PUBLICATIONS

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

The issue of vicarious liability in contractual relationships was called into question in the British Columbia Court of Appeal when a tragic car accident required the court to consider the parties' intentions when entering the contract and the purpose of the applicable legislation. 

The Court dismissed LifeLabs LP's ("LifeLabs") application for judicial review. 

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.

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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. 

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.

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.

This matter involves the appeal of a third party's motion for summary judgement 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.

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.

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.

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.

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.

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.

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. 

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.

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...

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.

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.

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...

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.

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.

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.

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.

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.

To what extent must service technicians warn their customers of particular risks associated with the product they are servicing? After presiding over a seven-day trial on liability alone, Madame Justice S. Gomery grappled with this very question and provided a framework to help answer it in her recent decision in Maxrelco v Lumipro Inc., 2018 ONSC 3638.

This decision explains what factors would trigger the duty to warn and in what circumstances would they attract liability.

In a recent decision, the Federal Court of Appeal confirmed that common interest privilege (“CIP”) is a principle of Canadian law. This principle is unlike solicitor-client privilege, in that communication between counsel and a third party may be considered privileged if the shared information is to benefit both parties, especially with respect to the furtherance of a commercial transaction. The court overturned a Federal Court decision which held that that CIP is not a principle of Canadian law.

The 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...

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"?

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.

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.

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

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.

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...

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.

Is installing a telematics device in an insured's vehicle an unreasonable invasion of privacy? Two lawyers debate the issues...

A financial advisor cannot guarantee the financial success of their professional services. This is certainly the situation with financial advisors over the past 18 months since the banking crisis of 2008. Where advise is provided, the advisor is obliged to advsie with reasonable care, skill and diligence and will be held to an objective standard. This paper will provide an overview of the regulatory and legal obligations of financial advisors and the liability they face in providing their unique services.

A primary concern for the design professional has always been the length of time during which claims can be brought in respect of work performed. In some cases, including those involving latent defects, proceedings are commenced long after the work in issue has been completed.

In today's ever increasing technological society, more so then ever companies and individuals are relying on electronic means to communicate, exchange and store documents and infomation. Whether it is via email or word processing, companies and individuals are moving away from hard copies and are depending increasingly on electronically stored information (ESI). More importantly and sometimes unbeknownst to the companies, individuals or their counsel, information and documentation are being stored indefinitely well beyond the previous retention of paper stored documents. ESI has created new challenges for the discovery process and implications for litigants.