague Borlack LLP
In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...

If I am convicted of impaired driving, where am I prohibited from operating a motor vehicle?
December 13, 2021

McDougall Gauley LLP

Individuals convicted of impaired driving in Saskatchewan are, among other things, subject to a Court ordered driving prohibition. They are typically prohibited under section 320.24(8) of the Criminal Code from operating a motor vehicle on any street, road or highway or in any other public place. The question that often arises for individuals, as well as employers, is...

Brain Injuries - Admissibility of SPECT Scans as Evidence - Case Study: Meade v. Hussein, 2021 ONSC 7850
December 07, 2021

McCague Borlack LLP

On November 29, 2021, the Ontario Superior Court of Justice released an important decision in Meade v. Hussein, 2021 ONSC 7850 regarding the use of single-photon emission computed tomography scans (“SPECT scans”). Justice Bale found that SPECT scans failed to meet the reliability foundation test for novel scientific evidence. This is the Court's findings...

SCC Refuses to Fault Insurer for Gaps in Investigation
December 03, 2021

Brownlee LLP

In Trial Lawyers Association of British Columbia v Royal Sun Alliance Insurance Company of Canada, the Supreme Court of Canada recently decided an issue of coverage under an automobile policy. The decision covers fundamental obligations between insurers and insureds and limits on how third parties are involved. The case ultimately turned on a mundane point, but the reasons re-affirmed some fundamental obligations owed between parties to an insurance contract in favour of the insurer.

HBC Trademark Troubles: A review of the Zellers trademark dispute between HBC and a Quebec retail family
November 09, 2021

McCague Borlack LLP

The recent lawsuit initiated by the Hudson's Bay Company (“HBC”) against a Quebec retail family demonstrates how easy it can be for trademark ownership rights to slip through your fingers by simply missing a trademark renewal deadline.

In Nelson V Marchi, Supreme Court Clarifies the Core-Policy Defence for Municipalities
November 02, 2021

Brownlee Law

The Supreme Court of Canada (SCC) recently provided municipalities and lower courts guidance in applying the “core policy defence”, in Nelson (City) v Marchi, 2021 SCC 41. The Court has constricted the scope of this defence.

Municipalities often use the core-policy defence to shield themselves from liability for negligence. 

The Supreme Court of Canada Weighs the Validity of Limitation of Liability Clauses
October 27, 2021

Brownlee Law

At times, the Civil Code in Quebec departs from upholding freedom of contract in order to neutralize “abusive” clauses that are excessively and unreasonably detrimental to the other party.  At issue in 6362222 Canada Inc. v. Prelco Inc. was whether the breaching party could rely on a clause limiting its liability to the face amount of the contract.  Where the clause is not ambiguous, according to the Supreme Court of Canada, the will of the parties should be respected.

Revisiting Governmental Immunity in Negligence Claims - Case Study: Nelson (City of) v. Marchi
October 26, 2021

McCague Borlack LLP

When is the government entitled to act without the possibility of liability or subsequent second-guessing by the Courts? It is generally accepted that policy decisions made by government actors are immune from findings of liability claimed in negligence.

However, the Supreme Court of Canada in Nelson (City of) v. Marchi, 2021 SCC 41, has provided additional guidance on this topic. 

Vaccination or Rapid Test Workplace Policies Gaining Momentum and Validity as 4th Wave Workplace and Community Issues Escalate
October 06, 2021

BrownLee LLP

Attached is a link to the recent publication of the Alberta Federation of Labour.  Kudos to the AFL and all unions and their advisors who are becoming increasingly vocal in recognizing the current validity of workplace policies that require vaccination or regular testing.  

Our legal opinion on this issue has always been it "Depends".  

Key factors on which this "Depends" include...

Amending to Add Family Law Act Claims: Not So Fast! Case Study: Malik v Nikbakht
September 28, 2021

McCague Borlack LLP

The Ontario Court of Appeal heard an appeal in Malik v. Nikbakht, 2021 ONCA 176, brought by the plaintiff, Sarfraz Malik. The action arose from a 2013 motor vehicle accident in which Mr. Malik was driving with his wife and three sons. In 2018, Mr. Malik brought a motion for leave to amend the Statement of Claim to add a claim for damages pursuant to s.61 of the Family Law Act, RSO 1990, c. F.3., including damages for...

Relevant & Substantial Undertaking Responses Might Qualify As Litigation Steps
September 23, 2021

Brownlee Law

Recently, the Court of Queen’s Bench in Kahlon v Kahlon, 2021 ABQB 683 clarified whether undertaking responses can materially advance an action to restart the three-year clock under the “Drop Dead” Rule (Rule 4.33) of the Alberta Rules of Court

The Pendulum Swings towards Employer-Driven Mandatory Vaccination Policies
September 20, 2021

McCague Borlack LLP

Many employers are beginning to implement mandatory vaccination policies in their workplaces. In doing so, they must balance the risks to their businesses and employees of a workplace outbreak of COVID-19 versus employees' human and contractual rights, along with privacy concerns.

Danger! An Insufficient Waiver May Not Shield Your Business from Liability
August 21, 2021

Brownlee Law

In this case, the British Columbia Court of Appeal ruled that a waiver shielding a ski resort from liability was not...

Clarifying the Impact of Informal Offers on Cost Calculations
August 13, 2021

Brownlee Law

The construction law judgment in ILI's Painting Services Ltd. v. Homes by Bellia Inc., 2020 ABQB 372 clarifies the law...

It’s Not The Car's Fault That You Fell
August 11, 2021

Brownlee Law

In a recent case from the Ontario Superior Court, the Court held that more is required than the vehicle simply being at the location where the incident occurred to be considered a direct cause of the “accident.”

In Porter v Aviva Insurance Co of Canada1, the Plaintiff was walking toward a stationary rideshare Lyft car, trying to stabilize herself on the hood, when she slipped and fell on ice in the driveway, subsequently breaking her left leg in two places. The Plaintiff made a claim to Aviva, who insured Lyft, for statutory benefits.

Terminating with care: an insurer’s guide
August 09, 2021

Brownlee Law

In most provinces, insurers seeking to terminate policies must comply with Statutory Condition  5 “Termination of Insurance”.  This is part of the legislatively imposed term in the contract between an insurer and the insured.  Statutory Condition 5 provides...

You Can’t Always Dodge a Waiver
July 29, 2021

Brownlee Law

The Ontario Superior Court of Justice recently re-affirmed the usefulness of waivers to protect companies from liability, as long as the waiver explicitly covers the contemplated risk and is brought to the attention of the signatory.  

In Arksey v. Sky Zone Toronto, 2021 ONSC 4594, the Defendant applied to dismiss a Plaintiff’s claim after she suffered injuries playing a recreational game of trampoline dodgeball. 

Just Another Contract – SCC Says No Special Rules Apply to Releases
July 28, 2021

Brownlee Law

On July 23, 2021, the Supreme Court of Canada released its decision in Corner Brook (City) v. Bailey, 2021 SCC 29, providing clarity to the manner in which release agreements must be interpreted. It held the language of release agreements, like all other contracts, must be read in the context of the whole agreement and in light of the knowledge of the parties at the time of signing. It specifically overruled the historical rule in London and South Western Railway v. Blackmore (1870), L.R. 4 H.L. 610, which said the general words in a release are limited to the facts that were specified in the minds of the parties at the time the release was given (the “Blackmore Rule”). 

You got hacked: Limits on liability - A Case Study of Owsianik v. Equifax Canada Co, and Instrusion of Seclusion
July 15, 2021

McCague Borlack LLP

In Owsianik v. Equifax Canada Co (Equifax), 2021 ONSC 4112, the Divisional Court was required to determine the scope of the court to intervene when Equifax's client stored data was hacked by an unknown third party. Specifically, the Court needed to determine whether the Court created tort known as intrusion upon seclusion would include the failure to protect people's private data against a third-party intrusion.

Enforceability of Waivers: An Update - Case Study: Arksey v. Sky Zone
July 08, 2021

McCague Borlack LLP

On June 28, 2021, the Ontario Superior Court of Justice led by Myers J., released a decision in Arksey v. Sky Zone Toronto, 2021 ONSC 4594.

Generally, this was a summary judgement based on the terms of a waiver and the release of liability by the plaintiff. Specifically, whether the plaintiff waived her right to sue arising from injury caused by the defendant's failure to supervise and follow its injury policies.

Insurers: Don’t Tell on Your Insureds
July 08, 2021

Brownlee Law

Insurance companies will occasionally assign an employee to investigate claims that are expected to be substantial or may appear suspicious. However, what happens when an investigator discovers incriminating evidence against their insured? Are they obligated to report the evidence to the police? 

In Barata v Intact Insurance Company, 2021 ABQB 419, the insured husband and wife struck a pedestrian while operating their insured vehicle.

Punitive Damages v Employee Contributory Negligence Case Comment: Eynon v. Simplicity
July 06, 2021

McCague Borlack LLP

The decision of the Ontario Court of Appeal in Eynon v Simplicity Air is a significant decision on punitive damages in Canada. The Court upheld a $150,000 jury award of punitive damages in favour of an employee. This decision warns employers that if those left in charge of the workplace create a culture within the company where employees have little regard for the importance of safety practices in the workplace and engage in highly reprehensible misconduct, they can be held liable for significant punitive damages regardless of an employee's contributory negligence leading up to an accident.

All-Inclusive and Without Costs Rule 49 Offers
June 29, 2021

McCague Borlack LLP

In 1985, Rule 49 of the Rules of Civil Procedure was introduced to encourage parties to make and accept reasonable offers to settle. This has had the effect of discouraging parties from delaying the judicial process and increasing costs unnecessarily. Rule 49 has had a considerable effect on litigants by virtue of the risk of a large costs award following trial.

To trigger the cost consequences under Rule 49, an offer must meet strict requirements:

Loss of Care, Guidance, and Companionship Damages: A New Benchmark? Case Study: Moore et al., v. 7595611 Canada Corp.
June 28, 2021
On June 25, 2021, the Ontario Court of Appeal, led by Justice Fairburn in Moore et al., v. 7595611 Canada Corp., 2021 ONCA 459, upheld a $1,326,000 jury award arising from a harrowing set of circumstances in which a 23-year-old woman suffered severe burns, leading to her death.
The jury found that the appellants fell below the standard of care of a reasonable landlord and found them responsible for Alisha's death. The jury made the following damages awards...

Open Court Principle Prevails - Case Study: Sherman Estate v Donovan
June 23, 2021

McCague Borlack LLP

The decision of the Supreme Court of Canada in Sherman Estate v Donovan (2021 SCC 25) reinforces the open court principle as a constitutionally entrenched right of freedom of expression and thereby a justified limit on the right to privacy. The Trustees of the Sherman Estate lost their appeal to keep probate documents sealed as they did not meet the threshold of proving that court openness presented a serious risk to the public interest.

Arbitrations and Receiverships: Do they need to be legally distant? - Case Study: Petrowest Corporation v. Peace River Hydro Partner
June 17, 2021

McCague Borlack LLP

A receiver can sue on a contract yet disclaim the contract's arbitration clause, determined the BCCA in Petrowest Corporation v. Peace River Hydro Partners 2020 BCCA 339. The defendants applied for an order to stay an action brought against them by the receiver for Petrowest, pursuant to section 15 of the BC Arbitration Act (“the Act”). The defendants appealed the chambers judge's decision...

The perils of failing to close a purchase and sale agreement - Case Study: Joo v. Tran
June 16, 2021

McCague Borlack LLP

The decision of the Ontario Court of Appeal in Joo v Tran highlights the significant peril a purchaser of land can suffer when they fail to close based on an alleged failure by the seller to fulfill their obligations in the Agreement of Purchase and Sale (“APS”). The purchasers appealed the order to pay damages after they backed out of a land sale where the sellers failed to discharge all encumbrances on the land in accordance with the APS.

Unrealistic Coverage: Insurer tripped up by loose policy language - Case Study: Surespan Structures Ltd. v Lloyds Underwriters
June 16, 2021

McCague Borlack LLP

The recent decision in Surespan Structures Ltd. v Lloyds Underwriters showcases the critical importance of careful draftsmanship of policy wording, particularly in situations where the policy provides unusual or novel types of coverage, leaving little if any case law to guide the interpretation of the policy language.

The action arose from a large construction project having a total value of approximately $400 million. 

Can an Insurer Rely on Warranty Provisions to Deny Coverage?
May 25, 2021

Brownlee Law

Insurers seeking to rely on warranty provisions face attacks on two fronts.  The insurer will have to contend with relief from forfeiture laws along with establishing the insured’s level of awareness of the warranty provisions.

Misfeasance Claims against Crown Prosecutors - Case Study: Ontario (Attorney General) v. Clark, 2021 SCC 18
May 18, 2021

McCague Borlack LLP

The Supreme Court of Canada slammed the door shut on misfeasance claims against Crown prosecutors in one of their most recent rulings. In an 8-1 decision, the Court reinforced the immunity of Crown prosecutors in their prosecution of criminal matters due to their unique positions in the justice system that requires them to be free from fear of civil liability in the execution of their duties.

Lost in Interpretation: Insurance Claim Arbitration Muddies the Effect of Clear Provincial Statutory Language
May 13, 2021

Brownlee Law

S.A. (Re), 2020 BCSC 1323 is relevant less for its underlying issues than for its potential impact on the ability of a court to impose a public policy analysis in the interpretation of otherwise unambiguous statutory language. This is potentially relevant in both B.C. and Alberta, where recent legislation has introduced significant changes to the provincial motor vehicle insurance regimes.

The Current State of the Law on Adverse Costs Insurance
May 07, 2021

McCague Borlack LLP

This type of insurance has multiple names: adverse costs insurance, trial insurance, and after the event insurance. For the purposes of this paper, we will identify it as adverse costs insurance. This insurance policy protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial or even a motion.

Crown’s Cost Consequences Limited by Bill 65
April 29, 2021

Brownlee Law

On April 22, 2021, the Alberta Legislature passed Bill 65, which, among other things, limits the Crown’s liability for adverse costs awards after unsuccessful litigation. The bill also seeks to provide discretion for otherwise mandatory penalties imposed on insurers for failing to remit annual premium reports. Bill 65 has not yet received royal assent and it is not clear when it becomes effective.

Ground-breaking Insurance Act Ruling Confirms Effect of Misrepresentation on Indemnity
April 26, 2021

Brownlee Law

Ali Abbas was ejected through the windshield of an uninsured vehicle during a head-on collision on November 17, 2016. He spent approximately nine days in a coma and suffered a myriad of life-threatening injuries, but made what many would consider to be a miraculous recovery.

Six months later, Mr. Abbas turned to Esurance Insurance Company for Section B – Total Disability Benefits.

Pub Not Liable for Spontaneous Assault by Assailant Due to ‘Hidden Intoxication’
April 08, 2021

Brownlee Law

Licensed establishments face many unique challenges.  One challenge is the danger caused by intoxicated patrons to other guests.  An establishment has a duty under the Occupiers’ Liability Act to reasonably protect visitors against foreseeable harm caused by the conduct of third parties such as intoxicated guests. While the assailant is primarily responsible for the injuries resulting from the assault, they often do not have the resources to pay out an award.  As such, licensed establishments are often sued because they have deeper pockets. This was the situation in the recent case of Allnutt v. Carter, 2021 ABQB 51.  

Ownership Without Control Results in no Liability for Vehicle Lessors in WCB Cases
April 08, 2021

Brownlee Law

Alberta courts have again applied the principles from McIver v McIntyre to summarily dismiss an action where the Workers’ Compensation Board (“WCB”) has tried to sue vehicle leasing and rental companies in cases involving two WCB insureds that would otherwise be barred. Following on the heels of the decision in Manak v Maxim Transportation Services Inc, the decision of Justice Peter Michalyshyn in the appeal of Barz v Driving Force will allow the insurers of vehicle leasing companies to resist efforts by the WCB to collect against their insureds for the cost of treating injured workers.

Must an Insurer wait until Trial to Contest the Validity of the Policy? - Case Study: IT Haven v Certain Underwriters at Lloyd's
April 06, 2021

McCague Borlack LLP

A recent decision indirectly raises the interesting question: Can an insurer under a liability policy make an application, at an early stage of its conflict with the insured, for a declaration that the policy is void ab initio for material non-disclosure or misrepresentation? More particularly, can the insurer, facing a duty to defend application made by the insured, and especially when the insurer has no defence available under the policy per se, make that application in response to the insured's application? Or must the insurer find itself subject to an order that it has a duty to defend until a trial is held?

Litigation Loans and Adverse Cost Insurance - An Update - The Doctrines of Champerty and Maintenance
April 06, 2021

McCague Borlack LLP

Following the publication of the article Litigation Loans and Adverse Cost Insurance in March 2021, the writers received a question regarding the interplay between the doctrines of champerty and maintenance and its effect on litigation loans.

Court denies Workers’ Compensation Board’s claim against vehicle lessor
March 30, 2021

Brownlee LLP was successful in obtaining the dismissal of a claim brought by the Workers’ Compensation Board (“WCB”) against  a vehicle lessor for damages suffered by a worker as a result of a motor vehicle accident. Master Mason determined the issue on the basis that the lessor had no degree of control over the vehicle or the at-fault driver. This decision has been long-awaited since the landmark decision of McIver v McIntyre.

Litigation Loans and Adverse Cost Insurance
March 26, 2021

McCague Borlack LLP

This paper provides detailed information across all Canadian jurisdictions regarding:

  • Whether interest from litigation loans is recoverable by the plaintiff in Canadian actions, and
  • What the impact is of adverse insurance on litigation across Canada.

Know the ABs and the BCs of Icy Sidewalk Actions: Comparing Slip and Fall Law in Alberta and British Columbia
March 18, 2021

Brownlee Law

Almost 20 years ago, the Alberta Court of Appeal affirmed the decision in Kluane v Chasse, 2001 ABQB 244, finding that residential property owners are not liable to a plaintiff who slips and falls on snow and ice on adjacent City sidewalks. More recently, the British Columbia Court of Appeal arrived at the same conclusion in Der v Zhao, 2021 BCCA 82.

BC Court of Appeal Says Homeowner Does Not Have to Clear City Sidewalk
March 02, 2021

Brownlee Law

In Der v. Zhao, 2021 BCCA 82, BC’s Court of Appeal recently considered whether a residential property owner has to remove snow and ice from City sidewalks.

An incident occurred in the City of Burnaby, BC on December 21, 2017, as the plaintiff was walking home from a local grocery store with his wife.  There had been a snowfall two days earlier. 

Being Proactive with Environmental Claims - Case Study: Albert Bloom Limited v. London Transit Commission
February 26, 2021

McCague Borlack LLP

This matter involves the appeal of a third party's motion for summary judgment on the grounds of a claim being statute-barred. The defendant, in this case, attempted to join the third party to the action several years after the claim began on the basis that they had no knowledge of their involvement until well after they replied to the plaintiff's claim. This case demonstrates, however, that what constitutes knowledge of a potential claim, and a party's obligation to further investigate potential claims when evidence is presented to them.

Consent to Operate a Vehicle is an On-Off Switch, Not a Dimmer
February 25, 2021

Brownlee Law

In the recent decision of Mansour v Rampersad, 2021 ABQB 44 the Court confirmed consent is either given or not. Further, the vehicle owner can terminate consent given to another driver in advance and at a specific point in time.

In this case, the Defendant was staying at the house of Ms. Pinksen and her husband. Ms. Pinksen went out of town and her husband lent her vehicle to the Defendant so he could run errands. The Defendant agreed to return the vehicle the same day but did not.

Judge Strikes Out Claim Against Municipality Based on MGA Defences
February 18, 2021

Brownlee Law

The case Pecanac v Camrose (City), 2021 ABQB 15 arises from a slip and fall accident...  The City applied for summary judgment, relying on section 530 of the MGA, which protects it from liability arising from decisions on how and when to conduct inspections and maintenance, as well as s. 531, which states that a municipality can only be liable for damages caused by snow, ice or slush on roads or sidewalks if they are grossly negligent.

Winter Maintenance Contracts - Featured Case Study: Ruetz v Metro Canada
February 16, 2021

McCague Borlack LLP

This case arose out of injuries sustained by an individual when ice allegedly fell from an above canopy onto her head as she was exiting a grocery store. The plaintiff sued the property owner (represented by Michael Kennedy at McCague Borlack LLP), who in turn sued its winter maintenance contractor for contribution and indemnity pursuant to a hold harmless clause in its contract.

Allegations are Subject to Higher Scrutiny When Made Against Personal Defendants - Featured Case Study: Matlock v. Ottawa-Carleton Standard Condominium Corporation
February 09, 2021

McCague Borlack LLP

In Matlock v. Ottawa-Carleton Standard Condominium Corporation,1 McCague Borlack LLP's Martin Smith, on behalf of the Defendants, successfully opposed the Plaintiff's motion to amend his Statement of Claim to enhance his claim against the individual board member Defendants and add an additional board member as a party. In response, the Defendants also advanced a crossclaim striking the claims against the board member Defendants in their entirety.

Claim for Loss of Opportunity Damages - Case Study: Akelius Canada Inc. v. 2436196 Ontario Inc
January 18, 2021

McCague Borlack LLP

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

Early Inquiries are Critical to Ensuring Inclusion of Defendants - Case Study: Amanda Ali v. City of Toronto
January 18, 2021

McCague Borlack LLP

In Ali v. City of Toronto, Master M.P. McGraw ruled on plaintiff's motion for leave to amend their statement of claim to add a party as a defendant to the action. Master McGraw denied this motion on the basis that the winter maintenance contractor the plaintiff wished to add was immediately discoverable and as such it was beyond the limitation period to add the party.

Disengaging Assets subject to a CCAA Proceeding - Case Study: Teliphone Corp. v. Ernst & Young Inc.
January 18, 2021

McCague Borlack LLP

This 2019 decision of the British Columbia Court of Appeal was the third in a trio of appeals regarding the topic of disengaging assets owned by insolvent entities subject to a Companies' Creditors Arrangement Act (“CCAA”) proceeding from assets owned by other affiliated entities that were not insolvent.

Statutory Thresholds and Deductibles in reference to Tort Damages in MVAs
January 14, 2021

McCague Borlack LLP

The annual update to the statutory thresholds and deductibles for determining non-pecuniary tort damages arising from use or operation of vehicles has now been released.  See Chart...

Who Pays to Produce the Medical Records? Case Study: Trumble v Soomal
January 13, 2021

McCague Borlack LLP

In Trumble v Soomal, 2020 ONSC 8097, Justice Sloan considered whether in a personal injury case the plaintiff or the defendant is obligated to pay for medical records.

Silence is not golden when it comes to contracts - Case Study: C.M. Callow Inc. v. Zollinger
January 08, 2021

McCague Borlack LLP

The Supreme Court recently undertook to further refine the duty of honest performance in contract law. In a significant ruling on December 18, 2020, the Court held that this duty of honest contractual performance extends beyond lies to include knowingly misleading another party, whether through a partial truth, an omission, or even silence.

Big Changes to Small Claims: How COVID-19 has affected the Small Claims Court
January 05, 2021

McCague Borlack LLP

The world has gone through many changes in the past year, and the Ontario Small Claims Court is no exception. Since suspending sittings in March 2020, the Court has progressively begun expanding its remote operations. While traditionally resistant to change, the Courts have modified their usual operations in light of these unprecedented times and now hear many matters over teleconferencing and videoconferencing technologies.

The changes that the Ontario Small Claims Court has instituted to its usual operations are of note for both counsel and clients alike. 

A Million Dollar Bonus after Constructive Dismissal - Case Study: Matthews V Ocean Nutrition Canada Ltd
January 05, 2021

McCague Borlack LLP

The Supreme Court of Canada (“the Court”) overturned the decision made by the Nova Scotia Court of Appeal, resulting in an award of one million dollars being afforded to Mr. Matthews, a skilled chemist who was constructively dismissed by his employer, Ocean Nutrition Canada Ltd. (“Ocean”) without reasonable notice.

Summary of changes to Reg. 194 under the Courts of Justice Act: Rules of Civil Procedure
December 16, 2020

McCague Borlack LLP

On January 1, 2021, the amendments to the Rules of Civil Procedure pursuant to O. Reg. 689/20 will take effect. The following is a summary of the key amendments.

Expert Evidence May Not Trump in Summary Judgment: Cases Case Study: Haley v Stepan
December 16, 2020

McCague Borlack LLP

In a recent Court of Appeal decision, the Court upheld the defendant occupiers' successful summary judgment motion in a trip-and-fall case. Despite the plaintiff having expert evidence stating an unsafe elevation in the floor caused him to fall, the Court of Appeal ...

2 Insurance Policies, 1 Insured: Who Defends the Action, Who Pays the Costs of the Defence, and Who Controls the Defence? Case Study: Markham (City) v. AIG
December 03, 2020

McCague Borlack LLP

This was updated in December 2020 after appeal.

This was a dispute between AIG Insurance Company of Canada and Lloyd's Underwriters in respect of the duty to defend a claim brought against the City of Markham.

The City rented a hockey rink to the Markham Waxers Hockey Club and associated entities. A young boy was injured while attending a game at the hockey rink. He sued the City, Hockey Canada and the Waxers for damages resulting from his injuries.

Legal Liabilities and the Transmission of COVID-19: What you need to know about Bill 218
December 02, 2020

McCague Borlack LLP

On November 20, 2020, Bill 218, entitled “Supporting Ontario's Recovery and Municipal Election Act, 2020” (“the Act”) received Royal Assent.1 The Act provides at section 2(1) that:

No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020, as a direct or indirect result of an act or omission of the person if...

Enforceability of Settlements in the Context of Self-Represented Plaintiffs - Case Study: Huma v. Mississauga Hospital
November 24, 2020

McCague Borlack LLP

In Huma v. Mississauga Hospital, the plaintiffs commenced a medical malpractice action against 14 physicians and two hospitals, alleging to have suffered significant damages as a result of the professional wrongdoing of same. The Statement of Claim stated that the plaintiffs were self-represented. Upon receipt of the Claim, the defendants defended the action.

Months later, having heard nothing from the plaintiffs, the defendants inquired as to whether the plaintiffs were willing to dismiss the action...

Auto Insurance Changes in Alberta: What You Need to Know About Bill 41
November 17, 2020

Brownlee Law

In Bill 41, the Alberta government has proposed changes designed to reduce the price of auto insurance through restricting some claims,...

Notable Changes to the Condominium Property Act, the Regulation, and Case Law
November 16, 2020

Brownlee Law

In the video below, I discuss recent and notable changes to the Condominium Property Act and Condominium Property Regulation. These...

So you want to amend a pleading? Not so fast! Featured - Case Study: McConnell v. Fraser
November 06, 2020

In McConnell v. Fraser, McCague Borlack LLP successfully opposed the Plaintiff's motion to amend his Statement of Claim to add a new cause of action outside the limitation period.

The issues before the Ontario Superior Court of Justice were as follows...

Protecting Contractors is Paramount - Case Study: Urbancorp Cumberland 2 GP Inc.
November 06, 2020

McCague Borlack LLP

In Ontario, the provincial legislation shows a commitment to protecting contractors and subcontractors by enabling them to collect outstanding balances owing for services and materials through the use of construction trusts, holdbacks and liens. This case confirms this commitment and is a helpful decision for provincial contractors.

Interlocutory Consent Orders and the Court's Discretion to Vary or Set Aside Terms
October 22, 2020

Brownlee Law

In a recent case from the Alberta Court of Appeal, the Court considered the application of rule 9.15(4) of the Alberta Rules of Court and whether an interlocutory Consent Order is a type of contract that can only be set aside for the same reasons as a contract can be set aside. The Court of Appeal found that it is not.

Electronic Signatures: Is Your Municipality Ready to Embrace A New Approach?
October 21, 2020

Brownlee LLP

As a result of the COVID-19 pandemic and the increased number of people working from home, organizations have become tasked with developing ways to continue to efficiently carry on business despite the technological restraints caused by physical distancing requirements. The use of electronic signatures is one tool that many businesses, governments and regulators in Alberta are relying on to speed up signature and approval processes, expedite workflow and improve customer service. In response, Municipalities in Alberta are seeking information and advice regarding the validity and reliability of electronic signatures and the best approach to practically and securely incorporate the use of electronic signatures within their operations.

Bill 22: Changes to MGA Provisions Governing Regional Services Commissions
October 21, 2020

Brownlee LLP

On June 11, 2020, the Government of Alberta introduced Bill 22: Red Tape Reduction Implementation Act, 2020 in the Legislative Assembly for first reading. The stated purpose of Bill 22 is to “remove red tape” within government processes, which includes amendments to the Municipal Government Act (“MGA”). Of note, Section 11(7) of Bill 22 proposed to repeal and replace Part 15.1 of the MGA governing Regional Services Commissions in its entirety.

Municipal Snow Removal Policies and Practices
October 21, 2020

Brownlee LLP

On August 20, 2020, the Supreme Court of Canada granted leave to appeal in the case of Nelson (City of) v. Marchi, 2020 BCCA 1.

This case will be of interest to municipalities because the Court will review the principles of liability of municipalities respecting snow removal and snow removal policies.

What’s Yours is Actually Mine? Recent Case Law Clarifies the Line Between Municipal and Private Utility Responsibility, and Best Practices
October 21, 2020

Brownlee LLP

The Supreme Court of Canada dismissed leave to appeal, mid-February 2020, from an important 2019 Alberta Court of Appeal case: Condo Corporation No. 0410106 v. Medicine Hat (City) (“Medicine Hat”). The issue in Medicine Hat was municipal responsibility to provide, operate, and maintain utility infrastructure designed to service more than one parcel, and located on private lands. The City and the developer had previously agreed that the ownership of the infrastructure, and duty to operate and maintain, would remain with the developer, then ultimately the landowners. Written agreements to that effect had been made. The Court of Appeal held that as a result of the duties imposed under the Municipal Government Act (the “MGA”), the Municipality must take over ownership, operation and maintenance of the infrastructure. Notably, the Municipality had to incur upgrades of approximately $1.2 million to bring the infrastructure into the municipal system.

Can LAT Award Punitive Damages? Featured Case Study
October 19, 2020

McCague Borlack LLP

On September 23, 2020, the License Appeal Tribunal (“LAT”) released a ruling that it does not have jurisdiction to award punitive damages.

The Applicant filed a motion to the LAT requesting that a claim for punitive damages be added as an issue in dispute on the basis of an alleged privacy breach.

Do Ontario Insurance Laws Have Extraterritorial Effect? Revisiting Unifund v ICBC in the 2020 case of Travellers v. CAA, 2020 ONCA 382
October 19, 2020

McCague Borlack LLP

In the case of Unifund Assurance Co. v. Insurance Corp. of British Columbia, a family insured under an Ontario motor vehicle policy, issued by Unifund, was driving a rental car in British Columbia when they were struck by a tractor-trailer insured by ICBC under a British Columbia insurance policy. The insureds sued in British Columbia and were awarded $2.5 million. Unifund, in turn, brought suit against ICBC with reference to section 275 of Ontario’s Insurance Act and sought to recover the benefits it had paid out to the family under the SABS.

The case went to the Supreme Court of Canada which found... 

LAT Reconsideration Request Due to Error of Law
October 15, 2020

McCague Borlack LLP

In the recent reconsideration decision of 2020 ONLAT 19-006032/AABS, McCague Borlack LLP was successful in having the applicant’s request for reconsideration dismissed. Vice Chair Farlam considered the request for a reconsideration of her Decision released on May 14, 2020 ("Decision")1 in “which the applicant was barred from proceeding with her application to determine her entitlement to non-earner benefits ("NEBs") because she failed to attend the respondent’s s. 44 independent examination ("IE")”.

New Financial Support for Workers Relying on Government Benefits during the COVID-19 Pandemic
October 14, 2020

McCague Borlack LLP

Many Canadians felt panic over the last month as the expiry date for the Canada Emergency Response Benefit (“CERB”) loomed. As of October 3, 2020, Canadian workers who were relying on the CERB for financial support saw this benefit come to an end.

However, in response to this looming expiry date, the House of Commons sprung in to action on September 29, 2020 to unanimously pass Bill C-4: An Act relating to certain measures in response to COVID-19.

Bill C-4 was also quickly passed by the Senate, and it received Royal Assent on October 2, 2020.

Debate Concluded Over Correct Test for Summary Judgment in Alberta
October 05, 2020

Brownlee Law

In Hannam v MHSD #76, 2020 ABCA 343, where we were successful with our client’s appeal, the Alberta Court of Appeal provides clarity on the test for summary judgment. In Hannam, the plaintiff was walking immediately behind the custodian and still managed to slip and fall. The ABCA held nothing more could have reasonably been done by the school and the matter has been dismissed.

Jury Questions: When to Ask for Reasons - Case Study: Cheung v. Samra 2020 ONSC 4904
September 26, 2020

McCague Borlack LLP

In Ontario, there is a well-established practice of asking jurors to provide reasons for their verdicts. The jury is not absolutely required to provide this information. There is a presumption of integrity regarding general verdicts; simply because the jury did not explain its verdict is not a ground for appeal.

The exception to this presumption arises in professional negligence cases...

The Court exercises its "Fact Finding Powers" - Case Study: Carmichael v. GSK Inc.
September 26, 2020

McCague Borlack LLP

In Ontario, s.4 of the Limitations Act, 2002, (“Act”) establishes a two-year limitation period for a claimant to commence an action, which begins to run once the claim is discovered. However, there exists an exception for those claimants that are “incapable” to commence the proceeding.

In this case study, a man suffering from mental illness and psychotic delusions, killed his son and later commenced an action against the drug company...

In the Wake of Waksdale: A Recent Decision with Serious Consequences for Ontario Employers
September 18, 2020

McCague Borlack LLP

When it comes to claims for wrongful dismissal, without cause termination provisions have received almost all of the attention in recent years.

However, in the wake of a recent landmark decision by the Court of Appeal for Ontario (“ONCA”), employers should now be turning their attention to the other portions of the termination provisions in their non-unionized employees’ contracts.

The Litigation Dance: What Steps Count?
September 17, 2020

Brownlee Law

McKay v Prowse, 2020 ABCA 131 provides an update from the Alberta Court of Appeal about the principles of delay and Rule 4.33.

In McKay, a negligence action was commenced by the Appellant against his former counsel and law firm in relation to their conduct of his lawsuit in the Federal Court.  In the original lawsuit, the Appellant alleged his patents had been infringed upon.  The Federal Court found that his patent was valid, but that it had not been infringed upon.  This finding was then upheld at the Federal Court of Appeal.

Striking jury notices during the COVID-19 Pandemic When is it more likely to happen?
September 15, 2020

McCague Borlack LLP

Access to well-functioning justice and court systems are fundamental to a just and fair Canadian society. However, the COVID-19 pandemic has created challenges that have impacted the Canadian justice system.

Recently, the Ontario Superior Court of Justice has struck civil juries in two personal injury actions...

Priority dispute determined by financial dependency: Featured Case Study: TD Insurance and Intact Insurance
September 01, 2020

In TD Insurance and Intact Insurance, McCague Borlack LLP successfully argued that Intact Insurance, not TD insurance, had priority to pay statutory accident benefits to a claimant for personal injuries sustained in an October 30, 2017, motor vehicle accident.

The question before Arbitrator Bialkowski was whom a 17-year-old claimant was principally financially dependent on – the claimant's father (Intact) or the claimant's stepmother (TD). To complicate matters, the claimant was a passenger in the vehicle owned by her stepmother and had recently moved from her biological mother's home to reside with her father and stepmother at the time of the accident.

Social Host Liability in Canada and What Steps A Responsible Host Can Take to Limit the Risks Caused by Intoxicated Guests
August 12, 2020

Brownlee Law

A recent British Columbia Supreme Court decision provides new insight into host liability when intoxicated guests are injured, or injure...

Ontario Courts updating online infrastructures to accommodate COVID-19 needs for safety
August 11, 2020

McCague Borlack LLP

Amid the ongoing COVID-19 pandemic, courts in Ontario have been working to modify existing online infrastructures and acquire new technologies in order to meet the needs of Ontarians and to maintain the safety of those who work in the courts. In doing so, the Ministry of the Attorney General ("MAG") has recently expanded the Justice Services Online platform and procured "CaseLines" for the use of the Ontario Superior Court of Justice.

Updates around Civil Matters in the Superior Court of Justice in the Central East Region
August 10, 2020

McCague Borlack LLP

The following are some updates around civil matters in the Superior Court of Justice in the Central East Region. Please note they are all subject to change.

Advance Payments and the Requirement of “X-ray Disclosure”
August 07, 2020

Brownlee Law

In a recent case from the Alberta Court of Queen’s Bench, the Court considered an application for advance payments under section 5.6(3) of the Fair Practices Regulation and established important principles regarding the test for receiving such payments. In order to be successful in an application for advance payments under section 5.6(3) of the Fair Practices Regulation, a plaintiff must show that as a result of his or her injuries, they are unable to meet the necessities of life or that the payment is otherwise appropriate.

Defences Under the Alberta Municipal Government Act and Best Practices to Defend Claims Against Municipalities
July 27, 2020

Brownlee Law

In the video below, Litigation Partner Nabeel Peermohamed and Litigation Associate Drew Wilson discuss how the statutory defences under the...

Minors’ Property Act Update Changes Amount of Funds That Can Be Released Without Court or Public Trustee Involvement
July 08, 2020

Brownlee Law

The Minors’ Property Regulation, Alta Reg 240/2004 has recently been updated. 

Under Section 8(2) of the Minors’...

Corrosion Exclusion II - Resulting Physical Damage An exception to the exclusion in case: MDS Inc. v Factory Mutual Insurance
July 03, 2020

McCague Borlack LLP

In an earlier paper, the author commented on the interpretation and (non-) application of a corrosion exclusion in the decision in MDS Inc. v Factory Mutual Insurance Company. He turns now to a consideration of that exception to the exclusion.

Corrosion exclusion denied due to ambiguity: This author disagrees with the determination in case: MDS Inc. v Factory Mutual Insurance
June 24, 2020

McCague Borlack LLP
The interpretation of a corrosion exclusion was one of the major issues considered in the recent decision in MDS Inc. v Factory Mutual Insurance Company. For reasons outlined below, I believe the interpretation and determination regarding its applicability in the circumstances of the case were incorrect.

Can a condominium corporation seek recovery of subrogated interests from a unit owner?
June 09, 2020

McCague Borlack LLP
Subrogation is the process whereby an insurer, after indemnifying its insured, assumes its insured's right to recover damages as against a tortfeaser who is liable for causing the damages. Since the insurer's right to subrogate is derivative, the insurer is subject to the same limitations that the insured would be when seeking recovery from third parties.

A Plea for Simple Pleadings
May 31, 2020

McCague Borlack LLP

You have just been sued for breach of contract by a former business partner.

As you skim through a legal document that sets out a laundry list of your alleged failures and faux pas, a few paragraphs jump out at you. Why does the document make reference to an argument over the design of your company's logo? And why is there commentary on the not-so-secret office romance between two of your employees? As far as you can tell, neither of these issues have anything to do with the contract in dispute.

Factors to consider during the tendering process - Case Study: Aquatech Canadian Water Services v Alberta (Minister of Environment and Parks)
May 23, 2020

McCague Borlack LLP

This appeal concerns the tendering process used by Alberta Environment and Parks to solicit bids for a contract for the operation, monitoring and servicing of water and wastewater services in the Kananaskis Region.

This case highlights three important factors to consider during the tendering process...

Vehicle Inspectors Cannot be Held Liable if too Much Time Has Passed Since the Inspection
May 21, 2020

Brownlee Law

The Provincial Court of Alberta recently released its decision in Harney v F & D Crane Holdings Inc., et al, 2020...

It's 2020: Bringing the Courts in Line with the Times During COVID-19 - Case Study: Arconti v. Smith
May 21, 2020

McCague Borlack LLP

The issue in this case was whether the plaintiffs ought to be required to conduct an examination out-of-court by videoconference, rather than in- person at a later date, due to the COVID-19 pandemic.

The plaintiffs sued the defendants for negligently causing them to unjustly be found liable for securities fraud by the Ontario Securities Commission, among other causes of action. 

The Doctrine of Discoverability and Accident Benefits Claims: Special Considerations following Tomec and Pafco
May 11, 2020

McCague Borlack LLP

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

Is it okay for jurors to engage in internet research during deliberations? Case Study: Patterson v Peladeau
May 11, 2020

McCague Borlack LLP

In Patterson v Peladeau, 2020 ONCA 137, the Ontario Court of Appeal (“ONCA”) considered whether Justice Hackland of the Ontario Superior Court of Justice erred in his decision when he turned down a request for declaring a mistrial based on a juror engaging in Internet research during jury deliberations...

We're getting close! Reopening for business amid the ongoing COVID-19 pandemic
May 07, 2020

McCague Borlack LLP

Amid provincial, federal, and municipal conversations about relaxing COVID-19 restrictions and reopening segments of the economy, businesses have recently been told to start planning and implementing back-to-work procedures and protocols. If you are an employer and are wondering where to start, some important questions for businesses to consider are...

COVID-19: Business interruption – Tangible property and loss of use in the Ontario Courts
April 29, 2020

McCague Borlack LLP

Following up our recent article on Business Interruption amid the COVID-19 pandemic, the March 30, 2020, Ontario Superior Court decision MDS Inc. v. Factory Mutual Insurance Company continues to remind us that the old adage, ‘you get what you pay for' rings loud and true...

Directors' and Officers' Liability in the Age of COVID-19
April 21, 2020

McCague Borlack LLP

As we navigate through closed businesses, disruptions to global supply chains and potential food shortages, the question will arise as to whether we were adequately prepared for dealing with this pandemic...

The question arises of whether the directors and officers of a corporation will have any liability for failing to adequately plan for the re-opening of business during this current pandemic wave and any subsequent waves.

Expansion of the Canada Emergency Response Benefit
April 16, 2020

McCague Borlack LLP

Over the last few weeks, the eligibility criteria to qualify for CERB have been criticized for excluding many Canadians....In response to this criticism, Prime Minister Trudeau announced during his public address on April 15, 2020, that new criteria would be enacted.

COVID-19: Taking stock of urgent motions
April 15, 2020

McCague Borlack LLP

On March 15, 2020, Chief Justice Morawetz released a Notice to the Profession advising that as a result of the pandemic, the Superior Court of Justice had adjourned all scheduled civil hearings, effective March 17, 2020.

The Notice to the Profession allows for the hearing of urgent and time-sensitive motions and a limited number of other matters...

COVID-19: Business interruption – Are you covered?
April 14, 2020

McCague Borlack LLP

While it has been “business as usual” for some Canadian companies and organizations, with employees working from home, many industries have been forced to cease operations or operate at reduced capacities....

There are various issues operating for an insurer, in both quantifying and crystallizing the terms of the loss, to determine if coverage is triggered pursuant to any given policy of insurance...

Civil Claims Online Portal: Filing Non Urgent Documents Online
April 08, 2020

McCague Borlack LLP

In response to COVID-19, the Ontario Superior Court of Justice (SCJ) has made necessary changes to procedural deadlines and steps over the last few weeks. Amidst these changes, the Court has recently announced that certain proceedings can now take place electronically.

Impacts on the Performance of Agreements Due to COVID-19: A Focus on Development Agreements
April 07, 2020

Brownlee LLP

COVID-19 may result in governmentally imposed restrictions on what kind of work can be performed or on trade, which may make it difficult for a developer to obtain the necessary supplies/materials needed to satisfy its obligations. There may also be a shortage of work force given the current quarantine and isolation requirements, as well as the actual illness impacting so many people. 

These results, as well as others not contemplated above, may impact the performance of all agreements – including development agreements.

Anticipating Business Interruption Coverage Issues Arising From COVID-19
April 06, 2020

Brownlee LLP

Canadians are responding bravely to an unprecedented world event.   Undeniably, most Canadian businesses will experience loss and damage or reduced profits directly or indirectly arising from present events.  In the months and years to come, many businesses will look to their insurers for indemnification.  Indeed, property insurers will soon be considering a multitude of very challenging claims that raise issues of causation, interpretation, mitigation, and valuation under commercial property and business interruption coverage forms.

MGA Defences Override Alleged Breaches of the OLA
April 06, 2020

Brownlee LLP

In a recent trial win for Brownlee LLP, the court indicated the statutory immunity provided under the Municipal Government Act effectively override any alleged breaches of the Occupiers' Liability Act... In Pulkinen v Crowsnest Pass (Municipality), the plaintiffs alleged flood damage to their property as a result of heavy rainfall in June 2017... The Municipality refused to provide compensation so the plaintiffs sued for the 2017 damage.

Can I Go To the Judge? No, Not Right Now…Unless It’s Urgent or an Emergency
April 06, 2020

McDougall Gauley LLP

Due to the significant health concerns caused by the COVID-19 pandemic, the Court of Queen’s Bench for Saskatchewan published a Directive and Advisory, dated March 19, 2020 (the “Directive”) which restricts family law applications to “urgent” and “emergency” matters. 

Canada's Emergency Wage Subsidy in Response to COVID-19
April 03, 2020

McCague Borlack LLP

After announcing the 75 per cent Canada Emergency Wage Subsidy on March 27, 2020, the Government of Canada announced new eligibility criteria for the Subsidy just days later. Specifically, on March 30, 2020, the Government set out that the Subsidy will be immediately available to non-profits, charities, and businesses of all sizes that have seen a reduction in revenue by at least 30 per cent as a result of COVID-19. Public sector entities are ineligible at this time.

Court Services Offered During COVID-19 Restrictions
April 01, 2020

McDougall Gauley LLP

With the COVID-19 pandemic upon us, many corporations and individuals are taking precautions to protect their employees, themselves, and are engaging in the practice of social distancing in accordance with the direction of health care and government officials. The courts across the country are no exception. In Saskatchewan, multiple directives have come down for various levels of courts, thereby restricting the access and services offered until further notice.

Canada's Economic Response Plan in Response to COVID-19
March 27, 2020

McCague Borlack LLP
Canadian businesses of all sizes face financial hardship as a result of the COVID-19 pandemic. To support and provide flexibility to these businesses while also sustaining liquidity in key financial markets, the Government of Canada has developed an Economic Response Plan. These measures, set out in the COVID-19 Emergency Response Act, passed into law on March 25, 2020.

Summary of Emergency Measures For Homeowners
March 25, 2020

McDougall Gauley LLP

With businesses shutting down (by order of law or voluntarily) to prevent the spread of COVID-19, it is clear that the economy is slowing dramatically.  People are working from home, or not working at all, and there is a general concern about the ability to provide the necessaries of life such as food and housing. 

This past week the Federal Government of Canada (the “FGC”) announced financial measures designed to provide relief to homeowners whose ability to make their regular mortgage payments has been compromised by COVID 19.

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

McCague Borlack LLP

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

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

Can a claim be denied due to criminal history from 20 years ago?: Case Study: Mohammed v The Manufacturers Life Insurance Company
March 12, 2020

McCague Borlack LLP

In Mohammed v The Manufacturers Life Insurance Company, the Ontario Court of Appeal clarified the meaning of material fact to include criminal activities 20 years prior to obtaining life insurance.

Can a pseudonym screen name protect you from a lawsuit?: Case Study: Theralase Technologies Inc. v Lanter
March 12, 2020

McCague Borlack LLP

In Theralase Technologies Inc. v Lanter, the issue of whether judgement can be granted against a defendant whose identity is unknown was considered.

Right-of-Way: When Civil Liability and Well-Meaning Signals for Drivers to Proceed Collide
March 05, 2020

Brownlee LLP
Drivers communicate with each other through a number of means beyond the traditional use of indicators and horns. By waving or flashing headlights, drivers may determine who has the right of way or warn of dangers, mechanical issues, or even lurking speed traps. However, if the driver signaled to is subsequently involved in a motor vehicle accident, does the waving driver bear a portion of the blame?

Analyzing Use or Operation of a Vehicle - Case Comment: Hunt v Peel Mutual Insurance
February 14, 2020

McCague Borlack LLP

In October of this year, our office released a case comment concerning the decision in Hunt v Peel Mutual Insurance Company. In the case, Mr. Hunt (the appellant) and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman. Ms. Dingman was driving while impaired at the time.  In this case comment. we will further analyze why the Court of Appeal found that Amealia's allegations did not pertain to Mr. Hunt's use or operation of a vehicle.

Beware of Presumption of Management or Control of a Director - Case Comment: Alizadeh v Ontario
January 30, 2020

McCague Borlack LLP

In Alizadeh v Ontario (Ministry of Environment, Conservation and Parks) (“Alizadeh”), the Court highlighted the high evidentiary burden on rebutting a presumption of management and control by a director in a Director's Order, emphasizing the importance of meeting environmental protection objectives.

The Five "C"s Of Trip And Fall Liability: Featured Case Study - Bzdziuch v Loblaws
January 23, 2020

BrownLee LLP

In our recent trial victory, Bzdziuch v Loblaws Companies Limited, 2019 ABQB 984, Loblaws was not found liable for the injuries sustained by the plaintiff after she tripped and fell over a pallet while exiting a grocery store cooler room. The plaintiff alleged that after she entered the cooler room, selected her eggs for purchase, and began walking towards the exit, she tripped and fell on an empty pallet that was protruding into the walkway causing significant injuries.

A Duty of Good Faith is Foundational: Case Study: Demetriou v. AIG Insurance Company of Canada (2019 ONCA 855)
January 13, 2020

McCague Borlack LLP

A duty of good faith is foundational to nearly every contract of insurance, imposing on all parties a duty to act fairly and in good faith in their dealings with one another. In Whiten v. Pilot Insurance Co., the Supreme Court of Canada affirmed the reciprocal duty of good faith, a breach of which would constitute an “independent actionable wrong” compensable through the imposition of punitive damages.

Location of Loss Case Study: Benson v. Belair Insurance Company (2019 ONCA 840)
January 13, 2020

McCague Borlack LLP

This case involves two accidents involving two recreational off-road vehicles – an all-terrain vehicle (“ATV”) and a dirt bike – heard together because they raise the same jurisdictional issue at law. ... The issue before the Court was whether Ontario's statutory accident benefits regime applies differently if the subject accident occurs outside of Ontario.

A power outage may not qualify for damage on premise: Case Study: La Rose Bakery 2000 Inc. v. Intact Insurance Company (2019 ONCA 850)
January 13, 2020

McCague Borlack LLP

The appellant in this matter operates a commercial bakery located inside of a shopping mall. The ice storm did not cause any physical damage to the shopping mall or to the bakery, but the resulting power outage caused spoilage within the bakery. Appellant failed to show...

Use A Competitor To Defend A Professional
December 19, 2019

Brownlee LLP

In Sangha v Sintra Engineering Inc., 2019 ABQB 94, Master Robertson dismissed the plaintiff's claim against the engineering company he formally retained to provide an expert opinion related to a motor vehicle accident that occurred on October 28, 2002.

Construction Act Reforms: Now in Effect! - Ontario Dispute Adjudication for Construction Contracts (ODACC)
November 15, 2019

McCague Borlack LLP

Recently, the Ontario Government has been working toward enacting an overhaul of the Construction Act in hopes to modernize the legislation. The transition rules for these changes are set out in section 87.3 of the amended legislation. As of July 1, 2018, amendments to the construction lien and holdback rules came into effect. A new round of changes are now about to come into effect on October 1, 2019, pertaining to the prompt payment and adjudication process, and amendments related to liens.

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

McCague Borlack LLP

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

The Weir-Jones (2019) Summary Judgment Hangover: Two Similar Occupiers' Liability Cases With Different Results
October 21, 2019

Brownlee LLP

The lasting effects of the recent Alberta Court of Appeal decision on summary judgment, Weir-Jones, are not yet fully realized. However, a recent court decision in which Weir-Jones was applied could cause alarm for occupiers interested in summary dismissal.

As a brief refresher, the new 'test' for summary judgment is:

Do priority provisions in s. 268 of the Ontario Insurance Act apply to an out-of-province insurer for an accident that took place in Ontario? Case Study: Coseco v. Liberty, 2019 ONSC 4918
October 01, 2019

McCague Borlack LLP

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

If you take the wheel, you take control: Case Study: McKay v. Park, 2019 ONCA 659
September 30, 2019

McCague Borlack LLP

A front-seated passenger who unexpectedly grabbed the wheel of a vehicle, causing an accident, is considered to have operated the vehicle without the driver's consent. It was not foreseeable the passenger would grab the wheel, despite the fact that the driver and passenger were arguing and emotional.

The owner of the vehicle in such a situation is not vicariously liable under s. 192(2) of the Highway Traffic Act. Summary judgment in favour of a dismissal against the owner was upheld.

Who is an insured person? Case Study: Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656
September 27, 2019

McCague Borlack LLP

The Court of Appeal determined that to be covered under s. 239 of the Insurance Act, an occupant's liability for loss or damage must arise from the use or operation of the vehicle. Mr. Hunt and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman, who was driving impaired. Ms. Dingman held an automobile insurance policy at the time with Peel Mutual Insurance Company.

Amelia's injuries arose from the impaired driver's use of the vehicle. However, Mr. Hunt's liability arises from negligent parenting, not from his actions as an occupant of the vehicle.

Cheech and Chong Get into a Car Accident Case Commentary: F. F. and Aviva Insurance Canada
September 03, 2019

McCague Borlack LLP

“Do my insurance benefits cover my medical marijuana costs?”

It’s a question that claimants are increasingly asking of their first-party healthcare insurers and one that is not always easily answered. 

On one hand, the use of cannabis as a legitimate treatment option has grown exponentially in recent years. On the other, the associated medical literature is in somewhat of a nascent stage, and it is not always clear whether marijuana will aid an injured party with their recovery (at least in any clinically verifiable sense).

A Landlord's duty to maintain a residential property
August 23, 2019

McCague Borlack LLP

As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.

Procedural Differences Between Civil Actions in British Columbia and Ontario
August 15, 2019

McCague Borlack LLP

As we have developed greater and more rapid business relationships across greater distances, there has inevitably come with this trend a larger emphasis on cross-jurisdictional litigation. While Canadian common law is fairly uniform in its basic components, there are notable elements that have slight, yet potentially critical, differences. In this discussion, we will endeavour to identify some of the most important differences specifically between civil procedure in Ontario and British Columbia.

As a starting point, it is helpful to know that the BC Supreme Court Civil Rules are very similar to the Rules of Civil Procedure in Ontario, so the vast majority of matters in BC will proceed in a similar fashion to the way they do in Ontario.

What To Consider When Choosing An Expert: Maxrelco Inc. V. Lumipro Inc.
August 15, 2019

McCague Borlack LLP

In its seminal decision of Westerhof v Gee Estate,1 the Court of Appeal for Ontario provided the general framework for the admissibility of expert evidence in Ontario. Specifically, it clarified the role of participant experts at trial and confirmed that compliance with Rule 53.03 of the Rules of Civil Procedure was not required for their evidence to be admissible, as opposed to the evidence of litigation experts. As the Court indicated, participant experts are witnesses, albeit ones with special skill, knowledge, training or expertise, who are not engaged by a party to form their opinions, and who do not form their opinions for the purpose of the litigation.

So You've Released a Defendant Municipality: Can you Still Have a Jury Trial?
August 15, 2019

McCague Borlack LLP

Jury trials provide the opportunity for a group of people, selected at random from the community, to decide issues of fact or assess damages in a Superior Court action. An action can be tried with a jury if a jury notice is delivered by one of the parties before the close of pleadings, which is typically early on in the life of an action. After pleadings are closed, a jury notice can only be delivered with leave of the court.

The New (and Improved?) Rule 76 Simplified Procedure
August 15, 2019

McCague Borlack LLP

Imagine the following scenario: A plaintiff sues to recover $150,000 in damages. The defendant refuses to pay anything and forces the plaintiff to trial. After a ten-day trial, the plaintiff is wholly successful and obtains $150,000 in damages, plus costs of $100,000 and disbursements of $50,000. The defendant who lost has to pay the plaintiff his/her damages and costs, as well as the defendant's legal costs of $100,000 and disbursements of $30,000. In other words, the cost of defending the plaintiff's claim cost the defendant $280,000 in costs and disbursements alone–a number nearly twice the amount of the plaintiff's damages. While costs are meant to discourage frivolous litigation, the costs should not be so disproportionate to the relief being claimed so as to lead to unfairness.

New Guidance In Establishing A Successful Reasonable Use Of Force Defence
July 31, 2019

Brownlee LLP

On May 13, 2019, the Alberta Court of Queen's Bench released its decision in Day v Woodburn. This case will provide welcomed guidance and support to those involved in insuring and defending individuals employed in the law enforcement or security industries. In the decision, Justice Renke provides a meticulous examination of the test for reasonable use of force outlined in Crampton v Walton 2005 ABCA 81 ("Crampton"). While the second stage of the Crampton test has been exhaustively discussed in other decisions, Day provides a much-needed analysis of the third stage used in determining whether the level of force used was reasonable. This analysis will assist defence counsel and insurers alike in establishing a robust defence of reasonable use of force.

The Minor Injury Guideline
July 16, 2019

McCague Borlack LLP

Under the Statutory Accident Benefit Schedule (“Schedule”), those injured in a motor vehicle accident are entitled to different levels of benefits according to the severity and classification of their impairments. These levels are broken down into one of three categories: minor impairments non-catastrophic impairments and catastrophic impairments. 

This paper is devoted to minor impairments, which are handled under the Minor Injury Guideline (MIG). 

The MIG provides a framework for the treatment of insured persons involved in a motor vehicle accident who sustain “minor injuries.” 

Limitations Law in Accident Benefits Cases
July 16, 2019

McCague Borlack LLP

A limitations defence is perhaps the most powerful defence in existence. Its application completely extinguishes a person’s claim, essentially on a technicality, regardless of whether such claim has merits.

The limitation period for accident benefits claims is defined in section 56 of the Statutory Accident Benefits Schedule. It states that arbitration in respect of a benefit “shall be commenced within two years after the insurer’s refusal to pay the amount claimed.” This limitation period was not changed in the 2010 or 2016 amendments and, therefore, should apply to all open claims...

Application For Accident Benefits Primer (OCF-1) Primer
July 16, 2019

McCague Borlack LLP

Section 32 of the SABS indicates that an applicant shall submit a completed and signed Application for Accident Benefits (OCF-1) within 30 days of receiving the application package. However, Section 34 of the Schedule states that a person's failure to comply with the time limit does not disentitle the person to a benefit if the person has a reasonable explanation...

Loss Transfer - When Accident Benefits May Be Transferred to Another Insurer
July 16, 2019

McCague Borlack LLP

In Ontario, Insurers are subject to a “Loss Transfer” regime. Loss Transfer applies when an accident involves specific types of vehicles. These are either a “heavy commercial vehicle”, motorcycles, motorized snow vehicles or an off-road vehicle.

When one of these vehicles is involved in an accident, the Loss Transfer regime may be applicable. In essence, in some specific situations, the entire Accident Benefits claim for an accident under the Statutory Accident Benefits Schedule, can be transferred from the injured person’s “first party insurer” to an insurer of an at-fault vehicle, often referred to as a “second party insurer”. 

AB from Sea to Sea: A Look at Accident Benefits across Canada
June 25, 2019

McCague Borlack LLP

The concept of accident benefits is well-known in almost every Canadian jurisdiction. This paper will focus on how the different systems operate, the benefits available, and practice tips that can be applied in cross-border cases. Comparisons between jurisdictions and unique facts about the different systems will also be discussed.

Amendments To The CBCA Effective June 13, 2019
June 12, 2019

McDougall Gauley LLP

As part of the federal government’s anti-money laundering and counter-terrorism initiatives, the federal government is implementing several changes to the Canadian Business Corporations Act (“CBCA”) through Bill C-86. These changes come into force on June 13, 2019.

By this date, all non-distributing, federally incorporated corporations will need to have a “New Register” completed which contains the following information for each individual with significant control over the corporation...

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

McCague Borlack LLP

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

Car Surfing Is An Ordinary And Well-Known Activity - Case Study: Charbonneau v Intact Insurance
May 16, 2019

Brownlee LLP

In a recent case from the Ontario Superior Court of Justice from September 25, 2018, the Court held that "car surfing" is an ordinary and well-known activity of a vehicle such that statutory accident benefits coverage was afforded for a resulting injury.

In Charbonneau v Intact Insurance Company, 2018 ONSC 5660, the plaintiff stood on the rear bumper of a 2013 Nissan Quest which was in motion. She held onto the roof rack with one hand and onto a friend's shoulder with the other hand. When the driver made a sharp turn, the plaintiff fell and hit her head on the concrete. The plaintiff commenced a claim against Intact Insurance Company for accident benefits coverage under s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010.

Alberta Court Of Appeal Comments On The Test For Setting Aside A Default Judgment
May 13, 2019

Brownlee LLP

In Yehya v Thomas, 2019 ABCA 164, the court of appeal revisited the test for setting aside a default judgment where there is a procedural flaw. The plaintiffs contracted with Las Palmas, a home construction company of which the defendant was sole director and shareholder. Progress on the home was halted when Las Palmas experienced financial difficulty, and accordingly, a statement of claim was served on the defendant by email, who responded indicating "no objections will be filed"...

Just When You Thought It Could Not Get Any Harder: Changes Could Be Coming to Proceedings Against the Crown
May 01, 2019

McCague Borlack LLP - by Theomarcus Giannou and Theresa Hartley

Ontario's Conservative government recently proposed Bill 100, also known as the Protecting What Matters Most Act, which primarily addresses new budget measures. Also contained within the Bill, however, is the proposed repealing of the Proceedings Against the Crown Act [PACA] which was enacted in 1990 and governs how litigation is commenced against the Provincial Crown. It will be subsequently replaced with the Crown Liability and Proceedings Act [CLPA]. The CLPA proposes substantial changes to Crown liability, including limitations thereon, and sets out the procedural rules that will apply in proceedings against the Crown. 

Cyber risks to your organization and its consequences: New reporting standards from the Office of the Privacy Commissioner of Canada
April 25, 2019

McCague Borlack LLP

As technology quickly advances, different industries are finding several ways to innovate, adapt, and evolve their practices to generate larger profits, create operational efficiencies, and respond to people's needs. The unfortunate consequence of this rapid proliferation of technology is that many firms are unaware, or under-prepared for the risks that technology can attract and the consequences that follow when your data is stolen.

Alberta Court of Appeal Articulates New Test for Imposing Limits on Medical Examinations
April 11, 2019

Brownlee LLP - Written by: Kristina Roberts

The Alberta Court of Appeal released a decision on March 15, 2019, that will be influential in the personal injury area of practice. Brownlee’s own David Pick appeared on behalf of the Defendants/ Appellants in McElhone v Indus School , 2019 ABCA 97, and successfully appealed a decision of the lower courts to impose limits on a Plaintiff’s medical testing under Rule 5.41(2) of the Alberta Rules of Court.

Throwing eggs from a car is an ordinary and well-known activity
April 10, 2019

Brownlee LLP

In a case from the Ontario Supreme Court from March 22, 2019, the Court held that throwing eggs from a moving vehicle was an ordinary and well-known activity of automobiles, such that coverage was afforded for the resulting injury.

In Gilbraith v Intact Insurance Company, 2019 ONSC 1875, the front passenger of a motor vehicle threw an egg at the plaintiff, who was walking on the sidewalk. The plaintiff suffered an injury to her right eye which would likely result in a permanent impairment. The owner, driver, and occupants of the motor vehicle from which the egg was thrown, were not identified. As a result, the plaintiff commenced a claim against Intact Insurance Company in accordance with the Family Protection Coverage endorsement of the standard Ontario policy of automobile insurance, which was issued to the plaintiff's father.

Egg on your face - you may have a claim: Case Comment: Gilbrairth v. Intact Insurance
April 08, 2019

McCague Borlack LLP

In Gilbraith v. Intact Insurance Company,1 the Ontario Superior Court of Justice offered clarification on the degree of assistance an expert report submitted as an attachment to a solicitor's affidavit can provide in a summary judgment motion. The Court also determined whether the throwing of an object out of a moving vehicle classified as an intervening act sufficient to break the causative link between the plaintiff's injuries and the use and operation of a motor vehicle. This case is significant as it introduces unique analysis that can be used to attribute more injuries to the use and operation of an automobile as well as provide an additional tool to defend a summary judgment motion.

Is anyone ensuring that your Mink Lashes are cruelty-free? An Overview of the Regulation of Fur Farming in Canada
March 21, 2019

McCague Borlack LLP

This article takes a high-level perspective of the regulation of the fur farming industry in Canada, with a specific focus on the predominant fur-bearing species raised on fur farms in Canada: minks and foxes.

Canada's robust fur trade saw over 2.3 million minks and foxes bred on fur farms in 2017, generating approximately $800 million dollars. As of 2017, there were over 200 mink and fox fur farms across Canada, which produced over 2 million pelts. Even now, there is a trend towards the use of mink fur in eyelash extensions. However, despite the size of the industry, the legislative framework is surprisingly inconsistent and often under-regulated. 

Jam Session Gone Wrong: How an Office Party Created a Coverage Debacle - Case Study: RSA v. Intact
March 08, 2019

McCague Borlack LLP

The recent case of Royal & Sun Alliance Insurance Company v. Intact Financial Corp. addressed a coverage litigation extravaganza involving a set of disjointed decisions from the Ontario Superior Court.

Stephen Novak attended an “after hours jam session” at the office of his friend, Sanjay Patel. The office space was occupied by Mr. Patel's engineering firm, while the office building as a whole was owned by Mr. Patel's separate numbered company (106220 Ontario Inc.). Unfortunately, Mr. Novak fell off a ladder at the party and sustained serious injuries.
Mr. Novak's ensuing lawsuit named three defendants. Accordingly, three insurance policies were potentially triggered to respond to the loss.

Getting "Ahead" of the Changes: Rowan's Law and the Potential Impact on Insureds – Further Updates
February 28, 2019

McCague Borlack LLP

Note: This paper has been updated from a prior version published in May 2018 to reflect recent developments in the legislation and potential regulations

Overall, Rowan's Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. The legislation will apply to any “sport organization”, defined as “a person or entity that carries out, for profit or otherwise, a prescribed activity in connection with an amateur competitive sport.”18 A “sport organization”, which may be further defined by regulation, will be required to:

Taking A Dip Into Public Pool Liability: Municipal and Resort Related Liability
February 28, 2019

McCague Borlack LLP

This article is our latest update in our swimming pool liability series, following our 2013 paper. 

This year's approach will focus on public pools encompassing not only municipally funded facilities but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act, we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act (“HPPA”) then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.

Indemnification and the Duty to Defend in Commercial Agreements: Alberta Court of Appeal Case Study: Kostic
February 19, 2019

Brownlee LLP

The Alberta Court of Appeal (“ABCA”) recently provided a beneficial review of the law of indemnification and the duty to defend in Alberta. Unfortunately, the ABCA passed up the opportunity to rule on whether the presence of a save harmless clause in a commercial agreement could give rise to a duty to defend.

Unpacking the Crate: A Carrier's Tools for Collecting Unpaid Freight Charges
February 15, 2019

McCague Borlack LLP

The modern shipping industry has drastically influenced the complexity of cargo movements. With this growing complexity of logistics transactions and the industry as a whole, carriers often risk losing out on the payment of freight charges if an intermediary goes bankrupt or otherwise decides to withhold payment.

Although the law in Canada is not so straightforward, carriers have a myriad of legal tools to collect on unpaid freight charges beyond merely advancing a claim for breach of contract against the party by whom they were retained...

An Earthquake in the World of Personal Injury: Supreme Court of Canada Case Study: McIver v McIntyre
February 14, 2019

Brownlee LLP

The Supreme Court of Canada released its decision in the application for leave to appeal by the Plaintiff in the matter of McIver v McIntyre. The Court declined to hear the Plaintiff's Appeal, upholding the findings of the Alberta Court of Appeal. This decision has the potential to be an earthquake in the world of personal injury and insurance law in Canada. This case relates to whether an injured party or the Workers' Compensation Board by way of subrogated claim can recover against an owner and lessor of a vehicle involved in a motor vehicle collision when it played no part in the events of the collision and had no supervision over the tortfeasor.

Home Sweet Home: What Constitutes "Living in the Same Household" in a Home Insurance Policy
February 05, 2019

McCague Borlack LLP

In the recent decision in Ferro v. Weiner (“Ferro”), the Court of Appeal for Ontario provided clarity as to what constitutes “living in the same household” in a home insurance policy.

Enid Weiner owned a house on Lake Eugenia, which was used as a cottage until the late 1980's when it became Enid's sole residence (the “Property”). When Weiner moved to a nursing home around 2008, her three adult children and their families used the Property as their vacation home...

Some Diamonds are Not Forever: The Insurance Case of the $580,000 Stolen Ring
February 05, 2019

McCague Borlack LLP

It is common for insurance companies to face claims arising from questionable circumstances and reasonable for adjusters and claims handlers to investigate claims with a certain amount of skepticism.

However, a recent judgment from the Ontario Superior Court of Justice has emphasized the principle of fairness in the investigative process...

Constructively Dismissed? You May Have To Go Work for Your Old Boss
January 28, 2019

McCague Borlack LLP

The recently released Ontario Superior Court of Justice decision, Gent v Strone Inc. reiterates the importance of an employee's duty to mitigate damages by accepting an offer of re-employment from his or her former employer after being constructively dismissed.

Approximately 2.5 Million Dollars Gone in Approximately 2.5 Seconds: An Insurance Coverage Nightmare
January 28, 2019

McCague Borlack LLP

Dentons LLP has recently become embroiled in a coverage dispute with its insurer over an approximate 1.7 million dollar loss after falling victim to an email scam. Recent Ontario Superior Court decision, Dentons Canada LLP v. Trisura Guarantee Insurance Company tells the tale of how an email scam induced the large multinational law firm into misdirecting approximately $2.5 million dollars of a client's funds which were held in trust.

When is a Commercial Owner Liable for a Fall on an Adjacent Sidewalk?
January 28, 2019

McCague Borlack LLP

In its recent summary judgment decision, Janssen v. William and Markle Jewellers Ltd., the Ontario Superior Court of Justice considered the scope of control required for a commercial owner to be an occupier under the Occupiers' Liability Act.

A plaintiff slipped and fell on an icy sidewalk outside the entrance of the defendant's jewellery store. This jewellery store was located in a two storey building. The defendant was a tenant of this building. The owner, surprisingly, was not named in this action.

Summary Judgment Motions in MVA Cases: A Viable Option for Defendants
January 17, 2019

McCague Borlack LLP

In Pavlovic v. Vankar, 2019 ONSC 61, Justice Nightingale of the Ontario Superior Court of Justice granted a summary judgment motion in favour of the defendant Pavlovic, dismissing the plaintiff's action and the cross-claim of the co-defendants as against him despite conflicting evidence on a key liability issue.

The defendant Pavlovic brought this motion for summary judgement to dismiss the plaintiff's action and the cross-claim of the co-defendants Vankar against him...

Court of Appeal Clarifies Approach to Overlapping Insurance Coverage: Case Study: TD v. Intact
January 17, 2019

McCague Borlack LLP

In TD General Insurance Company v. Intact Insurance Company, the Ontario Court of Appeal provided clarity on the issue of overlapping insurance coverage.

The case involved a boating accident. The owner of the boat held a TD homeowner's policy that covered the driver, who was driving the boat with the owner's permission. The driver was also covered by his own homeowner's policy, issued by Intact. Both insurance policies contained identical “other insurance” clauses, stipulating that the policy would be considered excess if there was other insurance that applied to a claim.

Uber Class Action Gets Green Light, Proceeds to Certification
January 04, 2019

McCague Borlack LLP

The past decade has given rise to the ‘sharing economy', which has since become ubiquitous and has raised an assortment of legal issues for stakeholders and policymakers as a result.

In Heller v Uber Technologies Inc. the Ontario Court of Appeal reversed a decision to uphold an arbitration (and effectively, forum selection and choice of law) clause in an Uber services agreement, finding it both unenforceable and unconscionable.

Rebutting the Breathalyzer Presumptions Moving Beyond the Theoretical, Towards Concrete Evidence
January 03, 2019

McCague Borlack LLP

In R. v. Cyr-Langlois, the Supreme Court of Canada offered clarification on the type of evidence that is required to rebut the presumptions of accuracy and identity applicable to breathalyzer test results under section 258(1)(c) of the Criminal Code (“Code”). In doing so, Wagner C.J., writing for the majority, confirmed that the evidence must amount to more than conjecture or speculation. This case is significant for defence lawyers, as it demonstrates that an accused will likely need to adduce concrete factual evidence in order to rebut the breathalyzer presumptions.

Tick Tock, Watch Your Clock: Estate Trustees are not Litigation Guardians under s.7 of the Limitations Act
December 20, 2018

McCague Borlack LLP

In Lee v Ponte, 2018 ONCA 1021, the Ontario Court of Appeal considered whether S.7 of the Limitations Act, wherein the basic limitation period of two years does not run during the time in which the person with the claim is incapable and is not represented by a litigation guardian, applies to extend the time within which an estate trustee can bring a claim that the deceased person had before death.

It's Not Complicated (Anymore): Court of Appeal Explains the Relationship between SABS and Tort Damage Awards
December 13, 2018

McCague Borlack LLP

Two recent Ontario Court of Appeal decisions have provided clarity on the uncertain relationship between tort damage awards and Statutory Accident Benefits (SABs) under s 267.8 of the Insurance Act.

While heard together, these cases address different aspects of the tort damage award/SABs relationship. Cadieux v Cloutier addressed the deductibility of SABs paid before trial, whereas Carroll v McEwan addressed the deductibility and assignment of SABs to be paid after trial.

Bucking the Legal Lacuna: The Humboldt Bronco's Record Setting GoFundMe Campaign and Saskatchewan's Informal Public Appeals Act
December 07, 2018

McCague Borlacl LLP

Appeals to the public for donations are a feature of everyday life. Appeals that occur on a regular basis are usually conducted by registered charities and other organizations having the benefit of experienced fundraisers and professional advice. However, after a disaster, spontaneous appeals frequently occur as well. Although the organizer of a spontaneous appeal may not be aware of it, their public appeal is at the centre of a complex web of trust and charity law, much of which is obscure and inaccessible. For example, what happens when an informal fundraising campaign raises more money than needed for its stated purpose? What happens to the remainder? Who does it belong to? Does it have to be returned? In the era of social media and crowdfunding platforms like GoFundMe, Kickstarter, and Indigogo, these complicated issues are likely to become exacerbated.

A Battle of Offers: Case Study: Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. ("Hashemi-Sabet")
November 27, 2018

McCague Borlack LLP

In the recent Ontario Court of Appeal decision Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc. (“Hashemi-Sabet”),1the court addressed the principles of offer and acceptance in the context of multiple Rule 49 offers, and the enforcement of a Rule 49 offer to settle. As Justice Pepall noted, “Rule 49.09 of the Rules of Civil Procedure provides that a party may bring a motion for judgment in the terms of an accepted offer and the judge may grant judgment accordingly or continue the proceeding as if there had been no accepted offer to settle.” In this case, the appellants argued that the motion judge erred in giving judgment to a Rule 49 offer which they argued had been revoked before it had been accepted. The respondents argued that the offer had not been properly revoked.

A Cautionary Tale for Employers: A Case Study - Hampton Securities Ltd. v. Dean
November 16, 2018

McCague Borlack LLP

In the recent decision, Hampton Securities Limited v. Dean, the Ontario Court of Appeal affirmed the detailed trial decision of Justice Koehnen with respect to an employment-related action involving a proprietary trader. The decision serves as a cautionary tale for employers when disclosing the reason(s) for the termination of an employee.

Christina Dean began working with Hampton Securities Limited (“Hampton”) as a propriety trader of securities on March 6, 2008. Her employment ended 13 months later on April 3, 2009. Hampton took the position that Ms. Dean had been terminated for cause for failing to follow trading policies and engaging in unauthorized trading, while Ms. Dean took the position that she had been constructively dismissed.

The Foreseeability of a Flying Bottle: A Case Study of Bucknol v. 2280882 Ontario Inc.
October 28, 2018

McCague Borlack LLP

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...

The Real NHL Hockey Wives: Cyberbullying, Norwich Orders, and Locker Room Soap Operas
October 28, 2018

McCague Borlack LLP

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.

Re-Serve Your Formal Offer If You Want Double Costs
October 28, 2018

Brownlee LLP

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...

You're on Candid Camera! Legal requirements for having surveillance admitted into evidence at trial
October 27, 2018

McCague Borlack LLP

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.

Watching the Watchers: Judicial Limitations on the use of surveillance evidence
October 27, 2018

McCague Borlack LLP

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.

Recent Decisions regarding the Admissibility of Surveillance in Accident Benefits and Tort Claim
October 27, 2018

McCague Borlack LLP

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.

Accuracy of Surveillance Reports
October 27, 2018

McCague Borlack LLP

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...

Reliable Footage: The Importance of Unedited Video and Investigator Testimony at Trial
October 27, 2018

McCague Borlack LLP

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.

Surveillance: Activities and Problems
October 27, 2018

McCague Borlack LLP

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.

What Stefanyk hath wrought: Albert Court of Appeal Decision in Stefanyk v Sobeys Capital Inc
October 08, 2018

Brownlee LLP

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.

From Motorist to Manufacturer: Adjusting to AV Litigation
September 24, 2018

McCague Borlack LLP

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 ...

Legislative Progress Towards Legalization: An Overview of the Recently Published Cannabis Regulations
September 19, 2018

McCague Borlack LLP

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.

Down the Path to the End Finality: A Case Study of Gillham v. Lake of Bays (Township)
September 19, 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. 

What Happens When You Tell Your Boss You Want to Retire... and then Change Your Mind?
September 14, 2018

McCague Borlack LLP

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?

Lets talk about Sexts: Is my teenager in possession of child pornography?
September 14, 2018

McCague Borlack LLP

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”.

No Playing Around: An UPDATE on Tort Liability and School Yard Injuries
September 12, 2018

McCague Borlack LLP

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.

Attendant Care Benefits: Family Members & Professional Health Care Designations
September 12, 2018

McCague Borlack LLP

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)...

Subrogating Claims in the Construction Context: They Do Exist
September 08, 2018

McCague Borlack LLP

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.

Acting for both Insured and Insurer: What Counsel Need to Know
September 08, 2018

McCague Borlack LLP

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?

Casino Niagara: Rolling the Dice on Constructive Dismissal
August 07, 2018

McCague Borlack LLP

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.

Case Study: Mary Shuttleworth v Licence Appeal Tribunal
July 23, 2018

Brownlee LLP

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.

Strategic Lawsuits Against Public Participation - A "Win" for Freedom of Expression - Featured Case Study: Lascaris v B'nai Brith, 2018 ONSC 3068
July 12, 2018

McCague Borlack LLP

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.

World Cup of Violence: Are Soccer Clubs and Leagues Liable for "On Field" Fisticuffs?
July 11, 2018

McCague Borlack LLP

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."

Justice Must Not Only Be Done, it Must be Seen - The LAT's Mandate to Ensure Both the Existence and the Appearance of Adjudicative Independence in their Decision-Making Processes
July 09, 2018

McCague Borlack LLP

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 Warn or Not To Warn: An Explanation of the Duty to Warn and the Reasonable Foreseeability Analysis: Case Comment: Maxrelco (Immeubles) v Lumipro Inc.
June 29, 2018

McCague Borlack LLP

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.

Secrets Between Children and Parents Are Litigation Records of a Children's Lawyer subject to Father's Freedom of Information Request?
June 28, 2018

McCague Borlack LLP

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...

Insurers Beware: Ontario Court Rules Underwriting and Broker Files are Producible in Tort Litigation when Consent is a "Live Issue"
June 27, 2018

McCague Borlack LLP

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.

Common Interest Privilege: A New Tool in the Litigation Basket
May 25, 2018

McCague Borlack LLP

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.

Risk Management and Cannabis in Ontario - What is going to be legalized and when?
May 24, 2018

McCague Borlack LLP

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 and the Future of Litigation
May 24, 2018

McCague Borlack LLP

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.

Eyes Wide Shut: The Best Defence is a Good Offence - Cyber Liability
May 24, 2018

McCague Borlack LLP

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:

Here, There and Everywhere, Chasing Fraudsters - An Indictment in a New York Slip and Fall Scheme raises concerns about Insurance Fraud
May 23, 2018

McCague Borlack LLP

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...

Discoverability Dilemma: Limitation Periods for Contribution and Indemnity Claims
May 09, 2018

McCague Borlack LLP

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.

Marshall Report: Progress To Date
May 03, 2018

McCague Borlack LLP

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 Art of Due Diligence: Priority Disputes Among Insurers
May 03, 2018

McCague Borlack LLP

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:

Duty to Defend an Additional Insured Under a CGL Policy
May 03, 2018

McCague Borlack LLP

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”.

Old McDonald had a Farm and Kids: A Tale of Succession and Unjust Enrichment Case Comment: McDonald v McDonald
April 27, 2018

McCague Borlack LLP

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"?

Security Breach Reporting Requirements under the PIPEDA starting November 2018
April 24, 2018

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

Couple Caught in Bidding War Frenzy Reneges on Purchase of Dream Home, Liable for Damages
April 18, 2018

McCague Borlack LLP

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.

Location Matters: Superior Court Rescinds a $95,000 Contract for Toronto Maple Leafs' Season Tickets
April 15, 2018

McCague Borlack LLP

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”).

Waive Goodbye to the Consumer Protection Act for those who are both Occupiers & Suppliers
April 12, 2018

McCague Borlack LLP

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.

Occupier's Liability: A Board Meeting Gone Wrong Case Comment: Omotayo v Da Costa et al.
April 10, 2018

McCague Borlack LLP

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?

The Production of Cell Phone Records in the Age of Distracted Driving Expanding the Limits of Disclosure
April 10, 2018

McCague Borlack LLP

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.

Freedom of Expression in the 'Trump Era' Is a "Trump is right. F**k China. F**k Mexico" Sign Protected Speech?
March 27, 2018

McCague Borlack LLP

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...

Improper Policy Cancellation Leads to "Risky Business" - Case Comment: Minister of Finance v AXA Insurance
March 26, 2018

McCague Borlack LLP

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.

Background Facts

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.

Case Management: Be Zealous But Be Reasonable
March 23, 2018

McCague Borlack LLP

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.

Autonomous Vehicles vs. Pedestrians: Who is at fault?
March 22, 2018

McCague Borlack LLP

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?

Cloudy with a Chance of Money: Overcoming Obstacles in Subrogated Claims
March 21, 2018

McCague Borlack LLP

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.

Duty to Mitigate
March 21, 2018

McCague Borlack LLP

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...

Immunities and Exploits: Considerations for Subrogation as against Municipal or Regional Governments
March 21, 2018

McCague Borlack LLP

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.

Face the Music: Once Requested, A Mediation Must be Scheduled Forthwith
March 12, 2018

McCague Borlack LLP

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. 

Legislature Passes Concussion Safety Legislation with Bill 193: Rowan's Law (Concussion Safety), 2018
March 07, 2018

McCague Borlack LLP

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:

The Fast & the Furious: Hard Drugs, Fast Cars & Untimely Death Case Study: Isaac Estate v Matuszynska
March 02, 2018

McCague Borlack LLP

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.

Collaborative Care and Vicarious Liability
February 16, 2018

McCague Borlack LLP

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.

Latency of Claims for Allied Healthcare Providers
February 16, 2018

McCague Borlack LLP

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...

Legal Themes utilized for Medical Liability
February 16, 2018

McCague Borlack LLP

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. 

Do Excluded Drivers have access to AB Coverage? See Court of Appeal Ruling
February 14, 2018

McCague Borlack LLP

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.

Emerging Trends in Personal Injury Damage Awards
February 13, 2018

McCague Borlack LLP

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.

Malpractice & Health Litigation Basics in Canada: A Statistical Primer for Practitioners, Professionals, Hospitals, and Insurers
February 12, 2018

McCague Borlack LLP

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.

Cargo Storage: A Minefield of Regulation
February 08, 2018

McCague Borlack LLP

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 income 'earned' and therefore deductible? Case Study: A.S. and Economical
January 29, 2018

McCague Borlack LLP

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 will cause an automobile tort claim to flop? Case Comment: Nadarajah v. Aviva Canada
January 19, 2018

McCague Borlack LLP

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.

Insurer's Duty of Good Faith will not be expanded by Supreme Court Case Comment: Usanovic v. Penncorp
January 09, 2018

McCague Borlack LLP

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.

Court Orders Up to $600,000 Advance Payment in Advance of Personal Injury Med-Mal Trial
December 21, 2017

McCague Borlack LLP

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.

The Personal Injury Bar's Worst Fear: Not Enough Evidence to Put Question to a Jury
December 20, 2017

McCague Borlack LLP

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. 

Teenagers will be Teenagers: Did a Mother Give (Implied) Consent for Her Son to Possess and Operate Her Car?
December 20, 2017

McCague Borlack LLP

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.

HPARB Rules on Kinesiologists and FAE Reports Featured Case: C.M. & P.M.
December 19, 2017

McCague Borlack LLP

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.

Show Me the Money? Only If You Can Show Me the Hazard!
December 18, 2017

McCague Borlack LLP

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...

A Chiropractic Malpractice Case
November 20, 2017

McCague Borlack LLP

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

Alcohol, Snowmobiling, Breaching a Probation Order and Insurance Coverage
November 13, 2017

McCague Borlack LLP

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

Falling Back to More Pedestrian and Cyclist Motor Vehicle Accidents
November 09, 2017

McCague Borlack LLP

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.

The Supreme Court of Canada keeps the onus on banks over innocent drawers for fraudulent bills of exchange
November 02, 2017

McCague Borlack LLP

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 IPC clarifies when insurers may and may not collect Health Card numbers
November 02, 2017

McCague Borlack LLP

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...

Is This The End of Civil Jury Trials in Motor Vehicle Accident Cases?
October 25, 2017

McCague Borlack LLP

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... 

The Sharing Revolution – Accident Benefits Coverage For Uber Drivers & Passengers
October 16, 2017

McCague Borlack LLP

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.

Liability Exposure for Uber Drivers after a Fare is Dropped Off
October 16, 2017

McCague Borlack LLP

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.

The Future of Litigation and Autonomous Vehicles
October 16, 2017

McCague Borlack LLP

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.

Alberta Court of Appeal Confirms any Judge can Extend Timelines
October 13, 2017

Brownlee LLP

A recent decision from the Alberta Court of Appeal in October 2017 confirmed any Judge from the Alberta Court of Queen's Bench could extend the timelines for the exchange of expert reports previously agreed to between counsel, either in a letter or order from a previous Judge.

Four Million Dollar Price Tag to Fix an Actress's Reputational Damage
September 20, 2017

McCague Borlack LLP

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...

LAT Broadens the Definition of Accident as per SABS Case Comment: 16-00218 v. Aviva Insurance
September 20, 2017

McCague Borlack LLP

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...

Marijuana Legalization: Ontario Weighs In 
September 18, 2017

McCague Borlack LLP

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.

No Playing Around: Tort Liability and School Yard Injuries
September 18, 2017

McCague Borlack LLP

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?

SCC Lowers Standard for Proving Mental Injuries
August 24, 2017

Brownlee LLP

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.

Claim Struck and Action Dismissed: Integrity of the Judicial Process Upheld
August 21, 2017

Brownlee LLP

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.

No Video For You: The Court Clarifies Who May View A Video Recording Of An IME
August 11, 2017

Brownlee LLP

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.

Auditor Held Liable in Negligence for Non-Clients' Losses - Case Comment: Lavender v. Miller Bernstein
August 10, 2017

McCague Borlack LLP

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.

Tug-of-War Gone Wrong: Who is Liable when Participant's Arm is Amputated - Case Study: Bonello v. Gores Landing Marina
August 10, 2017

McCague Borlack LLP

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.

One small step for summary judgements, one giant leap for efficiency
August 04, 2017
The Ontario Superior Court's recent decision in Fairfield Sentry Limited et al v PWC et al signals a widening role for summary judgement procedures.
This action arises from the infamous Ponzi scheme perpetrated by Bernie Madoff until 2008. The plaintiff's, through the liquidators, brought this action against Price Waterhouse Cooper and Stephen Wall (collectively PWC”) claiming breach of contract and/or negligence for not raising concerns about the Bernard L. Madoff Investment Securities LLC during their audit of the Fairfield Funds on April 24, 2007. The plaintiffs claimed because of PWC's failure to discover Madoff's scheme, they suffered monetary losses.

Medical records: Personal Privacy in Conflict with the Rule of Law
August 02, 2017

McCague Borlack LLP

Case Study: HMTQ v Philip Morris International, Inc., 2017 BCCA 69

British Columbia's controversial Tobacco Damages and Health Care Costs Recovery Act (“the Act”) is back in the courts. This time around the dispute isn't on the Acts constitutionality, but instead pits the right to privacy in medical data against a persons or corporation's right to a “fair playing field” in litigation, or the principle of procedural fairness grounded in the Rule of Law.

Court of Appeal Declines Remedies against Person Harassing Mayor, Township
August 01, 2017

McCague Borlack LLP

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.

Legalizing Marijuana: Potential Impact on Social Hosts
August 01, 2017

McCague Borlack LLP

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?

Canadian jurisprudence has consistently held that special relationships exist whereby commercial organizations and establishments that serve alcohol or other impairing products owe their patrons a duty to ensure that no foreseeable harm occurs while on or after leaving the premises. These duties include the following:

The Oppression Remedy: Greater Risk of Personal Liability for Directors and Officers
July 26, 2017

McCague Borlack LLP

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.

Your Reservation has changed... Airbnb Regulation in Toronto and Insurance Coverage Issues
July 15, 2017

McCague Borlack LLP

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.

A Divided Court on Deductible and Prejudgment Interest in Motor Vehicle Accident Claims
July 10, 2017

McCague Borlack LLP

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. 

Automobile Insurance Fraud: Prevalence, Prevention, and Response
July 10, 2017

McCague Borlack LLP

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.

A summary of threshold decisions from 2016 and 2017: Which got through and which got bounced
July 10, 2017

McCague Borlack LLP

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.

Subrogation: Recommendations for Early Investigation
July 10, 2017

McCague Borlack LLP

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.

Making Use of Unusual Torts in Subrogation
July 10, 2017

McCague Borlack LLP

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.

Insurers Beware: Recent Developments in the Duty to Defend and Indemnify
July 10, 2017

McCague Borlack LLP

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:...

A Lawyer's Guide to Discoveries and Timing of IMEs
July 10, 2017

McCague Borlack LLP

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.

Everything You Need to Know About Trial Insurance: Security Against Bad Outcomes at Trial For Sale!
July 10, 2017

McCague Borlack LLP

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...

The Effect of "After The Event" Insurance on the Litigation Process
July 05, 2017

McCague Borlack LLP

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.

Take control of public space and liability may follow: Case Comment - MacKay v Starbucks
June 23, 2017

McCague Borlack LLP

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”).

Proposed Changes to Ontario's Construction Lien Act
June 23, 2017

McCague Borlack LLP

The Construction Lien Act can be a daunting piece of legislation to approach. Combining tight deadlines, technical definitions, and a sometimes complex interplay between its own provisions, it is no wonder that it is often viewed with some trepidation by lawyers and clients alike. 
A Bill to overhaul the Construction Lien Act has recently passed its first reading before the Legislative Assembly. These changes, if ultimately passed, will be a welcome change to a piece of legislation that has (in this lawyer’s opinion) caused more arguments than it has solved.

Defamation in the Internet Age: The Law and Social Media
June 13, 2017

McCague Borlack LLP

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...

Taxi Company Not Vicariously Liable When Employee Sexually Assaults Client
June 08, 2017

McCague Borlack LLP

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.

What's in a Name? Upcoming Changes to the Definition of a Motor Vehicle: Road-Building Machines
June 08, 2017
Effective July 1, 2017, the definition of a Road-Building Machine (RBM) will be narrowed, pursuant to Ontario Regulation 398/16. Accordingly, certain vehicles will no longer be considered road-building machines, but instead will be deemed Commercial Motor Vehicles (CMVs).
This paper provides the impact and Implications for Insurers...

Recovery for Mental Injuries: Dispensing with the Requirement of Expert Evidence
June 07, 2017

McCague Borlack LLP

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.

ABCA Outlines Test for Long Delay under Rule 4.31
May 24, 2017

Brownlee LLP

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.

The Court of Appeal found the chambers judge had made four errors...

The timing of mandatory mediations in Toronto has changed
May 23, 2017

McCague Borlack LLP

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.

Retroactivity, Retrospectivity & Immediate Applicability
May 16, 2017

McCague Borlack LLP

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.

The United Airlines debacle in the context of Canadian tort law
May 15, 2017

McCague Borlack LLP

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 crack in the armour? Waivers and the use of the Consumer Protection Act
May 10, 2017

McCague Borlack LLP

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. 

Buyers and Agents Beware: BC Court Rules That Representative Is Responsible for Tax Owed by Buyer
April 03, 2017

McCague Borlack LLP

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...

Mediating a Road Authority Claim on Behalf of a Municipality
April 03, 2017

McCague Borlack LLP

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... 

The Municipal Act: Minimum Maintenance Standards Revisited by the Ontario Court of Appeal
March 31, 2017

McCague Borlack LLP

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 deciding the case, the Court of Appeal provided comprehensive analysis, which will provide guidance in similar cases, involving winter maintenance and duties owed by municipal defendants under the Municipal Act.

Home Depot Not Liable for Slip and Fall in Parking Lot
March 22, 2017

Brownlee LLP

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.

Legalizing Marijuana: And The Litigation Begins...
March 08, 2017

McCague Borlack LLP

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...


County Liable For Mountain Bike Training Park Accident
March 03, 2017

Brownlee LLP

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.

Stipulated Remedy Clauses
February 24, 2017

McCague Borlack LLP 

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

Injunctions To Restrain Breach Of Contract
February 24, 2017

McCague Borlack LLP

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...

Legalizing Marijuana: Drug Recognition Experts and Drug-Impaired Driving - Additional Considerations for Insurers following Supreme Court decision
February 23, 2017

McCague Borlack LLP

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...

Keeping the Mould Away: Application of Mould-Based Policy Exclusions
February 17, 2017

McCague Borlack LLP

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.

Do Parents Know Best? An Update on the Enforceability of Waivers Executed on Behalf of Infants
February 10, 2017

McCague Borlack LLP

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...

Autonomous vs Semi-Autonomous Vehicles: The Liability Distinction
February 10, 2017

McCague Borlack LLP

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...

When are municipalities granted immunity in a civil action? Case Study: Keyland Development Corporation v Rocky View
February 08, 2017

Brownlee LLP

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. 

Keyland Development Corporation brought an action against Rocky View County and the Town of Cochrane and employees of the town. This action related to Keyland's attempt to develop a new residential subdivision called Cochrane Crossing on land that it owned in the town. Keyland also brought a related action against the Province of Alberta.
They argued the actions of the Defendants deprived them of the opportunity to generate profits from developing the Cochrane Crossing subdivision, including the building and then the sale of homes.

Injunctions to Restrain Breach of Contract - Stipulated Remedy Clauses - Old Habits Die Hard
February 07, 2017

McCague Borlack LLP

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.

Medical Marijuana: Considerations for Employers
February 07, 2017

McCague Borlack LLP

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.

Privacy Law for AB Insurers
February 06, 2017

McCague Borlack LLP

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”.

Combatting Exposure: Utilization of Waivers by Ski Hill and Resort Operators - A Defence Perspective
February 02, 2017

McCague Borlack LLP

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. 

This paper will also explore the utility of summary judgment motions in defending personal injury lawsuits where an executed waiver has been obtained by the defendant(s).

Fans Beware: The Risks of Watching Your Favourite Athletes
February 02, 2017

McCague Borlack LLP

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. 

Occupiers are not required to maintain an absolutely risk-free environment. Rather courts will consider the type of event, the inherent risks involved, and the industry safety standards when determining whether an injury to a fan was reasonably foreseeable. This paper will discuss common claims pursued by spectators as well as possible defences that can be employed by occupiers.

Inherent Risks in Hockey: Recent Developments in the Law
February 02, 2017

McCague Borlack LLP

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.

Driving Outside of the Lines: Regulatory System v. Autonomous Vehicles
January 30, 2017

McCague Borlack LLP

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.

Deference to Reasonable Decision made by Condo Boards
January 20, 2017

McCague Borlack LLP

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...

If a director or officer fails to meet its standard of care prescribed by the Condominium Act, the courts may rule that the director or officer is in breach of its fiduciary duty and could be held personally responsible for any resultant damages.

The Corporate Veil won't cover Personal Misrepresentations
January 20, 2017

McCague Borlack LLP

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.

Featured Case Study: Water Damage Raubvogel et al v. The City of Vaughan et al
January 18, 2017

McCague Borlack LLP

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.

Legalizing Marijuana: Drugged driving and how insurers can manage risk
January 13, 2017

McCague Borlack LLP

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").

Legalizing Marijuana: Product Liability for Producers, Distributors, and Dispensers
December 14, 2016

McCague Borlack LLP

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.

Mould Growth Personal Injury Claims Spreading
December 13, 2016

McCague Borlack LLP

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.

Featured Case Study: Raho Mohamud v. Old Republic Insurance Company
December 12, 2016

McCague Borlack LLP

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.

Back to Basics on Betterment: A Primer on Recent Judicial Decisions Pertaining to the Issue of Betterment
December 07, 2016

McCague Borlack LLP

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...

Back-up Servers and Privacy Legislation: When information is "reasonably retrievable" under the Privacy Act
December 05, 2016

McCague Borlack LLP

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..

Featured Case: Aranas v. Kolodziej The buck stops here: A rare summary judgment win for the defence
December 02, 2016

McCague Borlack LLP

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: Taking the Wheel out of your Hands
November 30, 2016

McCague Borlack LLP

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...

Legalizing Marijuana: Are Dispensaries and Vapour Lounges the new Tavern?
November 29, 2016

McCague Borlack LLP

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. 

As there are few laws and regulations governing the actions of the dispensaries and the vape lounges, one must ask how are these companies likely to be treated by the courts when they are eventually sued?

First Party Claims: Affidavit of Documents (and Conclusion) - Part 7 of 7
November 28, 2016

McCague Borlack LLP

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.

First Party Claims: Pleadings - Part 6 of 7
November 27, 2016

McCague Borlack LLP

We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured...

First Party Claims: Special Considerations - Part 5 of 7
November 26, 2016

McCague Borlack LLP

Statutory conditions contained within the policy, relief from forfeiture, and limitation period issues, are examples of special considerations when dealing with first party claims...

First Party Claims: Is Bad Faith Pleaded? - Part 4 of 7
November 25, 2016

McCague Borlack LLP

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... 

First Party Claims: Responsibilities of the Insurer and Insured - Part 3 of 7
November 24, 2016

McCague Borlack LLP

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...

First Party Claims: The Insurance Policy - Part 2 of 7
November 23, 2016

McCague Borlack LLP

Generally, an insurance policy will contain the following key information:...

First Party Claims: Defining First Party Claims - Part 1 of 7
November 22, 2016

McCague Borlack LLP

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...

Important decision on when catastrophic accident benefits become overdue
November 07, 2016

McCague Borlack LLP

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 must a serious impairment be? Case Study
November 06, 2016

McCague Borlack LLP

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.

The Canadian Inter-Company Arbitration Agreement: How does it work?
November 03, 2016

McCague Borlack LLP

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.

Ontario Is Making Roads Safer One Winter Tire At A Time
October 20, 2016

McCague Borlack LLP

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.

Torts that Flow from a Wrongful Dismissal Claim - Part 5 of 6
October 12, 2016

McCague Borlack LLP

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.

Human Rights Claims: Part 6 of 6
October 12, 2016

McCague Borlack LLP

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.

Employment Law: Notice: Part 4 of 6
October 11, 2016

McCague Borlack LLP

The notice period for terminating an employee may be dictated by contract, statute, or common law. 

Causation, Causation, Causation — Is What's Old New Again or Are Times A "Changing"
October 11, 2016

McCague Borlack LLP

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.

How Much Is This Lawsuit Going to Cost Me? Case Study No. 1 of 2: Corbett v. Odorico
October 07, 2016

McCague Borlack LLP

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...

How Much Is This Lawsuit Going to Cost Me? Case Study No. 2 of 2: Carroll (Litigation guardian of) v. McEwen
October 07, 2016

McCague Borlack LLP

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.

Subrogation and Assessment of Claims
October 07, 2016

McCague Borlack LLP

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.

Termination / Dismissal Part 3 of 6
October 07, 2016

McCague Borlack LLP

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.

The Supreme Court Rules on Faulty Workmanship Exclusions and Interpreting Standard Form Contracts
October 06, 2016

McCague Borlack LLP

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.

Expert Review of Ontario's Construction Lien Act
October 06, 2016

McCague Borlack LLP

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 101
October 05, 2016

McCague Borlack LLP

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, 

Duties and Liabilities of Directors and Officers
October 05, 2016

McCague Borlack LLP

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.

Employee & Employer Obligations Part 2 of 6
October 05, 2016

McCague Borlack LLP

Whether or not expressly mentioned in the employment contract, all employees (and employers) have the following fundamental obligations. 

Employment Law: Terminology - Part 1 of 6
October 03, 2016

McCague Borlack LLP

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.

Primer on Director and Officer Liability Insurance
October 03, 2016

McCague Borlack LLP

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.

A corporation, if it so chooses, to indemnify directors and officers against all costs reasonably incurred through any criminal, civil, administrative or investigation deriving from the director's or officer's association with the corporation. However, in order for the director or officer to take advantage of these protections, they must...

Mitigation: Loss Control & Failure to Prevent
October 03, 2016

McCague Borlack LLP

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...

Caring for the Elderly and the Duty to Supervise
September 30, 2016

McCague Borlack LLP

One of the hardest decisions to make is when to deem an elder relative incapable of caring for themselves independently. When does a duty arise on behalf of an adult child to supervise an elderly relative who is living independently? This question and its possible ramifications provide an opportunity to revisit the case of Morrison, et al. v. Hooper and v. Young, et al.

The “Lullaby Standard of Care” for Tavern Owners Case Study: Linton v. Tholos Restaurant
September 28, 2016

McCague Borlack LLP

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.

Strategies for Managing Claims related to Subjective Illnesses or Injuries in a Mediation
September 23, 2016

McCague Borlack LLP

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.

No Nonsense LAT — MB at the forefront!
September 23, 2016

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

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

The Mechanics of the Duty to Defend
September 15, 2016

McCague Borlack LLP

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... 

Circumstantial Evidence should not be Overlooked by Claims Adjusters
September 14, 2016

McCague Borlack LLP

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 and the Internal Complaints Process of Insurers and Banks Case Study: Decision from the Office of the Privacy Commissioner of Canada
September 13, 2016

McCague Borlack LLP

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?

How to "knock out" claims to Tavern Owners sued for injuries sustained in bar fights
August 31, 2016

McCague Borlack LLP

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.

Lockdown at the Harbour: Arresting Multiple Ships? To safeguard eventual judgment
August 23, 2016

McCague Borlack LLP

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?

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

McCague Borlack LLP

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.

Declaring Values on "Contracts of Carriage" in Ontario
August 17, 2016

McCague Borlack LLP

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.

Reasonable and Necessary: Defining the elusive test from the Statutory Accident Benefits Schedule
August 12, 2016

McCague Borlack LLP

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 undefined nature of the “reasonable and necessary” test can make adjusting claims a nightmare for adjusters who understandably want to rely upon their experts, but are left in the middle of competing opinions. Shedding some light on the important yet ambiguous “reasonable and necessary” test should help end the nightmare.

Court of Appeal Decision on Dependency in a Priority Dispute Dealing with New Relationships
August 05, 2016

McCague Borlack LLP

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: Augmented Reality is the New Reality for Liability Insurers
July 15, 2016

McCague Borlack LLP

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.

Update on Issues relating to Autonomous Vehicles: Recent Fatality & the Anticipated Challenges arising from the Accident
July 08, 2016

McCague Borlack LLP

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

An overview of the statutory obligations for insurers to participate in mediation and to attempt to settle
July 05, 2016

McCague Borlack LLP

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.

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

McCague Borlack LLP

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... 

Back to the Future Causation Alert: Clusters Trumps Medical Causation in Judicial Review of Technicians' Breast Cancer
June 29, 2016

McCague Borlack LLP

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.

Mandatory Training for Commercial Truckers a Welcome Change
June 29, 2016

McCague Borlack LLP

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.

When to say Enough? Marfo v. Ahmed: A restatement of the law regarding defence medical examinations
June 15, 2016

McCague Borlack LLP

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...

Public Sharing of Private and Personal Information and Videos: Cyberbullying and the Implications for Insurers
May 02, 2016

McCague Borlack LLP

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.

Bring out your calculators! Retroactive Attendant Care and SABS interest
May 02, 2016

McCague Borlack LLP

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.

Waivers Gain Additional "Armor" in the Defence of Personal Injury Litigation
April 25, 2016

McCague Borlack LLP

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 there a 10 day time period on EUOs? Case Comment: Choeun ats Allstate
April 07, 2016

McCague Borlack LLP

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... 

Update from the Trenches: The Court of Appeal Denies the Availability of the Doctrine of Laches in Loss Transfer Disputes
April 07, 2016

McCague Borlack LLP

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. 

An Update on Uber and Autonomous Vehicles
April 07, 2016

McCague Borlack LLP

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. 

Changes to the Accident Benefits Regime
April 07, 2016

McCague Borlack LLP

In August of 2015, the Ontario government proposed significant amendments to the province's no-fault automobile benefits regime, effective June 1, 2016.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. 

Utilizing New Medical Technology in Today's Litigation
April 07, 2016

McCague Borlack LLP

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.

The Importance of Clear, Unequivocal Refusals Case Comment: Falcon and State Farm
March 28, 2016

McCague Borlack LLP

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.

Insurers Seeking Recovery of Overpayment? Beware of Notice Requirements Case Comment: Intact Insurance v. Marianayagam 2016
March 18, 2016

McCague Borlack LLP

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.

John Hancock would be proud: Chaparina and State Farm and the importance of signatures on accident benefits treatment plans
March 14, 2016

McCague Borlack LLP

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.

Will the Cap on Attendant Care Benefits Have Retroactive Effect? Superior Court Says 'No' - Case Comment: Davis ats Wawanesa 2015
March 14, 2016

McCague Borlack LLP

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.

$30,000 Awarded for Defamatory Statements Made on Facebook
February 26, 2016

McCague Borlack LLP

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.

Employers Beware: An Employee Charged Criminally for Sexual Assault May Not Be Sufficient Grounds To Terminate with Cause
February 26, 2016

McCague Borlack LLP

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.

Goodbye FSCO, Hello LAT!
February 22, 2016

McCague Borlack LLP

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.

The requirement to provide "medical reasons" when denying treatment plans: a ticking time bomb?
February 22, 2016

McCague Borlack LLP

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.

Superior Court Re-Affirms that Bus Drivers are Held to a Higher Standard of Care
February 18, 2016

McCague Borlack LLP

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.

Divisional Court Comments on Termination Rights of Employer during Probation Period
February 09, 2016

McCague Borlack LLP

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.

New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X
February 03, 2016

McCague Borlack LLP

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.

Judiciary to the Bar: Make Contemporaneous Notes and Take Written Instructions
January 28, 2016

McCague Borlack LLP

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.”

Lights, camera, financial transaction
January 26, 2016

McCague Borlack LLP

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.

Employment Termination Clauses: Failure to Specify Minimum Statutory Benefits after Dismissal, but Voluntary Provision of Those Benefits
January 20, 2016
Two recent Ontario decisions have considered an offshoot of that issue:
If a termination clause provides for the minimum statutory notice period but fails to specify the continuation of minimum statutory benefits after dismissal without cause, does that trigger the right to the common law remedy even if the employer voluntarily provides those minimum statutory benefits after dismissal? 
Both decisions held that the answer is Yes. We express a contrary view.

For Want of Jurisdiction
January 05, 2016

McCague Borlack LLP

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. 

Employment Contracts: New Term? New Consideration!
December 22, 2015

McCague Borlack LLP

The recent judgment of the Ontario Court of Appeal in Holland v. Inc., 2015 ONCA 762, sheds light on the (in)ability of employers to alter employment contracts after an employee has already commenced employment.

Holland v. Inc. is a cautionary tale for employers.

Condominium Corporation Issues: The President's View
December 16, 2015

McCague Borlack LLP

This paper contains information regarding insurance provisions in the Condominium Act, 1998, along with terms and definitions.

Spreading Fires: Issues that Arise When Fires Originate at a Neighbour's House
December 16, 2015

McCague Borlack LLP

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:

When all is said and done: Final Releases
December 16, 2015

McCague Borlack LLP

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.

This paper will go into details regarding final releases, settlement agreements and the definitions of terms used.  

Who's to Blame? Tips for Early Identification of Subrogation and Potentially Liable Parties
December 16, 2015

McCague Borlack LLP

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.

Liability Limits in Subrogation
December 11, 2015

McCague Borlack LLP

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.

Outside of the realm of carriage of goods, limitation of liability clauses have gained far more acceptance since the 2010 decision of the Supreme Court of Canada...

The Benefits of Employment Liability Practices Coverage: Civil Case Studies
December 10, 2015

McCague Borlack LLP

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

The Benefits of Employment Liability Practices Coverage: Human Rights Tribunal Cases
December 09, 2015

McCague Borlack LLP

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.

Transportation Case Law Updates
November 30, 2015

McCague Borlack LLP

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.

Fans: Enter at Your Own Risk
November 25, 2015

McCague Borlack LLP

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.

Passing the Buck: Risks Willingly Assumed and Liability Apportionment at Resorts
November 25, 2015

McCague Borlack LLP

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.

Real and Substantial Connections and Beyond: Responding to Foreign Lawsuits and Challenging Jurisdiction
November 25, 2015

McCague Borlack LLP

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 Now Delivers
November 12, 2015

McCague Borlack LLP

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.

Should UberCargo or like services arrive in Ontario, it is questionable whether they would fall within the carrier regulatory scheme currently in place.

Court of Appeal released a decision Developments in Loss Transfer: Defence of laches is not available to bar delayed claims
November 12, 2015

McCague Borlack LLP

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...

Developments in Loss Transfer: Does the doctrine of laches apply to bar delayed claims?
November 11, 2015

McCague Borlack LLP

Canada v. Lombard General Insurance Company of Canada1 and Zurich Insurance Company v. TD General Insurance Company2, have left the law unclear with respect to the doctrine of laches as applied to Ontario's loss transfer regime. 
This paper is a summary of both cases...

Autonomous Vehicles - The Next Frontier
November 10, 2015

McCague Borlack LLP

According to the Centre for Automotive Research, the first commercially available, fully autonomous vehicles could arrive on dealership floors as early as 2019.
The final manifestation of autonomous vehicles will largely depend on the manner in which regulators balance the issues that arise at the intersection of liability, freedom, and privacy. This paper will provide insights into the current state of the technology of autonomous vehicles and autonomous trucks before delving into a discussion about the shifting scope of liability and the potential consequences this may have on the calculus insurance companies use to apportion risk and determine the cost of premiums.

Termination Provisions and Employment Contracts: The New Order
November 09, 2015

McCague Borlack LLP

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.

Probationary Employees: Employers' Termination Rights and Restrictions
November 06, 2015

McCague Borlack LLP

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.

Case Commentary: Trimmeliti v. Blue Mountain Resorts Ltd.
October 27, 2015

McCague Borlack LLP

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 Best Defence is Sometimes Not the Best Offence: the Value of a Well-Drafted Waiver
October 27, 2015

McCague Borlack LLP

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.

State Farm v. Old Republic Insurance, 2015 ONCA 699: Re: Heavy Commercial Vehicles
October 23, 2015

McCague Borlack LLP

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.

A "Victory for Common Sense": Uber Continues to Operate Legally in London, UK
October 20, 2015

McCague Borlack LLP

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.

Happy Trails: Strategies for reducing a recreational trail occupier's exposure to liability
May 14, 2015
For private enterprise, inviting the public to access recreational areas can be a particularly lucrative opportunity.
There is a potentially high risk that comes with owning and maintaining recreational property.
Ontario’s Occupiers’ Liability Act requires that trail managers take a certain level of care in warning and protecting the public.2 Clients are often shocked to hear that they even owe a duty to those who are trespassing!
This paper will focus on what trail managers should be aware of in order to minimize this risk.

Waiver of Liability vs. Public Policy - Which Takes Precedent?
May 14, 2015
A waiver of liability is one of the most effective means that an occupier can employ to protect itself from liability arising from dangerous activities on its property. If properly implemented, a waiver can completely bar a claim brought by an injured party as against an occupier.
This paper will provide an overview of the law as it pertains to waivers and discuss current case law.

Know your limits! Contributory Negligence in a sport and recreation context
May 14, 2015

McCague Borlack LLP

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.

Fault Exclusions in Course of Construction Policies: Ledcor and Acciona Infrastructure
April 30, 2015

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.

This paper addresses some of the recent case law involving faulty design/faulty workmanship exclusions in the context of construction projects

Discovering Potential Third Parties in Motor Vehicle Accident Claims: Who Should We Consider?
April 15, 2015
In today’s litigious world, claims related to motor vehicle accidents are exceptionally common. With the number of these cases on the rise, defence counsel has had to become more creative in defending them. One way to effectively defend these claims is to consider whether the accident may have been caused by someone else who may be required to assume your defence or indemnify you. Specifically, we recommend always considering whether the accident could have been caused by a mechanical failure in the defendant vehicle.

A Tomato Wagon? Defining 'Automobiles' Under Ontario's Insurance Legislation
April 15, 2015
To the uninitiated, it might seem that defining the word "automobile” … should be a relatively simple matter. Those familiar with the byzantine nature of insurance legislation know better.

Off the Beaten Path: Occupiers and Trail Liability in Ontario
April 15, 2015

McCague Borlack LLP

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.

What is a Motor Vehicle and What Constitutes its use and Operation: An Investigation into Policy Applicability and Coverage
April 15, 2015

McCague Borlack LLP

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.

Third-Party Litigation Funding in Canada
April 10, 2015

McCague Borlack LLP

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...

No Man's Land - Cyberbullying and the Canadian Legal Landscape
April 09, 2015

McCague Borlack LLP

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.

Case Comment: Iannarella v Corbett
April 01, 2015

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.

What Landlords need to know about Property Tax
March 12, 2015

McCague Borlack LLP

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?

What Landlords need to know about PIPEDA
March 12, 2015

McCague Borlack LLP

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

Pet Problems: Avenues for Landlords to Deal with Problem Pets
March 12, 2015

McCague Borlack LLP

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?

Altering the Litigation Landscape: Mary Carter Agreements and Stamatopoulos et al v. Harris et al, 2014 ONSC 6313
March 02, 2015

McCague Borlack LLP

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...

Statute and Common Law: Reconciling PHIPA and the tort of Inclusion upon Seclusion
February 25, 2015

McCague Borlack LLP

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.

Class Action Certified for Truckers' Overtime Pay: Baroch v. Canada Cartage, 2015 ONSC 40 (January 31, 2015)
February 17, 2015

McCague Borlack LLP

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.

Case Study on Electronic Custodial Care: Shawnoo v. Certas Direct Insurance Co
February 13, 2015

McCague Borlack LLP

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.

Cyber Liability
February 09, 2015

McCague Borlack LLP

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:

Ontario Court of Appeal releases decision in expert evidence case
January 29, 2015

McCague Borlack LLP

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.

Bad Faith Claims and Bifurcation after Bhasin v. Hrynew: An Insurance Perspective
January 21, 2015

McCague Borlack LLP

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 market.

Case law released concerning when policies must respond in actions involving rented or leased vehicles
January 13, 2015

McCague Borlack LLP

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 is a third party and not a defendant in the main action.

Ever Escalating Claims - Updated: The Evolving Auto Insurance Product Stresses on the System
October 31, 2014

McCague Borlack LLP

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:

Too big for its britches? Fitting Chronic Pain into the Minor Injury Guideline of Ontario's Accident Benefits Scheme
October 31, 2014

McCague Borlack LLP

This article explores the interaction between chronic pain and the Minor Injury Guideline (“MIG”), which came into force in Ontario in 2010. 

Seeing is Believing
October 31, 2014

McCague Borlack LLP

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.

Establishing Causation in Cases of Chronic Pain
October 31, 2014

McCague Borlack LLP

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”.

Chronic Pain and Suffering: Non-Pecuniary General Damages Awards in Cases of Chronic Pain
October 31, 2014

McCague Borlack LLP

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.

Future Care Costs: Preparation and Mitigation
October 31, 2014

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.

Cyber and Privacy Risks: Class Action Exposures
September 24, 2014

McCague Borlack LLP

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.

Fifty Shades of Claims: When Private Information becomes Public in the USA
September 24, 2014

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.

Into the Breach: Effective Loss Control
September 24, 2014

McCague Borlack LLP

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.

Not Anonymous Anymore: Managing Privacy Concerns
September 24, 2014

McCague Borlack LLP

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).

Abstract of Subrogation: Carriage and Control of the Action and Independent Settlement of the Subrogated Claim
July 31, 2014

McCague Borlack LLP

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...

Mary Carter Agreements
June 16, 2014

McCague Borlack LLP

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:

Clearing the Path – The Availability of Summary Judgment
June 12, 2014

McCague Borlack LLP

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...

Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37
June 11, 2014

McCague Borlack LLP

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.

Paying For The Future: An Analysis Of Large Awards For Future Care Costs
June 10, 2014

McCague Borlack LLP

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.

The Dubious Status of Henson Trusts
June 09, 2014

McCague Borlack LLP

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.

Concussions and Return to Play Guidelines
May 29, 2014

McCague Borlack LLP

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.

The Legal Implications of Concussions in North American Contact Sports
May 29, 2014

McCague Borlack LLP


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

Bill 171: The Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014
May 06, 2014

McCague Borlack LLP

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:

Ever Escalating Claims: The Evolving Auto Insurance Product Stresses on the System
May 06, 2014

McCague Borlack LLP

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.

Identifying Insurance Fraud in Tort Claims
May 06, 2014

McCague Borlack LLP

“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.

Insurance Coverage for Injuries Caused by At-Fault Uninsured, Inadequately Insured and Unidentified Motorists
May 06, 2014

McCague Borlack LLP

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

Paying for the Future: An Analysis of Large Awards for Future Care Costs
May 06, 2014

McCague Borlack LLP

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.

The Effect of a Settlement on a Subrogated Action
March 04, 2014

McCague Borlack LLP

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.

Protection for Settlement Negotiations
March 04, 2014

McCague Borlack LLP

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.

Ontario Automobile Insurance Dispute Resolution System Review - Final Report
February 20, 2014

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.

Cost Effective Resolution of Low Value Claims
February 06, 2014

McCague Borlack

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.

Court clears up claims confusion
February 05, 2014

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.

Recent Ontario Court of Appeal Decision: All Defence Costs are not Created Equally
December 13, 2013

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.

Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett
December 11, 2013

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.

Recent Court Decisions: Kruger Products Limited v. First Choice Logistics Inc. et al.
November 27, 2013

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. 

A Defence Lawyer's Guide to Investigating Modern Insurance Fraud
November 06, 2013

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.

Branco v American Home Assurance Company, 2013 SKQB 98
October 11, 2013

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 FSCO Decision on the Minor Injury Guideline
October 09, 2013

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...

Fraud in Accident Benefits: Red Flags and Strategies for Handling
October 09, 2013

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.

Unraveling the Mystery of Priority Disputes
October 07, 2013

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...

The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law
September 13, 2013

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.

Executive Officers are Employees: The "Gap" Between Workers' Compensation and General Liability Policies
September 12, 2013

McCague Borlack LLP

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.

Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors
September 11, 2013

McCague Borlack LLP

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.

The Unpredictability of Children and Sporting Goods: Product Liability and the Child Plaintiff
September 11, 2013

McCague Borlack LLP

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.

Kids May Be Kids, but Adults Oversee: The Liability of Adult Supervisors for Child Injuries
September 11, 2013

McCague Borlack LLP

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.

Mother May I? The Effectiveness of Waivers and Permission Forms in Cases of Injured Minor Plaintiffs
September 11, 2013

McCague Borlack LLP

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.

Expecting the Unexpected: Occupiers’ Liability and Minor Plaintiffs
September 11, 2013

McCague Borlack LLP

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.

Appropriate Limitation Periods Clarified for All-Risk Business Insurance Policy
August 07, 2013

McCague Borlack LLP

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 impact of social media on hiring & firing decisions
April 09, 2013

McCague Borlack LLP

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. 

Anti-Spam Law Update: 10 million reasons not to ignore it
April 09, 2013

McCague Borlack LLP

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.

Privacy and Employer-Issued Computers in the Workplace: A Review of R v Cole (2012 SCC 53)
April 09, 2013

McCague Borlack LLP

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?

Five Years Later: The Application of the Human Rights Code Today
April 09, 2013

McCague Borlack LLP

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...

Current Trends and Hazards in the Ontario Human Rights Tribunal
April 09, 2013

McCague Borlack LLP

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”...  

Sometimes a Swimming Pool is just a Swimming Pool
March 01, 2013

McCague Borlack LLP

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".

Part II: Litigating Oil Leak Claims: Trucking and Marine Accidents: Oils Spills and Liability for Environmental Remediation
October 03, 2012

McCague Borlack LLP

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.

Coverage Issues in the Manufacturing/Distribution Chain
September 24, 2012

McCague Borlack LLP

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.

Carriage and Control of Litigation in Subrogated Actions
August 14, 2012

McCague Borlack LLP

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.

Recent Decision: Case Summary: Aweys and Intact Insurance
April 13, 2012

McCague Borlack LLP

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.

The cases all involved claims for statutory accident benefits submitted by or on behalf of insured persons from three rehabilitation facilities.
The Insurers take the position that the Facilities are related to each other and that many of the claims submitted were of dubious merit, that the Facilities engaged in conduct that was deliberately intended to unjustly enrich the Facilities, and in some instances, allegations of misrepresentation to the Insurers.

Effective Claims Management: The role of the crisis communication strategy
November 01, 2011

McCague Borlack LLP

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.

The Duty to Defend, Revisited
June 01, 2010

McCague Borlack LLP

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...

Journalist-Confidential Source Privilege May Exist In Canada
June 01, 2010

McCague Borlack LLP

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.

Ontario Court of Appeal confirms that home buyers are not barred by the provisions of the Ontario New Home Warranties Plan Act from pursuing remedies in the courts
January 01, 2009

McCague Borlack LLP

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.