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...

Income Replacement Benefits Subject to Garnishment

Posted on November 26, 2008
Mr. Justice John Cavarzan has held, in Lease Truck Inc. v. Serbinek, that a creditor of an insured is entitled to garnishment of income replacement benefits. Once it receives notice of the garnishment, the insurer paying the accident benefits is obliged to pay 20% of the IRB to the creditor...

Insurer Added as Third Party Under Insurance Act Permitted to Examine Insured for Discovery

Posted on November 17, 2008
Corrigendum: Our reference to the Master’s consideration of an Alberta case, Thompson v. McCallum, erroneously contained the following passage: “The insurer suspected that the insured had, in fact, been the driver.” The sentence should read, “The insurer suspected that the plaintiff had, in fact, been the driver...

C.A. Applies “Litigating Finger” Test to Add Defendants After Expiry of Limitation Period

Posted on November 17, 2008
In June, the Court of Appeal laid to rest a dispute that had persisted for more than four years: do courts still have the power to allow defendants to be added to actions after the expiry of the limitation period, on the basis of “special circumstances”? In a pair of rulings–Joseph v...

Owner “Relinquished Dominion and Control” of Car, But Her Consent to Possession by Driver Still Necessary?

Posted on October 23, 2008
In Seegmiller v. Langer, Justice George R. Strathy reviewed the law with respect to when the owner of an automobile will be liable when someone else drives it and is involved in an accident. His reasons contain a useful review of the law concerning consent to possession of a vehicle and make it clear that [...

Limitation Period for MVA Pecuniary Claims Follows That of Non-pecuniary Claims Says Superior Court

Posted on October 15, 2008
Hard on the heels of the Court of Appeal’s decision in Grewal v. Ivany, released last Friday, Mr. Justice Paul Perell has delivered reasons in Ng v. Beline that address one of the issues considered in Grewal: in personal injury claims arising out of motor vehicle accidents, are claims for pecuniary damages prescribed if not brought [...

C.A. Opens Door to Multiple Limitation Periods in MVA Cases

Posted on October 14, 2008
In Grewal v. Ivany, released last week, the Court of Appeal left open the possibility that a claim for pecuniary damages in an MVA action might be prescribed at the end of two years, even though the discoverability principle has postponed the commencement of the same limitation period for a non-pecuniary damages claim...

C.A. Says “One in Four” Chance of Avoiding Accident Doesn’t Meet Causation Threshold

Posted on October 14, 2008
In a brief but interesting decision handed down today, the Court of Appeal allowed an appeal by a third party who had been found liable at trial. The trial judge had found  had that tortfeasor not been negligent, another tortfeasor’s chances of avoiding an accident would have been increased by a factor of “one in four”...

C.A. Upholds Dismissal of Third Party Claim Against Plaintiff’s Lawyer

Posted on August 20, 2008
[The misdirected link to the reasons in this case has now been repaired, as has the rather embarrassing confusion of John Laskin with Bora Laskin, all courtesy of our eagle-eyed friend (well, he didn't have to be too eagle-eyed on this occasion) David Cheifetz...

Subrogation by Landlord’s Insurer Permitted Despite Tenant’s Rent Being Applied to Landlord’s Insurance Premiums

Posted on August 20, 2008
1044589 Ontario Inc. (Nantucket Business Centre) dealt with the frequently-litigated issue of the right of a landlord’s insurer to advance a subrogated claim against a tenant. Here, Madam Justice Ruth E. Mesbur held that the landlord’s insurer was entitled to proceed with the subrogated claim, even though payment of the premiums had come, in part, [...

Judge Applies “But For” in Slip and Fall Case

Posted on August 06, 2008
In Cartner v. Burlington (City), a recent slip and fall action, Mr. Justice Michael Quigley found for the plaintiffs. In doing so, he applied the “but for” test of causation that was endorsed by the Supreme COurt of Canada in Resurfice v. Hanke...

Judge Says Plaintiff Not Required to Pursue Claim Against Tortfeasor As Condition of Accessing Uninsured Motorist Coverage

Posted on July 30, 2008
Ontario auto insurers might be surprised to learn that the Insurance Act and the standard auto policy do not require persons claiming against the uninsured motorist coverage to pursue anyone whose negligence might have contributed to the plaintiff’s injuries or “to pursue anybody at all; they require that the insured person simply submit the claim to the insurer and the insurer [...

C.A. Adopts Broad Interpretation of “Subcontractor” in CGL “Your Work” Exclusion

Posted on July 18, 2008
This afternoon, the Court of Appeal released its decision in AXA Insurance v. Ani-Wall Concrete Forming. (We previously commented here on the decision of Perell J. from which the appeal was taken.) The issue in the case was whether Ani-Wall was entitled to indemnity from AXA, its liability insurer, in relation to a claim against Ani-Wall [...

Judge Says Offer Made “Without Prejudice” Not An Offer Under Rule 49

Posted on July 18, 2008
Roma Construction (Niagara) Ltd. v. Dykstra Bros. Roofing (1992) Limited was a dispute about roofing deficiencies. The plaintiff had served an offer to settle in a letter that was marked, “Without Prejudice”. The defendant had orally rejected the offer but, as the trial approached, more problems with roofs built by the defendant were discovered, potentially increasing the amount of [...

Divisional Court Reverses Order Striking Jury Notice Where Plaintiff A Muslim

Posted on July 18, 2008
In Kayhan v. Greve, the Divisional Court (Cunningham A.C.J., Stayshyn and Kiteley JJ.) considered whether the fact that the plaintiff in a personal injury action was a Muslim woman of Afghani descent was a sufficient basis to warrant striking the defendant’s jury notice...

Defendants Negligent in Fatal Diving Accident, But Plaintiffs’ Recovery Barred by Release

Posted on July 03, 2008
We have been aware since June 9 of the release of the decision in Isildar v. Kanata Dive Supply, however the reasons have only now become available on CanLII.  They’re 250 pages long though, so perhaps it’s taken CanLII’s editors until now to digest them...

C.A.: “Don’t Let Sleeping Judges Lie”

Posted on June 12, 2008
In Leader Media Productions v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, the Court of Appeal confronted an issue that a number of lawyers of our acquaintance (including some in our office) have encountered: what to do when the trial judge falls asleep? This case involved an appeal from a decision of Mr...

C.A. Says s. 21(1) of Limitations Act, 2002 No Longer Permits Addition of Parties After Expiry of Limitation Period, Regardless of Whether “Special Circumstances” Exist

Posted on June 12, 2008
Today, the Court of Appeal released two decisions which address the problem of whether a limitation period can be extended on the basis of “special circumstances” when commencing proceedings or adding defendants to existing proceedings. The answer is a qualified “no”...

S.C.C. Upholds Dismissal of “Fly in Bottle” Case, Saying Law of Negligence Is Not Insurance

Posted on May 22, 2008
In a unanimous decision, the Supreme Court of Canada today dismissed the plaintiff’s appeal in Mustapha v. Culligan of Canada Limited and upheld the Ontario Court of Appeal’s dismissal of the action. The plaintiff Mustapha had experienced a severe and very unusual psychological reaction to the sight of the remains of two flies in bottle of [...

Divisional Court Says Standard of Review on Appeal of Master’s Order is Housen v. Nikolaisen’s “Palpable and Overriding Error”

Posted on May 11, 2008
In an important, just-released decision, the Divisional Court has clarified the standard of review on appeals from orders made by masters. The court, composed of Justices Sidney N. Lederman, Katherine E. Swinton and Wailan Low, unanimously held that on an appeal from a master’s order, “the decision will be interfered with only if the master made an [...

Master Haberman Reminds Us That Pleadings Must Be of Material Facts

Posted on May 08, 2008
In Witten v. Bhardwaj, Master Joan Haberman of the Ontario Superior Court has usefully reviewed the law governing pleadings, particularly in motor vehicle negligence cases. Counsel for the plaintiff had moved to strike the following paragraphs from the statement of defence: 14...

First Bill 198 Decision Says Not Much Has Changed

Posted on May 02, 2008
Nissan v. McNamee.pdf Nissan v. McNamee is, so far as we know, the first decision to interpret the “gloss” on the Insurance Act threshold that was enacted by regulation O.Reg. 381/03 (the package of legislative changes commonly referred to as “Bill 198″)...

C.A. Says Trial Judge Applied Wrong Test in Determining Whether Injury “Serious” and “Permanent”

Posted on April 24, 2008
Brak v. Walsh is a short decision of the Court of Appeal (Justices Karen M. Weiler, Michael J. Moldaver and Russell G. Jurianz), on appeal from a ruling by Mr. Justice Gordon Killeen on a threshold motion brought at the end of trial. Justice Killeen had ruled in favour of the defence, that the plaintiff [...

Snow Removal Contractor’s Insurer Ordered to Defend Property Owner Under “Additional Insured” Endorsement

Posted on April 23, 2008
Riocan Real Estate Investment Trust (O&Y Properties Inc.) v. Lombard General Insurance Co. is a very interesting decision, just released, that deals with insurance coverage in “additional insured” situations. The ruling was made by Madam Justice Patricia C...

The “Surowiecki Ballot”: A Tool for Multi-Party Mediations

Posted on April 23, 2008
We came across this interesting article on the website for the International Risk Management Institute, Inc. (”IRMI”). It is entitled “A Tool for Multi-Party Insurance Litigation Mediation with ‘Additional Insureds’” and was written by Jeff Kichaven...

C.A. Dismisses Appeal in “Flying Ladder” Case

Posted on April 22, 2008
In CUMIS General Insurance Company v. 1319273 Ontario Ltd., the Court of Appeal was dealing with a coverage question involving a CGL policy. In the underlying action, the plaintiff motorcyclist had been seriously injured when a ladder flew off a truck and struck him...

Court Says Successful Threshold Defence Not to be Taken Into Account for Purposes of Costs

Posted on April 18, 2008
   In Dennie v. Hamilton, the defendants? solicitor probably thought that the trial had gone pretty well. In this MVA action, the plaintiff had claimed damages of about $1 million. At the end of an 11-day jury trial, in closing argument, counsel for the plaintiff asked the jury to award damages totalling about $405,000...

C.A. Upholds Record Personal Injury Damages Award

Posted on April 18, 2008
Sandhu v. Wellington Place Apartments was one of the largest personal injury damages awards in Canadian history. The Court of Appeal recently dismissed an appeal from the trial decision (other than disallowing most of a $350,000 costs premium). The award at trial was more than $17 million...

C.A. Says Damage to Building?s Foundation Not Part of General Contractor?s ?Work?

Posted on April 18, 2008
In York Region Condominium Corporation No. 772 v. Lombard Canada Ltd., the Court of Appeal rejected the appeal by Lombard from a judgment holding that its CGL policy covered a claim against its insured, a general contractor. The plaintiff condominium corporation had sued the contractor for damage caused to the foundation of the condominium building by [...

Court Refuses Summary Judgment in “Social Host” Claim

Posted on April 18, 2008
In Hamilton v. Kember (and another action), Mr. Justice John F. McGarry was dealing with a defence motion for summary judgment in two personal injury actions. The moving defendants were a young woman and her parents. In 2004, when the young woman (”Chelsie”) was a 17-year old high school student, her parents had agreed to let her [...

Court Ignores Past Collateral Benefits in Evaluating Rule 49 Offer

Posted on April 18, 2008
Bad news for insurers. In Ksiazek v. Newport Leasing Limited, Mr. Justice C. Raymond Harris extended the application of the Court of Appeal’s decision in Rider v. Dydyk and ruled that a defendant’s offer to settle should be compared with the gross damages awarded to the plaintiff, with no reduction for statutory accident benefits that [...

Judge Says Special Circumstances Power Still Exists

Posted on April 18, 2008
Well, it’s finally happened. In Toneguzzo v. Corner, a Superior Court judge has come out and concluded that the enactment of s. 21(1) of the Limitations Act, 2002 has not done away with the court’s discretionary power to add parties after the expiry of a limitation period in “special circumstances”...

C.A. Upholds Big SABS Judgment

Posted on April 17, 2008
This week, the Court of Appeal released its ruling in Monks v. ING Insurance Company of Canada. This was a claim for statutory accident benefits brought by, ironically, a woman who, prior to her injury, had worked in the insurance industry. At the 2005 trial, Mr...

Divisional Court Rules Polygraph Evidence Inadmissible in Civil Suit

Posted on March 27, 2008
In Petti v. George Coppel Jewellers Ltd., Mr. Justice Joseph W. Quinn, sitting as a judge of the Divisional Court, ordered a new trial of a Small Claims Court action, where the Deputy Judge had decided the case, in part, by relying on the results of polygraph or “lie-detector” testing of both parties...

Civil Suit Barred by Findings at Criminal Trial (Even Though Plaintiffs Did Not Participate)

Posted on March 27, 2008
Polgrain Estate v. The Toronto East General Hospital, a decision of Mr. Justice Thomas R. Lederer, considered the question of whether findings made at the trial of a sexual assault charge should preclude a civil suit arising out of the same incident. His Honour concluded that it would be an abuse of process to permit [...

In Willoughby v.Weber, Madam Justice

Posted on March 24, 2008
In Willoughby v.Weber, Madam Justice Beth Anna Allen decided a Rule 21 motion involving the recurring problem of the same plaintiff being injured in multiple accidents. The motion sought the dismissal of a third party claim. Justice Allen granted the motion...

Former Negligence Act Limitation Period for Claim Over Applies to 2008 Claim Arising Out of 2001 MVA

Posted on March 24, 2008
In Davey v. Davey, Mr. Justice Dougald R. McDermid was dealing with a motion to amend the statement of claim in a motor vehicle case. The plaintiffs in one of two actions that had been ordered to be tried together moved to increase the general damages from $5 million to $20 million and the special [...

Action Against Insurer Pursuant to Uninsured Motorist Coverage Can Proceed Where Vehicle Driven Without Consent

Posted on March 24, 2008
In this case, Allianz Insurance was unsuccessful in its motion for summary judgment, dismissing a claim under its uninsured motorist coverage. In George v. George, the plaintiff rented a car from the defendant Enterprise-Rent-A-Car. He purchased insurance that included uninsured motorist coverage in a policy issued by the defendant Allianz Canada...

Judge Says It’s “Clear” that Limitations Act, 2002 Has Removed Discretion to Provide Relief from Limitation Periods

Posted on March 24, 2008
Although the issue seems to be far from settled in the minds of some judges, Mr. Justice C. Stephen Glithero made the following unequivocal statement in Hughes v. Kennedy Automation Limited about the effect of s. 21(1) of the Limitations Act, 2002: It is also clear that the enactment of the Limitations Act, 2002 removed any [...

Court Agrees that Limitation Period for Pre-2004 Loss Transfer Claim is Six Years

Posted on March 24, 2008
In Lloyd’s Underwriters v. The Dominion of Canada General Insurance Company, Mr. Justice George Strathy upheld a ruling by arbitrator Bruce Robinson, who had determined that the limitation period for a “loss transfer” claim under s. 275 of the Insurance Act was six years...

Summary Judgment Granted in Medical Malpractice Case Where Plaintiff Fails to File Affidavits of Experts

Posted on March 24, 2008
In Suwary v. Women’s College Hospital, Mr. Justice George R. Strathy was dealing with a defence motion for summary judgment in a medical malpractice case. The key issue in the action was informed consent in relation to one of the defendant doctors (as it had been conceded by the plaintiff that summary judgment should issue [...

Divisional Court Slams Motions Judge’s Failure to Give Reasons

Posted on March 24, 2008
The Divisional Court strongly criticized another judge of the Superior Court, Mr. Justice James H. Clarke, for having dismissed a motion for leave to appeal in the following words: “Leave to appeal denied. Costs reserved to trial judge.” In MCAP Service Corporation v...

Court Finds Six-year Limitation Period Applies Where Accident Caused by Truck’s Tailgate Mechanism

Posted on March 24, 2008
The decision in Longley v. General Motors of Canada will only be relevant for a few more years, but it might be important until then. In this ruling by Mr. Justice Joseph R. Henderson, the issue was whether an action was prescribed by the two-year limitation period formerly set out in s...

Must Insurer Maintain “Firewall” Between Tort and No-Fault Claims?

Posted on March 24, 2008
In Trecartin v. Pilot Insurance Company, Mr. Justice George T. Valin considered the position of an insurer defending both a tort action and an accident benefits claim brought by the same plaintiff. In the no-fault action, the insurer, Pilot Insurance, was seeking an order permitting it to conduct three independent medical examinations...

Divisional Court Orders New Trial After “Offensive” Jury Address of Defence Counsel

Posted on March 04, 2008
  In Abdallah v. Snopek, the Divisional Court, by a margin of 2-1, ordered a new trial of a personal injury action arising out of a motor vehicle accident. The decision opened with the often-quoted words, “[a] jury trial is a fight and not an afternoon tea”...

Master MacLeod Proposes Guidelines for Solicitors’ Affidavits

Posted on March 02, 2008
Mapletoft v. Service.pdf In Mapletoft v. Service, Case Management Master Calum MacLeod decided a motion for summary judgment in a motor vehicle case. The defendant argued that the action had been commenced after the expiry of the limitation period. Our office opposed the motion, acting on behalf of the insurer of the plaintiff’s former solicitor...

Power J. Rejects Insurer’s Constitutional Challenge to Court’s Power to Dismiss Civil Juries

Posted on March 02, 2008
In Legroulx v. Pitre, Mr. Justice Denis Power had to consider whether Rule 47.07 of the Rules of Civil Procedure, which permit a court to strike a jury notice on the ground that the action ought to be tried without a jury, contravenes the Canadian Charter of Rights and Freedoms...

C.A. Rejects Insurer’s Interpretation of “Anti-concurrent causation” clause

Posted on March 02, 2008
In Appin Realty Corporation Limited v. Economical Mutual Insurance Company, the Court of Appeal upheld the decision of Mr. Justice Stanley Kershman, which was the subject of an earlier post on this site. Our firm acted for the successful respondent, Appin Realty...

Plaintiff Severely Injured in Two Accidents Can?t Recover Aggregate Non-pecuniary Damages in Excess of S.C.C. ?Cap?

Posted on March 02, 2008
Broadbent v. Greater Toronto Transit Authority is another case involving a plaintiff injured in multiple accidents. Mr. Justice Moore had to deal with several interesting issues. He discussed the appropriate way to approach the assessment of damages in cases involving multiple accidents...

Thunder Bay Judges Don’t Want to See Pyramids

Posted on January 21, 2008
There’s something afoot among the judges in Thunder Bay. Madam Justice Helen Pierce and Mr. Justice George Smith, colleagues on the Superior Court in that city, have both released rulings in which they have complained about what they call “pyramid billing”...

Court Declines to Award Substantial Indemnity Costs Where Successful Defendant Had Offered Dismissal Without Costs

Posted on January 21, 2008
In Crete v. Carleton Condominium Corporation #47, Madam Justice Giovanna Toscano Roccamo delivered very comprehensive costs reasons following a trial by jury in which the plaintiff’s action had been dismissed. The decision is instructive with respect to several aspects of the law of costs...

C.A. Finds that Award for Loss of Competitive Advantage Does Not Attract Prejudgment Interest

Posted on January 17, 2008
In our February 2, 2007 post about Cerilli v. City of Ottawa, we noted that the trial judge had awarded prejudgment interest on damages for loss of competitive advantage. We noted that in at least one other case, the trial judge had taken a different approach and had not allowed interest on that head of [...

Court Reverses Master’s Finding of “Special Circumstances” (But No Mention of s. 21(1) of Limitations Act, 2002)

Posted on January 10, 2008
Regular readers will remember numerous prior posts in which we have puzzled over the fact that despite the 2004 enactment of the Limitations Act, 2002, so many cases are still being argued on the basis of the common law power to add parties after the expiry of a limitation period, where ”special circumstances” are found to exist...

Judge Upholds Master’s Refusal to Order Plaintiff To Undergo IME Involving “Adjunctive Testing”

Posted on January 10, 2008
Scissons v. Lajoie is scheduled to go to trial on May 12, 2008. The action, arising out of a 1999 MVA, has apparently had a long and somewhat tortured life, having been administratively dismissed twice. The amount claimed exceeds the defence policy limits...

Court Orders Home Insurer to Defend Claim Arising Out of ATV Accident

Posted on January 10, 2008
In Economical Insurance Group v. Fleming, Mr. Justice Keith A. Hoilett heard an application brought by Economical Mutual Insurance, for a declaration that it owed no duty to defend its insureds against a claim brought on behalf of a teenaged girl who had been injured at their cottage while driving an all-terrain vehicle (”ATV”)...

Judge Says, “Plaintiff’s Evidence Is Not Credible” But Awards $400,000 for Loss of Competitive Advantage

Posted on January 10, 2008
In a decision that will alarm insurance companies, Mr. Justice Bernard Manton has awarded damages of $400,000 for loss of competitive advantage to a plaintiff who was injured in an accident at a Home Depot store. This award is more than twice as much as the highest previous assessment we’ve seen for loss of competitive advantage...

Important Ruling on Litigation Privilege

Posted on December 18, 2007
In what appears to have been a longstanding battle between Coseco Insurance Company and one of its insureds, Mr. Justice John Macdonald has released an important decision on the issue of litigation privilege. He dismissed the insurer’s appeal from a master’s decision, requiring Coseco to produce a portion of its claims file in litigation relating to [...

Cheifetz Comments on “Joint Tortfeasors” vs. “Concurrent Tortfeasors” Who Are Jointly Liable

Posted on December 17, 2007
David Cheifetz, author of the well-known text, Apportionment of Fault in Tort and of numerous articles in legal journals, is a frequent commentator about posts on this site. Today, he sent us a comment about the recent decision of the Court of Appeal in Hockley v...

C.A. Says “No” to Risk Premiums in Costs

Posted on December 14, 2007
The Court of Appeal today released its decision in Ward v. The Manufacturers’ Life Insurance Company. We are familiar with this case because local lawyers Eric R. Williams and Jaye E. Hooper, who acted for the plaintiff Ward, won at trial before Ottawa judge Mr...

C.A. Overturns Summary Judgment Against Lessor of Car Being Operated by Unlicensed, Drunk Driver

Posted on December 14, 2007
In Henwood v. Coburn, the Court of Appeal today overturned the summary judgment that had been granted by Mr. Justice Barry MacDougall back in 2006 (see our post about the decision appealed from). In this case, a company had leased a car for the use of one of its salesmen (Henwood)...

Court Refuses to Extend 90-day Period for Notice of Accident Benefits Priority Dispute

Posted on December 14, 2007
Liberty Mutual Insurance Company v. Zurich Insurance Company involved an accident benefits “priority” dispute between two auto insurers. A claim for benefits had been submitted to Liberty on behalf of a 13-year old boy who had been struck by a car while riding his bicycle...

Costs of $177,950 for Occupier’s Liability Damages Award of $177,373

Posted on December 14, 2007
In Singer v. Hamilton, Mr. Justice William J. Festereyga had to assess costs following the 15-day trial of an occupier’s liability case. He had assessed damages and interest at $177,373.55. His decision reaffirms that even awards of substantial indemnity costs are subject to the litmus test of “reasonableness”...