PUBLICATIONS

Hemmings v Peng - the issue of remoteness of damage (“legal causation”) in the context of a medical malpractice claim. 

This paper was first published with Advocates' Quarterly in their September 2023 issue. The defence of novus actus interveniens is ringed in by various conditions and limitations to the extent that there is relatively little opportunity for its application. The major limitation is that it is unavailable where the later negligent conduct was reasonably foreseeable, "was the very thing that should have been anticipated", or "the very kind of thing which is likely to happen."

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."

First published in Advocates Quarterly. This paper will be devoted to the argument that the IE defence is an anachronism that should be abandoned, so long as it remains in play.

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

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. 

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?

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.

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.

First published in Advocates Quarterly. A municipality’s statutory duty to keep its roads and sidewalks in repair has long given rise to a cause of action to persons injured as a result of the breach of that duty.

First published in Advocates Quarterly. The issue considered in this paper is the question whether social hosts owe a duty of care to the victims of drivers who became intoxicated, or whose intoxication was worsened, as a result of consumption of alcohol supplied by the host, or at BYOB parties.

Michelle Constance Moore (“Moore”) married Lawrence Anthony Moore (“the deceased”) in 1979. They had three children and cohabited until December 1999. The deceased began living together with Risa Lorraine Sweet (“Sweet”) in her apartment in the summer of 2000, and they cohabited until his demise on June 20, 2013. In the interim, Moore and the deceased were divorced in October 2003.

In October 1985, while married to and cohabiting with Moore, the deceased obtained a life insurance policy in the amount of $250,000. Moore was named the beneficiary, but was not made an irrevocable beneficiary pursuant to certain provisions in the Insurance Act (Ontario).

The issue is whether the proceeds of the life policy upon the death of the deceased were payable to the original beneficiary (who continued to pay the policy premiums) or the new beneficiary.

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

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...

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

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

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

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... 

Ontario's appeal court was recently the latest stop for two subrogation claims that began their years-long journeys in Small Claims Court to obtain direction regarding who is responsible for damages caused by leaking hot water tanks - the homeowner (or his property insurer) or the company supplying the tank.

The rulings establish that consumers who lease or rent products will generally receive the protection afforded by the CPA throughout the terms of the leases. The ramifications for the insurance industry are very significant given that insurers pay millions of dollars in claims each year as a result of damages caused by such products.

On December 7, 2011 the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks.  In each case the hot water tank, located in the basement of the homeowner, developed a leak which resulted in damage to the home and contents.  Leave to appeal to the Court of Appeal has been granted in both cases.  The date for the hearing of those appeals has not yet been set.

The major issue in these cases is the question whether the condition of fitness for intended purpose that is implied in the lease of a product that is subject to the Consumer Protection Act will apply not only at the outset of the lease, but throughout the term of the lease.
 

Three important, and in two of the three instances perhaps questionable, principles are considered in this recent decision of the Ontario Court of Appeal. The factual background of the case may be briefly stated as follows:  There was a fire protection system in the insured condominium complex.  As a result of a faulty design/installation an event occurred, resulting in flooding. Although only part of the equipment was damaged, the insured replaced, and made a claim under the policy for, all.  This was based on the position that the system as a whole was damaged and the unsupported allegation that it was a reasonable and responsible step to replace it in its entirety...

In the Mustapha decision,1 the Supreme Court of Canada conclusively established the objective nature of the foreseeability test to be applied in the determination of causation in law or, as the issue is sometimes described, remoteness of damage, in claims for psychological injury. What it did not do, however, was set down ground rules for the type and quality of evidence suitable for that determination...

Until the decision in C.C.R. Fishing Ltd. v Tomenson Inc., the element of causation in insurance law, particularly in the context of insuring provisions, revolved largely around the concept of proximate cause, meaning the effective and dominant cause of the loss.  Since that decision, the focus has shifted to a consideration of the impact of concurrent causes, both in regard to insuring agreements and exclusion clauses.

An area that has not, however, received the attention it merits is the distinction between serial and independent concurrent causes.

Few manufacturers produce every part of their product. Almost all incorporate one or more components purchased from independent suppliers.  Many "manufacturers" are, in truth, little more than assemblers of components that they themselves to not make. This raises the following issue: where there is no contractual relationship with the claimant and no actual or constructive knowledge of any defect on the part of the manufacturer, should the manufacturer be liable for injury arising from a defective component purchased fro a reputable supplier?

Since the landmark decision in Menow v Honsberger, the potential liability of taverns and other commercial hosts for alcohol-related injuries has been well established.  In the 30-plus years since that decision, however, social hosts have received a free pass in cases where their involvement in the intoxication which led to the injury has been real and significant.  The purpose of this article is to suggest a new approach to the consideration of the liability of social hosts, one that promotes the policy considerations essential to this type of claim and, at the same time, accords with basic principles of law.

On a practical level, causation simply means that the current condition or circumstances would be different had an act or omission not occurred. The alteration in circumstances can be positive, negative, or just a maintenance of the status quo.  The critical matter is that the situation would not be what it is had there been no act or omission; otherwise, the act or omission cannot be said to have had any effect on the current situation.  The “but for” test is merely another way of expressing this concept of change or difference in the current situation that would not otherwise have been present. 

Canada followed with interest the dramatic aftermath to what may have been the closest presidential election in the history of its great neighbour to the south. While the constitutions and systems of government in the two nations are substantially different, democracy is the underlying foundation in both. The authors, who profess no expertise in American constitutional law, are therefore able to express opinions in this article that are founded on common basic principles of law and universally accepted tenets of fairness.

Those of us who practice involves personal-injury cliams have seen a large increase in "accident neurosis" claims in the past several years. These are claims in which the plaintiff's complaints are significantly more serious than the objective physiological injuries (if any) that occur. In many such claims, the complaints are so unusual as to warrant the description "bizarre".