International Law

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 [...

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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...

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