PUBLICATIONS

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.

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.

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.

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...

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.

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 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 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 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, 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...

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.

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.

In the absence of any human input in the operation of vehicles (level 5),drivers are rendered passengers and any liability for causinOKg 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 ...

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 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.

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...

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.

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.

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.

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.

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...

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. 

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.

First presented at a Client Seminar, December 16, 2015

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.

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.

Today the Ontario Court of Appeal released its long-awaited decision inMoore 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.

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.

The case of Muskoka Fuels v. Hassan Steel Fabricators Limited raises some interesting questions regarding the application of the Sale of Goods Act to claims involving manufacturing defects. In particular, Muskoka Fuels, which involved the environmental contamination of land due to the failure of a diesel fuel tank, raises questions regarding the extent to which the cause of a defect must be proven in order for liability under the Sale of Goods Act to be established.

At trial, Justice Healey came to the following conclusions based on the evidence...

In today's expanding global marketplace, product liability claims are common. Typically, these claims involve a chain of defendants of whose hands the product has passed through. Liability stemming from negligence can occur at any stage of the process, from design, to manufacturing, to consumption. Thus, anyone involved in the process of creating a product can find themselves held liable when the product is defective and/or if the product injures a plaintiff.

The distributors of products typically have no involvement in the manufacturing of the products that they distribute and put into circulation.3 However, a distributor's negligence could contribute to or cause a plaintiff's injury. As a result, distributors are not held strictly liable for every defective product that they distribute. The distributor's liability will depend on...

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.

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.
 

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.

Product liability law in Canada is governed by the common law in all provinces and territories except Quebec which is a civil law jurisdiction. While there are some differences in the legislation and case law across the common law jurisdictions, the law is fairly similar. The answers provided in this chapter are based on product liability law in the common law jurisdictions of Canada although some references to Quebec civil law are also included.

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?