PUBLICATIONS

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". 

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.

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.
 

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. 

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.

The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties... 

In 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. 

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.

This paper contains an update to three areas of transportation law with three recent cases from the Ontario Superior Court of Justice and the Ontario Court of Appeal across three diverse issues that can impact a wide array of parties.

The first case is Baroch v. Canada Cartage which dealt with a class action dispute relating to unpaid overtime. The second case is A&A Trading Ltd. v. Dil's Trucking Inc. which dealt with issues relating to bills of lading, undeclared values and contracts of carriage. The third case is Fernandes v. Araujo, which provides an update into the Ontario Court of Appeal's ongoing development of vicarious liability and motor vehicles in Ontario.

Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.

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...

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.