PUBLICATIONS

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...

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:

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.

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.

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.

Subrogation is the process whereby an insurer, after indemnifying its insured, assumes its insured's right to recover damages as against a tortfeaser who is liable for causing the damages. Since the insurer's right to subrogate is derivative, the insurer is subject to the same limitations that the insured would be when seeking recovery from third parties.

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.

Following up our recent article on Business Interruption amid the COVID-19 pandemic, the March 30, 2020, Ontario Superior Court decision MDS Inc. v. Factory Mutual Insurance Company continues to remind us that the old adage, ‘you get what you pay for' rings loud and true...

On March 15, 2020, Chief Justice Morawetz released a Notice to the Profession advising that as a result of the pandemic, the Superior Court of Justice had adjourned all scheduled civil hearings, effective March 17, 2020.

The Notice to the Profession allows for the hearing of urgent and time-sensitive motions and a limited number of other matters...

While it has been “business as usual” for some Canadian companies and organizations, with employees working from home, many industries have been forced to cease operations or operate at reduced capacities...

There are various issues operating for an insurer, in both quantifying and crystallizing the terms of the loss, to determine if coverage is triggered pursuant to any given policy of 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...

As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.

This article is our latest update in our swimming pool liability series, following our 2013 paper. 

This year's approach will focus on public pools encompassing not only municipally funded facilities but also pools located in resorts and at hotels. Beginning with a refresher on the Occupiers' Liability Act, we will then explore the standards required of public pools, with a distinction made between Class A and Class B pools under Regulation 565 of the Health Protection and Promotion Act (“HPPA”) then the liability exposure between supervised versus unsupervised pools, and finally, we will provide best practices for risk management of public pools.
 

In the recent decision in Ferro v. Weiner (“Ferro”), the Court of Appeal for Ontario provided clarity as to what constitutes “living in the same household” in a home insurance policy.

Enid Weiner owned a house on Lake Eugenia, which was used as a cottage until the late 1980's when it became Enid's sole residence (the “Property”). When Weiner moved to a nursing home around 2008, her three adult children and their families used the Property as their vacation home...

In its recent summary judgment decision, Janssen v. William and Markle Jewellers Ltd., the Ontario Superior Court of Justice considered the scope of control required for a commercial owner to be an occupier under the Occupiers' Liability Act.

A plaintiff slipped and fell on an icy sidewalk outside the entrance of the defendant's jewellery store. This jewellery store was located in a two-storey building. The defendant was a tenant of this building. The owner, surprisingly, was not named in this action.

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.

Anyone who has ever been to a board meeting (or a partners, shareholders, town hall, or any similar type of meeting) can attest to the tension that often arises. The law is clear that occupiers have a duty to maintain their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the Board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?

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.

Airbnb, and other similar businesses offering “Short Term Rentals”, are not presently regulated in any significant way in the Toronto area, despite the fact that its main competitors - hotels, and bed and breakfasts (“B&Bs”) - are regulated. However, the City of Toronto is moving towards creating regulations for Airbnb, with recommendations released in June 2017.

A less publicized grey area is the home insurance implications of a homeowner using their residence for Airbnb listings. Short Term Rentals of a residence are inconsistent with most standard home insurance policies.

At the beginning of May, the Ontario Court of Appeal released its decision in MacKay v Starbucks.1 At issue was the question of whether a private business owner could be held to be an occupier of otherwise public land outside of its establishment. Though it has always been clear that an individual or company is typically responsible for hazards present on their own property, MacKay introduces the potential for even greater liability for business owners under the Occupiers' Liability Act (“the Act”).

Several ground-breaking cases, especially in the US, several years ago made mould claims a prominent issue within the insurance industry. One reaction is that many policies now have exclusions specifically relating to mould. However, the application of this common policy exclusion is rarely clear-cut. In fact, an overview of some of the key decisions demonstrates the complexity when this exclusion is applied to actual claims.

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.

Directors and officers, acting as a manager of a condominium, have a number of obligations and responsibilities that they are required to carry out. Section 37 of the Condominium Act, 1998 sets out the standard of care which directors and officers are held to...

In the recent decision of Raubvogel et al v. The City of Vaughan et al (“Raubvogel”), the Ontario Superior Court outlines the distinction between a municipality's policy and operational decisions. Specifically, the City of Vaughan (“the City”) argued that it did not owe a duty of care to the plaintiffs on the basis that its decision not to replace the incident water main was an issue of policy. Accordingly, the City argued that the plaintiffs' claim was barred by section 450 of the Municipal Act (“the Act”). However, counsel for the plaintiffs, Adam Grant, a partner at McCague Borlack LLP, was successful in demonstrating that such a failure in these circumstances was an operational decision as there was “no apparent reason” for the failure to replace the water main.

Several years ago, mould issues in residential or commercial buildings would only have been a major concern in exceptional circumstances. However, technology and detection techniques have resulted in a proliferation of mould based claims and associated legal issues. Allegations of health impacts caused by mould are common in so-called “sick building syndrome” litigation. Property damage claims relating to mould also increasingly include some personal injury allegations, perhaps based on nothing more than common respiratory symptoms or rashes.

One alternative measure of damages for real property, is based on the cost of repair reduced by the amount to which those repairs will better the property; a concept known as betterment. Betterment and the court's interpretation...

There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. It has resulted in various high-profile suicides involving teens and has contributed to some of the most horrific events of recent years.

A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'.

Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for 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.

The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:

This paper contains information regarding insurance provisions in the Condominium Act, 1998, along with terms and definitions.

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.

Landlords have long since struggled with the issue of "problem pets" in their residential units. Cleanliness, property damage and liability for injuries caused by tenants' pets are all common concerns. What does provincial legislation say about pets in residential complexes and what options are available to landlords?

The Personal Information Protection and Electronic Data Act (PIPEDA) governs how private sector organizations collect, use and disclose personal information in the course of commercial business. For the purposes of PIPEDA, a landlord is an organization engaged in a commercial activity and is therefore required to comply with the Act. PIPEDA defines “Personal Information” as information about an identifiable individual, but does not include the name, title business address or telephone number of an employee of an organization

Some municipalities now engage in the practice of adding tenants' unpaid hydro bills to an owner's property tax. Landlords are then forced to chase previous tenants to recover these losses. Where does the municipality get the authority to do this? How can landlords help protect themselves?

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.

Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.

When a landlord assumes a contractual obligation to obtain insurance on a property, the landlord may be barred from pursuing a subrogated claim against the tenant for loss or damage caused by the tenant. This is not a new legal principle. In a trilogy of cases from the 1970s, the Supreme Court of Canada held that a landlord, by agreeing to obtain such insurance, assumes the risk of loss or damage to that property even if the tenant was negligent.

Many insurers for maintenance contractors have taken the position that so long as there is some allegation in the statement of claim that touches on some independent act of negligence on the part of the property owner, there is no duty to defend under this clause. However, last year in Riocan Real Estate v. Lombard, Madam Justice Hennessey concluded that so long as the “true crux” of the claim falls within the scope of the duty to defend...

A long-standing insurance dispute over the failure of a massive tunnel boring machine (“TBM”) ended in late November 2008 with a ruling by the Supreme Court of Canada awarding nearly $40 million to the insured. The decision addresses the “faulty or improper design” exclusion common to most “all-risks” property policies.