International Law

C.A. Says Plaintiffs Claiming Under Uninsured Motorist Coverage Need Not Pursue Insured Potential Joint Tortfeasors

Posted on August 27, 2009
Ontario auto insurers received some bad news last week from the Court of Appeal . In Loftus v. Security National Insurance Company, the Court upheld the ruling of Mr. Justice Barry MacDougall, which we reported on a little over a year ago. The plaintiff was injured in a 2001 MVA when her car was struck by a vehicle [...

Summary of Privileged Statement Must Be Given Even Though Witness Examined for Discovery

Posted on August 21, 2009
Tiller v. St. Andrew’s College dealt with a somewhat obscure practice point, but one that arises regularly in tort litigation: where a witness being examined for discovery has previously given a statement about the incident, is the examining party entitled to a summary of that statement? In this case, the plaintiff was injured when a metal [...

Court Finds Duty to Defend but Refuses Insured’s Request to Appoint Own Counsel

Posted on August 19, 2009
In PCL Constructors Canada v. Lumbermens Casualty Company Kemper Canada, Madam Justice Julie A. Thorburn dealt with the recurring problem of whether an insurer owes a duty to defend and if so, whether the insured entitled to have its own counsel conduct the defence, at the insurer’s expense...

Decision Elucidates Requirements for Production of Expert’s “Foundational Material”

Posted on August 18, 2009
Bookman v. Loeb was a family law case but the reasons of Madam Justice Ruth E. Mesbur sheds light on a somewhat unsettled area of civil litigation: to what extent must a litigant produce “foundational material” for an expert opinion? Such material might include an instructing letter, the expert’s notes, correspondence exchanged by the expert [...

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Court Analyzes Lawyer-Client Privilege in Electronic Era

Posted on August 18, 2009
We are grateful to Master Robert Beaudoin for passing along an interesting decision by Madam Justice Ramona A. Wildman, dealing with lawyer-client privilege. The case is Eizenshtein v. Eizenshtein. It flew under our radar because of being a family law decision but, as Master Beaudoin pointed out, it is equally applicable in a civil context...

C.A. Establishes Guidelines for Damages for “Housekeeping Losses”

Posted on July 09, 2009
In McIntyre v. Docherty, the Ontario Court of Appeal considered what principles should govern claims for damages for loss of housekeeping capacity in personal injury actions. The detailed analysis undertaken by the panel is certain to become the standard used to evaluate such claims from now on...

C.A. Says No Contribution Claims When Plaintiff Limits Claim to Defendant’s Several Share of Liability

Posted on July 09, 2009
In Taylor v. Canada (Health), the Court of Appeal has dealt with an important issue in the law of apportionment of fault.  The court held that a defendant cannot assert a subsidiary claim (a third party claim in this case) for contribution or indemnity where the plaintiff has limited the claim against the defendant to [...

Additional Insured Entitled to Defence, But Only A Limited One

Posted on May 27, 2009
Atlific Hotels and Resorts Ltd. v. Aviva Insurance Company of Canada is the latest chapter in the ongoing (and evolving) story of “additional insureds”. The latest installment was written by Mr. Justice Edward P. Belobaba. In the underlying lawsuit, the plaintiff had slipped and fallen at the Deerhurst Resort one winter evening...

U.S. Study Says Party Who Gets the Most Questions from the Judges Will Lose

Posted on May 27, 2009
In an interesting article in the New York Times this week, we learn that, in cases before the U.S. Supreme Court, the party to whom the majority of the judges’ questions are directed will lose 86 percent of the time. The observation was first made and tested by a second year law student...

Judge Critical of Both Counsels’ Jury Addresses

Posted on May 27, 2009
The ruling of Mr. Justice Peter Lauwers in Trypis v. Lavigne is helpful for trial lawyers because it deals with aspects of counsels’ jury addresses that Justice Lauwers held to be improper. This was a slip and fall case. At trial, counsel for the plaintiff opened to the jury...

“Minimal Financial Risk” to Law Firm in Prosecuting AB Claim in Catastrophic Case, So Substantial Fee Premium Not Appropriate

Posted on May 27, 2009
In Adler v. State Farm Automobile Insurance Company, Madam Justice Nancy Spies dealt with an application by the law firm of Aylesworth LLP for court approval of lawyer-client fees and disbursements, to be paid out of the proceeds of the settlement of an accident benefits claim...

C.A. Clarifies Requirements for Non-earner Benefits

Posted on May 12, 2009
It was apparent from its ruling yesterday in Heath v. Economical Mutual Insurance Company, that the Court of Appeal was not very impressed with the trial decision of Mr. Justice John C. Kennedy. The plaintiff had been involved in a rear-end collision in 1998...

Court Orders Insurer to Pay for Defence by Counsel Chosen by Insured

Posted on May 12, 2009
Coakley v. Allstate is another case that deals with the problem of whether an insurer owes a duty to defend a claim that includes allegations of intentional conduct. What made this case a bit unusual is that (a) the motion seeking an order that the insurer (Allstate) pay for the defence took place only weeks [...

Judge Disqualifies Expert for Lack of Impartiality

Posted on May 11, 2009
In a recent decision, Madam Justice Ellen MacDonald refused to permit a defence expert to give opinion evidence at trial. After reviewing a series of email messages that had been exchanged between the expert and certain of the defendants and after conducting a voir dire, she concluded that the expert’s “role as an independent expert [...

C.A. Says Money Paid Pursuant to Mary Carter Agreement Must Be Deducted from Jury’s Award at Trial (Reducing Plaintiff’s Recovery to Zero)

Posted on May 07, 2009
Today’s decision of the Court of Appeal in Laudon v. Roberts was bad news for two of the three parties (the plaintiff and one defendant) but very good news for the other defendant. The action arose out of a boating accident in which the plaintiff Laudon had been injured...

Div. Ct. Allows Addition of Defendant After Expiry of Limitation Period, Based on Discoverability

Posted on April 23, 2009
In Toneguzzo v. Corner, the Divisional Court dismissed an appeal from a decision of Justice Lynda Templeton, allowing the addition of a defendant after the expiry of the limitation period. While Justice Templeton rested her decision on “special circumstances”, the Divisional Court panel preferred to base its ruling on the discoverability principle (although it also [...

Plaintiff in Prior Litigation Allowed to Give Evidence About IME Psychiatrist in Another Lawsuit

Posted on April 16, 2009
Master Robert Beaudoin has released an interesting ruling, dealing with a new (to us, anyway) wrinkle on independent medical examinations in personal injury actions. The case was Safi v. Steele. Shortly before the scheduled trial date, counsel for the defence moved for an order requiring the plaintiff to submit to an examination by psychiatrist Dr...

Judge Says Bill 198 Threshold Aimed at Tightening Up the Insurance Act Threshold “By Reducing the Number of Litigants Able to Sue”

Posted on April 16, 2009
About a year ago,  Justice Johanne Morissette’s decision in Nissan v. McNamee  was released. Her Honour concluded that the Bill 198 version of the Insurance Act threshold in MVA cases had not effected much of a change from the previous regime. In January of this year, her colleague, Justice Jane Milanetti came to a different conclusion...

Defendant in One MVA Action Entitled to Proceed with Third Party Claim Against Driver in Earlier Accident

Posted on April 13, 2009
Another shot has been fired in the ongoing judicial debate about how to deal with situations in which personal injury plaintiffs have been injured in separate accidents. We have looked at this issue in previous posts regarding Willoughby v. Weber, Broadbent v...

When It Comes to “Reasonableness” in Costs, Look Around to See Where You Are

Posted on March 26, 2009
This post relates to a decision that dates back to last December. We only recently became aware of it. Unfortunately, the case does not appear on CanLII, so we are unable to provide a link to the reasons. Barkley v. Vogel was a personal injury action that was tried before Mr...

Lawyer Swearing Affidavit Can’t Be “Informed” by “the File”

Posted on March 26, 2009
In Kailayapillai v. Azzam, Mr. Justice Theodore Matlow has addressed a very frequently recurring practice point: the proper form of lawyers’ affidavits on information and belief, where the source of the information is not another human being but rather, “the file”...

What Information Must Be Provided at Discovery, Regarding Surveillance?

Posted on March 26, 2009
Mr. Justice John Cavarzan has provided some clarification about a small point that not-infrequently comes up in personal injury litigation: what questions must the defendant answer about surveillance that has been undertaken on the plaintiff? The case is Marchese v...

Duty to Defend Determined, Not by Plaintiff’s Pleading, but by Defendant’s

Posted on March 18, 2009
Glassford v. TD Home and Auto Insurance Company is an example of a peculiar strain of “duty to defend” case in insurance law. Here, the allegations made against the plaintiff in the statement of claim were clearly excluded by the defendant’s insurance policy, such that no duty to defend would have been owed...

Threshold Decision Underlines Dichotomy Within Ontario Insurance Act

Posted on March 17, 2009
The Ontario legislature has chosen to confer upon judges (alone) the right to decide whether or not a plaintiff in an MVA action meets the statutory “threshold”, making him or her eligible to receive an award of non-pecuniary general damages...

Plaintiff’s Facebook Pages Not A “Fishing Expedition” by Defence, Judge Rules

Posted on February 26, 2009

Judge Says Bill 198 Meant to “Tighten Up” IA Threshold

Posted on January 16, 2009
Sherman v. Guckelsberger was released on December 29, but Ontario auto insurers can be forgiven for thinking that it was meant to have arrived four days earlier. In this case, Madam Justice Jane A. Milanetti had to decide whether or not a plaintiff’s claim satisfied the “threshold” contained in s...

Test Post 2

Posted on January 15, 2009
Test Post 2

C.A. Confirms that If Principal Claim Prescribed, So Are FLA Claims

Posted on November 28, 2008
In a very brief decision, the Court of Appeal today said, in Godoy v. 475920 Ontario Ltd., that “if the principal claim is statute-barred the derivative claim under the Family Law Act is also barred”. Here, the principal claim was subject to the limitation period under s...

Can Defendants Ever Make Effective Rule 49 Offers in MVA Cases?

Posted on November 28, 2008
We are indebted to Mark (”Billy Idol”) Charron of Williams McEnery for alerting us to the recent decision in Peterson v. Phillips. This is another case that deals with the relationship between offers to settle in MVA claims and the $30,000 deductible imposed by the Insurance Act...

Not “Quantum of Solace” But “Quantum of Claims”

Posted on November 27, 2008
In McCook v. Subramaniam, Master Ronald Dash considered whether to permit a plaintiff to add as a defendant his own auto insurer, under its underinsured motorist endorsement. The insurer resisted the motion on the basis that the plaintiff had not sued within the limitation period...

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