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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.

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.

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!)

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:

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.

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.

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.

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...

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.

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. 

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

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.

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...

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 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.

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.

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.

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.

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.

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 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?

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.

Mediation is a process in which a neutral third party assists the disputing parties in reaching a mutually acceptable resolution. Mediation is designed to be a confidential and voluntary process, free of the formality and adversarial nature of court proceedings. Due to the benefits that the mediation process has yielded, Rule 24.1 of the Rules of Civil Procedure enforces mandatory mediation in some locations and for certain civil actions.

This article details reasons why a matter may not resolve at mediation, and still can list the benefits the process can offer disputing parties.

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...

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.

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.

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...

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.

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.

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.

Point form information on claim resolutions strategies incliding early investigation, plaintiff productions, investigation and surveillance, experts, early settlement meeting, offer to settle, motion for summary judgment, meditation, bifurcation of trial, advance payment and appraisal of property claims.

A municipality's obligations are the same for bicyclists as they are for pedestrians. It is obligated to keep the road and sidewalks in a reasonable state of repair and that responsibility covers not just problems that can be readily spotted but those hazards that may not be so obvious as well.

Whether it is a police officer responding to a call, an ambulance rushing to help a critically ill patient, or a fire truck speeding to a fire, intersections crashes are the most common and almost always the most serious collisions involving emergency vehicles.

A thumb is about an inch wide which makes a handy rule when it comes to sidewalk deflections. As a rule of thumb, if a sidewalk has a crack or deflection of more than a thumb width, a municipality may well be liable for any injuries resulting from a trip or fall.

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

Municipalities are responsible for keeping sidewalks clear of snow and ice and that means they may also be liable for any personal injury damages resulting from a slip and fall. But getting a handle on just what keeping sidewalks in a "reasonable state of repair" means can be as slippery as the footing underneath.

The automobile insurance legislation in Ontario has undergone numerous amendments over the past 15 years which began with the introduction of a partial no-fault system in 1990 that replaced a pure tort system. As a result, a person injured in a motor vehicle accident as two types of claims...