RP Blog
Procedure for Opposed Short Motions in Toronto During COVID-19
In Mann v. Chack-Wai, 2020 ONSC 3428, Justice Myers considered the first opposed short motion in writing under the Toronto Region Notice to the Profession, dated May 13, 2020. Justice Myers described the procedure for such motions. Parties who seek to bring a short opposed motion or application must fileRead More
Bifurcated Trial, Bifurcated Offers, and Bifurcated Costs
By Erin Crochetière In a recent costs decision in Blaese v. Metcalfe, 2020 ONSC 3432, the Court dealt with some interesting issues regarding offers to settle in the context of bifurcated trials. The parties in the action agreed to bifurcate the issues of liability and damages, and a trial onRead More
Jurisdiction of Court of Appeal to Order Appeals to be Heard in Writing
In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, Justice Roberts held that the Court of Appeal has jurisdiction to order a civil appeal to be heard in writing, regardless of whether one of the parties objects. Justice Roberts noted that the Court of Appeal has broad implicitRead More
The Two Types of Set-Off
In Mujtaba v. Yasin, 2020 ONSC 2554, Justice Emery addressed the two types of set-off: legal set-off and equitable set-off. Legal set-off is provided for in section 111 of the Courts of Justice Act, which states: “in an action for payment of a debt, the defendant may, by way of defence,Read More
Fridays With Rogers Partners
David Rogers led a seminar on productions this morning at our firm’s weekly meeting. The court’s decision in SecurityInChina International Corp. v. Bank of Montreal, 2019 ONSC 7183, provides an excellent summary of production requirements. Justice Mitchell outlined the following principles: [8] Rule 30.06 requires production of every document relevant to any matterRead More
Joint Liability and the Nature of Subrogation under the OPCF 44R
By Emily Vereshchak The Court of Appeal has released a new and detailed decision in Tuffnail v. Meekes, 2020 ONCA 340, which addresses issues related to underinsured automobile coverage.[1]. The decision was written by Associate Chief Justice Hoy, who was joined by Justice Doherty and Associate Chief Justice Marrocco (adRead More
Alon Barda Discusses Limitation Periods at the LAT
Alon Barda was recently featured in a two-part series in The Lawyer’s Daily called “Uncertainty surrounding extension of limitation periods at LAT”. Part 1 Part 2Read More
Security for Costs in Frivolous and Vexatious Actions
In Rebello v. Paragon Security et al, 2020 ONSC 2303, the court considered the test for ordering a plaintiff to pay security for costs when an action may be frivolous and vexatious. The Test Rule 56.01(1)(e) states that, on a motion by a defendant or a respondent in a proceeding,Read More
Matthew Umbrio Called to the Bar
Congratulations to Matthew Umbrio on his call to the Ontario Bar last week! Matthew had a very successful articling term, and we’re delighted to welcome him back to the firm as an associate lawyer.Read More
Apportionment of Costs Based on Insurance Policy Limits
The decision in Hummel v. Jantzi, 2020 ONSC 3052, dealt with the apportionment of costs between defendants following a trial. The action arose out of a motor vehicle accident. The trial judge, Justice G.E. Taylor, found the defendant driver to be 80% liable and the defendant tavern to be 20% liable. Read More
Fridays With Rogers Partners
This morning, at our weekly firm meeting, Ankita Abraham discussed the case of Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, a decision addressing the fundamental obligation to disclose and produce relevant documents and the principles guiding the exercise of a court’s discretion toRead More
Virtual Hearings Likely Here to Stay
In the recent decision of Scaffidi-Argentina v. Tega Homes Developments Inc, 2020 ONSC 3232, Justice MacLeod said that “virtual hearings are likely to retain a permanent place in the judicial tool box”. However, His Honour noted there will be difficulties with conducting many trials by videoconference. It is much easierRead More
The Latest on Virtual Commissioning
By Colleen Mackeigan Justice MacLeod in Rabbat et al. v. Nadon et al, 2020 ONSC 2933, confirmed the legitimacy of virtual commissioning of affidavits. In Rabbat, a case conference was held virtually in light of the current suspension of in-court appearances due to COVID-19, to establish a timetable leading upRead More
Civility in the Courtroom
The recent decision in Stepita v. Dibble, 2020 ONSC 3041, demonstrates the importance of civility in the courtroom. Justice Ferguson stated, “It is expected that parties to litigation will disagree about the issues. It is expected that they will make vigorous, fulsome arguments as to the substance of the mattersRead More
Court Calls for Understanding and Empathy
A recent decision of Justice Myers stresses that cooperation between counsel and parties is essential during this period of emergency caused by COVID-19. In Campbell v. 1493951 Ontario Inc., 2020 ONSC 2942, Justice Myers stated, “The court calls on counsel and the parties to recognize the need for and theRead More
Fridays With Rogers Partners
At our weekly meeting this morning, Ankita Abraham discussed the case of Deschenes v. Lalonde, 2020 ONCA 304, an appeal from a judgment rescinding and setting aside a settlement agreement. The plaintiff sued a priest who allegedly sexually assaulted her in the early 1970s. The plaintiff also sued the Roman CatholicRead More
Rights, remedies between primary and excess insurers
Stephen Ross and Erin Crochetière were recently featured in a three-part series in The Lawyer’s Daily on “Rights, remedies between primary and excess insurers”. Stephen and Erin provide an in-depth look at the nature and scope of the duties owed between primary and excess insurers from a Canadian perspective, includingRead More
Tea Time Gone Wrong: Spilled Tea in Car Not an Automobile Accident
By Carol-Anne Wyseman In M.P. v. Allstate Insurance Company of Canada,[1] a recently released preliminary issue decision of the Licence Appeal Tribunal (the “LAT”), the LAT considered the definition of “accident” in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “SABS”). Subsection 3(1) ofRead More
Superior Court Issues Updated Notice to the Profession
The Ontario Superior Court of Justice has provided a further Notice to the Profession which is effective today, May 19, 2020. The main points are: The Court will not resume in-person hearings of any matters until July 6, 2020 at the earliest. However, it will continue to hear certain mattersRead More
Fridays With Rogers Partners
At this morning’s muffin meeting, we discussed a case involving a plaintiff’s request for CCTV footage and a case regarding a dispute on the terms of an agreement on the assignment of benefits in a tort action Pre-Examination Production Motion Matthew Umbrio addressed the case of Dale v. Attorney GeneralRead More
Assumption of Defence: Seven Points to Consider
By Andrew Yolles A co-defendant has offered to “assume” or take over your client’s defence in a lawsuit. Great! But before you agree, there are some important points to consider to ensure your client is properly protected in the future. #1: Why are they assuming your client’s defence? The firstRead More
Coverage Under Homeowner’s Policy for Automobile-Related Incident: SCC Denies Leave
The Supreme Court of Canada recently denied leave to appeal in a case wherein it was found that an insured was entitled to be defended under both an auto policy and a homeowner’s policy for an auto-related incident. We previously provided the following summary of the issues involved. The caseRead More
Test for Further Discovery After Setting Action Down for Trial
A party who sets an action down for trial or consents to an action being placed on a trial list is generally not permitted to conduct an examination for discovery of an opposing party. Leave of the court is required under rule 48.04(1) of the Rules of Civil Procedure, unless theRead More
Gemma Healy-Murphy in The Lawyer’s Daily
Gemma Healy-Murphy’s article called “Being a reasonable parent: What does it mean?” was recently published in The Lawyer’s Daily. Gemma says, “Now, we all strive to be the ‘perfect’ parent, whatever that may be. But fear not, while you may hold yourself to this impossibly high standard, the court doesRead More
Fridays With Rogers Partners
At our weekly meeting by videoconference, we discussed a case involving whether the plaintiff met the statutory threshold and a case involving the limitation period in a disability benefits claim. Threshold Not Met Ankita Abraham went over the case of McNamee v. Oickle, 2020 ONSC 2371, a decision addressing theRead More
Errors on “Incurred” Expenses: New Trial Ordered in SABS Claim
By Alon Barda and Modasir Rajabali In the recently released case of Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, the Court of Appeal dealt with the central issue of whether the trial judge erred in holding that the respondent, Ms. Pucci, was entitled to payment of housekeepingRead More
Discovery Ordered to Proceed by Videoconference or Not at All
“It’s 2020…We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back”. These were the comments of Justice Myers in Arconti v. Smith, 2020 ONSC 2782. The plaintiffs objected to conducting an examinationRead More
Timely Justice Key Factor in Dismissal for Delay
In American Environmental Container Corp. v. Kennedy, 2020 ONSC 1662, the plaintiffs’ action was dismissed for delay at a status hearing. The action was commenced in July 2014. There was activity in the case for the first two years of the action. However, there was thereafter a 30 month period in whichRead More
Principles from $2.7 Million Costs Award
In Fram Elgin Mills 90 Inc. v. Romandale Farms Limited et al, 2020 ONSC 1621, the defendant was awarded costs of $2.7 million following a 13 day trial in an action that spanned 12 years. The following principles emerge from the decision: The quantum of costs should reflect an amountRead More
Fridays With Rogers Partners
This morning, at our muffin meeting by videoconference, we discussed a Court of Appeal decision regarding a dispute over whether an insurer was required to pay benefits that were not incurred. We also discussed a Superior Court decision which granted an injunction to nurses at long-term care facilities to beRead More
Plaintiff Who Collapses at Trial Responsible for Costs Thrown Away
By Rebecca Moore Will costs thrown away be awarded when the health of a party necessitated the adjournment of a trial? This was one of the issues examined by Justice Fowler Byrne in Syed v. Petrie, 2020 ONSC 2513 (CanLII). Background This matter proceeded to trial during the January 2020Read More
Four Expert Issues From Trial
In Sit v. Trillium Health Centre, 2020 ONSC 2458, Justice Trimble addressed several issues related to expert evidence at trials. Expert Report as an Aide Memoire Justice Trimble confirmed that, unless a medical report is tendered as a medical expert’s evidence-in-chief in place of oral testimony, the report has noRead More
Ontario Court of Appeal Addresses Important Trial Practice Issues
By Brian Sunohara In Girao v. Cunningham, 2020 ONCA 260, the Ontario Court of Appeal addressed several important issues regarding trials, particularly in personal injury actions. These issues include the use of joint document books; introducing evidence of participant experts and non-party experts; the distinction between section 35 and sectionRead More
Fridays With Rogers Partners
This morning, Logan Cooper of Cooper Mediation presented us with an engaging webinar on mediation strategies. Logan has written a comprehensive and very helpful article called “Getting the Most Out of Your Mediation“. The article addresses the following topics: Setting Up Your Mediation Picking Your Mediator Preparing For Mediation: CaseRead More
SCC Grants Leave in Ontario Insurance Dispute
The Supreme Court of Canada granted leave to appeal today in a case that could have important implications on the issues of waiver and estoppel in insurance disputes, including the extent to which insurers have to conduct investigations in a timely manner to examine potential coverage violations. It is rareRead More
Can a Dog Owner Be Liable to a Dog Walker?
By Brian Sunohara Dog walking services have become fairly common in recent years. When dog owners are away from home, they do not want their dogs to be trapped inside all day. For extended periods away from home, dog owners will sometimes send their dogs to dog camps or boardingRead More
Update on Suspension of Civil Jury Trials
In a Notice of the Profession released yesterday, the Ontario Superior Court of Justice announced that it will not be hearing any civil jury trials until September 2020 at the earliest. The Court will provide a further update in early May. Each region of the Court will consider how itRead More
Final Transition from FSCO to LAT in Accident Benefits Disputes
Statutory accident benefits disputes that were commenced at the Financial Services Commission of Ontario (“FSCO”) will be extinguished on July 1, 2020. This applies to mediations, arbitrations, appeals, and applications for a variation or revocation of an order. If, on July 1, 2020, an order has yet to be issued inRead More
Insurance Policy vs. Insurance Contract
In Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222, the Ontario Court of Appeal stated that, although the words “insurance policy” and “insurance contract” are often used interchangeably, there are important distinctions, and conflating the two can cause considerable confusion. No legal obligations are created by the mereRead More
Fridays With Rogers Partners
At this morning’s muffin meeting by videoconference, we discussed a decision regarding the limitation period for third party claims and a decision involving approval of the discontinuance of a class action. Third Party Claim Commenced Too Late Ankita Abraham addressed the case of London Transit Commission v. Eaton Industries (Canada)Read More
Charter Breaches Against G20 Protester Lead to $500 in Damages
By Brian Sunohara In a decision released by the Ontario Court of Appeal today, one of the issues was the quantum of damages available to a plaintiff when there is a breach of the Canadian Charter of Rights and Freedoms. The decision shows that damages are usually minimal. Background InRead More
A Caution on Misnomer
By Meryl Rodrigues The doctrine of misnomer seems, more often than not, to be quite generously applied to permit litigants to add (or, more accurately, “substitute”) parties to an action, generally well after the expiry of the presumptive two year limitation period. The doctrine permits the amendment of a pleadingRead More
Offer of Without Costs Dismissal: Defendant Did Not Play Hardball
By Brian Sunohara Defendants and insurers are sometimes criticized if they refuse to offer a monetary amount to settle an action. However, a recent court decision shows that they should not fear doing so if their position is supportable. In Mundinger v. Ashton, 2020 ONSC 2024, Justice Charney referred toRead More
Happy Long Weekend
All of us at Rogers Partners wish you a healthy, safe, and happy long weekend. Our thoughts are with everyone who has been affected by the COVID-19 pandemic. We’ll all pull through this together.Read More
Failure to Attend Insurer’s Exams Fatal to SABS Claim
In A.U. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-000276/AABS, the insurer denied a treatment plan for a chronic pain assessment and gave notice to the claimant to attend in-person assessments to determine if the denied treatment plan was reasonable and necessary. The claimant did not attend the assessments. Her counsel advised theRead More
The Rights of Action of an Unborn Child
By Gemma Healy-Murphy While a “wrongful life” claim is a novel question of law, it is certainly not a rare one. Such a claim has been examined by the Canadian courts on several occasions and, most recently, by the Ontario Superior Court of Justice in Florence v. Benzaquen[1]. What isRead More
Two Key Points on Offers to Settle
Take an instance where defence counsel e-mails plaintiff’s counsel with a settlement offer of, say, $200,000 plus costs. The plaintiff’s lawyer e-mails back to reject the offer and to make a counter-offer. The defendant’s lawyer subsequently obtains surveillance which completely undermines the plaintiff’s case. The surveillance is sent to theRead More
Guidance on Scheduling Urgent Court Matters During COVID-19
In Wang v. 2426483 Ontario Limited, 2020 ONSC 2040, Justice Myers provided instructions related to the scheduling of urgent court matters during the COVID-19 pandemic. His Honour implored parties and counsel to stop clogging up the Motion Coordinator’s email. Justice Myers stated that counsel should not provide detailed submissions on theRead More
Establishing Jurisdiction Through E-Commerce
By Brian Sunohara For many years now, consumer transactions have been conducted over the Internet, sometimes with companies in faraway places. With the prevalence of e-commerce, more and more questions are arising over whether a business which has no physical presence in a jurisdiction can be sued in that jurisdiction, ifRead More
Lawyers Included in Updated List of Essential Workplaces
The Ontario government updated its list of essential workplaces yesterday in response to COVID-19. Section 34(vii) of the list is for “professional and social services that support the legal and justice system”. The Attorney General of Ontario confirmed on Twitter that lawyers and paralegals are included within the category ofRead More
Fridays With Rogers Partners
Our firm is regularly keeping in touch with each other by videoconference. We had our usual Friday “muffin meeting” this morning, and all of our lawyers and students participated. Along with having a group chat on the best ways to use videoconferencing for mediations and discoveries, we discussed a decisionRead More
Superior Court of Justice Announces Expanded Operations
In a further Notice to the Profession released today, the Ontario Superior Court of Justice advised that it is expanding its operations beyond just urgent hearings, effective April 6, 2020, allowing for some additional matters to be heard remotely. The first stage of this expansion is fairly limited for civilRead More
Broad Findings of Systemic Negligence and Institutional Abuse
In an article entitled “Broad Findings of Systemic Negligence and Institutional Abuse“, David Rogers and Andrew Yolles discuss a recent trial judgment in which the trial judge found a boarding school to be liable to students for imposing an unreasonable and abusive lifestyle. The school followed the principles and idealsRead More
Alon Barda in Ontario Accident Benefit Case Summaries
An article by Alon Barda called “Surprising Special Award Against Insurer” has received a lot of attention. It has most recently been published in a leading industry resource, Ontario Accident Benefit Case Summaries.Read More
COVID-19 and Contracts: Remedies for Non-Performance of Contractual Obligations
By Erin Crochetière In light of current social distancing measures, the shut down of non-essential businesses, and other government-imposed measures in response to the COVID-19 outbreak, many business and commercial activities have been disrupted and, in some cases, entirely halted. Due to the various constraints on normal business operations, willRead More
Concurrent Duty to Defend and Control of the Defence
By Brian Sunohara The Ontario Court of Appeal released an important insurance coverage decision today in Markham (City) v. AIG Insurance Company of Canada, 2020 ONCA 239. The decision addresses a common situation where an insured has its own insurance policy and is also an additional insured on another policy. Read More
Rights and Remedies Between Primary and Excess Insurers
Stephen Ross and Erin Crochetière have written a comprehensive article called “Rights and Remedies Between Primary and Excess Insurers“. The article examines the nature and scope of the duties owed between primary and excess insurers from a Canadian perspective, including a consideration of common issues that arise when multiple layersRead More
From the Desk of Gemma Healy-Murphy
What Does it Mean to be a “Reasonable” Parent? I sit at my desk to write this piece after having spent my week watching over the every move of my son and daughter. While my husband and I have been working from home, we have been switching hats between lawyer,Read More
Fridays With Rogers Partners
Our lawyers and students meet each Friday in our boardroom for a “muffin meeting”, wherein we discuss new developments in the law and practice management issues. Times are different now due to COVID-19, so we had our first ever muffin meeting by videoconference this morning, and it went very well!Read More
What Civil Matters Will the Court Hear During COVID-19?
In a Notice to the Profession, the Ontario Superior Court of Justice has advised that, during the COVID-19 pandemic, it will hear the following civil matters: urgent and time-sensitive motions and applications, where immediate and significant financial repercussions may result if there is no judicial hearing; and outstanding warrants issuedRead More
Case Dismissed for Delay
By Ankita Abraham, Student-at-Law The court’s decision in Levant v. Gilbert Studios Limited, 2020 ONSC 1528, provides a summary of the test for dismissing an action for delay. The defendant brought a motion to dismiss the plaintiff’s action under rule 24.01(1)(c) of the Rules of Civil Procedure , on theRead More
Practicing Law and Social Distancing: Time to Get Creative
By Emily Vereshchak As lawyers, we are accustomed to adapting to change. Whether it is a new take on an old common law principle or the introduction of a divisive piece of legislation, lawyers must keep pace with the law as it transforms alongside society. However, these changes are oftenRead More
In|Sight – Spring 2020 Newsletter
Our associates and students have worked hard on contributing to our Spring 2020 Newsletter while working remotely during the COVID-19 pandemic. We hope you find the following articles to be of interest: 1. The Third Time is a Charm; or is it? 2. Relevancy of Reserves: Kanani v. Economical Insurance 3. Rights and RemediesRead More
“Operation” of Vehicle and the Per Quod Doctrine
By Micah Pirk O’Connell, Student-at-Law In Faltas v. Macerollo, 2020 ONSC 1450, the defendants brought a summary judgment motion to dismiss the claims of the plaintiff, Mr. Faltas, and Royal Arts Pharmaceutical Inc., the company he worked for. Facts Mr. Faltas’ Lincoln was stopped in the outside lane of aRead More
Suspension of Limitation Periods Due to State of Emergency
The Ontario Bar Association has advised that the Province of Ontario has suspended limitation periods, retroactive to March 16, 2020. The suspension will stay in place for the duration of the Province’s state of emergency declaration. Other timelines are also suspended, but this is subject to the discretion of theRead More
Fridays With Rogers Partners
Trial judges are required to provide reasons that inform the parties, the appellate court, and the public of the result of the case and how the judge reached his or her conclusion. In an appeal, it is difficult to successfully argue that a judge provided inadequate reasons. For example, inRead More
Mo Rajabali in The Lawyer’s Daily
An article written by Mo Rajabali has been published in The Lawyer’s Daily. The article is called “Relief from forfeiture in context of recoverable depreciation“. Mo addresses a Court of Appeal decision involving a dispute over whether an insurer had to pay its insured $3 million in depreciation costs followingRead More
Fridays With Rogers Partners
At this morning’s muffin meeting, we discussed a duty to defend application and a dispute over the repayment of a litigation loan. Duty to Defend Application Matthew Umbrio addressed the case of Lincoln (Town of) v. AIG Insurance Co. of Canada, 2020 ONSC 1456. The matter involved an application byRead More
Juror’s Improper Internet Search
By Carol-Anne Wyseman How frequently do jurors conduct their own research of the issues involved in a trial, despite being instructed to not do so? We will never fully know the answer to this. As the Ontario Court of Appeal’s decision in Patterson v. Peladeau, 2020 ONCA 137, shows, improperRead More
Priority Dispute: Parents Not Dependants of Children
By Micah Pirk O’Connell, Student-at-Law The case of The Economical Insurance Group v. Desjardins Insurance, 2020 ONSC 1363, concerned a priority dispute between Economical and Desjardins regarding an elderly couple who suffered catastrophic injuries as pedestrians when they were hit by a motor vehicle. Economical sought to set aside theRead More
Upcoming LAT Conference With Kevin Adams and Alon Barda
Kevin Adams and Alon Barda will be involved in The Advocates’ Society’s program on Licence Appeal Tribunal Advocacy. The program is on April 8, 2020 in Toronto. Kevin is a co-chair and Alon will be a speaker. Kevin and Alon have extensive experience in handling accident benefits claims. For registration details, click here. *Update:Read More
The Test for Misnomer
The court’s decision in Sora et al v. Emerson Electrical Co. et al, 2020 ONSC 1374, provides a summary of the applicable principles when a plaintiff attempts to substitute a defendant into an action based on misnomer. Justice Corkery referred to a previous decision, which stated as follows: When aRead More
Fridays With Rogers Partners
At our muffin meeting this morning, we discussed a case wherein the defendants sought production of the plaintiffs’ lawyers’ files based on an alleged waiver of privilege. We also went over a costs decision following a trial. Motion for Lawyers’ Files Ankita Abraham discussed the case of Joshi v. Chada,Read More
When Can Police Officers Be Negligent For Laying Charges?
By Andrew Yolles In the interesting decision in Drury v. Cornish, 2020 ONSC 1173, Justice Barnes, writing for the Divisional Court, explored the applicable standard of care for a claim against police in negligent investigation. The plaintiff, Philip Cornish, a criminal defence lawyer, commenced a claim against the OPP andRead More
Summary Judgment Granted in Hotly Contested Construction Dispute