PUBLICATIONS

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...

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...

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...

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.

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.

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...

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”).

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...

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.

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?

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.